2 All] Babu Ram Vs.

Dayaram 521

APPELLATE JURISDICTION and consented to by the respondent-

CIVIL SIDE plaintiff cannot be re-opened.
DATED: LUCKNOW 28.05.2014
Case Law discussed:
BEFORE A.I.R.(38) 1951 Supreme Court 120; AIR 2011
THE HON'BLE ZAKI ULLAH KHAN, J. S.C. 1557; 2002 A.I.R. SCW 2686; 2013(13)
LCD 1593; 2003(2)SCC 355; 1968 2 SCWR
Second Appeal No. 55 of 1988 335; [2013(31)LCD 1593; AIR 1968 SC 1018.

Babu Ram... ... Appellant (Delivered by Hon'ble Zaki Ullah Khan, J.)
Versus
Daya Ram ...Respondent
1. The instant second appeal has
Counsel for the Petitioner: been preferred against the judgment and
Sri A.S. Chaudhary, Sri Ran Vijay Yadav decree dated 6.11.1987 passed by the II-
Additional Civil Judge, Faizabad,
Counsel for the Respondents: allowing Civil Appeal No.32 of 1987
Sri C.B. Verma, Sri Ajmal Khan, Sri Durga (Daya Ram Vs. Babu Ram). The First
Prasad Verma, Sri Vimal Yadav Appellate Court has allowed the appeal
preferred against the judgment and decree
C.P.C.-Section 100-Second Appeal- Suit for dated 13.1.1987 passed by Munsif Haveli,
partition-on allegation being copartionary Faizabad, bearing Civil Suit No.219 of
property-entitled for equal share-partition 1985. The trial court decreed the suit in
between family already became final-one
brother serving and maintaining the
part.
mother-given extra share towards services- 2. Learned counsel for the appellants
no denial of this fact lower appellate Court raised the substantial questions of law to
correctly set-a-side the findings of Trial
Court-appeal Allowed.
be decided by this Court. Substantial
questions of law raised by the learned
Held: Para-30 counsel for the appellants are as under :-
Thus legal position is now very clear that
the family partition on the basis of above
pronouncement of Hon'ble the Apex (a) Whether there can be a re-
Court cannot be re-opened. The father
partition of the joint property at the
was living with the appellant-defendant,
therefore, he was given an advantage in instance of a separated member of a
the share but nevertheless that will be Hindu co-parcenery ?
covered by the mutual settlement and
during his life time, the respondent-
(b) Whether the 'Iqrarnama' set up by
plaintiff did not utter a single word and a party could be read in evidence even
did not dispute the rights or claim of the though the same was not registered?
appellant-defendant. Even the suit filed
by the respondent-plaintiff before the
(c) Whether a separated son can
trial court was not in accordance with claim a share in the share of the father
the norms as he did not implead the who was living with his other son jointly
mother as party. Therefore, there can be since long before his death ?
no fresh division of the portion of the
parties in dwelling house which was (d) Whether in a partition suit all the
partitioned long back and such partition co-sharers should be impleaded ? In the
which has already been settled in past present case, the mother of the parties was
522 INDIAN LAW REPORTS ALLAHABAD SERIES

alive but was not impleaded as party, place because both the parties during trial
though definitely she had share. admitted that initially there was a partition
and respondent/plaintiff was allocated
(e) Whether there can be a fresh
share in north of the grove of the
division of the portions of the parties in a
appellant-defendant, which has been
dwelling house which was partitioned
marked in the Commissioner's map
long before ?
11C/2. The factual matrix is not to be
(f) Whether the suit for the portion of discussed here but the important question
a grove will be in civil court ? is that whether a second partition can take
3. Learned counsel for the appellants place. On the contrary, respondent-
argued that all the questions are very defendant was of the view that initial
material and these are substantial questions partition was not a partition as it was the
of law and the order passed by learned First ascertainment of share in the Hindu
Appellate Court suffers from gross illegality coparcenery between father and his two
and infirmity. The appellant was defendant sons and after the death of father the
in original suit no.219 of 1985, which was division of the remaining portion is must
decreed in part and partly it was dismissed. and from the share of father each of them
The trial court has partly decreed the suit will be given half share, therefore, the
regarding land which was allocated in previous partition, if any, will not hit the
defendant share, which has been matter. The second and third questions of
demarcated in the Commissioner's map law framed by the appellant will not
paper no.11C/2, which is in southern side of create hurdle in partition because the
the appellant-defendant grove and the appellant was taking care and looking
appellant was granted half of the share of after his father. The appellant has raised
the portion. The trial court has specifically fourth question i.e. mother is also co-
ordered that in southern portion of the sharer in the property of father but she
grove, the respondent/plaintiff has no share was not impleaded as party, therefore, the
and the suit was dismissed regarding that suit was bad for non-joinder of the
share. Aggrieved by the decree and order, necessary party and accordingly fresh
he preferred the civil appeal before the II- partition of the portion of dwelling house
Additional Civil Judge, Faizabad, and the cannot take place. Therefore, in all, there
II-Additional Civil Judge, Faizabad vide are only two debatable questions of law
order dated 6.11.1987 allowed the appeal involved, one relating to re-partition and
and set aside the order dated 13.1.1987 whether that agreement will cover the
passed by the lower court and he passed the separate share for father. There is also one
order that respondent/plaintiff shall be other question related to this query is that
allocated half of the share in the disputed whether there can be fresh division only
property and final decree be prepared regarding portion of dwelling house apart
accordingly. from previous partition. The second
important legal question is that when the
4. During the arguments before this respondent-plaintiff claimed before the
Court in the second appeal, most trial court that he wants a partition and he
important question is that whether a re- claimed regarding the share allocated to
partition of the joint property at the father then why the mother who was
instance of separated member can take living then was not impleaded as party ?
2 All] Babu Ram Vs. Dayaram 523

5. Learned counsel for the appellant- (3) Where, however a partition

defendant has cited judgment of Hon'ble effected between the members of the
the Apex Court in the case of Ratnam Hindu Undivided Family which consists
Chettiar and others v. S.M. Kuppuswami of minors is proved to be unjust and
Chettiar and others, reported in AIR 1976 unfair and is detrimental to the interests of
S.C. Page 1, in which Hon'ble the Apex the minors the partition can certainly be
Court has held as under : reopened whatever the length of time
when the partition took place. In such a
"A partition effected between the
case it is the duty of the Court to protect
members of Hindu Undivided Family by
and safeguard the interests of the minors
their own volition and with their consent
and the onus of proof that the partition
cannot be reopened, unless it is shown
was just and fair is on the party
that the same is obtained by fraud,
supporting the partition.
coercion, misrepresentation or undue
influence. In such a case the court should (4) Where there is a partition of
require a strict proof of facts because an immovable and movable properties but
act inter-vivos can not be lightly set the two transactions are distinct and
aside." separable or have taken place at different
times. If it is found that only one of these
transactions is unjust and unfair it is open
6. In para - 19 of the aforesaid case, to the Court to maintain the transaction
the Hon'ble the Apex Court has held as which is just and fair and to reopen the
under : partition that is unjust and unfair."
"Thus on a consideration of the
authorities discussed above and the law
7. Learned counsel for the appellant-
on the subject, the following propositions
defendant has also relied on judgment of
emerge:
Hon'ble the Apex Court in the case of
Sarju Pershad Ramdeo Sahu v.
(1) A partition effected between the Jwaleshwari Pratap Narain Singh &
members of the Hindu Undivided Family others, reported in A.I.R. (38) 1951
by their own volition and with their Supreme Court 120, in which, "it has been
consent cannot be reopened, unless it is held that when there is conflict of oral
shown that the same is obtained by fraud, evidence of the parties on any matter in
coercion, misrepresentation or undue issue and the decision hinges upon the
influence. In such a case the Court should credibility of witnesses, then unless there
require a strict proof of facts because an is some special feature about the evidence
act inter vivos cannot be lightly set aside. of a particular witness which has escaped
the trial judge's notice or there is a
(2) When the partition is effected sufficient balance of improbability to
between the members of the Hindu displace his opinion as to where the
Undivided Family which consists of credibility lies, the appellate Court should
minor coparceners it is binding on the not interfere with the finding of the trial
minors also if it is done in good faith and Judge on a question of fact." In para 7 of
in bona fide manner keeping into account the said judgment the Hon'ble Supreme
the interests of the minors. Court held as under :
524 INDIAN LAW REPORTS ALLAHABAD SERIES

"The question for our consideration be treated as infallible in determining

is undoubtedly one of fact, the decision of which side is telling the truth or is
which depends upon the appreciation of refraining from exaggeration. Like other
the oral evidence adduced in the case. In tribunals, he may go wrong on a question
such cases, the appellate court has got to of fact, but it is a cogent circumstance that
bear in mind that it has not the advantage a Judge of first instance, when(1) Vide
which the trial Judge had in having the Lord Atkin's observations in W.C.
witnesses before him and of observing the Macdonald v. Fred Latinmer, AI.R. 1929
manner in which they deposed in court. P.C. 15, 18. (2) [1947] A.C. 484. at p.
This certainly does not mean that when an 486.(3) Vide Saraveeraswami v. Talluri,
appeal lies on facts, the appellate court is A.I.R. 1919 P.C.p. 3'2. 785 estimating the
not competent to reverse a finding of fact value of verbal testimony, has the
arrived at by the trial Judge. The rule is-- advantage (which is denied to Courts of
and it is nothing more than a rule of appeal)of having the witnesses before him
practice --that when there is conflict of and observing the manner in which their
oral evidence of the parties on any matter evidence is given."
in issue and the decision hinges upon the
credibility of the witnesses, then unless
there is some special feature about the 8. Learned counsel for the appellant-
evidence of a particular witness which has defendant has also cited on the decision of
escaped the trial Judge's notice or there is Hon'ble the Apex Court in the case of
a sufficient balance of improbability to Saygo Bai v. Cheeru Bajrangi, reported in
displace his opinion as to where the AIR 2011 S.C. 1557. In para 10 of the
credibility lies, the appellate court should said judgment the Hon'ble Supreme Court
not interfere with the finding of the trial held as under :
Judge on a question of fact(1). The gist of
the numerous decisions on this subject
was clearly summed up by Viscount "We are not satisfied on the
Simon in Watt v. Thomas (2), and his appreciation of evidence by the lower
observations were adopted and Courts. We have gone through the
reproduced in extenso by the Judicial evidence of the appellant and the other
Committee in a very recent appeal from witnesses. She has very specifically stated
the Madras High Court(3). The that after the marriage till the children
observations are as follows: "But if the were born, her relationship was cordial
evidence as a whole can reasonably be with her husband. Thereafter, the
regarded as justifying the conclusion respondent brought a second wife,
arrived at at the trial, and especially if that namely, Gulab Bai at village Chalani
conclusion has been arrived at on where she was residing in her matrimonial
conflicting testimony by a tribunal which home. She was very specific in stating
saw and heard the witnesses, the appellate that when the husband brought the second
court will bear in mind that it has not wife, he declared that he would not keep
enjoyed this opportunity and that the view the appellant and started ill- treating her
of the trial Judge as to where credibility and threw her along with children out of
lies is entitled to great weight. This is not the house. In her cross-examination, she
to say that the Judge of first instance can admitted that on her husband's request she
2 All] Babu Ram Vs. Dayaram 525

was not prepared to go to his house. This 9. Learned counsel for the appellant-
question was put to her in a very tricky defendant has also cited a judgment in the
manner. It was not stated as to at what case of Jagbir Sharma v. Babli, reported
point of time the husband came to take in 2002 A.I.R. SCW 2686, in which
her back. She has also stated in her cross- Hon'ble the Supreme Court held as under
examination that her children were with :
her but for the last one year they were
with the respondent. She also admitted
very fairly that the respondent was "Evidence led by parties not
educating the children. She also asserted considered objectively. Reasons given by
that for the last 4 years her entry to the trial court not discussed. Manner adopted
house of her husband was stopped. It is by appellate court not commendable.
true that in paragraph 13 of the cross- Order set-aside and matter remitted."
examination she had stated that she had
not been to the house of the non-applicant
(respondent herein) for 4-5 years and then In para 5 of the said judgment the
the non-applicant i.e. the respondent Hon'ble Supreme Court held as under :
herein entered into the second marriage "Suffice it to state that on a plain
with Gulab Bai. All the Courts below reading of the judgment of the High
have relied only on this so-called Court, it is clear that the Court while
admission to hold that she had abandoned deciding the first appeal neither
her husband for 4-5 years and it is as a considered the evidence led by the parties
result of her refusal to come to the house objectively nor has discussed the reasons
of her husband that the husband took the stated in the trial court judgment for
second wife. In fact, this is a totally accepting the case of the appellant. The
incorrect and perverse appreciation of the High Court appears to have proceeded on
evidence. The Court must read whole the assumption that a mother can never be
evidence. One stray admission cannot be cruel towards her children. The appeal has
read in isolation with the other evidence. been disposed of on some general
She has very specifically stated that she discussions without considering the case
was thrown out of the matrimonial house of the parties on merits. We are unable to
on account of the second wife. All the commend the manner in which the first
Courts below have ignored all her appeal has been disposed of. We have
evidence and chosen to rely on two lines avoided delving further into the merits of
in paragraph 13 of her cross-examination. the case pleaded by the parties lest it
In our opinion, this was wholly perverse should affect any of them when the decree
appreciation of evidence. The Courts have is reconsidered by the High Court."
also made a point that she did not call for
a Panchayat and, therefore, have held
against her. We do not understand the 10. Replying to the arguments,
implication of this. Even if she did not learned counsel for respondents-plaintiffs
call a Panchayat, it did not mean that the submitted that suit bearing no.219 of 1985
respondent was justified in throwing her (Daya Ram v. Babu Ram) was filed for
out of the house and getting married partition of the house shown with letters
second time." ABIE in the commissioner"s report and
526 INDIAN LAW REPORTS ALLAHABAD SERIES

the Sahan land shown as M B A J K L in on the ground above, the trial court
the Commission report dated 25.5.195. allowed the suit in part by giving half
share of the land shown as M B A J K L,
however, the suit was dismissed regarding
11. Appellant-defendant appeared the portion marked by the Commissioner's
before the Court below and filed written letters A B I E. Learned counsel pointed
statement and admitted that the plaintiff- out that at no point of time the appellant-
respondent and the appellant-defendant defendant has ever denied about the share
are the real brothers and also admitted of the respondent-plaintiff in the house.
that entire land in question belongs to On the contrary, he admitted the portion
their father. Appellant-defendant also of the respondent-plaintiff in the house,
admitted that half of the share in the therefore, the decree of the learned trial
house is of the respondent-plaintiff. court is liable to be set aside as no decree
can be passed against the admission. The
prayer sought has to be allowed or denied
12. During the life time of the father of in toto, it cannot be considered in part
appellant-defendant as well as respondent- and, therefore, the First Appellate Court
plaintiff no partition was done. Only some was rightly set aside the order passed by
portion of the house was given to the the trial court. The appellant-defendant is
respondent-plaintiff to live along with his trying to give impression against the
family members, in which the respondent- pleadings and admission made on record.
plaintiff is living with his family. The father has given portion of the house,
it cannot be said that it was partitioned
between the parties, although, the suit was
13. After the death of father of the decreed in part but the appellant-
appellant-defendant as well as defendant did not challenge the findings
respondent-plaintiff, when the appellant- of the trial court dated 13.01.1987 by
defendant denied the share of the filing the civil appeal against that portion
respondent-plaintiff in the house as well of order which was against his interest,
as in other property, the dispute arose whereas the learned First Appellate Court
which necessitated to file the suit before decreed the entire suit by setting-aside the
the trial court for partition of the house. order passed by the trial court by way of
order in appeal.

14. The witnesses D-2 and D-1

admitted the share of the respondent- 16. Learned counsel for the
plaintiff in the parental house but the trial respondent-plaintiff further pleaded that
court dismissed the suit of respondent- in case this Hon'ble Court allowed the
plaintiff regarding share in house and thus instant appeal, the respondent-plaintiff
ousted the respondent-plaintiff to live in will be ousted from house having no room
open sky. to live and will be bound to live in open
sky as the respondent-plaintiff has no
house except the ancestral house. Not
15. Learned counsel for the only this but also the share of respondent-
respondent-plaintiff further reiterated that plaintiff is admitted at every stage by the
2 All] Babu Ram Vs. Dayaram 527

appellant-defendant as well as the such an appellants can demonstrate that

defendant witnesses. despite non-filing written statement, sill
there is/are manifest error, illegality etc.
in the judgment and decree passed by
17. During life time of father, there courts below, on account whereof the
was no partition between the brothers (i.e. same are unsustainable or have resulted in
Babu Ram appellant-defendant and Daya a manifest grave injustice, in violation of
Ram, respondent-plaintiff), however, some legal principle or statutory provision
father has given some portion of house to etc., I find no bar or disability on their
his sons to live along with their family part in challenging the judgment and
members, which is no manner can be said decree of T.C. Or LAC on merits also.
to be a partition in the house or property.
When there is no partition, the second
partition does not arise. The appellant- 40. Accordingly the Issue No. 2 is
defendant has not annexed any answered in affirmative, i.e., in favour of
documentary proof regarding partition of defendants-appellants holding that not
the house. only they can file appeal but contest the
matter on merits also despite, they had not
filed written statement or led evidence
18. During pendency of the instant before T.C. The only restriction would be
second appeal the sole respondent- that these appellants will have to confine
plaintiff Daya Ram died and in his place to the record of proceedings and cannot
his sons and legal heirs have been be allowed to lead any evidence or bring a
substituted as respondents-plaintiffs. new fact before Appellate Court. They
also cannot be allowed to fill in the gap at
this stage."
19. Learned counsel for the
respondents-plaintiffs has cited reliance
on the decision of this Court in the case of 20. A co-ordinate Bench of this
Harey Krishna Agrawal and Others v. Court (Supra) has also held in paras 48,
Jairaj Krishna (D) and Others, reported in 49 and 52 as under :
[2013 (31) LCD 1593]. In paras 39 and 40
of the said judgment this Court held as
under : "48. The intention to break joint
family by effecting partition in respect of
joint family property has always been
"39. So far as right of defendants to considered with great respect, where
challenge the judgment and decree of T.C. amicably and peacefully, interacting love
even though had not contested the suit by and affection, the members of joint family
filing written statement, counsel for have settled their rights mutually. It can
respondent could not show any statutory be given effect, orally, as also in writing.
prohibition or dis-entitlement on their part
in challenging final decision in suit, even
if they did not contest the suit by 49. In Appovier Vs. Ramasubba
participating before T.C. Not only this, if Aiyan (1866) 11 MIA 75 Lord Westbury
528 INDIAN LAW REPORTS ALLAHABAD SERIES

took a view that the partition covers both, remained with the appellant-defendant
a division of right and a division of whereas the respondent-plaintiff was
property. This is also reiterated in Girja given another share. In addition,
Bai Vs. Sadashiv Dhundiraj (1916) 43 IA advantage was given as per agreement
151. When the members of undivided between the parties to the appellant-
family agreed amongst themselves either defendant because he was caring his
with respect to a particular property or father and looking after his livelihood. At
with reference to entire joint estate that it that time, respondent-plaintiff remained
shall thenceforth be the subject of silent and accepted the family verdict but
ownership in certain defined shares, then subsequently after the death of his father
the character of undivided property and he staked his claim for additional share
joint enjoyment is taken away from the which was allocated to the portion of the
subject matter so agreed to be dealt with; appellant-defendant in lieu of the services
and in the estate, each member has he rendered to his father. The plea has
thenceforth a definite and certain share been substantiated by the fact that in
which he may claim the right to receive Hindu co-parcenery, every co-parcener
and to enjoy in severalty although the member has got equal share but equal
property itself has not been actually share was not given to the respondent-
severed and divided. plaintiff, on the contrary, differential
treatment took place. Whatever may be
the reason, the respondent-plaintiff,
52. Further whenever there is a alleged that the distinction should be
partition, the presumption is that it was a scraped of and he should be allocated an
complete one both as to parties and equal share. The other point is that even,
property. There is no presumption that if, the partition took place, it was not
any property was excluded from partition. effected with respect to the dwelling
On the contrary, it has been held that house and the respondent-plaintiff ought
burden lies upon him who alleges such to have been given share in dwelling
exclusion to establish his assertion." house also as far as factual matrix is
concerned.

21. I have gone through the

submissions raised by learned counsel for 23. The only legal question remained
the appellant-defendant as well as learned is whether a partition which was effected
counsel for the respondents-plaintiffs and between the parties can be re-opened and
perused the case law cited by the whether there can be estopple regarding the
respective parties in support of their conduct of the respondent-plaintiff. The legal
contention. position regarding reopening of the partition
is very clear and Hon'ble the Apex Court in
the case Ratnam Chettiar and others v. S.M.
22. The main question is that Kuppuswami Chettiar and others (Supra) has
whether re-partition can take place or not. clearly ruled out that a partition effected
It is an admitted fact before the trial court between the members of Hindu Undivided
that oral family partition took place Family by their own volition and with their
between the parties and father's share consent cannot be reopened, unless it is
2 All] Babu Ram Vs. Dayaram 529

shown that the same is obtained by fraud, principle has been upheld by Hon'ble the
coercion, misrepresentation or undue Apex Court in 2003 (2) SCC 355, B.L.
influence. And in the instant appeal there is Sreedhar v. K.M. Munireddy.
nothing like any misrepresentation or undue
influence.
Representation to form the basis of
an estoppel may be made either by
24. The respondent-plaintiff himself statement or by conduct. Further, in order
pleaded before the trial court that since to found an estoppel a representation must
the appellant-defendant was taking care of be of an existing fact, not of a mere
his father he was given an added share to intention. A representation may be a
with stand the expenses and for taking representation of fact although it involves
care of the father. There is no dispute that and includes that which is also a matter of
respondent-plaintiff was living away and law. It is now popularity known as
was not taking any responsibility of his 'promissory estoppel'. The Hon'ble Apex
father. The partition was effected keeping Court has given the ratio in Seth Satnarain
in view all these facts. In Hindu Law v. Dominion of India 1968 2 SCWR 335.
there can be oral family partition and as
per evidence taken place and there is no
dispute about it. Section 115 of the A person may waive a right either
Evidence Act is reproduced hereinbelow; expressly or by necessary implication. He
may be given a case disentitle himself
from obtaining an equitable relief
"115. Estoppel.- When one person particularly when he allows a thing to
has, by his declaration, act or omission, come to an irreversible situation.
intentionally caused or permitted another
person to believe a thing to be true and to
act upon such belief, neither he nor his 26. Thus, it was the appellant-
representative shall be allowed, in any defendant who by his own conduct accepted
suit or proceeding between himself and the previous partition effected between the
such person or his representative, to deny parties and in that partition with mutual
the truth of that thing." consent the extra share was allocated to the
appellant-defendant and the reason was also
advanced. The defendant maintained silence
25. Estoppel is based on the maxim till death of his father. Now, question arises
allegans contraria non est audiendus (a that whether after the death can respondent-
party is not to be heard to allege the plaintiff raise this issue leaving aside his own
contrary) and is that species of admission. The other fact is also very
presumption juries et de jure (absolute or important that parties are Hindu and they rely
conclusive or irrebuttable presumption), on Hindu law of coparcenary, though there is
where the fact presumed is taken to be procedure that after the death of coparcener
true, not as against all the world, but how the share is devolved but at one time he
against a particular party, and that only be relies on Hindu law of coparcenary but at the
reason of some act done, it is in truth a same time he left his own mother, who was
kind of argumentum ad hominem. This then alive, to be impleaded as party to have
530 INDIAN LAW REPORTS ALLAHABAD SERIES

share in his late father's property. The simple M.S. Ranganna and Ors., AIR 1968 SC
question is why he ignored his mother and 1018)
insisted on claiming the share of his father by
way of succession. The facts on record
suggest that it was not a coparcenery division 29. In para 58, the co-ordinate
but it was family partition that took place and Bench of this Court (Supra) held as under
in view of the case of Ratnam Chettiar and :
others v. S.M. Kuppuswami Chettiar and "58. In Sita Ram v. Board of Revenue,
others( Supra), the partition so effected cannot AIR 1979 All 301, this Court observed that
be reopened. the expression "settlement" means a non-
testamentary disposition of property by an
instrument in writing, containing even a
27. I have also gone through the
declaration of trust, for distribution of
judgment and order of co-ordinate Bench of
property among the settlor's family or his
this Court in Harey Krishna Agrawal and
dependent or those for whom the settlor
Others v. Jairaj Krishna (D) and Others,
desires to provide or for religious or
reported in [2013 (31) LCD 1593] in which,
charitable purpose. In other words,
it has been ruled out that "whenever there is a
settlement among members of family in
partition, the presumption is that it was a
respect of the property jointly owned by
complete one both as to parties and property.
them is a kind of compromise/mutual
There is no presumption that any property
concession and arrangement between the
was excluded from partition. On the
members of family to settle their rights in
contrary, it has been held that burden lies
respect of the member of the family."
upon him who alleges such exclusion to
establish his assertion" and even the trial
court and before the First Appellate Court, 30. Thus legal position is now very
who could have examined the factual matrix, clear that the family partition on the basis of
have not commented any thing regarding the above pronouncement of Hon'ble the Apex
bias partition. Court cannot be re-opened. The father was
living with the appellant-defendant,
therefore, he was given an advantage in the
28 The co-ordinate Bench of this
share but nevertheless that will be covered by
Court (Supra) in para 51 of the judgment
the mutual settlement and during his life
held that "family arrangements" also stand
time, the respondent-plaintiff did not utter a
and enjoy same status. It is an agreement
single word and did not dispute the rights or
arrived by members of family, either by
claim of the appellant-defendant. Even the
compromise doubtful or disputed rights,
suit filed by the respondent-plaintiff before
or by preserving a family property or by
the trial court was not in accordance with the
avoiding litigation for the peace and
norms as he did not implead the mother as
security of family or saving its honour.
party. Therefore, there can be no fresh
The co-ordinate Bench has based its
division of the portion of the parties in
finding on the case of Ram Narain Sahu
dwelling house which was partitioned
v. Musammat Makhana, ILR (1939) All.
long back and such partition which has
680 (PC) and Puttrangamma and Ors. v.
already been settled in past and consented
2 All] Arvind Kumar Vs. State of U.P. 531

to by the respondent-plaintiff cannot be Counsel for the Revisionist:

re-opened. Sri Pradeep Kumar Singh

Counsel for the Opposite Party:

31. In view of above discussions, all A.G.A.
the legal questions framed above in para 6 of
the judgment are decided in affirmative in Cr.P.C. 401-Criminal Revision- Release of
Tractor-application rejected by learned
favour of the appellant-defendant and against Magistrate-in absence of complaint-no
the respondent-plaintiff i.e. family partition power to pass order on release application-
cannot be re-opened. It is binding on all the revision-against-not maintainable-applicant
family members in succession because it was has alternative remedy to approach before
in good faith and no fraud and malice has the authority concern under section 207(2)
been alleged by the party who has claimed of M.V. Act itself.
otherwise. Similarly, the division of property Held:Para-13
was as a whole and shall be binding upon In wake of the crystal clear statutory legal
each family member irrespective of its position discussed by several division
dimension. It will not be open to challenge benches of this Court cited above, I do not
the family settlement arrived at between the find any good ground to take a different
parties earlier on the ground that the portion view. Accordingly, I am of the considered
view that the application moved by the
allocated to one party is short of his share.
petitioner for release of the vehicle seized
Both these issues have been dealt in detail by by Mining Officer was not maintainable
the coordinate Bench of this Court in Harey before the learned Chief Judicial Magistrate
Krishna Agrawal and Others v. Jairaj and learned Chief Judicial Magistrate has
Krishna (D) and Others (supra). The appeal rightly rejected it by the impugned order.
is, therefore, liable to be allowed. There appears no illegality or irregularity in
the order impugned requiring interference
by this Court. The revision being devoid of
merit is liable to be dismissed and is
32. The appeal is, therefore, allowed dismissed accordingly. However, it will be
with cost and the judgment and order open to the revisionist to move application
passed by the First Appellate Court dated for release of his vehicle before the
6.11.1987 is set-aside and the order and appropriate authority under Section 207 (2)
decree dated 13.01.1987 passed by the of the Act and the said authority will pass
appropriate orders in accordance with law
learned trial court shall remain effective. and keeping in view the law laid down by
-------- Hon'ble Apex Court in Sunderbhai Ambalal
REVISIONAL JURISDICTION Desai Vs. State of Gujrat; 2003 (46) ACC
CRIMINAL SIDE 223 (SC).
DATED: ALLAHABAD 23.05.2014
Case Law Discussed:
BEFORE 2011(1) ADJ 498; 2003(46) ACC 223; 1995(2)
THE HON'BLE MRS. VIJAY LAKSHMI, J.
AWC 849; [2001(1) AWC 551]; [2010(69) ACC
259]
Criminal Revision No. 263 of 2014
(Delivered by Hon'ble Mrs. Vijay Lakshmi, J.)
Arvind Kumar…............. Revisionist
Versus 1. The present criminal revision has
State of U.P.................... Opposite Party been preferred against the order dated
532 INDIAN LAW REPORTS ALLAHABAD SERIES

23.1.2014 passed by Chief Judicial the aforesaid order dated 23.1.2014 by

Magistrate, Chitrakoot in Miscellaneous arguing that the learned Chief Judicial
Case No. 31A/xii/2014 under Section Magistrate has passed the order in a
4/21 Mines and Mineral (Development cursory manner and has illegally rejected
and Regulation Act, P.S. Mau, District the application moved by the revisionist
Chitrakoot whereby the learned for release of his tractor merely on the
Magistrate has rejected the application of ground that as no complaint has been filed
the revisionist for release of his tractor. in the court regarding the offence,
therefore he has no jurisdiction to take
2. I have heard learned counsel for cognizance in the matter. Learned counsel
the revisionist and learned A.G.A. for the for the revisionist has contended that the
State and have carefully perused the Magistrate was fully competent and
records. empowered to release the vehicle even if
the complaint was not filed, in view of
3. The learned counsel for the Section 457 Cr.P.C. In this regard learned
revisionist has submitted that the counsel for the revisionist has relied upon
revisionist is registered owner of the a judgment of this Court passed by the
tractor in question. The vehicle in Hon'ble Single Judge in case of Smt.
question was duly insured by Oriental Sudha Kesarwani Vs. State of U.P. and
Insurance Company. His tractor was others reported in 2011(1) ADJ 498. He
seized by the Mining Officer, Chitrakoot has also placed reliance on the law
on 6.1.2014 on the allegation that it was laiddown by the Apex Court in landmark
found carrying illegal sand without proper case of Sunderbhai Ambalal Desai Vs.
transportation pass (MM 11). The learned State of Gujrat; 2003 (46) ACC 223
counsel for the revisionist has argued that (Supreme Court). On the aforesaid ground
the sand was not illegal but it was it has been prayed that the impugned
purchased by the revisionist from a order be set aside and the learned Chief
contractor holding valid license to store Judicial Magistrate be directed to release
the sand. The contractor has issued Form the tractor alongwith trolly in favour of
(MM 11) to the revisionist but his tractor, the revisionist.
was seized in a malafide manner by the
Mining Officer, Chitrakoot. The 5. The State has filed counter
revisionist moved an application before affidavit opposing the revision mainly on
the Chief Judicial Magistrate, Chitrakoot the ground that the vehicle in question
for release of his tractor but the learned was seized under Section 207 of Motor
Magistrate dismissed his application on Vehicle Act. The sand was found loaded
the ground that without filing of a on the tractor but the driver had failed to
complaint by the Mining Officer, he has show any valid paper or permit to carry
no jurisdiction to pass an order of the such sand, so the vehicle was seized by
release of vehicle especially keeping in the Mining Officer, Chitrakoot. When the
view the fact that the applicant has not revisionist moved an application for
even deposited any compounding amount. release of the tractor before the learned
Chief Judicial Magistrate, the learned
4. The learned counsel for the C.J.M. called for a report from the District
revisionist has questioned the validity of Magistrate, Chitrakoot. After receiving
2 All] Arvind Kumar Vs. State of U.P. 533

such report, it was found that no with the relevant documents for the
complaint has been filed in this matter. release of the vehicle and such authority
Moreover the compounding fee has also or officer may, after verification of such
not been deposited by the applicant, so documents, by order release the vehicle
learned C.J.M. rejected the release subject to such conditions as the authority
application on the ground of lack of or officer may deem fit to impose."
jurisdiction. The learned A.G.A. has
contended that the release application has 8. Now, in view of the aforesaid
rightly been rejected by the impugned legal provisions the question which arises
order. There is no illegality or irregularity for consideration is whether the vehicle
in the order. The revision being devoid of seized by Mining Officer, Chitrakoot
merit, is liable to be dismissed. under Section 207 of Motor Vehicle Act
could have been released by C.J.M. even
6. After hearing learned counsel for when no criminal case/complaint case
both sides and keeping in view the was pending before him.
relevant legal provisions I am of the
considered view that the revision is 9. A Division Bench of this Court in
devoid of merit and is liable to be the case of Phool Chandra Vs. Assistant
dismissed. The reasons are as follows : Regional Transport Officer, Banda and
others has held that where a vehicle was
1. Admittedly the tractor in question seized by the Transport Authority under
was seized by the Mining Officer, Chitrakoot Section 207 of the Act, the registered
because it was found loaded with sand owner or the person incharge of the
(Morang) and its driver was unable to show vehicle, could move application for
any permit for carrying such sand. Section release of the vehicle either under Section
207 of Motor Vehicle Act provides that "any 207 (2) of the Act before the Transport
police officer or other person authorised in Authority or the Officer authorized by the
this behalf by the State Government may, if State Government in this behalf or under
he has reason to believe that a motor vehicle Section 457 of the Code but in the case of
has been or is being used in contravention of Mazhar Ali Khan Vs. Chief Judicial
the provisions of Section 3 or section 4 or Magistrate and Others; 1995(2)AWC 849
section 39 or without the permit required by (DB) decided by Division Bench of this
sub-section (1) of section 66 ?........................, Court, it had been specifically held that
seize and detain the vehicle, in the prescribed where a vehicle is sized by Transport
manner and for this purpose take or cause to Authority under Section 207 of the Act,
be taken any steps he may consider proper only transport Authority or any Officer
for the temporary safe custody of the vehicle. authorized by the State Government in
this behalf has power to release the
7. Sub-section 2 of Section 207 vehicle. The relevant observation of the
provides that where a motor vehicle is court finds place in para 4 of the judgment
seized and detained under sub-section 2, which is being reproduced below:
"the owner or person incharge of the
motor vehicle may apply to the transport "Sub-section (2) of Section 207
authority or any officer authorised in this provides for release of the Vehicle.
behalf by the State Government together Although under sub-section (1), any
534 INDIAN LAW REPORTS ALLAHABAD SERIES

police officer or any other person parties to follow the procedure laid by the
authorized in this behalf can seize and statute and have no jurisdiction or
detain the vehicle, but under sub-section authority to direct release of the vehicle
(2), only transport authority or the officer through Chief Judicial Magistrate."
authorized in this behalf by the State
Government has the power to release the 11. In the case of Deoraj Singh Vs.
vehicle irrespective of the fact that the State of U.P. [2010 (69) ACC 259], this
vehicle was seized and detained by some court relying on earlier case laws cited
one else but for this purpose the owner or therein has laid down the same principle
the person incharge of the motor vehicle of law as laid down in the above cited
has to apply before them. For the reasons case. The relevant observation of the
given above, the Regional Transport Hon'ble Court finds place in para 10 of
Officer was not justified to refuse to the judgment which is being extracted
entertain the application for release on the below:
ground that it was seized by police
officer." "From a perusal of the Section 207 (2)
of the Motor Vehicles Act, 1988 the remedy
10. In the case of Jagat Pal Singh available to the applicant is to apply to the
VS. State of U.P. and Others [2001 (1) transport authority or to officer authorized in
AWC 551] the same view as above had this behalf by the State Government together
been expressed by one more Division with relevant documents for the release of
Bench of this Court. The relevant the vehicle. This issue has been considered
observation of the court finds place in by the Division Bench of this Court on case
para 4 of the judgment which is being of Jagat Pal Singh V State of U.P. And
extracted below: others in Criminal Misc. Writ Petition No.
5528 of 2000 (M/B) as reported in 2001 (1)
"From a perusal of Section 207 of the AWC 551."
Act is appears that the remedy available
to the petitioner is to apply to the 12. The judgment in the case of Smt.
transport authority or any officer Sudha Kesarwani relied upon by the
authorized in this behalf by the State revisionist is of no help to him as the
Government together with relevant judgment in this case has been passed by
documents for the release of the vehicle in a learned Single Judge whereas various
terms of sub-section (2) of Section 207 of division benches in judgments cited
the Act. We are of the view that since above, have clearly expressed the view
statue provides power to release the that the Chief Judicial Magistrate has no
vehicle on the concerned authority under jurisdiction to release the vehicle seized
sub-section (2) of section 207 of the Act under Section 207 of the Motor Vehicle
and the application of the writ petitioner, Act.
the writ petitioner should act according to
the statute and take appropriate steps in 13. In wake of the crystal clear
terms of section 207 (2) of the Act and statutory legal position discussed by several
make appropriate application before the division benches of this Court cited above, I
concerned authority. We are of the further do not find any good ground to take a
view that it is incumbent on the part of the different view. Accordingly, I am of the
2 All] Pawan Kumar Misra Vs. State of U.P. & Ors. 535

considered view that the application moved Held: Para-17

by the petitioner for release of the vehicle In the case in hand, the appellant-petitioner
had committed an offence of bigamy after
seized by Mining Officer was not
enjoying 11 years of matrimonial life. Once
maintainable before the learned Chief the 1956 Rules provides that second
Judicial Magistrate and learned Chief marriage by a government servant during
Judicial Magistrate has rightly rejected it by the lifetime of first wife is an offence, and it
the impugned order. There appears no amounts to misconduct, then it is not open
illegality or irregularity in the order for the court to take a different view than
impugned requiring interference by this what has been considered by the
disciplinary authority.
Court. The revision being devoid of merit is
liable to be dismissed and is dismissed Case Law discussed:
accordingly. However, it will be open to the 2006 (2) SCC 670; AIR 2007 SC 2742; AIR
revisionist to move application for release of 2007 SC 2625; AIR 2008 SC 1797; 2006(2)
his vehicle before the appropriate authority GLT 569.
under Section 207 (2) of the Act and the said
authority will pass appropriate orders in (Delivered by Hon'ble Devi Prasad Singh ,J.)
accordance with law and keeping in view the
law laid down by Hon'ble Apex Court in 1. Heard learned counsel for the
Sunderbhai Ambalal Desai Vs. State of appellant-petitioner, Sri S.P. Mishra and
Gujrat; 2003 (46) ACC 223 (SC). learned Standing Counsel Sri Pushkar
-------- Baghel, appearing for respondents.
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 02.05.2014 2. This is an appeal under Chapter
VIII Rule 5 of the High Court Rules, 1952
BEFORE against the impugned order dated
THE HON'BLE DEVI PRASAD SINGH, J. 31.7.2012 passed by Hon'ble Single Judge
THE HON'BLE ASHWANI KUMAR SINGH, J.
in Writ Petition No.1343 (S/S) of 2004.
Special Appeal No. 570 of 2012

Pawan Kumar Misra... Appellant 3. The appellant-petitioner, a police

Versus constable, has been punished pursuant to
State of U.P. & Ors. ...Respondents disciplinary proceedings, being remarried
to another lady without seeking
Counsel for the Petitioner: permission of the state government in
Sri S.E. Chiramber, Sri S.P. Misra pursuance to U.P. Government Servants
Conduct Rules, 1956 (in short '1956
Counsel for the Respondents: Rules'). The factum of remarriage by the
C.S.C. appellant-petitioner seems to be not
disputed. The appellant-petitioner also
U.P. Government Servant(Conducts)Rules,
1956-Section-29-Removal from service-on
does not dispute that he has remarried
account of second marriage during life time himself in spite of the fact that his first
of first wife-without divorce-amounts to wife survives.
misconduct-dismissal held proper-
sbsequent withdrawl of complaint by first 4. The appellant-petitioner was
wife-meaningless. married to one Smt. Sunita, daughter of
536 INDIAN LAW REPORTS ALLAHABAD SERIES

Shri Raghuwar Tiwari according to Hindu dated 22.3.2010 passed in Civil Misc. Writ
rites and rituals in the year 1991. Since Petition No.25871 of 2009 'Pancham Giri vs.
wedlock of his first wife, he could not get State of U.P. and others' by Hon'ble Single
child for almost 11 years, hence he again Judge. In this case, Hon'gle Single Judge had
married to another lady. Feeling aggrieved, remanded the matter to the authorities,
first wife submitted a complaint to D.I.G., relying upon the judgment in the case of
Lucknow on 11.7.2001 with the allegation Bhagat Ram vs. State of Himachal Pradesh
that the appellant-petitioner has solemnized reported in 1983 (2) SCC 442, to take a fresh
second marriage with another lady, namely decision with the finding that the dismissal
Smt. Deep Mala, without divorcing her and from service is disproportionate to his
also threatened to kill her and her parents. On misconduct.
account of ill-treatment due to remarriage by
the appellant-petitioner, the first wife has
gone back to her parental house (maika). The 6. Learned counsel for the appellant-
departmental enquiry was initiated, and petitioner further submits that some of the
finding has been recorded by the Enquiry reasons recorded in the impugned order
Officer that the appellant-petitioner has are not sustainable and observation has
remarried to another lady during lifetime of been made without going through the
his first wife. The disciplinary authority has records. Such argument does not seem to
awarded major penalty of dismissal from be available to the appellant-petitioner for
service. Appeal and revision preferred by the the reason that the factum of remarriage
appellant-petitioner were dismissed. Feeling has not been disputed. Once, the
aggrieved, he preferred a Writ Petition misconduct is admitted, then there is no
No.1343 S/S of 2004 before this court, which option with the authorities except to
has been dismissed by Hon'ble Single Judge award punishment in accordance to law.
by the impugned order, which is under
challenge in the instant appeal.
7. On the other hand, learned counsel
for the respondent has invited our attention
5. While assailing the impugned to the judgment reported in (2006) 6 SCC
order, learned counsel for the appellant- Union of India and another vs. K.G. Soni,
petitioner submits that under compelling wherein Hon'ble Supreme Court held that
circumstances, he had remarried to punishment awarded to the delinquent
another lady, so that he can have child to employee on account of second marriage
carry on social need. It is further call for no interference by the court.
submitted by appellant-petitioner's Interference of the court under Article 226
counsel that the marriage solemnized was is limited to the deficiency in the decision-
perfectly in accordance to the provisions making process and not the decision.
contained in sub-section (ii)(b) of section
5 of Hindu Marriage Act, 1955. Learned
counsel for the appellant-petitioner further 8. Rule 29 of the U.P. Government
submits that in any case the punishment Servants Conduct Rules, 1956, which
awarded to the appellant-petitioner is deals with service conditions and is
disproportionate to the misconduct. He relied relevant for adjudication of the present
upon an unreported judgment of this court controversy, is reproduced:-
2 All] Pawan Kumar Misra Vs. State of U.P. & Ors. 537

"Bigamous marriages- (1) No not be supplied when the language of the

government servant who has a wife living statute is clear and unambiguous.
shall contract another marriage without
first obtaining the permission of the
government, notwithstanding that such 12. In AIR 2008 SC 1797,
subsequent marriage is permissible under Karnataka State Financial Corporation
the personal law for the time being Vs. N. Narasimahaiah and others, Hon'ble
applicable to him. Supreme Court held that while construing
a statute, it can not be extended to a
situation not contemplated thereby. Entire
(2) No female government servant statute must be first read as a whole, then
shall marry any person who has a wife section by section, phrase by phrase and
living without first obtaining the word by word. While discharging
permission of the government." statutory obligation with regard to take
action against a person in a particular
manner, that should be done in the same
9. A plain reading of Rule 29 reveals manner. Interpretation of statute should
that a government servant cannot marry not depend upon contingency but it
again without permission of the state should be interpreted from its own word
government. The legislature to their and language used.
wisdom has used the word
"notwithstanding" which means, even if
the marriage is permissible under personal 13. Accordingly, since rule 29 of
law for the time being applicable to a 1956 Ruels does not give any liberty to a
government servant, such government government servant to enter into second
servant cannot be allowed to marry again marriage without permission of the state
without permission of the state government, no interpretation other than
government. what is reflected from a plain reading of
the provisions contained therein may be
given.
10. It is settled proposition of law
that when the language of the statute is
clear and unambiguous, court can not 14. We are of the view that the
make any addition or subtraction of words appellant-petitioner cannot take assistance
vide 2006 (2) SCC 670, Vemareddy of the provisions contained in Hindu
Kumaraswami Reddy and another Vs. Marriage Act or alike personal law being
State of Andhra Pradesh, a government servant. The 1956 Rules
has got statutory force and also got
overriding effect over the provisions
11. In AIR 2007 SC 2742, M.C.D. contained in the statute dealing with
Vs. Keemat Rai Gupta and AIR 2007 SC personal law.
2625, Mohan Vs. State of Maharashtra,
their Lordship of Hon'ble Supreme Court
ruled that Courts should not add or delete 15. Much reliance has been placed
the words in statute. Casus Omisus should by the learned counsel for the appellant-
538 INDIAN LAW REPORTS ALLAHABAD SERIES

petitioner on the judgment dated nothing to do with either the official

28.6.2012 of the Gauhati High Court position of the petitioner or the discharge
passed in Writ Appeal No.320 of 2010 of official duties does not appear to us to
'Union of India and others vs. Shri be a correct appreciation of the
Ramashankar Gupta'. In the case of Shri consequences of proven charge of
Ramashankar Gupta (supra), the Gauhati bigamy."
High Court has considered the earlier
judgment in the case of Amal Kumar
Baruah vs. State of Assam and others 16. In the case of Pancham Giri vs.
reported in 2006 (2) GLT 569, whereby State of U.P. and others (supra), Hon'ble
the complaint, submitted by the wife, has Single Judge while deciding the writ
been withdrawn by her and in the same petition has remanded the matter to the
case the Division Bench of Guahati High authorities to take a fresh decision on
Court had affirmed the order of dismissal dismissal from service on account of the
from service on a proven charge of fact that the delinquent employee was at
bigamy. For convenience, para 26 of the the verge of retirement. A lenient view
judgment in Union of India and others vs. was taken by Hon'ble Single Judge
Shri Ramashankar Gupta (supra) is keeping the facts and circumstances of the
reproduced:- case, which does not seem to be
applicable to the present case.

"26. As has already been noticed

above, bigamy is prohibited by Rule 21 of 17. In the case in hand, the
the Central Civil Services (Conduct) appellant-petitioner had committed an
Rules, 1965. When bigamy is expressly offence of bigamy after enjoying 11 years
prohibited under the law (except the two of matrimonial life. Once the 1956 Rules
exceptions mentioned in the provision provides that second marriage by a
which are not attracted and applicable in government servant during the lifetime of
the present case), it would not be correct first wife is an offence, and it amounts to
to say that punishment of dismissal from misconduct, then it is not open for the
service on a proven charge of bigamy court to take a different view than what
would be disproportionate on the ground has been considered by the disciplinary
that under the criminal law bigamy is a authority.
compoundable offence, more so when the
delinquent was a member of a disciplined
force like the Assam Rifles. Continuation 18. In the case of Union of India and
of such a person in force may have an another vs. K.G. Soni (supra), relied upon
adverse affect on the overall image of the by learned counsel for the appellant-
force. It may affect the public perception petitioner, Hon'ble Supreme Court in
that a person guilty of bigamy can still identical situation held that the High
continue as a member of such force. Court ordinarily should not interfere in
Moreover, it may have a cascading effect such a matter by exercising power
on the overall morale and discipline of the conferred by Article 226; rather it has to
force. The further view taken by the look into the deficiency in the decision-
Single Bench that the second marriage has making process and not the decision. For
2 All] Pawan Kumar Misra Vs. State of U.P. & Ors. 539

convenience, relevant paras 3, 8, 13 and Appellate Authority for reconsideration with

14 of the aforesaid judgment are regard to the quantum of punishment. The
reproduced:- only basis for coming to the conclusion that
the complaint was made by the wife about
the alleged second marriage belatedly, and
"3. Background facts in a nutshell are this is not such a misconduct which warrants
as follows: compulsory retirement before his
superannuation.

Respondent was a Store Attendant in

the Bank Note Press, District Dewas (M.P). 13. In Union of India and Anr. v. G.
A charge-sheet was issued against him on the Ganayutham (1997 [7] SCC 463), this
foundation that though he had got married Court summed up the position relating to
with one Parvathibai in the year 1973, while proportionality in paragraphs 31 and 32,
filling up the attestation form on 16.3.1974, which read as follows:
he did not show her name as his wife. It was
"The current position of
further alleged that he got married for the
proportionality in administrative law in
second time in October, 1974 with one
England and India can be summarized as
Ushabai. On the basis of this non-disclosure,
follows:
which, authorities considered to be a
misconduct, a disciplinary proceeding was
initiated. It is to be noted that the non-
(1) To judge the validity of any
disclosure came to the notice of the
administrative order or statutory discretion,
authorities when Parvathibai made a
normally the Wednesbury test is to be applied
complaint about the second marriage. The
to find out if the decision was illegal or
enquiry was conducted under Central Civil
suffered from procedural improprieties or was
Services (Classification, Control and Appeal)
one which no sensible decision-maker could,
Rules, 1965 (in short the 'Rules'). The
on the material before him and within the
Enquiry Officer recorded findings in favour
framework of the law, have arrived at. The
of the respondent. The Disciplinary
court would consider whether relevant matters
Authority differed with the findings of the
had not been taken into or whether irrelevant
Inquiry Officer and came to hold that second
matters had been taken into account or
marriage had in fact been performed and
whether action was not bona fide. The court
accordingly it issued show cause notice to
would also consider whether the decision
the respondent and eventually came to hold
absurd or perverse. The court would however
that the respondent was guilty of misconduct
go into the correctness of the made by the
and imposed the punishment of removal by
administrator amongst the various alternatives
order dated 2.4.1996.
open to. Nor could the court substitute its
decision to that of the administrator. This is
the Wednesbury (1948 1 KB 223) test.
8. The High Court was of the view that
ordinarily it would have remanded the matter
to Tribunal for fresh consideration on merits
(2) The court would not interfere
but it was of the view that this is a fit case
with the administrator's decision unless it
where the matter should be remitted to the
was illegal or suffered from procedural
540 INDIAN LAW REPORTS ALLAHABAD SERIES

impropriety or was irrational \026 in the authority has reasonably arrived at his
sense that it was in outrageous defiance of decision as the primary authority.
logic or moral standards. The possibility
of other tests, including proportionality
being brought into English administrative (4)(b) Whether in the case of
law in future is not ruled out. These are administrative or executive action
the CCSU (1985 AC 374) principles. affecting fundamental freedoms, the
courts in our country will apply the
principle of "proportionality" and assume
(3)(a) As per Bugdaycay (1987 AC a primary role, is left open, to be decided
514), Brind (1991 (1) AC 696) and Smith in an appropriate case where such action
(1996 (1) All ER 257) as long as the is alleged to offend fundamental
Convention is not incorporated into freedoms. It will be then necessary to
English law, the English courts merely decide whether the courts will have a
exercise a secondary judgment to find out primary role only if the freedoms under
if the decision-maker could have, on the Articles 19, 21 etc. are involved and not
material before him, arrived at the for Article 14."
primary judgment in the manner he has
done.
14. The common thread running
through in all these decisions is that the
(3)(b) If the Convention is Court should not interfere with the
incorporated in England making available administrator's decision unless it was
the principle of proportionality, then the illogical or suffers from procedural
English courts will render primary impropriety or was shocking to the
judgment on the validity of the conscience of the Court, in the sense that
administrative action and find out if the it was in defiance of logic or moral
restriction is disproportionate or excessive standards. In view of what has been stated
or is not based upon a fair balancing of in the Wednesbury's case (supra) the
the fundamental freedom and the need for Court would not go into the correctness of
the restriction thereupon. the choice made by the administrator open
to him and the Court should not substitute
its decision to that of the administrator.
(4)(a) The position in our country, in The scope of judicial review is limited to
administrative law, where no fundamental the deficiency in decision-making process
freedoms as aforesaid are involved, is that and not the decision."
the courts/tribunals will only play a
secondary role while the primary
judgment as to reasonableness will remain 19. Keeping the principle emerging
with the executive or administrative from Union of India and another vs. K.G.
authority. The secondary judgment of the Soni (supra), there appears to be no
court is to be based on Wednesbury and reason to interfere with the order passed
CCSU principles as stated by Lord by Hon'ble Single Judge and the
Greene and Lord Diplock respectively to disciplinary authority, as held by their
find if the executive or administrative Lordships of Hon'ble Supreme Court that
2 All] Smt. Anara Devi Vs. Ayukt Khadya Evam Rasad & Ors. 541

the courts should not interfere with the committed by not an ordinary government
administrator's decision unless it was servant. Being a member of disciplined
illogical or suffers from procedural police force, it is always expected that such
impropriety or was shocking to the person shall be abide law and in case, a
conscience of the court. The department member of the police or Armed forces is
moved ahead to charge the appellant- permitted to break the law and abuse the
petitioner in pursuance of complaint powers conferred by the statutes, it shall send
submitted by his own first wife and a wrong message to the society.
factum of remarriage has not been denied
by the appellant-petitioner. Accordingly,
the appellant-petitioner has been punished 23. In view of above, we are not
in pursuance to 1956 Rules (supra). inclined to interfere with impugned order
passed by Hon'ble Single Judge. The
appeal, being devoid of merit, is
20. We have been informed that at dismissed accordingly.
later stage the appellant-petitioner's wife
has withdrawn the complaint but it does
not seem to make out a case to dilute the 24. No order as to costs.
decision taken by the disciplinary --------
authority. The entire allegation against the ORIGINAL JURISDICTION
appellant-petitioner was raised by his own CIVIL SIDE
wife being aggrieved with his second DATED: LUCKNOW 30.05.2014
marriage. Any withdrawal of complaint,
at later stage, shall not dilute the merit of BEFORE
the case, since under Rule 29, the action THE HON'BLE RAKESH SRIVASTAVA, J.

of the appellant-petitioner constitutes a

Service Single No. 642 of 2008
case of misconduct, which is also
punishable under Section 494 of I.P.C. Smt. Anara Devi... Petitioner
Versus
Ayukt Khadya Evam Rasad & Ors.
21. Once the wife brought into ...Respondents
notice of the authorities with regard to
second marriage of the appellant- Counsel for the Petitioner:
petitioner, then at later stage, ordinarily Sri S.P. Dubey
any application moved by the
complainant-wife does not seem to make Counsel for the Respondents:
out a case for interference with the C.S.C.
decision of the disciplinary authority.
Constitution of India, Art.-226-Retirement
benefits-denied on ground-even on
compassionate ground appointment being-
22. Any liberty given by the courts or adhoc in nature-can not be taken into
interference with such matters, may result consideration-as regularization period less
with ill consequence in due course of time or than 10 years of qualifying service-pension
may break the discipline in police force. It is not payable-held-misconceived-
compassionate appointment being regular
not a case where misconduct has been
542 INDIAN LAW REPORTS ALLAHABAD SERIES

in nature-can not be treated as adhoc department till she attained the age of
appointment-entitled for pension. superannuation on 30.09.2005. After her
superannuation, the petitioner requested
Held: Para-14
Admittedly, the petitioner was appointed
the opposite parties to pay to her the
under the Dying in Harness Rules. The retiral dues to which she was entitled
fact that the initial appointment of the under law. On the representation made by
petitioner was made on ad-hoc and the petitioner, the petitioner was paid
temporary basis, and by a subsequent Group Insurance, leave encashment etc.
order the services of the petitioner were Insofar as the pension was concerned, the
alleged to have been regularized, is of no
consequence. For all practical purposes,
same was denied to the petitioner on the
the appointment of the petitioner under ground that the petitioner had not
the Dying in Harness Rules has to be completed ten years of "qualifying
treated to be a permanent appointment. service" in order to enable the petitioner
to claim pension. This led to the filing of
Case Law discussed: the present writ petition.
(1994) 4 SCC 138; 1999(3) UPLBEC 2263;
(2007) 25 LCD 469.
3. The learned counsel for the
(Delivered by Hon'ble Rakesh Srivastava, J.) petitioner has submitted that the
appointment under the Dying in Harness
1. Sri Banwari Lal, the husband of the Rules is necessarily a regular
petitioner and an employee of the opposite appointment. He has submitted that the
parties, unfortunately died in harness. After entire period from the date of initial
the death of Sri Banwari Lal, by an order appointment i.e. 05.09.1985 till the
dated 05.09.1985 passed by the Regional petitioner attained the age of
Food Controller, Faizabad Region, Faizabad, superannuation on 30.09.2005, had to be
the petitioner was appointed, on ad-hoc and taken into account while computing
temporary basis, to the post of Watchman "qualifying service" for the purposes of
under The Uttar Pradesh Recruitment of grant of pension. 2
Dependents of Government Servants Dying
in Harness Rules, 1974 ("Dying in Harness 4. On the other hand, the learned
Rules") and was posted at Bahraich Center. It Standing Counsel has submitted that the
was stated in the appointment order that service rendered by the petitioner on ad-
since the petitioner was appointed on hoc basis could not be taken into account
absolutely ad hoc and temporary basis, the while computing the "qualifying service"
services of the petitioner were liable to be for the purposes of payment of pension
terminated at any time, without notice. and since the petitioner had less than eight
years of regular service to her credit, the
2. In pursuance of her appointment petitioner was not entitled to pension.
order, the petitioner joined the department
and started working. After completing ten 5. Heard Sri S.P. Dubey, learned
years of service, by an order dated counsel for the petitioner and the learned
30.04.1998, the services of the petitioner, Standing Counsel.
along with other employees mentioned in
the said order, were regularized. The 6. The short question to be answered
petitioner continued to work in the in the present writ petition is as to
2 All] Smt. Anara Devi Vs. Ayukt Khadya Evam Rasad & Ors. 543

whether compassionate appointment dying in harness and leaving his family in

under the Dying in Harness Rules could penury and without any 3 means of
be made on ad-hoc, temporary or daily livelihood. In such cases, out of pure
wage basis or appointment under the said humanitarian consideration taking into
Rules is a permanent appointment. consideration the fact that unless some
source of livelihood is provided, the family
7. It is settled that appointment in would not be able to make both ends meet, a
public services are to be made strictly in provision is made in the rules to provide
accordance with merit and in accordance gainful employment to one of the dependants
with the procedure provided in the rules. of the deceased who may be eligible for such
However, compassionate appointment employment. The whole object of granting
under the Dying in Harness Rules is an compassionate employment is thus to enable
exception to the general rule. When an the family to tide over the sudden crisis."
earning member of a family unexpectedly
passes away, his whole family is 9. The Dying in Harness Rules have
subjected to misery and privation. To been made in exercise of the
mitigate the hardship caused on account powerconferred by the proviso to Article
of sudden change in the status and affairs 309 of the Constitution of India with the
of the family and to save the family of the object of providing employment to one
deceased government servant from member of the deceased government
destitution, the concept of compassionate servant in order to enable the family of
appointment has been carved out. the deceased to overcome the sudden
financial crisis it finds itself facing.
8. The object of compassionate
appointment has been succinctly stated in the 10. The object of the Rules can be
case reported in (1994) 4 SCC 138, Umesh achieved only if the appointment under
Kumar Nagpal v. State of Haryana. At page the rules is permanent in nature. An
139 of the said report, the Apex Court has appointment made on ad-hoc, temporary
made the following observations:- or daily wage basis has no security of
tenure. Such an appointment can be
"As a rule, appointments in the terminated at any point time, with or
public services should be made strictly on without notice. Compassionate
the basis of open invitation of applications appointment under the Rules, obviously,
and merit. No other mode of appointment has to carry some security of tenure or
nor any other consideration is permissible. else it would frustrate the very object of
Neither the Governments nor the public the scheme for compassionate
authorities are at liberty to follow any appointment. The scheme for
other procedure or relax the qualifications compassionate appointment is a
laid down by the rules for the post. rehabilitation scheme and the security of
However, to this general rule which is to tenure is inherent in an appointment made
be followed strictly in every case, there under the said scheme.
are some exceptions carved out in the
interests of justice and to meet certain 11. The question whether an
contingencies. One such exception is in appointment under the Dying in Harness
favour of the dependants of an employee Rules is a permanent appointment or a
544 INDIAN LAW REPORTS ALLAHABAD SERIES

temporary appointment came up for Government Servant (Termination of

consideration before the Division Bench Services) Rules. 1975 will not apply to
of this Court in the case reported in 1999 such appointments.
(3) UPLBEC 2263, Ravi Karan Singh vs.
State of Uttar Pradesh and the Division 3. The petition is disposed of
Bench concluded as follows:- accordingly."

"1. This petition has come up before 12. It is, thus, clear that an
us on a reference made by the learned appointment under the Dying in Harness
single Judge by his order dated 1 Rules is a permanent appointment. It is
9.12.1997. The point involved is very not open to the opposite parties to make
simple, that is, whether an appointment an appointment under the Dying in
under the Dying-in-Harness Rules is a Harness Rules on ad-hoc, temporary or
permanent appointment or a temporary daily wage basis.
appointment. According to the learned
single Judge, this Court had earlier held 13. In the case reported in (2007) 25
that an appointment under Dying - in - LCD 469, Kishan Lal vs. State of U.P. &
Harness Rules is a permanent Ors. this Court came to the rescue of
appointment vide Budhi Sagar Dubey v. Kishan Lal, who was appointed under the
D. I. O. S., 1 993 ESC 21 ; Gulab Yadau Dying in Harness Rules on daily wage
u. State of U. P. and others, 1 991 (2) basis, by directing the opposite parties in
UPLBEC 9 95 and Dhirendra Pratap the said case, to pass a fresh order
Singh v. D. I. O .S. and others, 1 991 (1) 4 appointing Kishan Lal, as regular
UPLBEC 427. The learned single Judge employee in the same cadre from the
who passed the referring order dated j 1 initial date of recruitment with all
9.12.1997 disagreed with the above consequential benefits. Paragraph 4 of the
mentioned decisions and hence has said report is being quoted below:-
referred the matter to a larger Bench.
"4. In view of settled provisions of
2. In our opinion, an appointment law appointment of the petitioner as daily
under the Dying-in- Harness Rules has to wager seems to be not sustainable.
be treated as a permanent appointment Accordingly, a writ in the nature of
otherwise if such appointment is treated to mandamus is issued commanding the
be a temporary appointment, then it will opposite parties to pass fresh order
follow that soon after the appointment, appointing the petitioner from the initial
the service can be terminated and this will date of his recruitment as regular
nullify the very purpose of the Dying-in- employee in the same cadre with all
Harness Rules because such appointment consequential benefits keeping in view
is intended to provide immediate relief to the observation made hereinabove."
the family on the sudden death of the
bread earner. We, therefore, hold that the 14. Admittedly, the petitioner was
appointment under Dying-in-Harness appointed under the Dying in Harness Rules.
Rules is a permanent appointment and not The fact that the initial appointment of the
a temporary appointment, and hence the petitioner was made on ad-hoc and
provisions of U. P. Temporary temporary basis, and by a subsequent order
2 All] Barkai and Others Vs. Mahmood Khan & Ors. 545

the services of the petitioner were alleged to must be debatable-not settled by law of
have been regularized, is of no consequence. land-apart from having material bearing.
For all practical purposes, the appointment of
Held: Para-18
the petitioner under the Dying in Harness In the case of Santosh Hazari V. Purshottam
Rules has to be treated to be a permanent Tiwari reported in 2001 (92) RD 336 (SC)
appointment. had held that a point of law which admits of
no two opinions may be preposition of law
15. In view of the discussion made but cannot be a substantial question of law.
above, the writ petition is allowed with To be 'substantial' a question of law must
be debatable, not previously settled by law
cost quantified at Rs 3000. The petitioner of the land or a binding precedent, and
is held entitled to the grant of pension must have a material bearing on the
with effect from October, 2005. The decision of the case, if answered either
opposite parties are directed to compute way, in so far as the rights of the parties
and pay to the petitioner, her outstanding before it are concerned. If will, therefore,
retiral dues including pension, to which depend on the facts and circumstances of
the each case whether a question of law is
she is entitled under law, treating the substantial one and involved in the case or
petitioner to have been substantially not. The same view has been expressed
appointed w.e.f. 05.09.1985, the date of again by the Apex Court in the case of
her initial appointment. The petitioner Govinda Raju Vs. Marriamman 2005 (98)
shall also be entitled to interest @ 8% per RD 731.
annum on the arrears from October, 2005
(B)U.P.Z.A. & L R Act-Section-9- person
till the time of its actual payment. The found possession on date of vesting can
payment shall be made within a maximum claim benefit of presumption-admittedly
period of three months from the date of purchase of land n question from
receipt of a certified copy of this order. zamindar after date vesting-can not get
-------- any benefit-court below rightly not given
APPELLATE JURISDICTION any benefit-can not be interfered under
CIVIL SIDE second appeal-in absence of substantial
DATED: LUCKNOW 09.05.2014 question of law.

BEFORE Held: Para-12

THE HON'BLE ANIL KUMAR, J. In addition to the above said facts, the
trial court has also given a finding that
the allegation that defendant-appellant
Second Appeal No. 940 of 1978
became owner of the land in dispute u/s
9 of U.P.Z.A.&L.R. Act is also not proved
Barkai and Others......... Petitioners
because defendants-appellants have
Versus
failed in proving that they were in
Mahmood Khan & Ors. ... Respondents
possession of the disputed land on the
date when U.P.Z.A.&L.R. Act came into
Counsel for the Petitioners: force. Therefore, defendants-appellants
Sri H.S. Sahai, Sri U.S. Sahai could not get any title over the land in
dispute u/s. 9 of U.P. Z. A. & L. R. Act, so
Counsel for the Respondents: the argument advanced by learned
B.K. Srivastava counsel for the appellant has no forced
and rejected.
(A)C.P.C.-Section-100- Second Appeal-
substantial question of law?-explained- (Delivered by Hon'ble Anil Kumar, J.)
546 INDIAN LAW REPORTS ALLAHABAD SERIES

1. Heard Shri U. S. Sahai, learned court with a direction that it shall register
counsel for the appellants and perused the the suit at its original number. The trial
record. court was further directed to frame
additional issues in the light of
2. Facts in brief of the present case observations made in the body of
are that the plaintiffs-respondents filed a appellate judgment after giving
suit for demolition of structures and also opportunity to the parties concerned to
for possession over the land in dispute issue commission for determination as to
recorded as abadi plot no.3545 in which whether the land in dispute falls part of
there is a dilapidated house over the land plot no.3545 or not and shall decide the
on the ground that the same has been case in accordance with law.
purchased from Baleshwar who is tenure-
holder, by way of sale deed dated 6. In view of the factual background,
14.10.1965. the matter again built up before the trial
court. The trial court in order to decide
3. In the plaint, the plaintiffs had the controversy involved in the present
pleaded that the house has fallen down case has framed the following issues :-
and the defendants have dispossessed the
plaintiffs and raised structures and hence "Whether the land in suit belongs to
the suit for demolition and possession. the plaintiffs ?
Accordingly, the suit was registered
having Regular Suit No.462 of 1996. Whether the alleged construction and
Thereafter, the trial court by judgment Khutas, as alleged in the plaint are new or
and order dated 24.04.1971 has decreed old ? In either case its effect ?
the suit for possession in respect of the
land in dispute. In this regard, both the Whether there existed any house
courts below have given a concurrent belonging to one Baleshwar over the land
finding which is based on the material on in suit ?
record.
Whether the suit is within time ?"
4. The suit was resisted by the
defendants-appellants on the ground that 7. After considering the material on
the land is suit is Sahan land of the record (oral and documentary evidence)
defendants-appellants having their Ghari, as well as commission report, the trial
Charni, pegs and Khalian and other court by judgment and decree dated
agricultural structures/equipment etc. on 29.08.1977 had decreed the suit of the
it. plaintiffs challenged by filing an appeal
bearing Civil Appeal No.118 of 77 "Sri
5. Aggrieved by the said Barkayee & 3 Ors. vs. Sri Mahmood
observations made in the trial ocurt, Khan & 3 Ors.", dismissed by judgment
plaintiffs filed an appeal bearing Civil and decree dated 8.8.1978.
Appeal No.73 of 1971 "Mahmood Khan
vs. Barkayi & Ors.", allowed by judgment 8. In view of the above said facts,
and decree dated 04.05.1972 and the the present second appeal has been filed
matter was remanded back to the trial by the defendants-appellants (During the
2 All] Barkai and Others Vs. Mahmood Khan & Ors. 547

pendency of the present appeal, appellant 11. The main question involved in
nos.1, 2 and 4 as well as respondent no.1 the present case is whether the land in
have died and substituted by their legal dispute was originally owned by
representatives). Baleshwar or it was Sahan land of
defendants. On the basis of survey map,
9. Shri U. S. Sahai, learned counsel the land in dispute lies in plot
for the appellants has pressed the second no.3545/0.10 and both the courts below
appeal on the following questions of law have given a finding that the allegation of
:- defendant nos.1 to 4 that the land in suit
does not lie in plot no.3545/0.10, is
"Whether the land of abadi after the incorrect or wrong and Baleshwar's father
date of vesting having been vested in the Hira Lal was Zamindar of this village and
State can be transferred by the Ex- his sir was in this village. Copy of
zamindar and the transferre can have any Khatauni 1359 f. Ex.1 is on record which
title or right over the land so transferred ? shows that 3545/0.10 is recorded in the
name of Hir Lal. There is another
Whether a transfer of abadi land after document, namely, Khatauni of 1356 f.
the enforcement of U.P. Act No,1 of 1951 Ex.2 and Ex.4 (revenue record) from
of abadi land is void and can create any which it is clearly established that the
right on the transferre ? land in dispute is recorded in favour of
Hira Lal, the father of Baleshwar from
Whether assuming that the plaintiff whom plaintiffs have purchased a land in
taking a transfer of land from ex-zamindar question.
of land appurtenant to the defendant's
appellant's house and the land in suit 12. In addition to the above said
being sahan darwaza land of the facts, the trial court has also given a
defendant-appellant the plaintiff can have finding that the allegation that defendant-
any right over such a land having been appellant became owner of the land in
vested under section 9 of U.P. Act No.1 dispute u/s 9 of U.P.Z.A.&L.R. Act is
of 1951 and settled with the defendant- also not proved because defendants-
appellant. ? appellants have failed in proving that they
were in possession of the disputed land on
Whether non-framing of a vital issue the date when U.P.Z.A.&L.R. Act came
with respect to the fact that whether into force. Therefore, defendants-
Baleshwar had transferable rights over the appellants could not get any title over the
land in dispute basically connected with land in dispute u/s. 9 of U.P. Z. A. & L.
the plaintiff's title and resulting the R. Act, so the argument advanced by
serious prejudice to the defendant's case learned counsel for the appellant has no
results in vitiating the findings of the forced and rejected.
courts below in the absence of an
important and basic issue having been 13. Further, P.W.1-Baleshwar has
framed and tried by the courts below ?" stated that he transferred the land in suit
to the plaintiffs-respondents. The sale
10. I have heard learned counsel for deed is on record which is paper no.30-
the appellants and perused the record. ka.1, therefore from these documents as
548 INDIAN LAW REPORTS ALLAHABAD SERIES

well as from the documents and statement the Privy Council and of this Court, that a
referred above. It is proved that plaintiff- High Court, in second appeal, cannot go
respondent became owner of the disputed into questions of fact, however, erroneous
land as alleged in the plaint. So, the the findings of fact recorded by the courts
finding given by both the courts below are of fact may be, the learned counsel for the
based on the basis of documentary and appellant did not and could not contend
oral evidence are perfectly valid. that the High Court was competent to go
behind the findings of fact concurrently
14. It is well settled proposition of law recorded by the two courts of fact. (See
as laid down by Hon'ble Supreme Court and Mustafa Vs. Vakil @ Iqbal and another
by this Court that while adjudicating the 2008 (105) RD 392).
dispute in the second appeal the finding of
fact, which is recorded by the Court below 17. The Apex Court depreciated the
can only be set aside if the same is contrary liberal construction and generous
to the facts and perverse in nature. However, application of provisions of section 100
in the present case, the learned counsel for C.P.C. Hon'ble Supreme Court was of the
the appellant fails to point out that under view that only because there is another
what circumstances the findings which are view possible on appreciation of evidence
recorded in this regard by the court below are that can not be sufficient for interference
contrary to the records and perverse in nature under section 100 C.P.C. For ready
thus the submission made in this regard by reference, extract of paragraph No.7, of
the learned counsel for the appellant that the the vase of Veerayee Ammal V. Seeni
civil court has got no jurisdiction to entertain Ammal reported in 2002 (1) SCC
the suit and the jurisdiction lies under section 134=2001(45) ALR 691 (SC) is quoted
41 of the Land Revenue Act, has got no force below:
accordingly the same is rejected.
"7......We have noticed with distress
15. In view of the above said facts, that despite amendment, the provisions of
findings recorded by the Courts below section 100 of the Code have been
cannot be set aside on flimsy arguments liberally construed and generously applied
advanced on behalf of the appellants and by some judges of the High Courts with
without there being any question of law. the result that objective intended to be
In the instant case, arguments of the achieved by the amendment of section
counsel for the appellants are factual in 100 appears to have been frustrated. Even
nature and by no stretch of imagination before the amendment of section 100 of
can constitute substantial questions of the Code, the concurrent finding of facts
law. Re-appraisal of evidence is not could not be disturbed in the second
permissible. Interference of the facts from appeal."
recital or content of the document or after
shifting oral evidence does not leave any 18. In the case of Santosh Hazari V.
scope of re-appraisal in exercise of Purshottam Tiwari reported in 2001 (92)
jurisdiction under section 100 C.P.C. RD 336 (SC) had held that a point of law
which admits of no two opinions may be
16. It is well settled by a long series preposition of law but cannot be a
of decisions of the Judicial Committee of substantial question of law. To be
2 All] The Oriental Insurance Co. Ltd. Vs. Smt. Mainaz & Ors. 549

'substantial' a question of law must be found correct death shall be presumed as

debatable, not previously settled by law of accidental-petition held-maintainable-not
incumbent upon claimants to prove
the land or a binding precedent, and must
negligence.
have a material bearing on the decision of
the case, if answered either way, in so far Held: Para-13
as the rights of the parties before it are In view of the above, the finding returned
concerned. If will, therefore, depend on by the Tribunal that death occurred in an
the facts and circumstances of the each accident arising out of the use of the motor
case whether a question of law is vehicle, cannot be faulted in the light of the
decision of the Apex Court in the case of
substantial one and involved in the case or Rita Devi's case (supra). This court is,
not. The same view has been expressed therefore, of the view that the claim was
again by the Apex Court in the case of maintainable under Section 163-A of the
Govinda Raju Vs. Marriamman 2005 (98) Motor Vehicles Act.
RD 731.
Case Law discussed:
(2000) 5 SCC 113; 1993 Supp. (1) SCC 208;
19. For the fore-going reasons, no (1996) 9 SCC 46; (1997) 11 SCC 215.
substantial question of law involved in
this appeal. The judgment and decree (Delivered by Hon'ble Manoj Misra, J.)
under challenged in the present case is
perfectly valid and needs no interference. 1. The instant appeal has been filed
against the judgment and award dated
20. In the result, the second appeal 22.07.2006 passed by the Motor Accident
lacks merit and is dismissed. Claims Tribunal/Additional District Judge,
--------
Court No.9, Budaun in M.A.C.P. No. 21 of
APPELLATE JURISDICTION
CIVIL SIDE
2004 by which the claim petition, under
DATED: ALLAHABAD 02.05.2014 Section 163-A of the Motor Vehicles Act, of
the claimant-respondents, who are
BEFORE dependents of late Naseem Khan (the
THE HON'BLE MANOJ MISRA, J. deceased), have been partly allowed thereby
awarding compensation of Rs. 1,79,500/-
First Appeal From Order No. 2541 of 2006 plus interest from the date of filing of the
claim petition.
The Oriental Insurance Co. Ltd. Petitioner
Versus
Smt. Mainaz & Ors. ... Respondents 2. The claim case, in short, was that
on 09.04.2003, the husband of the
Counsel for the Petitioner: claimant No.1, namely, Naseem Khan
Sri Arun Kumar Shukla was traveling in Bus No. UGL 8580 from
Aonla to Budaun when, at about 7:30
Counsel for the Respondents: P.M., two unknown persons, with intent
Sri S.K. Gupta, Sri Sanjeev Kr. Tripathi to rob the passengers, boarded the bus
near village Parolia and, in the scuffle that
Motor Vehicle Act 1988-Section 163-A- ensued, shot at Naseem Khan thereby
Claim petition-for murder caused during injuring him which resulted in his death,
traveling in bus-whether can be termed
accidental murder or murder simplicitor?
while taking him to the Hospital. It was
held-if finding regarding accidental murder claimed that Naseem Khan had a monthly
550 INDIAN LAW REPORTS ALLAHABAD SERIES

income of Rs. 5,000/- per month from an the deceased was murdered on account of
electric shop, which he was running, and any enmity. The Tribunal found that from
as the death was caused in an accident the evidence on record including the
arising out of the use of a motor vehicle, statement of the eye-witness, it appeared
the claimants, who were dependents of to be a case of accidental death, on
the deceased, were entitled to account of resistance offered to the
compensation under the provisions of robbers, while traveling in the bus. In
section 163-A of the Motor Vehicles Act. support of its conclusion reliance was
placed on a decision of the Apex Court in
3. The owner of the bus as well as the case of Smt. Rita Devi and others v.
the Insurance Company (the appellant New India Assurance Company Ltd. and
herein) contested the claim on ground that another : (2000) 5 SCC 113. The
the death was not caused in an accident Tribunal, thereafter, found that as the
arising out of the use of the motor vehicle. income of the deceased, as claimed, was
Instead, it was a case of murder not substantiated, therefore, annual
simpliciter, therefore, the claim under income would be taken at Rs. 15,000/-.
Section 163-A of the Motor Vehicles Act After deducting one third from the annual
was not maintainable. It was pleaded that income, a multiplicand of Rs. 10,000/-
in respect of the incident the father of the was determined to which a multiplier of
deceased lodged a first information report, 17 was applied on finding that the age of
upon which, the police after investigation the deceased at the time of his death was
laid a charge-sheet under Sections 32 yrs so as to arrive at Rs.1,70,000/- as
302/307 I.P.C., which confirms that it was an amount payable towards loss of
a case of murder, on account of enmity, dependency. To the aforesaid amount, Rs.
and not a case of robbery. The owner as 2,000/- was added towards funeral
well as the Insurance Company further expenses; Rs. 2,500/- towards loss of
raised objection with regards to the estate; and Rs. 5,000/- towards loss of
income of the deceased. consortium so as to arrive at a total of Rs.
1,79,500/- as the compensation payable.
4. From the claimants' side, two As the vehicle was found to be insured
witnesses were examined in support of the with the Insurance Company (the
claim, namely, Mainaz (the widow of the appellant herein) and the driver of the
deceased) and Rakesh Chauhan, who was vehicle was having a valid licence, and
a fellow passenger and an eye-witness to there was no breach of any condition of
the incident. Neither the owner of the bus the contract of insurance, the Tribunal
nor the Insurance Company examined any awarded the compensation against the
witness. Insurance Company.

5. The Tribunal recorded a finding 6. Assailing the award passed by the

that the incident took place while the bus Tribunal, Sri Arun Kumar Shukla, who
was moving and that the deceased appeared on behalf of the appellant,
(Naseem Khan) was shot because he submitted that from the charge-sheet,
resisted the robbers. While holding as which was filed pursuant to the first
above, the Tribunal observed that the first information report lodged in respect of the
information report did not disclose that incident, it appeared to be a case of
2 All] The Oriental Insurance Co. Ltd. Vs. Smt. Mainaz & Ors. 551

murder simpliciter and not an accidental appellant, the question that arise for
murder, therefore, the claim under the adjudication in this appeal is as to
provisions of the Motor Vehicles Act was whether the death of Naseem Khan, who
not maintainable. Attention of the Court was was traveling in the bus, was due to an
invited to the first information report lodged accident arising out of the use of the
by Jameel Khan (the father of the deceased) motor vehicle, or it was a murder
as also to the charge-sheet. Relying on the simpliciter. Before answering the question
said documents, the learned counsel for the it would be useful to note that the claim
appellant submitted that from the first petition was filed under Section 163-A of
information report, it appears that while the the Motor Vehicles Act, therefore, it was
bus was moving two persons boarded the bus not incumbent upon the claimant to prove
near Parolia village and they shot at the son any negligence on the part of the driver of
of the informant which caused panic the motor vehicle so as to maintain the
amongst the bus passengers. The driver of claim.
the bus thereafter stopped the bus and the
assailants alighted from the bus and escaped. 9. To answer the aforesaid question
It was submitted that in the first information it would be useful to examine the decision
report there is no statement that there was of the apex court in Rita Devi's case
any act of robbery/looting to which (supra) which has been relied by the
resistance was offered by the deceased Tribunal. In Rita Devi's case, the facts of
(Naseem Khan), which made the robbers fire the case were that an auto rickshaw driver
at Naseem Khan. Relying on the charge- was murdered in the process of stealing
sheet, the learned counsel for the appellant the auto-rickshaw. The question before
submitted that one Nirbhai son of Ram the apex court was as to whether the death
Prakash was charge sheeted by the police for of auto rickshaw driver was on account of
an offence punishable under Sections an accident arising out of the use of motor
302/307 I.P.C. and that no case of any vehicle and, if so, whether a claim under
robbery/looting was registered by the police. section 163-A of the Motor Vehicle Act
It was thus submitted that since the intention was maintainable. While deciding the said
of the assailants was only to commit murder, case, the apex court observed that from a
therefore, it was not a case of accidental reading of the provisions of section 163-
murder or an accidental death arising out of A, a victim or his heirs are entitled to
the use of motor vehicle so as to confer claim from the owner / Insurance
jurisdiction on the Tribunal to award Company a compensation for death or
compensation on a claim under section 163- permanent disablement suffered due to
A of the Motor Vehicles Act. accident arising out of the use of the
motor vehicle, without having to prove
7. The learned counsel for the wrongful act or neglect or default of any
appellant did not assail the basis of one. It was observed that if it is
calculation of the compensation awarded established by the claimants that the death
by the Tribunal and no other point was or disablement was caused due to an
pressed. accident arising out of the use of motor
vehicle then they will be entitled for
8. On consideration of the payment of compensation. As to whether
submissions of the learned counsel for the murder, in a given situation, could be said
552 INDIAN LAW REPORTS ALLAHABAD SERIES

to be caused due to an accident arising out caused to the driver of the autorickshaw
of the use of motor vehicle, the apex court was an accidental murder. The stealing of
observed as follows:- the autorickshaw was the object of the
felony and the murder that was caused in
"10. The question, therefore is, can a the said process of stealing the
murder be an accident in any given case? autorickshaw is only incidental to the act
There is no doubt that "murder", as it is of stealing of the autorickshaw.
understood, in the common parlance is a Therefore, it has to be said that on the
felonious act where death is caused with facts and circumstances of this case the
intent and the perpetrators of that act death of the deceased (Dasarath Singh)
normally have a motive against the victim was caused accidentally in the process of
for such killing. But there are also committing theft of the autorickshaw.
instances where murder can be by
accident on a given set of facts. The 18. In the instant case, as we have
difference between a "murder" which is noticed the facts, we have no hesitation in
not an accident and a "murder" which is coming to the conclusion that the murder
an accident, depends on the proximity of of the deceased (Dasarath Singh) was due
the cause of such murder. In our opinion, to an accident arising out of the use of
if the dominant intention of the Act of motor vehicle. Therefore, the trial court
felony is to kill any particular person then rightly came to the conclusion that the
such killing is not an accidental murder claimants were entitled for compensation
but is a murder simpliciter, while if the as claimed by them and the High Court
cause of murder or act of murder was was wrong in coming to the conclusion
originally not intended and the same was that the death of Dasarath Singh was not
caused in furtherance of any other caused by an accident involving the use of
felonious act then such murder is an motor vehicle."
accidental murder."
10. In the light of the law laid down by
Thereafter, the apex court proceeded the apex court, in the instant case, what is,
to hold as follows:- therefore, to be seen is whether from the
evidence brought on record, it is proved that
"14. Applying the principles laid the death of Naseem Khan was as an incident
down in the above cases to the facts of the of loot/ robbery/ dacoity, that is an
case in hand, we find that the deceased, a "accidental murder", or "murder simpliciter".
driver of the autorickshaw, was If this Court comes to a conclusion that it
dutybound to have accepted the demand was a case of murder simpliciter that is,
of fare-paying passengers to transport where the perpetrators of the crime had the
them to the place of their destination. intention of committing murder only, then,
During the course of this duty, if the the claim under Section 163-A of the Motor
passengers had decided to commit an act Vehicles Act would not be maintainable.
of felony of stealing the autorickshaw and But, if this Court comes to a conclusion that
in the course of achieving the said object it was a case of an accidental murder that is
of stealing the autorickshaw, they had to where the perpetrators of the act did not have
eliminate the driver of the autorickshaw any motive against victim but the death was
then it cannot but be said that the death so a result of an act to ensure commission of
2 All] Smt. Sushila Devi Vs. Union of India 553

another act of felony, while the vehicle was first information report is not a substantive
in use, then, the claim under Section 163-A piece of evidence, it could be used to
of the Motor Vehicles Act would be contradict or corroborate its maker. It cannot
maintainable. be used as a substantive piece of evidence
(vide Surjit Singh versus State of Punjab :
11. In the instant case, only two 1993 Supp (1) SCC 208; State of M.P.
witnesses were examined. P.W.1 is the Versus Surbhan: (1996) 9 SCC 46; Harkirat
claimant, who is the widow of the deceased, Singh versus State of Punjab: (1997) 11 SCC
whereas P.W.2 (Rakesh Chauhan) was a 215). In the instant case, the informant was
passenger traveling in the Bus when the not examined as a witness. Rakesh Chauhan,
husband of the claimant was shot at. From who was examined as an eye-witness, is not
the statement of the claimant, it is not clear the author of the first information report. As
whether she was traveling in the bus at the no other person was examined either by the
time when the incident took place. But from owner of the bus or by the Insurance
the statement of Rakesh Chauhan, it is clear Company to rebut the testimony of Rakesh
that he was traveling as a passenger in the Chauhan, there was no other admissible
bus and seated just behind the deceased evidence to show that it was a case of murder
(Naseem Khan). The statement of Rakesh simpliciter and not of accidental murder as
Chauhan goes to show that two persons, with an incident of loot/ robbery/ dacoity. In view
their face covered by a cloth, boarded the bus of the above, the finding returned by the
and when the deceased resisted their act of Tribunal that death occurred in an accident
looting, they shot at the deceased. In the arising out of the use of the motor vehicle,
cross-examination, which was at the instance cannot be faulted in the light of the decision
of the Insurance Company, the said witness of the Apex Court in the case of Rita Devi's
stated that those persons had not only case (supra). This court is, therefore, of the
snatched money from Naseem Khan (the view that the claim was maintainable under
deceased) but they also took money from Section 163-A of the Motor Vehicles Act. As
other two or three passengers. It was stated there is no challenge by the learned counsel
that the assailants had covered their face by a for the appellant to the quantum of the
cloth and therefore they could not be compensation awarded, the appeal fails and
identified. is dismissed. The interim order stands
discharged.
12. The submission of the learned --------
counsel for the appellant is that the story ORIGINAL JURISDICTION
of robbery was not taken in the first CIVIL SIDE
DATED: LUCKNOW 21.05.2014
information report; and the police, on
investigation, found a case of murder and BEFORE
laid charge-sheet accordingly, therefore, THE HON'BLE ANIL KUMAR, J.
the Tribunal fell in error by placing
reliance on the testimony of Rakesh Misc. Single No. 2611 of 2012
Chauhan, which had no value.
Smt. Shushila Devi ...Petitioner
13. The above submission of the Versus
Union of India ...Respondent
learned counsel for the appellant cannot
be accepted, as it is well settled in law that a
Counsel for the Petitioner:
554 INDIAN LAW REPORTS ALLAHABAD SERIES

Sri Manish Kumar Srivastava, Sri Om Hari Allahabad by train No.1067 -U.P. Saket
Tripathi Express, accidentally fell down from the
said train at Kohndaur Railway Station
Counsel for the Respondent: due to jerk, jolt and pressure of
Sri Pankaj Srivastava, Sri Jagdish Prasad passengers as a result thereof, he
Maurya sustained grievous injuries and died on
the spot due to ante-mortem injuries
C.P.C. Order VI Rule 17- Amendment-in
sustained by him, registered as O.A.
claim petition-claim petition filed in 2009-
with allegations deceased was traveling No.II/u/355/09.
from Sultanpur to Allahabad-now in 2011
by proposed amendment-sought amend the 3. On 13.07.2009, respondent filed a
pleading while returning from Allahabad to written statement denying the allegation
Sultanpur after medical check up-met in as made by claimants-petitioners in claim
accident-barred by limitation are provided
petition and also taken a plea/ground that
in section 17(i)(b) of Railway claims
Tribunal Act 1987-held-rejection-proper. the case of the applicants is not covered
by the definition of "untoward incident"
Held: Para-15 as provided under Railway Claims
Further, in the present case, the claim Tribunal, so the same is liable to be
petition was filed on 19.05.2009 and an dismissed.
application for amendment was moved
on 09.07.2011. So, the same cannot be
allowed on the ground of limitation in 4. On 09.07.2011, petitioners moved
view of the provisions as provided under an application for amendment of the claim
Section 17 (1) (b) of the Railway Claims petition with the prayer that the due to
Tribunal Act, 1987 because Hon'ble the typographical error in paragraph nos.6
Apex Court in the case of Voltas Limited and 7-A of the claim petition, it has been
vs. Rolta India Limited (2014) 4 SCC 516
wrongly typed that the deceased person
Case Law discussed: was going for Allahabad for his medical
AIR 1992 All. 25; (2009) 10 SCC 84; (2014) 4 checkup on 24.06.2007 by train No.1067 -
SCC 516. U.P. Saket Express whereas it should be
mentioned that "the deceased person was
(Delivered by Hon'ble Anil Kumar ,J.) returning from Allahabad to Sultanpur
after his medical checkup on 24.06.2007
1. Heard Shri M. K. Srivastava, by train No.1067 -U.P. Saket Express."
learned counsel for the petitioner, Shri J.
P. Maurya, learned counsel for the 5. Amendment as sought opposed by
respondents and perused the record. the respondents on the ground that same
changed in the entire cause of
2. Undisputed facts of the present action/nature on which the claim petition
case are that on 19.05.2009, petitioners has been filed as well as barred by
filed a claim petition under Section 124-A statutory period of limitation.
of Railways Act, 1989 on the ground that
Shri Rakesh Kumar, resident of Village- 6. The Railway Claims Tribunal, by
Ramapur Post-Kohadur, Police Station- order dated 09.01.2012, rejected the
Kohdaur, District-Pratapgarh (U.P.) on amendment as sought by the claimant
24.06.2007, travelling from Sultanpur to with the following observations :-
2 All] Smt. Sushila Devi Vs. Union of India 555

"The object of this rule is that the another in the original plaint or change of
Courts shouldtry the merits of the case the subject-matter of or controversy in the
that come before them and should, suit is not permissible; (iii) Introduction
consequently, allow all amendments that by amendment of inconsistent or
may be necessary for determining the real contradictory allegations in negation of
question in controversy between the the admitted position on facts, or mutually
parties provided it does not cause injustice destructive allegations of facts are also
or prejudice to the other party." impermissible though inconsistent pleas
on the admitted position can be
7. I have heard learned counsel for introduced by way of amendment; (iv) In
the parties and gone through the records. general, the amendments should not cause
prejudice to the other side which cannot
8. The object of Order 6, Rule 17 be compensated in costs; and (v)
primarily is that if because of certain facts Amendment of a claim or relief which is
not being pleaded or because of barred by limitation when the amendment
deficiencies in the pleadings, the question is sought to be made should not be
involved between the parties cannot be allowed to defeat a legal right accrued
finally determined and unless it is finally except when such consideration is out-
determined, there is likelihood of weighed by the special circumstances of
multiplicity of proceedings. Order 6, Rule the case.
17 empowers the Court to permit such
amendments which are necessary for final 10. Amendment can be refused in
determination of the issues in dispute or the following circumstances : (i) where it
real point in dispute between the parties. is not necessary for the purpose of
Expression "new case" has been the determining the real question in
subject matter of discussion and that controversy between the parties; (ii)
expression has been defined to mean a where the plaintiff's suit would be wholly
new claim based on altogether new facts displaced by the proposed amendment;
and new ideas. New case does not mean (iii) where the effect of amendment would
and include in itself where there is an take away from the defendant a legal right
additional approach to the same facts which has accrued to him by lapse of
already in the pleadings as an alternative time; (iv) where the amendment would
approach. So, in the context of the introduce totally different, new and
amendment application, an additional inconsistent case and the application is
approach to same facts cannot amount to made at a late stage to the proceeding; and
making out a new case. (v) where the application for amendment
is not made in good faith.
9. The principles established by
judicial decisions in respect of 11. Accordingly, in brief, it can be
amendment of plaint are : (i) All held that all amendments should be
amendments will be generally permissible allowed which satisfy the conditions (a)
when they are necessary for determination of not working injustice to the other side;
of the real controversy in the suit; (ii) All and (b) of being necessary for the purpose
the same, substitution of one cause of of determining the real question in
action or the nature of the claim for controversy between the parties. They
556 INDIAN LAW REPORTS ALLAHABAD SERIES

should be refused only when the other (2009) 10 SCC 84, Hon'ble the Apex
party cannot be placed in the same Court has observed as under:
position as if the pleading had originally
been correct but the amendment would The Courts have consistently laid
cause him an injury which cannot be down that for unnecessary delay and
compensated by costs. inconvenience, the opposite party must be
compensated with costs. The imposition
12. However, under the cover of of costs is an important judicial exercise
seeking amendment it is not open to any particularly when the courts
party to substitute a new cause of action
or to change the nature of the suit or to deal with the cases of amendment.
substitute the subject-matter of the suit The costs cannot and should not be
except when the Court thinks it just and imposed arbitrarily. In our view, the
necessary. (See Ganeshi Rai v. Ist following parameters must be taken into
Additional District Judge A.I.R. 1992 consideration while imposing the costs.
All.25) and no amendment of plaint can These factors are illustrative in nature and
be allowed if because of lapse of time not exhaustive.
some right has vested in the other party
and the effect of allowing amendment (i) At what stage the amendment was
would tantamount to the taking away of sought?
that right. Allowing such amendment (ii) While imposing the costs, it
cannot be compensated for by costs. should be taken into consideration
whether the amendment has been sought
13. In the instant matter, as per at a pre-trial or post-trial stage;
undisputed facts, the claim petition has (iii)The financial benefit derived by
been filed by the claimant on 19.05.2009 one party at the cost of other party should
with the cause of action that the deceased be properly calculated in terms of money
(Rakesh Kumar) was travelling from and the costs be awarded accordingly.
Sultanpur to Allahabad on 24.06.2007 by (iv) The imposition of costs should
train No.1067 -U.P. Saket Express and not be symbolic but realistic;
due to accident, he died at Kohndaur (v) The delay and inconvenience
Railway Station. Subsequently, the caused to the opposite side must be
application has been moved for clearly evaluated in terms of additional
amendment with the prayer that the and extra court hearings compelling the
deceased person was returning from opposite party to bear the extra costs.
Allahabad to Sultanpur after his medical (vi) In case of appeal to higher
checkup on 24.06.2007 by train No.1067 - courts, the victim of amendment is
U.P. Saket Express. Thus, a new cause of compelled to bear considerable additional
action is sought to be incorporated by way costs.
of amendment in the claim petition which
can not be allowed. All these aspects must be carefully
taken into consideration while awarding
14. As in the case of Revajeetu the costs.
Builders and Developers vs.
Narayanaswamy and Sons and others The purpose of imposing costs is to:
2 All] Smt. Suman & Anr. Vs. The State of U.P. & Ors. 557

(a) Discourage malafide amendments provided under Section 17 (1) (b) of the
designed to delay the legal proceedings; Railway Claims Tribunal Act, 1987
(b) Compensate the other party for because Hon'ble the Apex Court in the
the delay and the inconvenience caused; case of Voltas Limited vs. Rolta India
(c) Compensate the other party for Limited (2014) 4 SCC 516 held as under
avoidable expenses on the litigation :-
which had to be incurred by opposite
party for opposing the amendment; and "Paragraph no.30-In Revajeetu
d) To send a clear message that the Builders and Developers v.
parties have to be careful while drafting Narayanaswamy and Sons (2009) 10 SCC
the original pleadings. 84 while laying down some basic
principles for considering the amendment,
On critically analyzing both the the Court has stated that as a general rule
English and Indian cases, some basic the court should decline amendments if a
principles emerge which ought to be taken fresh suit on the amended claims would
into consideration while allowing or be barred by limitation on the date of
rejecting the application for amendment. application."

(1) Whether the amendment sought 16. Thus, keeping in view the above
is imperative for proper and effective said facts as well as finding given by
adjudication of the case? Railway Claims Tribunal while rejecting
(2) Whether the application for the petitioners application for amendment,
amendment is bona fide or mala fide? I do not find any illegality or infirmity in
(3) The amendment should not cause the impugned order under challenge in the
such prejudice to the other side which writ petition.
cannot be compensated adequately in
terms of money; 17. In the result, writ petition lacks
(4) Refusing amendment would in merit and is, accordingly, dismissed.
fact lead to injustice or lead to multiple --------
litigation; REVISIONAL JURISDICTION
(5) Whether the proposed CRIMINAL SIDE
DATED: ALLAHABAD 13.05.2014
amendment constitutionally or
fundamentally changes the nature and BEFORE
character of the case? and THE HON'BLE MRS. VIJAY LAKSHMI, J.
(6) As a general rule, the court
should decline amendments if a fresh suit Criminal Revision No. 2637 of 2013
on the amended claims would be barred
by limitation on the date of application. Smt. Suman & Anr. Petitioners
Versus
The State of U.P. & Ors. ...Respondents
15. Further, in the present case, the
claim petition was filed on 19.05.2009
Counsel for the Petitioners:
and an application for amendment was Sri S. Kumar, Sri A.P. Tewari
moved on 09.07.2011. So, the same
cannot be allowed on the ground of Counsel for the Respondents:
limitation in view of the provisions as A.G.A.
558 INDIAN LAW REPORTS ALLAHABAD SERIES

Criminal Revision-against order passed by present". Learned counsel has further

Magistrate sending Nari Niketan-without submitted that even after expiry of one
considering her statement about age-
year from personal service of notice the
without radiological opinion-placed
reliance upon school leaving certificate-in
opposite party no. 3 (informant) has
statement under section 164 Cr.P.C.-stated neither appeared nor engaged any counsel
living as husband and wife-having strong to argue the case on his behalf.
possibility of honor killing-even a minor
girl can not be sent Nari Niketan against 3. In view of the aforesaid facts, I
her will-held-order illegal-set-a-side with am deciding this criminal revision today
direction to send her husband’s home with
full security-revision allowed.
on merits, after hearing learned counsel
for the revisionist, learned A.G.A. and
Held: Para-10 after carefully perusing the records.
The aforesaid statement of the
prosecutrix not only shows that both the 4. The instant criminal revision is
revisionists are living together as being preferred against the order dated
husband and wife after performing
marriage with their free will and consent
13.8.2013 passed by the Chief Judicial
but also shows the apprehension of Magistrate, Court No. 17, Deoria in
prosecutrix that due to prestige issue, Criminal Case No. 310 of 2013 (State Vs.
her family members may eliminate her. Udaiveer and others) under Sections 363
Killing a girl for securing honour of and 366 I.P.C., Police Station Khampur,
family is very common in India especially district Deoria whereby the prosecutrix-
in rural areas.
revisionist no. 1 was sent to Nari Niketan.
Case Law discussed:
1997 All LJ 2197; 1982 All LJ 115; 1978 Cri LJ 5. The contention of the revisionist
1003. is that inspite of the fact that the
revisionist no. 1/prosecutrix Smt. Suman
(Delivered by Hon'ble Mrs. Vijay Lakshmi, J.) was found to be major aged about 18
years in the medical report and as per her
1. Heard Mr. A.P. Tewari assisted statement recorded under Section 164
by Mr. S. Kumar, learned counsel for the Cr.P.C. refuting the allegations made in
revisionists as well as learned A.G.A. on the F.I.R., the learned Magistrate has
behalf of opposite party nos. 1 and 2. No rejected the application of the revisionist
one is present on behalf of opposite party and directed to send her to Nari Niketan,
no. 3 (informant) despite the fact that she Jaitpura, Varanasi against her will.
has been personally served with the notice
as per the report dated 10.12.2013 of the 6. Learned counsel for the
Chief Judicial Magistrate, Deoria. revisionist has argued that on account of
illegal detention of the revisionist against
2. Learned counsel for the her will, her right to liberty is being
revisionists prays that the case be decided infringed and violated. He has further
on merits today as it is pending since long argued that even a minor person cannot be
specially in the light of the note appended ordered to be detained and kept in Nari
on the top of the cause list that "no case Niketan against wishes. There is no
shall be adjourned on the ground that provision in the Code or Criminal
learned counsel for the informant is not Procedure which authorises the learned
2 All] Smt. Suman & Anr. Vs. The State of U.P. & Ors. 559

Magistrate to keep a woman in Nari Niketan committed no illegality while holding the
against her will. Hence it has been prayed prosecutrix as minor on the basis of her
that by learned counsel for the revisionist that school certificates relying on two
the impugned order which has been passed in judgments of the Supreme Court cited in
a mechanical manner without application of the impugned order and sending her to
judicial mind be set aside. The learned Nari Niketan.
counsel for the revisionist has placed reliance
on a Division Bench judgement of this Court 9. After hearing the rival
reported in 1997 All LJ 2197 ( Raj Kumari submissions of learned counsel for the
Vs. Superintendent, Women Protection parties and considering the materials on
House) in which, the Division Bench of this record I am of the considered view that
Court relying on two earlier Division Bench this revision deserves to be allowed and
judgments in the matter of Smt. Parvati Devi the impugned order dated 13.8.2013 is
(1982 All LJ 115) and Smt. Kalyani liable to be quashed and set aside for the
Chowdhary v. State of U.P. reported in 1978 following reasons :-
Cri LJ 1003 has held that :
1.The learned Magistrate while passing
"...no person can be kept in a the impugned order has neither considered
Protective Home unless she is required to the radiological age of the prosecutrix, which
be kept there either in pursuance of was found to be of 18 years nor the statement
Immoral Traffic in Women & Girls of prosecutrix recorded under Section 164
Protection Act or under some other law Cr.P.C. and has passed the impugned order
permitting her detention in such a home.. by relying blindly on school leaving
In such cases, the question of minority is certificate of the girl and judgment of
irrelevant as even a minor cannot be connected criminal trial.
detained against her will or at the will of
her father in a Protective Home." 2.The statement recorded under
Section 164 Cr.P.C. of the prosecutrix
7. In the case of Smt. Parvati Devi which is available on record as annexure-5
(supra) the Division Bench of this Court clearly shows that the prosecutrix has
has held that : categorically stated that she is aged about
20 years and she understands her welfare.
"...confinement of an accused in Nari Her mother had came to Nari Niketan with
Niketan against her wishes could not be two other family members to meet her and
authorised either under Section 97 or to take her home. All of them were talking
under Section 171 Cr.P.C. and the that as she (the girl) has brought a bad name
respondents have failed to bring to the to the family they would kill her after taking
notice of the Court, any legal provision her home. The prosecutrix has further stated
where under the Magistrate has been that when they reached at the station, taking
authorised to issue direction that a minor advantage of the crowd, present at railway
female witness shall against her wishes, platform she ran away. Udai Veer has not
be kept in Nari Niketan." not done anything wrong with her. Udai
Veer is her husband and she intends to live
8. Per contra learned A.G.A. has with him. Her mother has falsely implicated
contended that the learned Magistrate has Udai Veer.
560 INDIAN LAW REPORTS ALLAHABAD SERIES

10. The aforesaid statement of the State of U.P. & Ors. ...Respondents
prosecutrix not only shows that both the
revisionists are living together as husband Counsel for the Petitioner:
and wife after performing marriage with Sri Raj Kumar Singh
their free will and consent but also shows
the apprehension of prosecutrix that due Counsel for the Respondents:
to prestige issue, her family members may C.S.C., Miss Vina Sinha
eliminate her. Killing a girl for securing
Transport Corporation Act, 1950-Section 45-
honour of family is very common in India readwith U.P.S.R.T.C. Employees Services
especially in rural areas. Regulation 1981-Regulation-37-Retirement
age-58 years-as per provision of U.P.
11. In such situation, it was neither Fundamental(Amendment)Rules 2002-by
safe nor proper for the Magistrate to send notification 27.06.2002 govt. employee shall
retire on 60 years-as per direction of court-
the girl to Nari Niketan.
retirement age shall by abide by decision of
govt.-not govt. decided to enhance the age
3.Even assuming for the sake of of retirement of corporation employee at 60
arguments, that the prosecutrix was minor years-held-in terms of Court's direction
at that time, she should not have been sent petitioner shall deemed to continue in
to Nari Niketan against her wishes in service till the age of 60 years-with all
consequential benefits-petition allowed.
wake of the clear law as laiddown earlier
by the Division Bench of this Court in the Held: Para-28
3 decisions cited above. Taking the facts and circumstances of this
case mentioned above and the law laid
12. For the abovesaid reasons, the down by the Hon'ble Supreme Court, the
revision is allowed. The impugned order court finds that a case has been made out
by the petitioners. Although the permission
dated 13.8.2013 is set aside. The opposite
has been given with prospective effect but
party nos. 1 and 2 are directed to release the petitioners case was already covered by
the prosecutrix forthwith, if not wanted in the court's order. As per the court's order
any other case, and send her to her passed in W.P. No. 527 of 2012 ( Sitaram
husband's (revisionist no. 1 Udai Veer) Singh and two others) dated 30.1.2012. The
home under proper security. said order has already been quoted in the
-------- body of the order. Since the retirement of
ORIGINAL JURISDICTION the petitioner was subject to the decision of
CIVIL SIDE
the State Government and State
Government has taken a positive decision
DATED: LUCKNOW 29.05.2014
on extending the age of retirement from 58
to 60 years, hence, the case of the
BEFORE
petitioner should be included in the benefit
THE HON'BLE SHABIHUL HASNAIN, J.
given to others vide order dated 24.7.2012.

Writ Petition No. 6046(S/S) of 2012 Case Law discussed:

connected with W.P. No. 5352 of 2012, W.P. (1994) 3 SCC 1; W.P. No. 527 of 2012.
No. 6109 of 2012, W.P. No. 6169 of 2012,
W.P. No. 5721 of 2012, W.P. No. 7551 of (Delivered by Hon'ble Shabihul Hasnain, J.)
2012 and W.P. No. 7534 of 2012
1. Heard Sri Raj Kumar Singh, Sri
Sitaram Singh... Petitioner Rajendra Singh Chauhan learned counsel
Versus
2 All] Sitaram Singh Vs. State of U.P. & Ors. 561

for the peititoner and learned Standing impugned order dated 16.4.2012
Councel for the state, Sri C.S. Pandey and (contained as Annexure no. 5 to the writ
Ms. Veena Sinha for the U.P.S.R.T.C. petition) with respect to petitioners only.

2. Petitioner has made following e. issue any other suitable order or

prayer : direction which this Hon'ble Court may
deem fit, just and proper under the
"a. issue a writ, order or direction in circumstances of the case in favour of the
the nature of certiorari thereby quashing petitioner.
the clause 3 of the impugned order dated
24.7.2012 ( contained as Annexure no. 1 f. Allow the writ petition of the
to the writ petition) wherein it is provided petitioners with cost."
that this order will be effective with
immediate effect and the last para of the 3. The petitioner has argued that he
order dated 26.7.2012 (contained in has been deliberately denied the benefit of
Annexure no. 2 to the writ petition) order dated 24.7.2012. By this order age
wherein it is said that the order will be of retirement in the department has been
effective with immediate effect, with enhanced from 58 to 60 years with
respect to the petitioners only. prospective effect.The enhancement of
retirement age of the petitioners was
b. issue a writ, order or direction in subject to the decision taken by the State
the nature of mandamus directing the Government, as per the orders dated
opposite parties treat the petitioners as if 24/30.1.2012 passed by this Hon'ble
he was in continuous service on 24.7.2012 Court in the writ petition filed by the
ignoring the clause 3 of the order dated petitioner. Now the State Government has
24.7.2012 and the last para of the order taken a decision on the basis of the letter
dated 26.7.2012. dated 29.4.2012 and its G.O. dated
20.12.2011. On these two dates the
c. issue a writ, order or direction in petitioners were in service hence the
the nature of certiorari thereby quashing petitioners are entitled to the benefit of
the impugned Notice/office dated order dated 24.7.2012 passed by the State
19.8.2011 issued by the opposite party no. Government but the State Government
4. has denied the benefit of order dated
24.7.2012 to the petitioners by saying that
d. issue a writ, order or direction in the the orders will be prospective in nature.
nature of mandamus, commanding and
directing the opposite parties to allow the 4. The matter relating to
petitioners to continue in service till he enhancement of age of superannuation of
attains the age of 60 years i.e. till 31.1.2014 the employees of the Corporation from 58
and to pay him salary each and every month to 60 years had been placed before the
when it falls due and give all the Board of Directors of the Corporation at
consequential benefits to the petitioners. Lucknow vide Resolution No. 3448, it
was considered by the Board of Directors
d1. issue a writ, order or direction in of the Corporation at Lucknow in its 168
nature of certiorari thereby quashing the meeting on 11.4.2008 and was duly
562 INDIAN LAW REPORTS ALLAHABAD SERIES

approved by them. As such Corporation 8. A Government Order dated

and as such petitioners were entitled to 5.7.1972 was issued and thereby it was
continue in services till they attain the age provided that whenever the Corporation
of 60 years. shall frame service regulations for the
employees in exercise of power under
5. Petitioner has further argued that section 45 of the Road Transport
in pursuance to the letter dated Corporations Act, 1950, it shall include
20.12.2011, in U.P. Housing and the assurance of the State Government
Development Board, Jal Nigam, Bridge that the service conditions of the
Corporation & other corporations corporations employees shall not be
retirement age has been enhanced but in inferior to that of the State Government
the Department of the petitioner the same employees and further the span of service,
has not been given effect even after seniority, promotion, pay fixation, leave
completion of all the formalities. In other and financial benefits shall remain same
corporations the benefit of enhancement as it would have been if they would have
of retirement age has been been given continued under the State Government as
with retrospective effect say Handloom State employees of U.P. Roadways.
Corporation.
9. The Corporation framed Service
6. As per the date of birth of the Regulations for its employees known as
petitioners, they would have attained the age U.P. State Road Transport Corporation
of superannuation on 31.1.2014, whereas the Employees Service Regulation - 1981 (
petitioners have been retired at the age of 58 this regulation was framed while
years i.e. w.e.f. 31.1.2012 which is not exercising the powers under section 5(2
sustainable in the eyes of law as the State (c) of the Road Transport Act, 1950) for
Government has been pleased to grant regulating the conditions of the services
approval to enhance the retirement age of the of thee employees appointed in the
corporation's employees following the Corporation. It is specified that prior to
Government Order dated 20.12.2011 and the framing of aforesaid regulations, the
letter dated 29.4.2012 written by the services of the employees of the
Managing Director of the Corporation to the corporation were governed by the rules,
Principal Secretary. governing service conditions of the
employees of State Government. It is
7. The U.P. State Road Transport admitted that as on date the petitioners are
Corporation was created by the governed by the aforesaid regulations.
notification dated 31.5.1972 w.e.f. Regulation 37 provides that the retirement
1.6.1972 invoking the provision of age will be 58 years.
Section 3 of the Road Transport
Corporation Act, 1950 for providing 10. In exercise of powers under
efficient, adequate, economic and Article 309 of the Constitution of India,
properly coordinated transport services in an amendment in Fundamental Rule- 56
the State of U.P. and by means thereof the of the U.P. Fundamental Rules, contained
employees of U.P. Roadways the State in Financial Handbook, Volume, Part II,
Government came to be merged with the Part II-IV, which came to be known as the
Corporation. Uttar Pradesh Fundamental (Amendment)
2 All] Sitaram Singh Vs. State of U.P. & Ors. 563

Rules, 2002 was incorporated under the of the retirement age. In pursuance to the
notification dated 27.6.2002, whereby age aforesaid letter dated 20.12.2011, in U.P.
of retirement of the Government Housing and Development Board, Jal
employees was enhanced from 58 to 60 Nigam, Bridge Corporation the retirement
years. age has been enhanced but in the
Department of the petitioner the same has
11. The approval of the Board of not been given effect even after
Directors has got the Statutory Force completion of all the formalities.
because the Regulations have been made
as per the provision of the Road Transport 14. Uttar Pradesh State Control over
Act, 1950 and as per section 45 (2)(c) the Public Corporation Act, 1975 framed by
regulations have been made and the the U.P. Act No. 41 of 1975, provide that
following the regulations the Board of every statutory body established /
Directors have taken a decision to constituted under any U.P. Act shall
enhance the age of superannuation from discharge of its function guided by such
58 to 60 years then there is no scope to directions on question of policy, as may
deny the benefit of extension of be given by the State Government. Uttar
retirement age from 58 to 60 years to the Pradesh Power Corporation Ltd. is also
petitioners from the date 20.12.2011 or public Sector Corporation but the State
29.4.2012 by the State Government ( the Government discriminated with the
only thing which requires to be done that department of petitioner as in the Uttar
is the grant of approval) because the Pradesh Power Corporation Ltd. and other
government on the basis of letter dated corporations, the age of retirement of the
29.4.2012 and the G.O. dated 20.12.2011 employees has been enhanced from 58
has taken the decision to enhance the years to 60 years.
retirement age.
15. On 8.7.2011 and 18.7.2011 the
12. Board of Directors in its meeting Hon'ble Court passed an order that the
no. 168 which was held on 11.4.2008 employees of the U.P. Jal Nigam may be
decided that the retirement age of the permitted to continue as contract
employees of the corporation be enhanced employee till they completes 60 years. On
from 58 to 60 years. Managing Director 3.9.2012 petitioner made representation to
of the Corporation had sent the approval the authorities to enhance the age by
granted by the Board of Directors of the giving the benefit of letter dated 24/26-7-
Corporation to Principal Secretary, 2-2012.
Transport Department, Government of
U.P., Lucknow for enhancing the age of 16. On 30.3.2012 Government of U.P.
retirement of the employees of the Special Secretary wrote a letter to the
Corporation from 58 to 60 years. Managing Director regarding enhancement
of age. Managing Director wrote a letter to
13. After decision of State the Principal Secretary that the Board of
Government the opposite party no. 2 vide Directors has already taken a decision to
letter dated 20.12.2011 had informed to enhance the retirement age from 58 to 60
the Chairman / M.D./ C.E.O. of all the years. Managing Director wrote a letter on
corporations regarding the enhancement 29.4.2012 to the Principal Secretary.
564 INDIAN LAW REPORTS ALLAHABAD SERIES

17. A general letter was issued by clearly mentions that the permission has
the Principal Secretary regarding grant of been granted by the government with
dearness allowance to all the corporations. reference to the letter written by he
On 17.4.2012 an order was passed by the Managing Director dated 29.4.2012
Principal Secretary for enhancement of (supra).
age of the Handloom Corporation from 58
to 60 years with retrospective effect. 22. Annexure no. 5 is a government
order issued by Sri B.S. Bhullar, Principal
18. On 24.7.2012 an order was Secretary dated 16.4.2012 with regard to
passed to the effect that the Corporation the extension of age of superannuation
can enhance the retirement age of its from 58 to 60 years in the Nigam. This
employees from 58 to 60 years. rejection order has been passed on the
various references made by the Managing
19. The Corporation in pursuance of Director to the Principal Secretary e.g.
the order dated 24.7.2012 accorded the dated 23.2.2011, 5.11.2012, 10.2.2012,
benefit given by the State Government 30.3.2012 and 13.4.2012. It is important
regarding enhancement of retirement age. to note that last letter has been sent on
13.4.2012 and the rejection order has been
20. A perusal of Annexure no. 1, passed three days' later on 16.4.2012 by
issued by the Principal Secretary Sri B.S. the Principal Secretary. The Principal
Bhullar dated 24.7.2012 addressed to the Secretary has rejected the
Managing Director, U.P. State Road recommendation of the Managing
Transport Corporation, Lucknow ( Director on the ground that the financial
hereinafter referred to as 'Nigam') shows condition of the Nigam was not good with
that the government has granted reference to the financial year 2009-10
permission for extending the age of and 2010-11. It has been mentioned that
superannuation of regular and full time since the Nigam was running in loss,
employees of Nigam. It is interesting to hence, there was no good ground to
note that this has been done with extend the age of the employees for
reference to the letter of the Managing superannuation from 58 to 60 years.
Director bearing no. 37GCHQ/12592
CHEO/84 dated 29.4.2012. It has been 23. Comparative study of Annexure
mentioned that the financial burden no. 1 and 5 gives contradictory picture.
arising out of this extension of age of Vide Annexure no. 5 the case has been
retirement will be borne out by the Nigam rejected on 16.4.2012 and on the last
itself. No financial assistance will be recommendation letter written on
provided by the State Government and 13.4.2012. Vide Annexure no. 1 dated
this scheme shall pay effective from 24.7.2012 the age of superannuation has
immediate effect. been allowed to be extended from 58 to
60 years on the recommendation of the
21. Annexure no. 2 is clearly an same Managing Director vide his letter
'office order' issued by Sri Alok Kumar, dated 29.4.2012. The recommendation
Managing Director dated 26.7.2012 i.e. made on 13.4.2012 is the ground for
exactly after two days from the order of rejection and the recommendation dated
Principal Secretary. This order also 29.4.2012 is the ground of permission.
2 All] Sitaram Singh Vs. State of U.P. & Ors. 565

The Managing Director and the Principal the State Government regarding
Secretary are the same and both the enhancement of age of the employees of
recommendations are of April, 2012 i.e. the Corporation, but no propaganda/
the same month and the year. advertisement be made.

24. If the court lifts the veil some As the matter is pending before the
interesting facts come to the fore. It State Government regarding enhancement
transpires that there was a contempt of age of the employees of the
petition pending against the Principal Corporation, accordingly the Principal
Secretary Mr. B.S. Bhullar for non- Secretary, Transport Department, Civil
compliance of the orders passed by this Secretariat, Lucknow is hereby directed to
court in W.P. No. 527 of 2012 ( Sita Ram examine and take decision on the
Singh and two others) vide order dated recommendation sent by the Managing
30.1.2012. Following orders were passed Director, U.P. State Road Transport
which has been annexed as Annexure no. Corporation for enhancing the age of the
4 to the writ petition. The order is as employees and take decision within one
follows : month from the date of receipt of a
certified copy of this order.
"Hon'ble Devendra Kumar Arora,J.
The retirement of the petitioner will
Notice on behalf of opposite party be subject to the decision of the State
no.1 has been accepted by the learned Government.
Chief Standing Counsel, while Sri
Mahesh Chandra, learned counsel has The present writ petition is disposed
accepted notices on behalf of opposite of finally in terms of the judgment &
parties no. 2 and 3. order dated 24.01.2012, passed in Writ
Petition No. 435 (S/S) of 2012, Saleem
Learned counsel for the petitioners Akhtar vs. State of U.P. & others.
submits that the present case is covered
by the judgment and order dated The retirement of the petitioners will
24.01.2012 passed in Writ Petition be subject to the decision of the State
No.435 (S/S) of 2012, Saleem Akhtar vs. Government.
State of U.P. and others. The aforesaid
order reads as under:- With the aforesaid observations and
directions, the writ petition is disposed of
"The issue with respect to finally. "
enhancement of age of the employees of
U.P. State Road Transport Corporation is 25. By this order the court had directed
pending before the State Government the opposite parties to take a decision on the
since 05.01.2012. The learned counsel for recommendation sent by the Managing
the petitioner informs that the Election Director of the Nigam for enhancement of
Commission of India has already the age of the retirement of employees within
informed the Chief Election Officer of the one month from the date of receipt of the
State that the Commission has no certified copy of that order. When this order
objection with respect to take decision by was not complied with within the stipulated
566 INDIAN LAW REPORTS ALLAHABAD SERIES

period contempt petition was moved and court's order. As per the court's order passed
orders were passed on 29.3.2012 for in W.P. No. 527 of 2012 ( Sitaram Singh and
compliance of the resolution dated 5.1.2012 two others) dated 30.1.2012. The said order
passed by the Board of Directors. It was has already been quoted in the body of the
directed that in case the decision has not been order. Since the retirement of the petitioner
taken in compliance of the court's order was subject to the decision of the State
respondent no. 1 i.e. Principal Secretary shall Government and State Government has
appear on 17.4.2012. taken a positive decision on extending the
age of retirement from 58 to 60 years, hence,
26. When the Principal Secretary was the case of the petitioner should be included
summoned he rejected the resolution / in the benefit given to others vide order dated
recommendation of the Managing Director 24.7.2012.
on 16.4.2012 in great haste with malice
towards the petitioner as well as contempt 29. The writ petition is, thus,
petitioners. The contempt petition naturally allowed.
failed and the endeavour of the petitioner
was thwarted. When the temperature cooled 30. The petitioners will be treated to
down in the office of the Principal Secretary have retired after attaining the age of 60.
the same officer granted the permission for If they have already completed the age of
extending the age of superannuation after 60 years they will be entitled to the salary
three months on the recommendations made and other benefits including allowances
in the month of April itself. It was made till they have attained the age of 60 years.
prospective so that benefit may not accrue to They will be treated to be in service
the petitioners in a way it was a attempted to during this period. The benefit will only
teach them a lesson. be available to the persons who are
included in this bunch of writ petitions.
27. In the case of S.R. Bommai Vs.
Union of India & others (1994) 3 SCC 1, 31. The order dated 24.7.2012
the Hon. Supreme Court has held that (contained as Annexure no. 1 to the writ
"when the Act is alleged to be malafide petition) the order dated 26.7.2012
and there is no reason except which (contained in Annexure no. 2 to the writ
occasion to exercise the said powers, the petition) shall be quashed to the effect which
said Act should be considered to be ex- denies the benefit to the petitioners by being
facie arbitrary and malafide. In those prospective in nature. This prospectiveness
circumstances, the Court has to interject shall remain intact for others who are
itself, otherwise, it would result into governed by that government order.
failure and / or miscarriage of justice." --------
ORIGINAL JURISDICTION
28. Taking the facts and circumstances CIVIL SIDE
DATED: ALLAHABAD 20.05. 2014
of this case mentioned above and the law laid
down by the Hon'ble Supreme Court, the BEFORE
court finds that a case has been made out by THE HON'BLE PRADEEP KUMAR SINGH
the petitioners. Although the permission has BAGHEL, J.
been given with prospective effect but the
petitioners case was already covered by the Civil Misc. Writ Petition No. 8730 of 2014.
2 All] Committee of Management, Islamia Inter College Firozabad & Anr. Vs. State of U.P. & Ors. 567

Committee of Management, Islamia Administration the office bearers shall

Inter College, Firozabad & Anr. continue till his successor is elected.
.Petitioners
Versus (Delivered by Hon'ble Pradeep Kumar
State of U.P. & Ors. .......Respondents Singh Baghel, J.)
Counsel for the Petitioners:
1. The petitioners have filed this writ
Sri Ashok Khare, Sri Anil Bhushan
petition aggrieved by the order of the
District Inspector of Schools dated 30
Counsel for the Respondents:
C.S.C., Sri R.K. Ojha, Sri Namit Srivastava
December 2013, whereby he has passed
Sri Parul Srivastava an order of single operation under Section
5(2) of the Uttar Pradesh High Schools
U.P. High School & Intermediates and Intermediate Colleges (Payment of
Colleges(Payment of salaries of teachers Salaries of Teachers and other
and other employees) Act 1971-Section Employees) Act, 1971 (U.P. Act No. 24
5(2)-Single operation order-DIOS-failed of 1971). This writ petition is in respect of
to consider the clause-VII of scheme of
the educational Institution namely
Administration-affirmed by in special
Appeal-providing the old management Islamiya Inter College, which has been
shall to look after the affairs till validity founded by the petitioner no.2.
elected new successor-takeover in
absence of those contingencies justifying 2. Briefly stated facts of this case
action of passing Single operation- are; last election of Committee of
quashed.
Management of Islamia Inter College,
Held:Para-19 Firozabad (for short, "the Institution")
From the perusal of the impugned order was held on 27.01.2008 wherein Gulab
it is manifest that the only reason in the Navi-petitioner no. 2 in the instant writ
order is that since the election has not petition was elected as Manager and one
been held within time and the Mohd. Ubedulla was elected as President.
Committee of Management has outlived
The signatures of the petitioner no. 2 was
its period, therefore, it was necessary to
invoke sub-section (2) of Section 5 of the
attested by the District Inspector of
Act No. 24 of 1971. In the order no Schools (for short, "the DIOS") vide order
finding has been recorded by the DIOS dated 19 January 2009. The term of the
that there was any difficulty in office bearers of the Committee of
disbursement of salary or Management Management is three years. The fresh
has failed to comply the provisions of election was held on 19 December 2010.
Section 5(1) of the Act, 1971, which
provides that the Management shall
The petitioner no. 2 was again elected as a
deposit certain percentage of fee Manager and Mohd. Ubedulla was elected
realized from the students. The reason as President. After the election the papers
mentioned by the DIOS for invoking were forwarded to the DIOS for the
Section 5(2) of the Act, 1974 is recognition of Committee of
unsustainable. The said reason was Management. The DIOS sent the matter
considered by the Division Bench while
considering the order of the single
to the Regional Level Committee for
operation of the same Institution. The consideration of recognition but in the
Division Bench held that in view of meantime on 04 March 2011 he passed an
clause-VII of the Scheme of order of single operation.
568 INDIAN LAW REPORTS ALLAHABAD SERIES

3. Aggrieved by the said order the petitioner no. 2 as Manager and his
Committee of Management preferred a signatures were attested. A copy of the
Writ Petition No. 14663 of 2011. The said order of the Regional Level Committee
writ petition was dismissed by this Court and the DIOS are on the record as
on the ground that the term was annexure-7 & 8 to the writ petition.
admittedly expired and the DIOS has
made arrangement for single operation 6. It is averred that the previous
keeping in view the interest of the election was held on 19.12.2010. The
teachers and employees of the Institution process for the fresh election was initiated
since the managerial dispute was pending on 22 December 2013. It is stated that due
before the Regional Level Committee. to some unavoidable reason the meeting
could not be held on 12 December 2013,
4. Dissatisfied with the order of the therefore, a fresh agenda was issued on 22
learned Single Judge dated 10 March December 2013 for holding the election
2011 the petitioners preferred a Special on 12 January 2014. The DIOS was
Appeal No. 420 of 2011. The said special requested to send an Observer and the
appeal was allowed on 17 March 2011 notice was published in the local
and the order of learned Single Judge was newspaper. A copy of the said notice is on
modified setting aside the order of single the record as annexure-11 to the writ
operation. The Division Bench was of the petition.
view that the Scheme of Administration
specifically provides that the erstwhile 7. It is stated that the election was
office bearers and members of the held on 12 January 2014 and the copy of
Committee of Management were entitled the election proceeding and other papers
to continue till their successors are were forwarded to the office of the DIOS
chosen, therefore, the office bearers of the for the approval of the Regional Level
Committee of Management were held to Committee. The DIOS instead of taking
be entitled to continue and manage the the recognition of the Committee of
affairs of the College. The Division Management, has passed the impugned
Bench maintained the direction of the order of single operation.
learned Single Judge, whereby He had
directed the Regional Level Committee to 8. I have heard Sri Ashok Khare,
decide the managerial dispute within learned Senior Advocate assisted by Sri
certain time. Anil Bhushan, learned Counsel for the
petitioners, Sri R.K. Ojha, learned Senior
5. The Regional Level Committee Advocate assisted by Sri Namit
after hearing the concerned parties held Srivastava, learned Counsel for the
that the election dated 19 December 2010 complainant, and learned Standing
wherein the petitioner no. 2 Gulab Navi Counsel appearing for the State
was elected as Manager and Mohd. respondents.
Ubedulla as President, was a valid
election and it rejected the claim of the 9. Sri Ashok Khare, learned Senior
rival faction who had held their election Advocate, submits that the Regional
on 19 December 2010. In compliance Level Committee had approved the
thereof the DIOS recognized the election of the petitioners and earlier
2 All] Committee of Management, Islamia Inter College Firozabad & Anr. Vs. State of U.P. & Ors. 569

order passed by the DIOS was set aside election and the matter was decided by
by this Court and in the Special Appeal it the Regional Level Committee on 30 July
was held that as per the Scheme of 2011, wherein it was found that the
Administration the office bearers shall petitioner no. 2 was validly elected
continue till their successors are elected. Manager of the Committee of
He further submits that the fresh election Management. The DIOS had passed a
has also been held on 12 January 2014 consequential order on 19 August 2011
and papers have been sent to the office of attesting the signatures of petitioner no. 2.
the DIOS. Before the decision has been
taken, the DIOS on the basis of complaint 14. Pertinently, while the matter was
has passed the order of single operation. pending before the Regional Level
Committee previously also the single
10. Lastly he urged that the DIOS operation order was challenged by the
has illegally invoked his power under petitioner by a Writ Petition No. 14663 of
Section 5(2) of the U.P. Act No. 24 of 2011, which was disposed of by this
1971 as none of the conditions for Court on 10.03.2011 with a direction to
invoking said power is specified in the the Regional Level Committee to decide
facts of this case as there was no fault of the matter expeditiously but the learned
Management in depositing the Single Judge refused to interfere with the
Management fund or there was no order of single operation.
difficulty in disbursement of the salary of
teachers and employees. 15. Feeling aggrieved by the order of
learned Single Judge the petitioners had filed
11. Learned Senior Advocate Sri a Special Appeal No. 420 of 2011. In the said
R.K. Ojha submits that the term of the Special Appeal, vide order dated 17.03.2011,
Committee of Management is over and the order of learned Single Judge was
the fresh election has not been recognized modified and it was found that clause-7 of
by the authorities, therefore, the DIOS has the Scheme of Administration provides that
rightly invoked his power under Section every office bearer shall continue till his
5(2) of the U.P. Act No. 24 of 1971. successor is elected. Clause-7 of the Scheme
of Administration reads as under;
12. I have heard learned Counsel for
the parties and considered their VII. Term of Members :-.
submissions.
The term of office bearers and members
13. The petitioner's Institution is a V(a) & (c) other than ex-officio members
minority Institution. The undisputed shall be three years from the date they are
election was held on 27.01.2008. In the chosen, provided that the term of every office
said election the DIOS has recognized the bearer shall be deemed to have continued till
petitioner no. 2 as Manager and attested his successor is chosen. The term of the ex-
the signatures on 19 January 2009. The officio members shall be governed by the
fresh elections were held on 19 December regulations of the Act.
2010, wherein the petitioner no. 2 was
again elected as Manager of the College. 16. The Division Bench has
The dispute arose with regard to the said considered the said clause in its judgment
570 INDIAN LAW REPORTS ALLAHABAD SERIES

dated 17 March 2011 and set aside the of the DIOS but no order has been passed
order of the DIOS for single operation. by the DIOS or the Joint Director of
The relevant part of the order is extracted Education. Therefore, there was no
hereunder; difficulty in disbursement of the salary in
the Institution.
"Sri Khare invited the attention of
the Court to Clause 7 of the Scheme of 18. The Section 3 of the U.P. Act
Administration, which finds place at page No. 24 of 1971 enjoins that the salary of
50 of the paper book wherein terms of the teachers and employees shall be paid
office bearers and members has been within a time frame mentioned in the said
provided to be three years from the date Section without deduction of any kind
they are chosen but they shall continue till except those authorized by the regulations
their successor is chosen. He, therefore, or by any rules made under the Act.
submitted that the appellant is validly Section 5 of the U.P. Act No. 24 of 1971
elected committee of management and till provides the procedure for payment of
such time the rival claims are decided the salaries.
appellants are entitled to continue to
function as the committee of management 19. From the perusal of the
and, therefore, the order of single impugned order it is manifest that the
operation could not have been passed. only reason in the order is that since the
election has not been held within time and
Sri J.J. Munir, learned counsel could the Committee of Management has
not successfully challenge the aforesaid outlived its period, therefore, it was
submission. necessary to invoke sub-section (2) of
Section 5 of the Act No. 24 of 1971. In
In this view of the matter, even the order no finding has been recorded by
otherwise, we find that Clause 7 of the the DIOS that there was any difficulty in
Scheme of Administration specifically disbursement of salary or Management
takes care of such contingency and the has failed to comply the provisions of
erstwhile office bearers and members of Section 5(1) of the Act, 1971, which
the committee of management are entitled provides that the Management shall
to continue till their successor is chosen deposit certain percentage of fee realized
and, therefore, the appellants are entitled from the students. The reason mentioned
to continue and manage the affairs of the by the DIOS for invoking Section 5(2) of
College including that of operating the the Act, 1974 is unsustainable. The said
accounts. The order dated 4th March, reason was considered by the Division
2011 passed by the District Inspector of Bench while considering the order of the
Schools, Firozabad directing for single single operation of the same Institution.
operation is, therefore, set aside." The Division Bench held that in view of
clause-VII of the Scheme of
17. In the instant case the petitioner Administration the office bearers shall
no. 2 was recognized in two consecutive continue till his successor is elected.
elections of 2008 and 2010 and the fresh
election has also been held, papers of 20. Having regard to the facts and
which have been submitted in the office circumstances of the case, I am of the
2 All] Prof. Ram Chandra Vs. State of U.P. & Ors. 571

view that the order of the DIOS is (A)State Universities Act-1973-Section

contrary and in teeth of the judgment of 68-Suo moto action by chancellor-
petitioner was appointed on post of
the Division Bench in Special Appeal No.
lecturer in Geology-while vacancy
420 of 2011 dated 17.03.2011. For the advertised for post of Professor-in which
said reason the order of single operation petitioner not found suitable-held-
passed by the DIOS needs to be set aside. appointment against vacancy without
Accordingly, it is set aside. It is provided advertisement-illegal.
that the papers relating to the election
dated 12.01.2014, which have been Held:Para-18
We, therefore, see no reason to interfere
submitted to the office of the DIOS, is with the order of the Chancellor wherein
pending consideration. The DIOS is he has held the appointment of the
directed to take appropriate decision on petitioner as Lecturer in the year 2002
the papers submitted by the Committee of and Reader in the year 2003 in the
Management in terms of the Government subject of Geology was illegal being in
Order dated 19 December 2000 and 21 the teeth of the statutory provision of
Section 31 of the U.P. State Universities
October 2008 as early as possible Act, 1973.
preferably within eight weeks from the
date of communication of this order, but (B)State Universities Act-1973-Section
in any case, not later than three months. 31(1) and (4)-Appointment on post of
reader-selection committee not constituted
21. Thus writ petition is, as per statutory requirement-V. C.-due to
the reason best to him-constituted same
accordingly, allowed.
selection committee-who had earlier
recommended for appointment on post of
22. No order as to costs. lecturer without advertisement-held-illegal-
-------- however salary already drawn by petitioner
ORIGINAL JURISDICTION shall not be returned.
CIVIL SIDE
DATED: ALLAHABAD 25.03.2014 Held:Para-25
Even otherwise if substantial justice against
BEFORE technical objection are pitted against each
THE HON'BLE ARUN TANDON, J. other interest of substantial justice must
THE HON'BLE ARVIND KUMAR MISHRA-I, J. prevail. Universities are institutions of
learning and if illegal appointments are
permitted to be perpetuate in such
Civil Misc. Writ Petition No. 17066 of 2014
institutions, only God can save the
education in the State. If the Vice
Prof. Ram Chandra. .................Petitioner
Chancellor who is the Chief Executive of the
Versus
University himself acts unfairly as has been
State of U.P. & Ors. ............Respondents
noticed by the Chancellor in the order
impugned, this Court will not interfere with
Counsel for the Petitioner: the order of the Chancellor which has the
Sri J.P. Kushwaha, Sri Virendra Kumar, Sri effect of curing the said illegality.
R.K. Ojha
Case Law Discussed:
Counsel for the Respondents: Civil Appeal No. 979 of 2014; AIR 1936 PC
C.S.C., Sri U.N. Sharma, Sri Neeraj Tiwari, 253.
Sri Neeraj Tripathi
(Delivered by Hon'ble Arun Tandon, J.)
572 INDIAN LAW REPORTS ALLAHABAD SERIES

1. Heard Sri R.K. Ojha, Senior recommended that the petitioner may be
Advocate on behalf of the petitioner, appointed on the post of Lecturer. The
Standing Counsel on behalf of respondent post thereof was not subject matter of the
no.1, Sri Neeraj Tripathi, advocate on advertisement. This recommendation was
behalf of respondent no.2, Sri U.N. acted upon by the University and the
Sharma, Senior Counsel assisted by Sri petitioner is said to have been appointed
Neeraj Tiwari, advocate on behalf of as Lecturer vide order dated 28.02.2002.
respondents no.3 and 4.
6. It appears that there was another
2. The petitioner before this Court advertisement published by the University
seek quashing of the order dated for the post of Reader in the subject of
03.03.2014 passed by the Chancellor, Geology being Advertisements No.2 of
Bundelkhand University, Jhansi i.e. the 2002 and 3 of 2002. The vacancy for the
Governor of the State of Uttar Pradesh as post of Reader in the subject of Geology
well as the consequential order dated was reserved for the other backward class
07.03.2014 issued by Registrar, category to which the petitioner belongs.
Bundelkhand University, Jhansi in The Selection Committee is said to have
compliance thereof (annexure nos.10 & held selection and to have recommended
11 to the writ petition respectively). the name of the petitioner for appointment
as Reader vide its recommendation dated
3. The facts in short giving rise to 30.01.2003. This recommendation of the
the present writ petition are as follows: Selection Committee for appointment of
the petitioner as Reader was accepted by
4. The Bundelkhand University, the Executive Council of the University in
Jhansi is a University established under its meeting held on 01.02.2003. This
the provisions of the U.P. State resulted in the issuance of appointment
Universities Act, 1973 (hereinafter letter in favour of the petitioner. The
referred to as the Act 1973). The petitioner joined and continued to
University is said to have published function as Reader in terms of the said
advertisement for making appointment on appointment letter. He was also granted
the post of Professor in the year 2002 benefit of career advancement scheme and
being Advertisement No.3/2001. This promoted as Professor.
advertisement did not include any post of
Lecturer in the department of Geology. 7. It appears that certain complaints
were received by the Chancellor of the
5. The petitioner applied in response University in respect of the appointment
to the advertisement. A Selection of the petitioner. The Chancellor under
Committee in accordance with Section 31 Section 68 (a) of the Act 1973 decided to
sub-section 4 of the Act 1973 was exercise suo motu power having regard to
constituted which included two experts seriousness of the allegations made. The
nominated by the Chancellor of the Chancellor issued notice to the University
University. The Selection Committee did as well as to the petitioner to show cause
not find the petitioner suitable for the post in the matter of his appointment as Reader
of Professor but surprisingly, it is alleged and Lecturer both being illegal. The
that the Selection Committee University in response to the notice
2 All] Prof. Ram Chandra Vs. State of U.P. & Ors. 573

produced the original records. The the Selection Committee which selected
petitioner also submitted his reply which the petitioner.
has been examined in detailed by the
Chancellor under the order impugned 10. So far as the findings recorded
dated 03.03.2014. on the issue of the appointment of the
petitioner as Lecturer in terms of
8. It has been recorded that Advertisement No.5 of 2001 is concerned,
appointment of the petitioner as Lecturer nothing much could be added by the
in terms of Advertisement No.5 of 2001 counsel for the petitioner. He fairly
was patently illegal, as no post of Lecturer conceded that in absence of the post of
in the subject of Geology was included Lecturer in the subject of Geology being
under the advertisement. Therefore, included in the Advertisement No.5 of
appointment against the non-advertised 2001, there could have been no
vacancy was illegal. recommendation by the Selection
Committee for appointment of the
9. The appointment on the post of petitioner as Lecturer. If the petitioner
the Reader in the subject of Geology in was not found suitable for the post of
terms of Advertisements No. 2 of 2002 Professor, the Selection Committee
and 3 of 2002 was also illegal for the should have closed the selection after
following reasons; (a) the Selection recording its satisfaction to that effect.
Committee for appointment of Reader in
the University has to be constituted in 11. We find that the reasons
accordance with the provisions of Section assigned by the Chancellor in the order
31 sub-clause 4 i.e. it has to be comprise impugned for coming to the conclusion
of two experts to be appointed by the that the appointment of petitioner as
Chancellor amongst others; (b) neither Lecturer against non-advertised post was
any request was received from University illegal does not warrant any interference
for appointment of two experts for from this Court under Article 226 of the
constituting the Committee in response to Constitution of India.
the aforesaid Advertisements No.2 of
2002 and 3 of 2002 nor any expert in 12. We may record that repeatedly
accordance with Section 31 (4) of the Act the Apex Court has held that there can be
was appointed by the Chancellor. no appointment against non-advertised
Therefore, the constitution of the vacancy and any attempt to the contrary
Selection Committee which selected the would be in violation of Article 14 of the
petitioner itself was patently illegal; (c) Constitution of India. Reference Renu and
the Vice Chancellor for the reasons best others Vs. District & Sessions Judge, Tees
known to him had constituted the same Hazari & others in Civil Appeal No.979
Selection Committee which had earlier of 2014 decided on 12.02.2014.
recommended the petitioner for the post
of Lecturer when the post advertised was 13. Now turning to the issue of
that of Professor. Therefore, the appointment of the petitioner as Reader.
Chancellor has recorded his satisfaction At the very outset we may record that
that the Vice Chancellor had not acted Section 31 (1) of the Act 1973 as
fairly in the matter of the constitution of applicable on the relevant date provides
574 INDIAN LAW REPORTS ALLAHABAD SERIES

that the teachers of the University and the Provided that the Head of the
teacher of an affiliated or associated Department shall not sit in the Selection
college shall be appointed by the Committee, when he is himself a
Executive Council on the candidate for appointment or when the
recommendation of the Selection post concerned is of a higher rank than his
Committee in the matter hereinafter substantive post and in that event his
specified. Meaning thereby that all other office shall be filled by the Professor in
modes of appointment except on the the Department and if there is no
recommendation of the Selection Professor by the Dean of the Faculty:
Committee constituted under the Sub- [Provided further that where the
clause of Section 31 of the Act 1973 is Chancellor is satisfied that in the special
barred. Any infraction in the matter of the circumstances of the case, a Selection
constitution of the Selection Committee Committee cannot be constituted in
as provided under Section 31 (4) would accordance with the preceding proviso, he
render the appointment contrary Section may direct the constitution of the
31 to the U.P. State Universities Act, Selection Committee in such manner as
1973, therefore, patently illegal. he thinks fit.]
(iii) in the case of a Professor or
14. would be worthwhile to Reader, three experts, and in any other
reproduce Section 31 (1) and Section 31 case, two experts be nominated by the
(4) of the Act 1973 which read as follows: Chancellor;"

31. Appointment of Teachers.-(1) 15. It is apparently clear that the

Subject to the provisions of this Act, the Selection Committee for the selection on
teachers of the University and the teacher the post of teachers in the University,
of an affiliated or associated college which would include the post of Reader,
(other than a college maintained has to comprise of three experts to be
exclusively by the State Government [* * nominated by the Chancellor.
*] shall be appointed by the Executive
Council or the management of the 16. It is admitted on record that so
affiliated or associated college, as the case far as the Selection Committee constituted
may be, on the recommendation of a with reference to Advertisements No.2 of
Selection Committee in the manner 2002 and 3 of 2002 for the post of Reader
hereinafter provided [The Selection in the department of the Geology is
Committee shall meet as often as concerned, neither the University asked
necessary] for names of the three experts to be
31 (4) (a) the Selection Committee nominated for the Selection Committee
for the appointment of a teacher of the nor in fact any experts were nominated by
University (other than the Director of an the Chancellor for the Selection
Institute and the Principal of a constituent Committee to be constituted. In absence
college), shall consist of- of Selection Committee having been
(i) the Vice-Chancellor who shall be constituted in terms of Section 31 (4) of
the Chairman thereof, the Act, 1973, any recommendation by
(ii) the Head of the Department the unauthorized Selection Committee
concerned: would be of no legal consequence.
2 All] Prof. Ram Chandra Vs. State of U.P. & Ors. 575

Therefore, appointment of the petitioner of the petitioner, it is worthwhile to

even if accepted by the Executive Council reproduce Section 68 of the Act 1973
would be contrary to Section 31 of the which reads as follows:-
Act 1973, therefore, per se void. 68. Reference to the Chancellor.- If
any question arises whether any person
17. From the order of Chancellor, we has been duly elected or appointed as, or
further find that he is correct in recording that is entitled to be, member of any authority
the Vice Chancellor, Bundelkhand University, or other body of the University, or
Jhansi could not have constitute the Selection whether any decision of any authority or
with reference to Advertisements No.2 of officer of the University [including any
2002 and 3 of 2003 as was done in the facts of question as to the validity of a Statute,
the case. He is also right in recording that the Ordinance or Regulation, not being a
Vice Chancellor deliberately constituted the Statute or Ordinance made or approved by
same Selection Committee which had the State Government or by the
recommended the petitioner for appointment Chancellor)] is in conformity with this
as Lecturer when no such post had been so Act or the Statutes or the ordinance made
advertised under Advertisement No.5 of 2001. thereunder, the matter shall be referred to
The inference drawn by the Chancellor is the Chancellor and the decision of the
more than justified. Chancellor thereon shall be final :
Provided that no reference under this
18. We, therefore, see no reason to section shall be made-
interfere with the order of the Chancellor (a) more that three months after the
wherein he has held the appointment of date when the question could have been
the petitioner as Lecturer in the year 2002 raised for the first time;
and Reader in the year 2003 in the subject (b) by any person other than an
of Geology was illegal being in the teeth authority or office of the University or a
of the statutory provision of Section 31 of person aggrieved :
the U.P. State Universities Act, 1973. Provided further that the Chancellor
may in exceptional circumstances-
19. We will now examine the issues (a) act suo motu or entertain a
which has been canvassed by Sri R.K. reference after the expiry of the period
Ojha, Senior Advocate on behalf of the mentioned in the preceding proviso;
petitioner; (a) that the power of the (b) where the matter referred relates
Chancellor to act suo motu under Section to a dispute about the election and the
68 of the Act is hedged with the condition eligibility of the person so elected is in
that he cannot entertain any such doubt, pass such orders of stay as he
grievance after expiry of three months thinks just and expedient;"
from the date when the question could
have been raised for the first time; (b) that 21. From simple reading of Section
absolutely no special satisfaction was 68 of the Act, it is apparently clear that
recorded in the order by the Chancellor limitation of three months' period from
for exercise of his suo motu power. the date the question could be raised as
well as person raising the objection
20. For consideration of the answering with description of the
aforesaid two contentions raised on behalf aggrieved person are both relateable to a
576 INDIAN LAW REPORTS ALLAHABAD SERIES

reference to be made by a third person. 25. Even otherwise if substantial

These conditions relateable to the exercise justice against technical objection are
of suo motu power of the Chancellor. pitted against each other interest of
Therefore, we are inclined to hold that so substantial justice must prevail.
far as the exercise of suo motu power by Universities are institutions of learning
the Chancellor is concerned, neither any and if illegal appointments are permitted
limitation is prescribed under Section 68 to be perpetuate in such institutions, only
of the Act nor first proviso has any God can save the education in the State. If
applicability in that respect. the Vice Chancellor who is the Chief
Executive of the University himself acts
22. So far as the issue of recording unfairly as has been noticed by the
of reasons disclosing the exceptional Chancellor in the order impugned, this
circumstances for exercise of suo motu Court will not interfere with the order of
power is concerned, we may record that it the Chancellor which has the effect of
is not necessary that the Chancellor curing the said illegality.
should specifically so mention in the
order itself, as to what exceptional 26. Now turning to the other issue
circumstances require him to act if which has been raised by Sri R.K. Ojha,
exceptional circumstances can be easily Senior Advocate on behalf of the
ascertained from the order itself. petitioner, namely that the petitioner as on
date has worked for nearly 12 years as
23. From the order, we find that Lecturer and, therefore, this Court may
certain complaints were received in the interfere with the order of the Chancellor
matter of illegal appointment of the which has set aside his appointment as
petitioner and the Chancellor had written Reader only because of the illegality in
a letter as early as on 24.01.2011 to the the constitution of the Selection
Vice Chancellor to submit his comments Committee specifically in the
and records in the matter of appointment circumstances when the petitioner had no
of the petitioner. It took three years for role to play in the constitution of the
the University to respond and the records Selection Committee by the Vice
were made available to the Chancellor Chancellor. He submits that the experts
only on 09.01.2014. did participate in the selection.

24. We may record that the 27. It is the settled principle of law
Chancellor is the Head of the Universities that if law requires something to be done
established under the provisions of the in a particular manner it has to be done in
U.P. State Universities Act 1973. It is his that manner or not at all. Privy Council in
primarily responsibility to see that the Nazir Ahmad v. King Emperor; AIR 1936
provisions of the Act are carried out in PC 253 laid down the dictum that when a
letter and spirit. If a Vice Chancellor of statute requires a thing to be done in a
such a University decides to act contrary particular manner, it must be done in that
to the Act 1973 to make an appointment manner or not at all. The Hon'ble Apex
dehors the same, the Chancellor must act Court has reiterated and followed the
and if the Chancellor acts, this Court will aforesaid dictum in a catena of cases and
not interfere. one of the recent judgment in
2 All] Gitti Balu Truck Operator Association Varanasi Vs. State of U.P. & Ors. 577

Commissioner, Income Tax, Chandigarh which has clarified the position with regard
v. Pearl Mechanical Engineering and to the constitution of the Selection
Foundry Works Pvt. Ltd. A Constitution Committee and effect on selection made with
Bench of the Hon'ble Apex Court in reference to illegally constituted Selection
Commissioner of Income Tax, Mumbai v. Committee, the University must revisit all
Anjum M.H. Ghaswala and Ors. such appointment which has been made
reaffirmed the general rule that when a contrary to Section 31 of Act and shall deal
statute vests certain power in an authority with him uniformly without any favoritism.
to be exercised in a particular manner
then the said authority has to exercise it 32. Learned counsel for the petitioner
only in the manner provided in the same has placed reliance upon Section 66 of the
itself. Act for submitting that even if certain
unauthorized person has taken part in the
28. If Section 31 (4) of the Act requires Selection Committee, proceedings may not
the Selection Committee for the post of be invalid. The contention has only been
Reader of the University to comprise of three raised on behalf of the petitioner to be
experts to be nominated by the Chancellor rejected. The constitution of the Selection
then no other Selection Committee can be Committee with experts to be nominated by
constituted which does not include such the Chancellor is statutory requirement and if
nominees from the Chancellor. no expert were asked for or appointed by the
Vice Chancellor, it cannot be said that there
29. We, therefore, find no substance was a defect covered by Section 66 (b) of the
in the contention raised on behalf of the Act.
petitioner.
33. For the reasons recorded above,
30. Although we are of the opinion the writ petition is dismissed.
that it is hard to remove the petitioner --------
because of the fault committed by the ORIGINAL JURISDICTION
University in the matter of the CIVIL SIDE
DATED: ALLAHABAD 03.04.2014
constitution of the Selection Committee
after more than 12 years of the alleged BEFORE
selection but hardship to the petitioner THE HON'BLE AMRESHWAR PRATAP SAHI, J.
cannot be a ground to permit illegal THE HON’BLE VIVEK KUMAR BIRLA, J.
appointments. We may not direct
recovery of the salary paid to the Civil Misc. Writ Petition No. 18330 of 2014
petitioner because of his illegal
appointment but his continuance will not Gitti Balu Truck Operator Association
be perpetuated by this Court any further. Varanasi ......................... Petitioner
Versus
State of U.P. & Ors. ......Respondents
31. So far as the plea that other
appointments of like nature are being Counsel for the Petitioner:
permitted by the University to continue Sri N.L. Pandey, Sri Suyash Pandey
and no action has been taken against them
is concerned, we clarify that having Counsel for the Respondent:
received the order of the Chancellor now C.S.C., Sri V.K. Singh, Sri R.P. Srivastava
578 INDIAN LAW REPORTS ALLAHABAD SERIES

Sri Indresh Kr. Singh, Sri Syed Nadeem respondents-Zila Panchayats to realize
Ahmad, Sri V.K. Chandel, Sri K.D. Rai, Sri transportation fee from vehicles loaded with
Dev Dayal mining material which are being transported
from other districts and are passing and
U.P. Kshetra Panchayat & Zila Panchayat repassing through the territorial limits of the
Adhiniyam 1961-Section 239- Validity of
respective Zila Panchayats.
clause 4 of bye-laws-empowering zila
parishad to realize transportation fee-
challenged on ground in absence of any 3. The grievance of the petitioner is,
mining activity within territorial limit- therefore, confined to clause 4 of the bye-
transportation fee from those vehicle laws that have been appended as
passing through territorial limit concern Annexure 1 to the writ petition to urge
parishad-provision of clause 4 ultra
that if any mining material is being
virus-held in view of full Bench decision-
petition dismissed. excavated from within the district and is
being transported outside the district, then
Held: Para-8 the Zila Panchayat of that district can
The ratio of the said Full Bench judgment realize such transportation fee, but the
clearly states that over and above the clause which authorizes the charging of
powers conferred under Section 239, the
such transportation fee from vehicles
Zila Panchayat can frame a bye-law and
impose a fee as has been done in the coming from outside the district is ultra
present case as well in exercise of the vires the bye-laws itself as well as Section
powers under Section 142 of the Act. The 239 of the U.P. Kshetra Panchayat and
answer of the full bench is therefore Zila Panchayat Adhiniyam, 1961.
complete and squarely repels the
submissions raised by the counsel for the
4. Learned counsel submits that
petitioner. Thus, there is no ground to
strike down the impugned bye-laws since the bye-laws are confined in its
merely because Section 142 has not operation for the movement of vehicles
been mentioned in the notification. within the Zila Panchayat limits, the same
cannot be applied to vehicles that are just
Case Law Discussed: passing through the limits of the Zila
2007(68) ALR 688 Panchayat without involved in any
activity of mining within the said district.
(Delivered by Hon'ble Amreshwar Pratap
Sahi, J.)
5. The argument is, therefore, pure
and simple. If the mining activity is being
1. Heard Sri N.L. Pandey, learned
counsel for the petitioner, Sri V.K. Singh, carried out within the same Zila
Panchayat where the vehicle is passing or
learned senior counsel assisted by Sri Ravi
repassing then only the transport fee can
Prakash Srivastava, Sri V.K. Chandel, Sri
be charged and not otherwise.
Indresh Kumar Singh and Sri Dev Dayal for
the respective Zila Panchayats who have
been arrayed as respondents no.6 to 9. We 6. The matter had been heard earlier
and Sri V.K. Singh, learned senior
have also heard the learned standing counsel
for the respondents no.1 to 5. counsel, had cited the decision in the case
of B. Agarwal Stone Product Ltd. Vs.
2. The issue raised in this petition is State of U.P., 2007 (68) ALR 688, to urge
the power and authority of the that this issue has already been answered
2 All] Gitti Balu Truck Operator Association Varanasi Vs. State of U.P. & Ors. 579

by the Full Bench decision categorically contractors authorised by the Zila

laying down that even if the bye-laws Panchayat. Clause 4 stipulates that the fee
cannot be located to the exercise of per trip per tractor shall be Rs.10/- while
powers of framing bye-laws under fee per trip per truck shall be Rs.20/-.
Section 239 of the 1961 Act, yet the These fees were subsequently enhanced to
provisions of Section 142(1) of the same Rs.15/- and Rs.30/- respectively by the
Act authorizes the Zila Panchayat to notification dated 23.8.1999. Clause 11 of
charge the transportation fee from any the bye-laws provides that if there is any
vehicle passing or repassing through the default of payment of fee while taking the
district even if the excavation or mining aforesaid minerals for the personal use or
operations are not within the same sale the mineral shall be confiscated and
district. Clause 12 provides that in case the fee is
not paid within a period of 15 days, then
7. Having considered the the mineral shall be sold for realisation of
submissions raised and having perused the fees.
the Full Bench judgment, the ratio of the 48. Dr. L.M. Singhvi, learned Senior
said Full Bench as answered can be Counsel for the petitioner submitted that
gathered from a bare perusal of the impugned bye-laws are beyond the
paragraphs 4, 48, 49 and 51 of the powers of the Zila Panchayat as the
judgment that are extracted hereinunder:- transportation of mineral is not
contemplated by sections 142, 144 and
"4. The notification dated 5.12.1994 239 of the Zila Panchayat Act.
containing the bye-laws that had been Elaborating his submission, he contended
framed by the Zila Panchayat, Sonebhadra that section 142(1) of the Act is not
was published in the U.P. Gazette on attracted inasmuch under this section the
10.12.1994. Clause 1 of the bye-laws Zila Panchayat can charge fee to be fixed
states that the bye-laws shall be called the by the bye-laws for use and occupation of
bye-laws empowering the Zila Panchayat, any immovable property vested in, or
Sonebhadra to levy fee on trucks and entrusted to the management of the Zila
tractors engaged for transporting 'gitti', Panchayat including any public road or
stones, boulders, 'surkhi', lime, coal and place by which it allows the use or
coal dust collected from the mining places occupation whether by allowing a
situated within the rural areas of Zila projection thereon or otherwise but the
Panchayat, Sonebhadra to places within or use or occupation which fall under the
outside the district. Clause 3 provides that expression "or otherwise" are specifically
every person who on his own or through provided for under the provision of
labourers collects gitti, stone, boulders, section 239 and do not provide for
lime, coal and coal dust from the mining framing bye-laws for imposing fees for
places of rural areas falling within district passing of vehicles on public roads. His
Sonebhadra and transports them by land contention, therefore, is that the scope of
from the rural areas by tractor or truck "or otherwise" mentioned in section 142
shall pay the prescribed fee to the Zila of the Act is defined in section 239 and
Panchayat, Sonebhadra and that such fee for the purposes of the present case is
shall be paid at the place fixed by the Zila under section 239 (2) C namely Streets
Panchayat, Sonebhadra to such officers or but this does not contemplate the
580 INDIAN LAW REPORTS ALLAHABAD SERIES

imposition of fee by Zila Panchayat connection he pointed out that the

merely on passing of vehicles on public limitations are prescribed under 'C-
road and, therefore, the levy of fees is Streets' contained in section 239(2) of the
without jurisdiction. Act and mere passing or repassing of the
49. Learned Advocate General Sri vehicles on public road is not covered
S.M.A. Kazmi and Sri Ravi Kiran Jain, under this. In our opinion, section 142(1)
learned Senior Counsel for the Zila is an independent section which
Panchayat on other hand, submitted that empowers the Zila Panchayat to charge
section 142 (1) of the Zila Panchayat Act fee to be fixed by the bye-laws for use
is an independent provision which and occupation of the public road. Section
authorises the Zila Panchayat to levy fee 239 (1) of the Zila Panchayat Act clearly
for use or occupation of immovable empowers the Zila Panchayat to make
property of Zila Panchayat including bye-laws for its own purposes in respect
public roads or places and section 239 (2) of matters required by this Act to be
has no application since bye-laws under governed by bye-laws. Thus, in view of
this sub-section are framed without section 142 (1) of the Zila Panchayat Act
prejudice to the generality of the power read with section 239 (1) of the Zila
conferred on the Zila Panchayat by sub- Panchayat Act, the Zila Panchayat can
section (1) or section 239. They further frame bye-laws for charging fees for use
contended that under section 239 (1) the or occupation of any public road. Section
Zila Panchayat could make bye-laws 239 (2) of the Zila Panchayat Act
applicable to the whole or any part of the empowers the Zila Panchayat to make
rural area of the district in respect of bye-laws without prejudice to the
matters required by the Act to be generality of the power conferred by
governed by bye-laws and since under section 239 (1) of the Zila Panchayat Act.
section 142, the Zila Panchayat could In such circumstances the contention of
charge fees to be fixed by the bye-laws the learned Senior Counsel for the
for use or occupation of any immovable petitioner that the power to frame bye-
property vested in or entrusted to the laws under section 142 (1) of the Zila
management of the Zila Panchayat Panchayat Act is circumscribed by the
including any public road, the Zila conditions contained in section 239 (2) of
Panchayat had validly framed the bye- the Act and in particular to 'C-Streets'
laws. It was also contended by the learned cannot be accepted."
Senior Counsel for the respondents that in
view of the definition of public road in 8. The ratio of the said Full Bench
section 2 (37) of the Zila Panchayat Act, judgment clearly states that over and
the Zila Panchayat was competent to levy above the powers conferred under Section
fees every if a person had an enforceable 239, the Zila Panchayat can frame a bye-
right to use the road. law and impose a fee as has been done in
51. The contention of Dr. Singhvi, the present case as well in exercise of the
learned Senior Counsel for the petitioner powers under Section 142 of the Act. The
is that the Zila Panchayat can impose fee answer of the full bench is therefore
under section 142 of the Act only on such complete and squarely repels the
use of occupation as are prescribed under submissions raised by the counsel for the
section 239 (2) of the Act. In this petitioner. Thus, there is no ground to
2 All] Sri Bechu Rai Gram Sewak Vs. State of U.P. & Ors. 581

strike down the impugned bye-laws 24. In the circumstances, the petition is
merely because Section 142 has not been allowed. The respondents are directed to
pay entire retiral dues of petitioner
mentioned in the notification.
alongwith interest @ 10% per annum,
which shall be computed from the date
9. Consequently, there is no merit in this of his retirement till actual payment is
writ petition. Rejected made. This payment shall be made
-------- within two months from the date of
ORIGINAL JURISDICTION service of this order.
CIVIL SIDE
DATED: ALLAHABAD 31.03.2014 Case Law Discussed:
AIR 1983 SC 130; 1972 AC 1027; 1964 AC
BEFORE 1129; JT 1993(6) SC 307; JT 2004(5)SC 17;
THE HON'BLE SUDHIR AGARWAL, J. (1996) 6 SCC 530; (1996) 6 SCC 558; AIR
1996 SC 175; W.P. No. 34804 OF 2004.
Civil Misc. Writ Petition No. 18717 of 2004
(Delivered by Hon'ble Sudhir Agarwal, J.)
Sri Bechu Rai Gram Sewak .....Petitioner
Versus 1. The only grievance of petitioner is
State of U.P. & Ors. ..........Respondents that he has not been paid retiral dues
though he has retired on 31.7.1997.
Counsel for the Petitioner:
Sri Chandra Shekhar Srivastava, Sri 2. In the counter affidavit the
Pradeep Kumar Rai respondents have given the reason that
service record of petitioner could not be
Counsel for the Respondent:
verified by them and "no objection
C.S.C.
certificate" has not been produced by
Constitution of India, Art. 21- Right to petitioner.
pension-petitioner retired on 31.07.97
working as Gram Sewak-prior to 3. Learned counsel for the
retirement all formalities completed-but respondents submitted that the petitioner
can not be finalized-only reason that absconded from duty frequently and,
service record not traceable- held-
therefore, there was break in his service.
petitioner can not be blamed-being
instrumentality of state authorities are
It is further submitted that the petitioner
duty bound to discharge duties in more could not make available photograph and
responsible and caution manner-petition other necessary documents for the
allowed with direction to pay entire purposes of pension despite several
amount of pension @ 10% per annum reminders and as such, in absence of
w.e.f. date of retirement to the date of requisite documents for sanction of
actual payment is made-with cost of Rs.
10,000/-.
pension, the retiral dues could not be paid
in time for which petitioner was solely
Held: Para-23&24 responsible.
23. In view of the above, I have no
hesitation in holding that non payment 4. The brief facts relevant for the
of retiral benefits and others to purpose of writ petition are that the
petitioner is arbitrary and unreasonable.
There was no justification at all for
petitioner was appointed on 17.1.1964 as
respondents to delay payment thereof. Gram Sewak and continued to work as
582 INDIAN LAW REPORTS ALLAHABAD SERIES

such till 31.7.1997 when he retired from fundamental right, a facet of right to earn
service. On 31.7.1997, for the first time, the livelihood enshrined under Article 21 of
respondents' Department served an order the Constitution. Pension and retiral
upon petitioner that on attaining the age of benefits have been held deferred wages
superannuation, he would retire on 31.7.1997 which an employee earn by rendering
and he is expected to furnish papers relating service for a particular length of time.
to pension in the office so that pension This is what was held by Apex Court in
papers may be sent to the concerned D.S.Nakara Vs. Union of India AIR 1983
department for sanction. The aforesaid order SC 130. This proposition is almost settled.
was complied by the petitioner but due to To defer this right of an employee for an
non-availability of petitioner's Service Book, unreasonably long period, one must have
which is maintained by the Department itself, an authority in law which more or the less
pension could not be sanctioned. Despite must be specific and clear. On the mere
several representations of petitioner time and pretext of caution, such right cannot be
again, he failed to get anything. In the made to suffer in any manner. Whenever
meantime correspondence between the such an occasion is brought to notice, this
authorities with respect to grant of pension Court has risen to protect the poor and
was going on but all in vain. It is also helpless retired employee.
asserted by petitioner that due to inaction of
respondent authorities and non-availability of 8. Besides above, it is also evident
Service Book, petitioner's retiral benefits from record that petitioner retired from
could not have been sanctioned and he is at service on 31.7.1997 but due to non
the verge of starvation. availability of service record he could not
be paid retiral benefit within time.
5. A counter affidavit has been filed Maintenance of service record is the
on behalf of respondents no. 1 to 4. On responsibility of respondent authorities. If
material aspect for not sanctioning it is not traceable, the petitioner cannot be
pension within time, there is no blamed and made to suffer. According to
satisfactory reply in the counter affidavit, paragraph 10 of the counter affidavit,
it is skatchy and no proper and specific certain payments were mae in June and
reply of the assertions made in the writ July, 2005 i.e. after about 8 years of the
petition has been given. retirement.

6. From a perusal of record, it is 9. A system controlled by

evident that respondents have failed in bureaucrats can create wrangles to device
their duty to give the pensionary/retiral something which is formulated by policy
benefits to petitioner within time or a makers for the benefit of the citizen is
reasonable time, which they were bound writ large from this case. A beneficial
to do, under law. No suitable explanation scheme made for social welfare of old and
has been given in the counter affidavit for retired employees, can be twisted by the
denying retiral benefits to the petitioner system creating a nightmare to retired
for such a long time. employees, as is quite evident. The
constitutional obligation though pen down
7. Today, one cannot dispute that to reach the people but Executive,
pension has attained the status of habitual of remaining static or move slow
2 All] Sri Bechu Rai Gram Sewak Vs. State of U.P. & Ors. 583

or no movement at all, can render such was that when the employee was
scheme quite ineffective and inoperative. physically and mentally alert, he rendered
Something due today may not be not master the best, expecting him to look
available to a person right in time. It is after him in the fall of life. A retirement
like a person starving today is assured system therefore exists solely for the
food to be provide after a month or two purpose of providing benefits. In most of
by which time he may die of hunger or the plans of retirement benefits, everyone
the foodstuff itself may rot. If this is not who qualifies for normal retirement
unconstitutional then what else can be. receives the same amount." (Para 22).

10. Learned counsel appearing for "Pensions to civil employees of the

respondents simply tried to shift Government and the defence personnel as
responsibility of delayed payment of administered in India appear to be a
retiral benefits to petitioner but the fact compensation for service rendered in the
remain undenied that more than eight past." (Para 28).
years delay is wholly unreasonable. The
petitioner, a retired employee, had no role "Summing up it can be said with
whatsoever except of suffering the cause. confidence that pension is not only
compensation for loyal service rendered
11. As already said, pension is not a in the past, but pension also has a broader
bounty but a right of employee who has significance, in that it is a measure of
served the employer for long and is socio-economic justice which inheres
entitled for retiral benefits being his economic security in the fall of life when
deferred wages. The Apex Court in D.S. physical and mental prowess is ebbing
Nakara (supra) has observed:- corresponding to aging process and,
therefore, one is required to fall back on
"pension is a right and the payment savings. One such saving in kind18717 is
of it does not depend upon the discretion when you give your best in the hey-day of
of the Government but is governed by the life to your employer, in days of
rules and a government servant coming invalidity, economic security by way of
within those rules is entitled to claim periodical payment is assured. The term
pension. It was further held that the grant has been judicially defined as a stated
of pension does not depend upon anyone's allowance or stipend made in
discretion." (Para 20). consideration of past service or a
surrender of rights or emoluments to one
"In the course of transformation of retired from service. Thus the pension
society from feudal to welfare and as payable to a government employee is
socialistic thinking acquired earned by rendering long and efficient
respectability, State obligation to provide service and therefore can be said to be a
security in old age, an escape from deferred portion of the compensation or
underserved want was recognized and as a for service rendered." (Para 29)
first steps pension was treated not only as
a reward for past service but with a view 12. Withholding of pension and
to helping the employee to avoid other retiral benefits of retired employees
destitution in old age. The quid pro quo for years together is not only illegal and
584 INDIAN LAW REPORTS ALLAHABAD SERIES

arbitrary but a sin if not an offence since 15. The above observations as such
no law has declared so. The officials, who have been reiterated in Ghaziabad
are still in service and are instrumental in Development Authorities Vs. Balbir
such delay causing harassment to the Singh JT 2004 (5) SC 17.
retired employee must however feel afraid
of committing such a sin. It is morally and 16. The respondents bei18717ng
socially obnoxious. It is also against the "State" under Article 12 of the
concept of social and economic justice Constitution of India, its officers are
which is one of the founding pillar of our public functionaries. As observed above,
constitution. under our Constitution, sovereignty vest
in the people. Every limb of constitutional
13. In our system, the Constitution is machinery therefore is obliged to be
supreme, but the real power vest in the people oriented. Public authorities acting
people of India. The Constitution has been in violation of constitutional or statutory
enacted "for the people, by the people provisions oppressively are accountable
an18717d of the people". A public for their behaviour. It is high time that
functionary cannot be permitted to act like a this Court should remind respondents that
dictator causing harassment to a common they are expected to perform in a more
man and in particular when the person responsible and reasonable manner so as
subject to harassment is his own employee. not to cause undue and avoidable
harassment to the public at large and in
14. Regarding harassment of a particular their ex-employees like the
common referring to observations of Lord petitioner. The respondents have the
Hailsham in Cassell & Co. Ltd. Vs. support of entire machinery and various
Broome, 1972 AC 1027 and Lord Devlin powers of statute. An ordinary citizen or a
in Rooks Vs. Barnard and others 1964 AC common man is hardly equipped to match
1129, the Apex Court in Lucknow such might of State or its
Development Authority Vs. M.K. Gupta instrumentalities. Harassment of a
JT 1993 (6) SC 307 held as under: common man by public authorities is
socially abhorring and legally
"An Ordinary citizen or a common man is impressible. This may harm the common
hardly equipped to match the might of the man personally but the injury to society is
State or its instrumentalities. That is far more grievous. Crime and corruption,
provided by the rule of law....... A public thrive and prosper in society due to lack
functionary if he acts maliciously or of public resistance. An ordinary citizen
oppressively and the exercise of power instead of complaining and fighting
results in harassment and agony then it is mostly succumbs to the pressure of
not an exercise of power but its abuse. No undesirable functioning in offices instead
law provides protection against it. He who of standing against it. It is on account of,
is responsible for it must suffer sometimes, lack of resources or
it...........Harassment of a common man by unmatched status which give the feeling
public authorities is socially abhorring of helplessness. Nothing is more
and legally impermissible. It may harm damaging than the feeling of helplessness.
him personally but the injury to society is Even in ordinary matters a common man
far more grievous." (para 10) who has neither the political backing nor
2 All] Sri Bechu Rai Gram Sewak Vs. State of U.P. & Ors. 585

the financial strength to match inaction in "No public servant can say "you may set
public oriented departments gets aside an order on the ground of mala fide
frustrated and it erodes the credibility in but you can not hold me personally liable"
the system. This is unfortunate that No public servant can arrogate in himself
matters which require immediate attention the power to act in a manner which is
are being allowed to linger on and remain arbitrary".
unattended. No authority can allow itself
to act in a manner which is arbitrary. 19. In Shivsagar Tiwari Vs. Union
Public administration no doubt involves a of India (1996) 6 SCC 558 the Apex
vast amount of administrative discretion Court has held:
which shields action of administrative
authority but where it is found that the "An arbitrary system indeed must always
exercise of power is capricious or other be a corrupt one. There never was a man
than bona fide, it is the duty of the Court who thought he had no law but his own
to take effective steps and rise to occasion will who did not soon find that he had no
otherwise the confidence of the common end but his own profit."
man would shake. It is the responsibility
of Court in such matters to immediately 20. In Delhi Development Authority
rescue such common man so that he may Vs. Skipper Construction and Another
have the confidence that he is not helpless AIR 1996 SC 715 has held as follows:
but a bigger authority is there to take care
of him and to restrain arbitrary and "A democratic Government does not
arrogant, unlawful inaction or illegal mean a lax Government. The rules of
exercise of power on the part of the public procedure and/or principles of natural
functionaries. justice are not mean to enable the guilty to
delay and defeat the just retribution. The
17. In a democratic system governed wheel of justice may appear to grind
by rule of law, the Government does not slowly but it is duty of all of us to ensure
mean a lax Government. The public that they do grind steadily and grind well
servants hold their offices in trust and are and truly. The justice system cannot be
expected to perform with due diligence allowed to become soft, supine and
particularly so that their action or inaction spineless."
may not cause any undue hardship and
harassment to a common man. Whenever 21. Now, coming to another aspect
it comes to the notice of this Court that of the matter, if retiral benefits are paid
the Government or its officials have acted with extra ordinary delay, the Court
with gross negligence and unmindful should award suitable interest which is
action causing harassment of a common compensatory in nature so as to cause
and helpless man, this Court has never some solace to the harassed employee. No
been a silent spectator but always reacted Government official should have the
to bring the authorities to law. liberty of harassing a hopeless employee
by withholding his/her lawful dues for a
18. In Registered Society Vs. Union long time and thereafter to escape from
of India and Others (1996) 6 SCC 530 the any liability so as to boast that nobody
Apex court said: can touch him even if he commits an ex
586 INDIAN LAW REPORTS ALLAHABAD SERIES

facie illegal, unjust or arbitrary act. Every be made to the Government servant on the
authority howsoever high must always keep date he retires or on the following day and
in mind that nobody is above law. The hands pension at the expiry of the following
of justice are meant not only to catch out months. The necessity for prompt payment
such person but it is also the constitutional of the retirement dues to a Government
duty of Court of law to pass suitable orders servant immediately after his retirement
in such matters so that such illegal acts may cannot be over-emphasized and it would not
not be repeated, not only by him/her but be unreasonable to direct that the liability to
others also. This should be a lesson to pay panel interest on these dues at the current
everyone committing such unjust act. market rate should commence at the expiry
of two months from the date of retirement."
22. Interest on delayed payment on
retiral dues has been upheld time and In this view of the matter, this Court
against in a catena of decision. This Court is of the view that the claim of the
in Shamal Chand Tiwari Vs. State of U.P. petitioner for interest on the delayed
& Ors. (Writ Petition No.34804 of 2004) payment of retiral benefits has to be
decided on 6.12.2005 held: sustained."

"Now the question comes about 23. In view of the above, I have no
entitlement of the petitioner for interest on hesitation in holding that non payment of
delayed payment of retiral benefits. Since retiral benefits and others to petitioner is
the date of retirement is known to the arbitrary and unreasonable. There was no
respondents well in advance, there is no justification at all for respondents to delay
reason for them not to make arrangement payment thereof.
for payment of retiral benefits to the
petitioner well in advance so that as soon 24. In the circumstances, the petition is
as the employee retires, his retiral benefits allowed. The respondents are directed to pay
are paid on the date of retirement or entire retiral dues of petitioner alongwith
within reasonable time thereafter. Inaction interest @ 10% per annum, which shall be
and inordinate delay in payment of retiral computed from the date of his retirement till
benefits is nothing but culpable delay actual payment is made. This payment shall
warranting liability of interest on such be made within two months from the date of
dues. In the case of State of Kerala and service of this order.
others Vs. M. Padmnanaban Nair, 1985
(1) SLR-750, the Hon'ble Supreme Court 25. The respondent no.1 shall also
has held as follows: have liberty to take appropriate action against
the officials found responsible for such
"Since the date of retirement of every lapses and delay for payment of retiral dues.
Government servant is very much known A copy of such order may also be kept on
in advance we fail to appreciate why the record of such officials, found responsible.
process of collecting the requisite
information and issuance of these two 26. The petitioner shall be entitled
documents should not be completed at for payment of Rs. 10,000/- as costs from
least a week before the date of retirement the respondents.
so that the payment of gratuity amount could --------
2 All] Pancham Lal Vs. State of U.P. & Ors. 587

ORIGINAL JURISDICTION dated 7.7.1997 for promotion to the post of

Manager (M & E-1) shows that it was
CIVIL SIDE
against the vacancies of year 1995-96 and
DATED: ALLAHABAD 17.01.2014 had the petitioner been promoted within
time, the ad hoc appointment of petitioner
would have come to an end in view of law
BEFORE laid down by the Apex Court in 1989 (1)
SCC 392 (State of Maharashtra versus
THE HON'BLE RAKESH TIWARI, J. Jagannath Achyut Kartandikar) can not be
made to suffer adversely for the fault or
THE HON’BLE BHARAT BHUSHAN, J.
lapse on the part of the Government itself
as it would be unjust, unreasonable and
arbitrary. Since he was working on regular
Civil Misc. Writ Petition No. 18934 of 2002 basis on the post of Manager Marketing &
Economic Investigator and he must have
paid his post-retirement benefits of the said
Pancham Lal........................ .Petitioner post and can not be discriminated from
others in this regard particularly in the facts
Versus and circumstances of the case. He has also
State of U.P. & Ors. .........Respondents relied upon judgment dated 11.11.2010
passed in Special Appeal No. 1007
(Defective) of 2010 (Firangi Prasad versus
State of U.P.) referred to in the judgment
Counsel for the Petitioner: dated 14.2.2010 passed in Writ Petition No.
55050 of 2009 (Shashikala versus State)
Sri Krishna Ji Khare
and JT 1996 Vol. 4 731 in this regard.

Case Law Discussed:

Counsel for the Respondent:
1989(1)SCC 392; JT 1996 Vol. 6 SC Page 75;
C.S.C. JT 1992 Vol-3 SC 98; (2012) 8 SCC 117;
(2006)7 SCC 684; 1989(1) SCC 392; 1996 Vol.
6 SC Page 75.
Constitution of India, Art.-226- Service Law-
Notional Promotion-petitioner along with 13
other junior person promoted on post of (Delivered by Hon'ble Rakesh Tiwari, J.)
manager marketing and economic
investigation-all were treated to be approved
except petitioner-who in view of interim
1. This petition has been preferred
order-working of promotional post retired- for issuance of a writ of certiorari
and got salary-but pension given treating on quashing the impugned order dated
post of senior investigator-held once junior to 14.2.2002 passed by the respondents.
petitioner treated confirmed and given post Petitioner also seeks a writ of mandamus
retrial benefits of promotional post-petitioner directing the respondents to pay the post
can not be discriminated-no question of
recovery in absence of allegation of excess
retirement benefits to him for the post of
payment of salary as to given to manager(M Manager (M and E-I) in pursuance of the
& E-1)-entitled for same treatment. orders dated 3.1.2001 and 8.8.2001
passed in Civil Misc. Writ Petition No.
Held: Para-11 3138 of 1982 and any other writ, order or
Learned counsel for the petitioner further direction which may be deemed fit and
contents that recommendation letter order proper in the circumstances of the case. It
588 INDIAN LAW REPORTS ALLAHABAD SERIES

appears from record that writ petition was 1982 (P.C. Jain versus State of U.P. and
amended vide order of this Court dated others) was preferred by Sri P.C.Jain. In
7.8.2008 whereby another prayer in the the writ petition filed by the petitioner an
nature of mandamus has been added in interim order was passed. Since the
the petition for directing the respondents Petitioner was holding the post in
to give effect the recommendation dated question having been directly appointed,
7.7.1997 of the U.P. Public Service pursuant to the advertisement, he was
Commission (hereinafter referred to as the continued on the post of Manager
Commission) by providing notional Marketing and Economic Investigator and
promotion to the petitioner to the post of paid his salary in terms of the interim
Marketing Manager and Economic order. The writ petition was later on
Investigator forthwith and also to pay him admitted and after exchange of counter
post retirement benefits accordingly. and rejoinder affidavits, the stay order
was confirmed.
Background of the case
4. In the meantime, in view of Govt.
2. The backdrop of the case in Order dated 25.6.1984 and Rule 3(b) of
capsule is that the petitioner was directly the Uttar Pradesh Industries Service
appointed initially on the post of Junior Rules, 1993 read with its Appendix B,
Investigator w.e.f. 24.5.1962 thereafter he 50% posts of Manager (M & E-1) were
was directly appointed as Senior required to be filled up by promotion.
Investigator w.e.f. 1.10.1975 and Accordingly, the petitioner was
confirmed on the said post. Thereafter considered for promotion to the aforesaid
under a scheme in the Department of post along with 13 other candidates
Industries of District Industry Centre against the vacancies determined for
certain posts of Manager Marketing and financial year 1995-96, i.e. 1.4.1995 to
Economic Investigator (hereinafter 31.3.1996 and was placed at serial no. 1.
referred to as Manager (M & E-1) were Other 13 persons were placed below him.
created. Pursuant to advertisement for However, except the petitioner, 13
appointment on the said posts, petitioner candidates place below the petitioner
applied for selection and he along with 13 were given promotion as Manager
other candidates was selected and Marketing and Economic Investigator
appointed vide letter of appointment dated vide order dated 30.7.1997 pursuant to the
16.1.1981. After about one and a half year recommendation dated 7.7.1997 made by
i.e. on 3.5.1982, the appointments of all the U.P. Public Service Commission.
the candidates including petitioner and
one Sri P.C. Jain were cancelled reverting 5. During pendency of the writ
them to the post of Senior Investigator. petition, the petitioner and Sri P.C. Jain
who had filed the aforesaid two writ
3. The aforesaid order dated 3.5.1982 petitions, retired from service on attaining
was challenged in Civil Misc. Writ the age of superannuation on 31.12.1996
Petition No. 3138 of 1982 (Pancham Lal and 31.5.1992 respectively from the post
versus State of U.P. and others) by the of Manager (M & E-1). The retirement
petitioner. The other writ petition being order of Sri P.C.Jain from the said post
Civil Misc. Writ Petition No. 3013 of was treated to be approved by the State
2 All] Pancham Lal Vs. State of U.P. & Ors. 589

Government and he was accordingly paid 3.5.1982 was challenged by way of

post-retirement benefits for the post of aforesaid writ petition No. 3138 of 1982
Manager Marketing and Economic as such, the same may be decided on
Investigator. While the retirement order of merit but the Court treating the aforesaid
the petitioner from the same post was not application as a review application
taken into consideration on the same disposed it with the direction dated
terms for payment of his post retirement 3.1.2001 to the respondents to pay the
benefits of the post of Manager (M & E- post retirement benefits such as pension to
1). the petitioner of the post of Manager (M
& E-1) which was not paid him,
6. Two similarly situated candidates compelling him to move a clarification
of recommendation order dated 7.7.1997, application, which was disposed of in the
namely, Mohd. Shafiuddin, who retired following terms:-
on 31.3.1996 and N.B.Srivastava, who
retired on 30.6.1996 were paid post- " What he actually wants, this Court is to
retirement benefits of the post of Manager modify the order to the extent that the
(M & E-1) accordingly vide order dated appellant should be paid post retirement
30.3.2012 as informed by Under benefits from the post, he was holding at
Secretary under Right to Information Act, the time of retirement.
which has been filed by way of
supplementary affidavit on 7.11.2012. No We are of the view that that aspect of the
reason is said to have been provided in the matter may be considered by the
information dated 30.3.2012 as to why the appointing authority in accordance with
petitioner has not been promoted on the rules for which no direction is necessary.
post of Manager Marketing and Economic
Investigator and other candidates below 9. It is in the aforesaid backdrop that
him have been granted notional learned counsel for the petitioner submits
promotion though he was at serial no. 1 in that by order dated 14.2.2002 the
the list for promotion. petitioner has been paid post retiral
benefits treating him to have retired from
7. The aforesaid writ petition being the post of Senior Investigator and denied
Civil Misc. Writ Petition No. 3138 of him post retirement benefits for the post
1982 (Pancham Lal versus State) filed by of Manager (Marketing & Economics
the petitioner was dismissed on 28.7.1998 Investigator).
as having become infructuous on the
assumption that the aforesaid writ petition 10. It is submitted by the learned
was filed against the order dated counsel for the petitioner that 50% posts of
25.6.1982 whereby the Tribunal has Manager (M & E-I) were to be filled up by
refused to grant interim order and the lis way of promotion and remaining 50% posts
is pending before it. by direct recruitment. The selection for the
appointment and promotion on the said post
8. A recall application for recalling of Manager (M & E-I) was and is within the
the order dated 28.7.1998 mentioning purview of the U.P. Public Service
therein that no case is pending before the Commission (in short 'the Commission').
Tribunal and the cancellation order dated After retirement of the petitioner, the
590 INDIAN LAW REPORTS ALLAHABAD SERIES

Commission in view of the Government promotion order dated 7.7.1997, two

orders dated 25.6.1984 as well as 25.3.1985, candidates who are similarly retired in the
vide its letter dated 7.7.1997 recommended year 1996 as the petitioner, have been
the name of the petitioner for notional given promotion vide order dated
promotion to the post of Manager (M & E- 30.7.1997 to the post of Manager (M & E-
I) against the vacancy of 1993-94 but he has 1), therefore, petitioner can not be
been discriminated with Sri P.C. Jain who discriminated also on this ground.
was similarly situated to the petitioner and
13 persons below him in the same 13. It is further submitted that
recommendation list dated 7.7.1987 in promotion to the post of Manager
payment of retirement dues including Marketing and Economic Investigator is
Mohd. Shafiuddin and N.B.Srivastava, who required to be made under Rules of 1993
also retired in 1996. consequently continuation of ad hoc
appointment pursuant to the interim order
11. Learned counsel for the petitioner would be only a temporary appointment
further contents that recommendation letter dehors the rules and as such, petitioner is
order dated 7.7.1997 for promotion to the entitled to be granted notional promotion
post of Manager (M & E-1) shows that it to the post of Manager Marketing and
was against the vacancies of year 1995-96 Economic Investigator pursuant to the
and had the petitioner been promoted within promotion/recommendation order dated
time, the ad hoc appointment of petitioner 7.7.1997 against the vacancies of the year
would have come to an end in view of law 1995-96 and is entitled to receive the
laid down by the Apex Court in 1989 (1) post-retirement benefits accordingly. In
SCC 392 (State of Maharashtra versus this regard, he has relied upon JT 1996
Jagannath Achyut Kartandikar) can not be Vol. 6 SC Page 75 (Dr. Surendra Singh
made to suffer adversely for the fault or lapse versus State of Jammu & Kashmir.
on the part of the Government itself as it
would be unjust, unreasonable and arbitrary. 14. In the alternate counsel for the
Since he was working on regular basis on the petitioner next contended that even if the
post of Manager Marketing & Economic orders /judgment of this Court
Investigator and he must have paid his post- (Annexures 8, 10 and 11) are treated to be
retirement benefits of the said post and can dismissal of writ petition no. 3138 of
not be discriminated from others in this 1982 (Pancham Lal versus State) even
regard particularly in the facts and then in view of JT 1992 Vol-3 SC 98
circumstances of the case. He has also relied (M/s. Shree Chamundi Mopeds Ltd.
upon judgment dated 11.11.2010 passed in Versus Church of South India Trust
Special Appeal No. 1007 (Defective) of 2010 Association CSI Cinod Secretariat,
(Firangi Prasad versus State of U.P.) referred Madras), if it is presumed in law that no
to in the judgment dated 14.2.2010 passed in interim order was passed and as such,
Writ Petition No. 55050 of 2009 (Shashikala petitioner will be taken to be on the post
versus State) and JT 1996 Vol. 4 731 in this of Senior Investigator but pursuant to the
regard. recommendation of promotion order dated
7.7.1997 to the post of Manager
12. It is argued that even otherwise if Marketing and Economic Investigator by
pursuant to the recommendation of which persons junior to him have been
2 All] Pancham Lal Vs. State of U.P. & Ors. 591

granted benefits of promotion and post post of Manager Marketing hence is not
retiral benefits of the promotional post of entitled to get any financial benefit of the
Manager (M & E-1) he also is entitled to post of Manager Marketing and that since
receive the post retirement benefits of the he has received excess payment of salary
same post, as such, the action of the it can be recovered in view of the
respondents is not providing the post- judgment of Apex Court rendered in
retirement benefits for the post of Chandi Prasad Uniyal and others versus
Manager (M & E-1) to him is illegal, State of Uttrakhand and others (2012) 8
arbitrary and discriminatory. SCC 117 as fruits of stay order in writ
petition which was subsequently
15. Per contra, learned Standing dismissed would not be available to him.
Counsel submits that only a short point is Therefore, the writ petition is liable to be
involved in this petition as to whether the dismissed with liberty to the respondents
relief nos. 1 & 4 now claimed by to recover the excess amount paid to the
petitioner can be granted to him or not ? petitioner. In this regard, he has also relief
According to him, it is apparent from the upon on a decision in the case of Surinder
impugned order dated 14.2.2002 that the Prasad Tiwari vesus U.P. Rajya Krishi
appointment of the petitioner on the post Utpadan Mandi Parishad and others
of Manager (M & E-I) was not legal. The (2006) 7 SCC 684. It has been held in
respondents, pursuant to the order passed paragraphs 24 of the aforesaid judgment :-
in Civil Misc. Writ Petition No. 3138 of
1982, had categorically stated that the "24. In the instant case, the applicant has
petitioner has wrongly been given continued in service for 14 years because
promotion in anticipation of the vacancy of the interim order granted by the High
and as such, his appointment on the post Court on 15.9.1992. In the aforesaid case,
of Manager (M& E-I) not being against a the Constitution Bench has observed that
vacant and substantive post was neither merely because an employee had
legal nor justified for the said post at the continued under cover of an order of the
relevant time did not exist at all, as such court, which the court described as
the writ petition is also not maintainable "litigious employment: he would not be
on this ground. entitled to any right to be absorbed or
made permanent in the service."
16. Though no counter affidavit has
been filed, learned Standing Counsel has 18. This judgment of Surinder Prasad
vehemently argued that no interim order Tiwari (Supra) was specifically
has been granted in this writ petition and considered by this Court in Special
as the petitioner has already retired from Appeal No. 926 of 2002 in Sunil Kumar
service and in the circumstance, he is not versus The Regional Assistant Director of
entitled to the reliefs claimed by him. Education (Basic) 12 Circle, Mordabad,
wherein the Court after noticing
17. Learned counsel for the State paragraph 24 of the judgment quoted
submits that as a result of dismissal of the above, the Court held:
writ petition aforesaid, the petitioner
would retire as Senior Investigator as he 7."Having appreciated the rival
had never been legally promoted on the submission, we do not find any substance
592 INDIAN LAW REPORTS ALLAHABAD SERIES

in the submission of Mr. Saxena and the not be out of place to mention here that
decision relied on shall have no bearing in the Finance Department had, in its
the facts of the present case. As stated counter affidavit, admitted that it was a
earlier, the petitioner was appointed by bona fide mistake on their part. The
order dated 22.4.1987 on temporary basis excess payment made was the result of
and the order of appointment clearly wrong interpretation of the rule that was
indicated that his service can be applicable to them, for which the
terminated without any notice or prior appellants cannot be held responsible.
information. His service was terminated Rather, the whole confusion was because
in exercise of power under Rule 3 of the of inaction, negligence and carelessness
Rules 1975 by order dated 5.9.1988. of the officials concerned of the
Petitioner has, nowhere, averred as to the Government of Bihar. Learned Counsel
process of appointment, which was appearing on behalf of the appellants-
followed while giving him temporary teachers submitted that majority of the
appointment. True it is that by virtue of beneficiaries have either retired or are on
interim orders passed by this court, he the verge of it. Keeping in view the
continued in service but such continuance peculiar facts and circumstances of the
is nothing but a "litigious employment". case at hand and to avoid any hardship to
Once it is held so held, mere continuance the appellants-teachers, we are of the
in service for a long period would not view that no recovery of the amount that
clothe him with any right. The view, has been paid in excess to the appellants-
which we have taken, finds support from teachers should be made.
the judgement of the Supreme Court in
the case of Umadevi (supra) as also (emphasis added)"
Surindra Prasad Tiwari (supra)."
We may point out that in Syed Abdul
In the judgment relied upon in Chandi Qadir case such a direction was given
Prasad(Supra), the Apex Court in keeping in view of the peculiar facts and
paragraph 12 to 15 has held thus :- circumstances of that case since the
beneficiaries had either retired or were on
"12. Later, a three-Judge Bench in Syed the verge of retirement and so as to avoid
Abdul Qadir case (supra) after referring to any hardship to them.
Shyam Babu Verma, Col. B.J. Akkara
(retd.) etc. restrained the department from 13. We are not convinced that this
recovery of excess amount paid, but held Court in various judgments referred to
as follows: (Syed Abdul Qadir case. SCC herein before has laid down any
pp. 491-92, para 59) proposition of law that only if the State or
its officials establish that there was
"59. Undoubtedly, the excess amount that misrepresentation or fraud on the part of
has been paid to the appellants - teachers the recipients of the excess pay, then only
was not because of any misrepresentation the amount paid could be recovered. On
or fraud on their part and the appellants the other hand, most of the cases referred
also had no knowledge that the amount to hereinbefore turned on the peculiar
that was being paid to them was more facts and circumstances of those cases
than what they were entitled to. It would either because the recipients had retired or
2 All] Pancham Lal Vs. State of U.P. & Ors. 593

on the verge of retirement or were appears that the Court in Civil Misc. Writ
occupying lower posts in the Petition No. 3138 (S/B) of 1982 directed
administrative hierarchy. for payment of his salary of the post of
Manager (M&E-1) which he was holding
14. We are concerned with the prior to passing of the order dated
excess payment of public money which is 3.5.1985 and that vide order dated
often described as "tax payers money" 3.1.2001 on his clarification application
which belongs neither to the officers who for payment of pension for the post of
have effected over-payment nor that of Manager Marketing and Economic
the recipients. We fail to see why the Investigator was of the view that this
concept of fraud or misrepresentation is aspect of the matter may be considered by
being brought in such situations. Question the appointing authority in accordance
to be asked is whether excess money has with law, was not paid to the petitioner.
been paid or not may be due to a bona
fide mistake. Possibly, effecting excess 20. Questions for consideration by
payment of public money by Government this Court now are that (i) whether the
officers, may be due to various reasons salary of the post of Manager Marketing
like negligence, carelessness, collusion, and Economic Investigator which was
favouritism etc. because money in such allowed to the petitioner pursuant to the
situation does not belong to the payer or interim orders dated 9.7.1982 and
the payee. Situations may also arise where 3.1.2001 of the Court is liable to be
both the payer and the payee are at fault, recovered or not in the facts and
then the mistake is mutual. Payments are circumstances of the case, and (ii)
being effected in many situations without Whether petitioner is entitled to receive
any authority of law and payments have post retirement benefits of the post of
been received by the recipients also Manager Marketing and Economic
without any authority of law. Any amount Investigator in the aforesaid
paid/received without authority of law can circumstances.
always be recovered barring few
exceptions of extreme hardships but not 21. Before appreciating the facts, the
as a matter of right, in such situations law judgment relied upon by the petitioner
implies an obligation on the payee to may also be discussed:-
repay the money, otherwise it would
amount to unjust enrichment. 22. In 1989 (1) SCC 392 (State of
Maharashtra versus Jagannath Achyut
15. We are, therefore, of the Kartandikar) the Apex Court was
considered view that except few instances considering the question of seniority and
pointed out in Syed Abdul Qadir case promotion where lowering of seniority in
(supra) and in Col. B.J. Akkara (retd.) promotional post because of late passing
case (supra), the excess payment made of departmental examination for
due to wrong/irregular pay fixation can promotion. It was held that incumbent
always be recovered." should not be penalised for Government
lapses and that making employees to
19. After hearing the learned counsel suffer adversely for lapses on part of the
for the parties and perusal of record, it Government itself would be unjust,
594 INDIAN LAW REPORTS ALLAHABAD SERIES

unreasonable, arbitrary and such an action had to perform the ministerial act of
would violate Articles 14 and 16 of the issuing a letter of appointment to the
Constitution of India. The Court further appellant in terms of the selection order
observed that in such cases relaxation in dated 18.01.1993. The Management
rules granted in favour of the employee to admittedly complied with it after much
avoid undue hardship to a class of persuasion on 25.08.1993, for which the
employees would be justified. appellant is nowhere at fault. On the
contrary, the appellant had been
23. In the instant case, those continuously approaching the
employees along with petitioner who Management time and again expressing
were recommended for notional his willingness to join the Institution. "
promotion by the U.P. Public Service
Commission constituted a class apart 25. It was in the aforesaid facts and
from others. All of them have been circumstances that teachers like the
granted post retiral benefits of the appellants in that case were found to fall
promotional post except the petitioner, within an altogether different class of
therefore, his case is on a better footing candidates, who had been wrongfully
than the case of State of Maharashtra prevented by the inaction of the
relied upon by the petitioner and applies management in joining the institution.
with full force to this case. The direction contained in order dated
18.1.1993 in that case was categorically to
24. In the case of Firangi Prasad allow the appellant to join within ten days
(Supra) referred to in the case of which admittedly was scuttled by the
Shashikala versus State(Supra), it has Manager for reasons best known to him.
been held that if the District Inspector of The Manager was obliged to issue a letter
School has issued a letter directing of appointment under the direction of the
committee of management to appoint a District Inspector of Schools.
person as teacher and the management
delayed the matter at its end, then for such 26. In the instant case, Sri P.C. Jain
an inaction of management the teacher appointed along with the petitioner on the
cannot be made to suffer and in such a post of Manager Marketing and Economic
case, appointment shall be treated within Investigator 13 persons including the
the cut off date.. The observations of the petitioner recommended for promotion
Court made in para 15 reads thus:- after the reversion of the petitioner on
3.5.1982. All of them except the
"15. The second contention needs to be petitioner were paid salary but their
examined in the light of the facts that respective retiral dues of the post of
have emerged from the record, namely Manager Marketing and Economic
that the appellant for no fault on his part Investigator discriminating from the
was kept out of the Institution by the petitioner who has been deprived of his
inaction of the Management in spite of the retiral dues of the post of Senior
District Inspector of Schools having Investigator only due to inaction on the
dispatched the selection order on part of the respondents. As stated earlier,
18.01.1993. From the facts on record, it is the petitioner has been discriminated by
evident that the Manager of the Institution the authorities in complying with the
2 All] Pancham Lal Vs. State of U.P. & Ors. 595

orders dated 25.6.1983 and 25.3.1985 the 1.10.1975. He was given temporary
State Government in granting him post appointment/posting on the post of
retirement benefits of the post of Manager Manager Marketing (Prabandhak Vipran)
Marketing and Economic Investigator. by the Director vide order dated
Though he was on a better footing than them 18.1.1981 in anticipation of approval by
in view of orders dated 9.7.1982 in Civil the State, as such, the petitioner along
Misc. Writ Petition No. 3138 (S/B) of 1982 with ten other persons was reverted to
which was pending at the relevant time and their original post of Senior Investigator.
order dated 3.1.2001 of the Court. As regard Aggrieved the petitioner preferred Claim
the case of Dr. Surendra Singh versus State Petition No. 195/F/111/1982 challenging
of Jammu & Kashmir T 1996 Vol. 6 SC the order of reversion dated 3.5.1982
Page 75 relied up on by the petitioner is before the U.P. Public Services Tribunal,
concerned, it was a case of claiming Lucknow. The Claim Petition was
regularisation also as the appellant had put in decided vide judgment dated 9.7.1982
13 years service as an ad hoc employee. The against him against which the petitioner
Apex Court following the direction in JT preferred Civil Misc. Writ Petition No.
1993 (6) SC 593 wherein State Government 3138 (S/B) of 1982 in which interim order
was directed to notify the vacancies to Public was granted in the following terms:-
Service Commission making it open to the
appellants to apply for the same. Under the "List for admission on 22.7.1982. "In the
rules the regular recruitment to the posts was meantime in case the petitioner is still
to be made by the Public Service holding the charge of the post, he will not
Commission. It was held in that case that be relieved and if he has been relieved the
consequently, the ad hoc appointments same salary which he was getting before
would be only temporary appointments the order in question was passed, will be
dehors the rules pending regular recruitment paid to him. State may file counter
without conferring any right to regularisation affidavit during this period."
of service.
In compliance of the aforesaid order, the
27. These questions may be appreciated petitioner had been working as Marketing
in the light of facts that (i) the petitioner had Manager till his retirement from service
been appointed under direct recruitment as he was given his retiral benefits of the
Manager (M & E-1) on 16.1.1981 and post of Senior Investigator pending
worked on the said post up to 3.5.1982 when decision of the writ petition.
he was reverted back from the said post to Subsequently, Civil Misc. Writ Petition
the post of Senior Investigator, and (ii) No. 3138 of 1982 was also dismissed. In
petitioner was again promoted to the post of the instant case, petitioner had applied by
Manager (M & E-1) in pursuance of the way of direct recruitment and given
recommendation dated 7.7.1997, therefore, appointment on the post Manager
facts of these two situations have to be seen Marketing and Economic Investigator
by the Court in the facts and circumstances pursuant to the vacancies advertised. He
of the case. was also recommended with 13 other
persons by U.P. Public Service
28. Admittedly the petitioner was Commission for promotion on the
confirmed as Senior Investigator on aforesaid post after his said appointment
596 INDIAN LAW REPORTS ALLAHABAD SERIES

was cancelled and the petitioner was subsequent events is maintainable

continued in terms of the direction issued particularly when the petition has been
by High Court. He retired from the allowed to be amended by the court vide
promotional post of Manager (M & E-1) its order dated 7.8.2008 by which the
on attaining age of superannuation, hence following prayer no. 4 has been added: -
he would be deemed to be regularised in
service on the post of Marketing Manager "to issue a writ, order or direction in the
and Economic Investigator in terms of nature of mandamus directing the
recommendation dated 7.7.1997 and respondents to give effect the
Government orders dated 25.6.1983 and recommendation order dated 7.7.97 of the
25.3.1985 acted upon by it in respect of Commission by providing notional
granting notional promotion to all the promotion to the petitioner to the post of
promotees except the petitioner who had Manager M and E.I forthwith and to pay
been illegally and arbitrarily denied post retirement benefit accordingly."
notional promotion in violation of
Articles 14 and 16 of the Constitution, 30. It is not in dispute that the
therefore he would be entitled to post petitioner had been appointed on the post
retirement benefits of the post of Manager of Manager Marketing and Economic
(M & E-1) as were paid to Sri P.C. Jain Investigator on 16.1.1981 but was
and 13 other persons junior to him in reverted back on 3.5.1982 after about one
service, who were paid their salary and and a half year working on the said post.
retiral benefits of the post of Manager It is also not disputed that in view of
Marketing and Economic Investigator. circular dated 25.6.1983 and 25.3.1985,
Sri P.C.Jain and 13 other junior to the
29. From a perusal of Annexures 8 to petitioner were paid post retirement
12 to the writ petition, it appears that the benefits considering them to have retired
recommendations of promotion order from the post of Manager Marketing and
dated 7.7.1997 of Commission only in the Economic Investigator. Therefore, the
case of the petitioner has not been contention of the learned counsel for the
considered though it was communicated petitioner that no post of Manager
to the Commission and respondents were Marketing and Economic Investigator
having knowledge of the same, it was also existed on which the petitioner was
not brought to the notice of the Court or promoted as he had been treated only on
to the petitioner by the respondents, who anticipation of the vacancy can not be
were not aware of the recommendation said to be correct. The petitioner had been
order dated 7.7.1997 as such, the petition appointed on the said post after making
was disposed of with the direction to pay advisement and thereafter he was
the post retirement benefits in accordance regularised and confirmed in service.
with law. As soon as the aforesaid Even otherwise all other 13 employees
recommendation order dated 7.7.1997 juniors to him have been promoted and
came to his knowledge he has claimed his were retired were given notional
relief on the basis of the aforesaid promotion except the petitioner for which
recommendation order dated 7.7.1997 by no reason is provided by the respondents.
way of present writ petition, which in the The petitioner has been clearly
facts and circumstances based on discriminated by the action of the
2 All] Hurr Mehdi Baqri Vs. Chief Election Commission of India & Ors. 597

respondents in not paying his post in calculating their pay-scale resulting in

retirement dues considering him not excess payment.
retired from the post of Manager
Marketing and Economic Investigator can 33. For all these aforesaid reasons, the
not be sustained merely because vide writ petition is allowed. Since the petitioner
order dated 3.1.2001 the Court directed has actually worked on the post of
that aspect of the matter may be Manager(M & E-I) till his superannuation,
considered by the appointing authority in no recovery from him shall be made from
accordance with rules, which does not him for working on the said post and he shall
give handle to the respondents to be paid his dues of the post of Manager(M &
discriminate the petitioner and decide the E-I) on this basis.
matter which can not be approved in law.
34. No orders as to costs.
31. It has come on record that the --------
promotion of P.C. Jain and 13 other ORIGINAL JURISDICTION
juniors to the petitioner was treated to be CIVIL SIDE
DATED: ALLAHABAD 02.04.2014
an approval from the State Government
on the post of Manager Marketing and BEFORE
Economic Investigator and they were paid THE HON’BLE DR. DHANANJAYA
their post-retirement benefits for the said YESHWANT CHANDRACHUD, C.J.
post. Therefore, even on this ground also THE HON’BLE DILIP GUPTA, J.
the petition is liable to be allowed.
Civil Misc. Writ Petition No. 19028 of 2014
32. We do not find any force in the
arguments of the learned counsel for the State Hurr Mehdi Baqri... Petitioner
Versus
that as a result of dismissal of the writ petition, Chief Election Commission of India &
the petitioner would be treated to have retired Ors. ...Respondents
from the post of Senior Investigator as he was
not legally promoted on the post of Manager Counsel for the Petitioner:
Marketing and Economic Investigator. We Sri Prakash Chandra Srivastava
also find that the petitioner had not received
any excess payment during his "litigious Counsel for the Respondents:
employment" for the reason he had worked on Bhupendra Nath Singh
the post of Manager Marketing and Economic
Investigator and continued on the basis of the Constitution of India, Art.-329(b)- Rejection
of nomination-Lok Sabha election-rejected
Court's order. It was not the case where he had
on ground in electoral roll-name of
received any excess payment by working on petitioner found no place-review rejected in
the post of Manager Marketing and Economic absence of statutory provision-petition
Investigator. Since the petitioner had been against rejection-held-not maintainable-
appointed after advertisement and following once election notified except election
the procedure for recruitment, his case is Tribunal- Court ceased with every
jurisdiction-petition dismissed.
clearly distinguishable from the case of
Chandi Prasad Uniyal and Surinder Prasad Held: Para-9
Tiwari (Supra) wherein the bonafide mistake On the other hand, where a nomination
had been committed by the State Government paper has been rejected, we are of the
598 INDIAN LAW REPORTS ALLAHABAD SERIES

view that the interference of the Court Officer for correcting an error in the
under Article 226 of the Constitution nomination paper. The petitioner stated
would not be warranted since the bar
that in his nomination paper, he had
under Article 329 (b) would clearly
apply. The only manner in which the
incorrectly stated that his name appears at
election can be challenged is by means Serial No. 800 of the electoral rolls
of presenting an election petition after whereas, in fact, his name appears at
the declaration of the results where, as Serial No. 802.
we have already noted, one of the
grounds can be that a nomination paper 4. Learned counsel appearing on behalf
has been improperly rejected.
of the petitioner submits that the Returning
Officer having stated that the scrutiny would
(Delivered by Hon'ble Dr. Dhananjaya
take place between 11:00 a.m. and 3:00 p.m.,
Yeshwant Chandrachud, C.J.)
he would not be justified in rejecting the
nomination paper despite the receipt of the
1. The petitioner has sought a
application at 2:40 p.m. Moreover, it has been
direction in the nature of mandamus
submitted, relying upon the provisions of
commanding the respondents to consider
Section 33 (4) and Section 36 (4) of The
his nomination paper for the forthcoming
Representation of People Act, 1951, that the
elections to the 16th Lok Sabha in relation
nomination paper ought not to have been
to the 08, Sambhal Lok Sabha Election
rejected on the ground of a defect which is not
Constituency as valid.
of a substantial character. Finally, it has been
urged that the jurisdiction of the Court under
2. On 25 March 2014, the Returning
Article 226 of the Constitution is not entirely
Officer notified that the scrutiny of the
barred though the election process has
nominations would take place on 27 March
commenced in view of the decision of the
2014 between 11:00 a.m. and 3:00 p.m. The
Supreme Court in Election Commission of
nomination paper of the petitioner was
India through Secretary vs. Ashok Kumar &
rejected on 27 March 2014 on the ground
others1
that the name of the petitioner was not found
at Serial No. 800 in the electoral rolls of the
5. Article 329 (b) of the Constitution
constituency. The Returning Officer has
provides as follows:
observed that the petitioner was absent
though he was informed that the scrutiny will
"(b) No election to either House of
commence at 11:00 a.m. on 27 March 2014.
Parliament or to the House or either House of
The petitioner filed an application for making
the Legislature of a State shall be called in
a correction in the nomination paper. This
question except by an election petition
application has been rejected by the
presented to such authority and in such
Returning Officer for the reason that once the
manner as may be provided for by or under
nomination paper had been rejected, a review
any law made by the appropriate
of the order was not permissible in law.
Legislature."
3. According to the petitioner, the
6. It is well settled that the entire
scrutiny was to take place between 11:00
process from the issuance of a notification
a.m. and 3:00 p.m. on 27 March 2014 and
under Section 14 of The Representation of
at 2:40 p.m. on 27 March 2014, he
People Act, 1951 to the declaration of the
submitted the application to the Returning
2 All] Hurr Mehdi Baqri Vs. Chief Election Commission of India & Ors. 599

results under Section 66 is comprehended Constitution would not be warranted since

within the expression 'election' in Article the bar under Article 329 (b) would
329 of the Constitution. clearly apply. The only manner in which
the election can be challenged is by
7. Once the election process has begun, means of presenting an election petition
the interference of this Court is clearly not after the declaration of the results where,
warranted. Moreover, under Section 100 (1) as we have already noted, one of the
(c), an improper rejection of a nomination is grounds can be that a nomination paper
a ground on which the election of a returned has been improperly rejected.
candidate can be assailed.
10. A Constitution Bench of the
8. The decision of the Supreme Supreme Court in N.P. Ponnuswami vs.
Court in Election Commission of India vs. Returning Officer and others2 held that
Ashok Kumar (supra) arose from a the jurisdiction of the High Court under
judgement of the Karala High Court Article 226 of the Constitution should not
which by an interim order had stayed a be invoked to question the election to
notification issued by the Election either House of Parliament and the
Commission of India containing observations are as follows:
directions in regard to the counting of
votes and had made directions on its own "The law of elections in India does
on the subject. The Supreme Court set not contemplate that there should be two
aside the order of the High Court and attacks on matters connected with election
allowed the appeal by the Election proceedings, one while they are going on
Commission of India holding that the by invoking the extraordinary jurisdiction
Election Commission will have the power of the High Court under Art. 226 of the
to supervise and direct the manner of Constitution (the ordinary jurisdiction of
counting of votes. It was in that context the Courts having been expressly
that the Supreme Court while formulating excluded), and another after they have
the governing principles of law held that been completed by means of an election
anything which is done towards petition."
completing or in furtherance of the
election proceedings, cannot be described 11. This decision was followed by
as questioning the election. The Supreme the Supreme Court in Manda Jaganath vs.
Court held that judicial intervention K.S. Rathnam and others3 and the
would be available if assistance of the observations of the Supreme Court are
Court has been sought merely to correct thus:
or smoothen the progress of the election
proceedings, to remove obstacles or to "12. In our opinion, whether the
preserve a vital piece of evidence which Returning Officer is justified in rejecting
may otherwise be lost or destroyed. this Form B submitted by the first
respondent herein or not, is not a matter
9. On the other hand, where a for the High Court to decide in the
nomination paper has been rejected, we exercise of its writ jurisdiction. This issue
are of the view that the interference of the should be agitated by an aggrieved party
Court under Article 226 of the in an election petition only.
600 INDIAN LAW REPORTS ALLAHABAD SERIES

13. It is to be seen that under Article petition is, accordingly, dismissed. There
329(b) of the Constitution of India there is shall be no order as to costs.
a specific prohibition against any --------
challenge to an election either to the ORIGINAL JURISDICTION
Houses of Parliament or to the Houses of CIVIL SIDE
DATED: ALLAHABAD 02.04.2014
Legislature of the State except by an
election petition presented to such BEFORE
authority and in such manner as may be THE HON’BLE PRADEEP KUMAR SINGH
provided for in a law made by the BAGHEL, J.
appropriate legislature. Parliament has by
enacting the Representation of the People Civil Misc. Writ Petition No.19288 of 2014
Act, 1951 provided for such a forum for
questioning such elections hence, under Shambhoo Narain Yadav & Anr. Petitioners
Versus
Article 329(b) no forum other than such
State of U.P. & Ors. ...Respondents
forum constituted under the RP Act can
entertain a complaint against any election. Counsel for the Petitioner:
Sri S.M. Misra
14. The word "election" has been
judicially defined by various authorities Counsel for the Respondents:
of this Court to mean any and every act C.S.C., Sri B.P. Singh, Sri Shiv Nath
taken by the competent authority after the Singh,Sri Rajesh Kumar
publication of the election notification.
Societies Registration Act, 1860-Section
..................... 23. The next argument of 25(i)- Power of prescribed authority-to
learned counsel for the respondent is that as decide controversy-through summary
proceeding and take final decision-no
per the provisions of section 36 of the authority to pass interim order-in absence
Representation of the People Act, Rule 4 of of statutory provision-order granting stay-
the Conduct of Elections Rules, 1961 and held-without jurisdiction-quashed.
clause 13 of the Election Symbols
(Reservation and Allotment) Order, 1968, Held: Para-16
the omissions found by the Returning Officer In the present case reference was made
under section 25(1) of the 'Act 1860' by a
in Form B filed by the respondent herein are member. The Prescribed Authority on the
all curable irregularities and are not defects reference itself has passed an exparte and
of substantial nature, calling for rejection of cryptic order staying the operation of the
the nomination paper. We think these order passed by the Assistant Registrar
arguments based on the provisions of the dated 23.1.2014 and 6.3.2014. In absence
statutes, rules and orders are all arguments of power to grant an interim order, the
order of the Prescribed Authority is without
which can be addressed in a properly jurisdiction. It is liable to be set aside.
constituted election petition, if need be, and Accordingly, it is set aside.
cannot be a ground for setting aside the order
of the Returning Officer which is prima facie Case Law discussed:
just and proper, in our opinion." 1982 UPLBEC 82; (1994) 4 SCC 225.

12. For these reasons, we are not (Delivered by Hon'ble Pradeep Kumar
inclined to entertain the petition. The Singh Baghel, J.)
2 All] Shambhoo Narain Yadav & Anr. Vs. State of U.P. & Ors. 601

1. The petitioners are two in Authority under section 25 (1) of the 'Act
number. They claim to be the member of 1860'. The Prescribed Authority vide his
the Society namely Chak Chaubey Palya order dated 26.4.2010, recognized the
Development Block Higher Education election of the faction headed by Ram
Expansion Association, Pakardiha , Dayal Yadav. It is avered in the writ
district Azamgarh, which is registered petition that the last election of the
under the Societies Registrar Act, 1860 Managing Committee was held on 10th
(Act No. 21 of 1860) (for short August, 2008. The next election was due
'Act,1860'). in the year 2011. Due to the rival claims
the election could not be held, therefore,
2. Petitioners are aggrieved by the the Assistant Registrar exercising his
order of the prescribed Authority whereby power under section 25(2) of the 'Act
he has granted an interim order. The 1860' published a tentative list of
grievance of the petitioners is that under members of the general body and he
section 25 (1) of the 'Act 1860'. the invited objection by 28.2.2014.
Prescribed Authority does not have power
to pass an interim order. 6. It is stated that after receiving the
objection he determined the list of the
3. Brief reference to the factual office bearers and 32 members were
aspects would suffice. found to be valid members. The Assistant
Registrar vide order dated 6.3.2014 also
4. A Society namely Chak Chaubey deputed the District Basic Education
Palya Development Block Higher Officer, Azamgarh as the Election Officer
Education Expansion Association, to hold the fresh election. It is stated that
Pakardiha , district Azamgarh ( one of the alleged member with a view to
hereinafter referred for the sake of brevity delay the election proceedings moved an
as Society) was registered in the year application before the Prescribed
1975. It has established an educational Authority under section 25(1) of the 'Act
institution namely Junior High School, 1860' challenging the order of the
Chak Chaubey (Palya) Pakardeeha, Assistant Registrar dated 23.1.2014. On
district Azamgarh. It is recognized by the the same reference the Prescribed
U.P.Basic Education Act, 1962. The Authority has stayed the order of the
institution does not receive any aid out of Assistant Registrar dated 23.1.2014
State Fund. inviting application of the tentative list
and 6.3.2014 whereby he had determined
5. It is stated that the last renewal of 32 members as valid members of the
the Society was made on 8.12.2010 for general body.
five years on the papers submitted by one
Sri Ram Dayal Yadav. Earlier one Lalji 7. I have heard Sri S.M.Mishra,
Yadav had also moved application for learned counsel for the petitioner, Sri B.P.
renewal claiming himself as the Manager Singh learned counsel for the respondent
of the Society. In view of the conflicting no.4 and Sri S.N.Singh, learned counsel
claim by two rival factions the Assistant appearing for respondent no.5. Learned
Registrar, Firms, Societies and Chits Standing Counsel has accepted notice on
referred the matter to the Prescribed behalf of the State authorities.
602 INDIAN LAW REPORTS ALLAHABAD SERIES

8. In view of the fact that no factual the 'Act 1860' confers power to the
controversy is involved in the writ Prescribed Authority to decide the dispute of
petition. Only question of law has been the office bearers of the Society. He is
raised by learned counsel for the required to decide the matter summarily. The
petitioner. No counter affidavit is needed State Government has not framed any rule to
in the matter. The writ petition is lay down the procedure for hearing and
accordingly being finally disposed of in decide the dispute. He is required to decide
terms of the Rules of the Court. any doubt or dispute in respect of the election
of an office bearers. The proviso and
9. Sri S.M.Mishra, learned counsel for explanation provides the ground on which
the petitioner submits that under section 25 the election can be set aside.
(1) of the Societies Registration Act, 1860
(Act No. 21 of 1860) (for short 'Act,1860'), 13. It is true that Section 19-A of the
the Prescribed Authority has no power to General Clauses Act , 1904 provides an
grant any interim order. He submits that ancillary power to a person/ Officer or
under section 25 (1) the Prescribed Authority Functionaries to enforce doing all such
has been empowered only to decide the acts, or thing. All such powers shall be
dispute in regard to election of the office deemed to be given as necessary to enable
bearers which is referred to him by the the person to do or enforce the doing of
Registrar or by atleast ¼ members of the act or thing. From perusal of Section
Society. 25(1) of the 'Act 1860' it is not
discernable any such power conferred on
10. Learned counsel for the the Prescribed Authority. This issue fell
respondents submits that it shall be for consideration of a Division Bench of
deemed that Prescribed Authority has this Court in Meerut Collegiate
ancillary power to pass an interim order Association, Meerut and others v. Sri
also. Arvind Nath Seth and others, reported
(1982 UPLBEC 82). The Division Bench
11. I find it helpful to extract section has considered the effect of Section 19-A
25(1) of the 'Act 1860' hereunder below:- of the U.P. General Clauses Act, 1904 and
has also considered the similar provision
"25.Dispute regarding election of under section 95 of the U.P. Panchayat
office bearers.-(1) The prescribed Raj Act, 1947 and section 17 of the Arms
authority may, on a reference made to it Act, 1959. The Division Bench has also
by the Registrar or by at least one-fourth considered Section 7-F of the U.P.
of the members of a society registered in (Temporary) Control of Rent and Eviction
Uttar Pradesh, hear and decide in a Act, 1947 and Section 254 of the Income
summary manner any doubt or dispute in Tax Act, 1961. After considering the said
respect of the election or continuance in provisions of the Act and the power of
office of an office bearers of such society, Section 25(1) of the 'Act 1860', the Court
and may pass such orders in respect came to hold that Prescribed Authority
thereof as it deems fit :" while deciding the dispute under section
25(1) of the 'Act 1860' has no power to
12. From a careful reading of the said pass an interim order. The Court has held
section it is evident that Section 25(1) of as under :-
2 All] Z.U. Ansari Vs. The State of U.P. & Ors. 603

"Applying the principles enunciated 1860' by a member. The Prescribed

in the decision referred to above, it is not Authority on the reference itself has
possible to say that for hearing and passed an exparte and cryptic order
deciding any doubt or dispute in regard to staying the operation of the order passed
the election of the office bearer of the by the Assistant Registrar dated 23.1.2014
petitioner committee it was absolutely and 6.3.2014. In absence of power to
necessary for the Prescribed Authority to grant an interim order, the order of the
stay the functioning of the committee Prescribed Authority is without
pending decision of the reference and jurisdiction. It is liable to be set aside.
further more so when the proceeding are Accordingly, it is set aside.
summary in nature. The impugned order,
therefore, is liable to be quashed." 17. Writ petition is allowed.

14. The Supreme Court in the case 18. The Prescribed Authority is
of Morgan Stanley Mutual Fund v. directed to decide the Reference in
Kartick Das reported (1994) 4 SCC 225, accordance with law. The order is also
has considered the issue whether the without prejudice to the rights and
Consumer Dispute Redressal Forum has contention of the parties.
power to pass an interim order. The Court
analyzing the provisions of Section 14 of 19. No order as to costs.
the Consumer Protection Act, 1986 found --------
that the said section does not empower the ORIGINAL JURISDICTION
Tribunal to pass any interim relief. CIVIL SIDE
DATED: ALLAHABAD 03.02.2014
Paragraph 44 of the judgment reads as
under :- BEFORE
THE HON'BLE ARUN TANDON, J.
" A careful reading of the above THE HON'BLE ARVIND KUMAR MISHRA-I, J.
discloses that there is no power under the
Act to grant any interim relief of (sic or) Civil Misc. Writ Petition No.19485 of 2012
even an ad interim relief. Only a final
relief could be granted. If the jurisdiction Z.U. Ansari ...Petitioner
Versus
of the Forum to grant relief is confined to
The State of U.P. & Ors. ...Respondents
the four clauses mentioned under section
14, it passes our comprehension as to how Counsel for the Petitioner:
an interim injunction could ever be Sri Sawan Kumar Srivastava, Sri Anil Kumar
granted disregarding even the balance of Srivastava,Sri Chandrajeet Tiwari, V.S.
convenience." Tiwari.

15. In view of the aforestated legal Counsel for the Respondents:

position, I am of the view, that Prescribed C.S.C., Sri Pankaj Saxena.
Authority does not have any power to
pass an interim order. Civil Services Regulation-351-A-Petitioner
working as Assistant Engineer-retired on
30.09.2008-after three years of retirement
16. In the present case reference was
charge sheet on 27.06.2011-without prior
made under section 25(1) of the 'Act sanction from Governer-defence taken by
604 INDIAN LAW REPORTS ALLAHABAD SERIES

state that since the Minister given approval- Civil Services Regulations, departmental
hence as per U.P. Secretariat Instruction enquiry against the petitioner cannot be
1972-shall be deemed to sanction by
instituted/continued without the sanction
Governer-held-not amount to sanction as
contemplated by Regulation 351-A-charge
of the Governor. In the facts of the case,
sheet quashed. no sanction from the Governor has been
obtained, the charge-sheet after more than
Held: Para-16 three years subsequent to his retirement is
We have, therefore, no hesitation to hold bad.
that the sanction of the minister
referable to the Business Regulations in
the facts of the case will not amount to
4. On behalf of the respondent
the sanction of the Governor as authorities a counter affidavit has been
contemplated by Regulation 351-A of the filed and it has been stated in paragraph 9
Civil Services Regulations, 1975. that before initiating the departmental
proceedings against the petitioner with the
Case Law discussed: service of charge-sheet dated 27.06.2011,
(2014)1 SCC 156; 2007(2) UPLBEC 1329; AIR
2004 SC 2523.
approval of the minister of the department
had been obtained on 07.01.2011 and this
(Delivered by Hon'ble Arun Tandon, J.) according to the respondents would be
deemed to be the sanction referred to
1. Petitioner before Court seeks under Article 351-A of the Governor
quashing of the charge-sheet dated having regard to the provisions of the
27.06.2011 issued by the Enquiry Officer U.P. Secretariat Instructions 1982 framed
under letter dated 28.07.2011 with the under the Rules of Business, 1975.
approval of the Principal Secretary, Rural
Engineering Services. Petitioner has 5. Counsel for the respondents has
prayed for payment of his entire retiral placed reliance upon the judgment of the
dues along with interest. Apex Court in the case of State of Orissa
vs. Kanhu Charan Majhi reported in
2. Facts in short leading to the (2014) 1 SCC, 156, specifically paragraph
petition are as follows : 12.

3. Petitioner before this Court was 6. On behalf of the petitioner in

employed as Assistant Engineering in the rejoinder affidavit it is submitted that the
Rural Engineering Department of the judgment is clearly distinguishable in the
State of U.P. He attained the age of facts of the case having regard to the specific
superannuation on 30.09.2008. After language of Civil Services Regulations
more than three years of his retirement, a which have been framed under Article 309 of
charge-sheet dated 27.06.2011 has been the Constitution of India, therefore, statutory
served upon the petitioner along with in nature. The Rules of Business, 1975 have
covering letter dated 28.07.2011. The been framed under Article 156 of the
charge-sheet has been signed by the Constitution of India and they deals with the
Junior Engineer (Western Region) Rural executive decisions of the State Government
Engineering Department in his capacity as which are completely foreign to the service
Enquiry Officer. It is his case that in view rules framed under Article 309 of the
of Regulation 351-A read with 370 of Constitution of India.
2 All] Z.U. Ansari Vs. The State of U.P. & Ors. 605

7. We have heard learned counsel whether any sanction from the Governor has
for the parties and have examined the been obtained or not.
records of the present petition.
11. It is admitted on record that there is
8. It is not in dispute that the petitioner no order of the Governor sanctioning the
had retired in the year 2008 and that departmental proceedings. The stand taken
departmental proceedings have been initiated by the State before us is that since the
against him in the year 2011 i.e. after expiry minister of the department had granted
of three years subsequent to his retirement. It approval to the initiation of the departmental
is also not in dispute that under Regulations proceedings vide order dated 07.01.2011,
351-A of the Civil Services Regulations this order of the minister read with Chapter 7
framed under Article 309 of the Constitution of U.P. Secretariat Instructions, 1972 framed
of India for any departmental enquiry being under the Rules of Business, 1975 has to be
initiated against a retired employee, prior deemed to be the sanction of the Governor.
sanction of the Governor is but necessary. In support of this contention the State has
The issue in that regard has been settled by placed reliance upon paragraph 12 of the
the High Court in the case of State of U.P. judgment in the case of State of Orissa vs.
vs. R.C.Mishra reported in 2007(2) Kanhu Charan Majhi (supra). Paragraph 12
UPLBEC, 1329 wherein Regulation 351-A reads as follows :
had been taken note of. It has been laid down
that once the government servant has retired “We have considered the provisions of
and no proceedings have been earlier Rule 31 of the Rules, whereby power has
initiated then the limitations imposed by sub been given to the Governor to review the
clause (i) or sub-clause (ii) of clause (a) of order dated 16.10.1995. Now the question is
proviso to Regulation 351-A will apply. whether the order was passed by the
Governor. It is true that when any statute
9. We may also record that under empowers the Governor to pass an order,
Explanation A to Article 351-A, it has the Governor himself need not sign and
been explained that the departmental need not pass the order. The rules of
proceedings against a retired employee business of any particular State deal with
shall be deemed to have been instituted the procedure as to how an order is to be
when a charge framed against the person passed by the Governor or in the name of
concerned is issued to him. the Governor. In the instant case, the order
dated 04.09.2000 was passed by the Under-
10. It is therefore, clear that as per Secretary, Food Supplies and Consumer
Regulations 351-A of Civil Services Welfare Department of the Government of
Regulations, the departmental enquiry would Orissa. According to Rules 11 and 12 of the
be deemed to have been instituted on the date Orissa Government Rules of Business, an
charge-sheet is served upon the petitioner i.e. Under-Secretary is empowered to sign in
in the year 2001. The petitioner had neither the name of the Governor. Thus, in view of
been placed under suspension nor any said legal position, the order dated
charge-sheet has been served upon him while 04.09.2000 can be said to have been passed
he was in service. Therefore, in the facts of by the Governor, exercising power under
the case, it has to be determined as to Rule 31 of the Rules.”
606 INDIAN LAW REPORTS ALLAHABAD SERIES

12. We may record that the provisions same inoperative for all intent and purport.
of the Regulations 351-A of the Civil Even for the purpose of shortlisting, the
Services Regulations have been framed Commission cannot fix any kind of cut-ff
under Article 309 of the Constitution of India marks.?
and are statutory in nature. The legal position
in that regard is well settled. Reference in 13. So far as the Rules of Business,
that regard may be had to the judgment of the 1975 are concerned, it is admitted to the
Apex Court in the case of Inder Parkash State that these rules have been framed
Gupta vs. State of Jammu & Kashmir and under Article 166 of the Constitution of
others reported in AIR 2004 SC, 2523 India. Article 166 of the Constitution of
paragraph n28 wherein it has been laid down India deals with the conduct of
as follows : government business and provides that all
executive actions of the Government/State
28. The Jammu & Kashmir Medical shall be expressed to be taken in the name
Education (Gazetted) Services Recruitment of the Governor and it is with reference to
Rules, 1979 admittedly were issued under these actions of the State Government that
Section 124 of the Jammu and Kashmir a power has been conferred upon the
Constitution which is in pari material with Governor to frame the business rules.
Article 309 of the Constitution of India. The Article 166 of the Constitution of India
said Rules are statutory in nature. The Public reads as follows :
Service Commission is a body created under
the Constitution. Each State constitutes its “Article 166-- (1) All executive
own Public Service Commission to meet the action of the Government of a State shall
constitutional requirement for the purpose of be expressed to be taken in the name of
discharging its duties under the Constitution. the Governor.
Appointment to service in a State must be in
consonance with the constitutional (2) Orders and other instruments
provisions and in conformity with the made and executed in the name of the
autonomy and freedom of executive action. Governor shall be authenticated in such
Section 133 of the Constitution imposes duty manner as may be specified in rules to be
upon the State to conduct examination for made by the Governor, and the validity of
appointment to the services of the State. The an order or instrument which is so
Public Service Commission is also required authenticated shall not be called in
to be consulted on the matters enumerated question on the ground that it is not an
under Section 133. While going through the order or instrument made or executed by
selection process the Commission, however, the Governor.
must scrupulously follow the statutory rules
operating in the field. It may be that for (3) The Governor shall make rules
certain purposes, for example, for the for the more convenient transaction of the
purpose of shortlisting, it can lay down its business of the Government of the State
own procedure. The Commission, however, and for the allocation among Ministers of
must lay down the procedure strictly in the said business insofar as it is not
consonance with the statutory rules. It cannot business with respect to which the
take any action which per se would be /governor is by or under this Constitution
violative of the statutory rules or makes the required to act in his discretion.?
2 All] Hazrat Ali & Ors. Vs. State of U.P. & Ors. 607

14. We are of the considered opinion by Regulation 351-A of the Civil Services
that the provisions of Article 309 of the Regulations, 1975.
Constitution of India operate in a separate
field vis-a-vis the conduct of government 17. So far as the judgment relied
business under Article 166 of the upon by the counsel for the respondent in
Constitution of India. They are not the case of State of Orissa (Supra), we
overlapping. Therefore, if under the service may record that the same is clearly
rules framed under Article 309 of the distinguishable in the facts of the case
Constitution of India namely the Civil specifically with reference to the Rules of
Services Regulations, 1975, it has been Business, 1975 of the State of U.P.
provided that sanction of the Governor referred to by us.
would be necessary before initiation of the
departmental proceedings with the service of 18. In absence of sanction of the
the charge sheet upon the retired employee Governor, no departmental proceedings can
then such sanction has to be that of the be initiated against a government servant after
Governor and not of the minister with his retirement, the impugned charge-sheet
reference to the U.P. Secretariat Instructions cannot be legally sustained. Accordingly, the
1982 framed under the Rules of Business, charge-sheet dated 27.06.2011 is hereby
1975. We may also record that the U.P. quashed as also the departmental proceedings
Secretariat Instructions 1982, Chapter VII initiated thereto against the petitioner. The
only provide that all business allocated to a petitioner shall be entitled to all the
department under the Rules of Business, consequential benefits with the result of the
1975 is to be disposed of by or under the quashing of the charge-sheet and the
General or special directions of the minister departmental proceedings. The State is
in charge (Reference Business Regulations directed to take appropriate action in that
3). It is, therefore, clear that only such regard within two months from the date a
business as allocated to the department under certified copy of the order is served upon the
the Rules of Business, 1975 can be disposed State Government.
of under the general or special directions of
the minister in charge. 19. Writ petition is allowed subject
to the observations/direction made herein
15. Nothing has been demonstrated above.
before us to lead us to accept that the power --------
to sanction the departmental proceedings in ORIGINAL JURISDICTION
respect of a retired government servant has CIVIL SIDE
DATED: ALLAHABAD 07.04.2014
been allocated as a business to be disposed of
under the general or special directions of the BEFORE
minister concerned under the Business THE HON'BLE DR. DHANANJAYA
Regulations. YESHWANT CHANDRACHUD, C J.
THE HON'BLE DILIP GUPTA, J.
16. We have, therefore, no hesitation
to hold that the sanction of the minister Civil Misc. Writ Petition No.20434 of 2014
referable to the Business Regulations in
the facts of the case will not amount to the Hazrat Ali & Ors. ...Petitioners
Versus
sanction of the Governor as contemplated State of U.P. & Ors. ...Respondents
608 INDIAN LAW REPORTS ALLAHABAD SERIES

Counsel for the Petitioners: Pakarihava, Tappa-Dhebarua, pargana

Sri Bijendra Kumar Mishra, Sri Shravan Naugarh, tehsil Shohratgarh, district
Kumar Dubey Siddharth Nagar has been sold in execution
of a decree. The petitioners seek to question
Counsel for the Respondents: the legality of an order passed by the District
C.S.C. Collector, Siddharth Nagar declining to
entertain the representation submitted by the
Constitution of India, Art.-226-
petitioners on the ground that the sale having
Representation regarding cancellation of
sale deed-rejected by District taken place in execution of a decree of a
Magistrate-with finding sale executed by competent Civil Court, the grievance of the
Civil Court-in execution of Decree-if any petitioners cannot be entertained.
share of petitioner affected-remedy to
take recourse of order 21 rule 90 of 2. Suit 152 of 1999 was filed against
C.P.C.-writ court can not interfere-held-
one Chinka son of Surya by his wife, son
dismissed with liberty to approach under
order 21 rule 90 C.P.C. and daughter before the Civil Judge
(Senior Division), Siddharth Nagar for
Held: Para-9 maintenance. A decree was passed in the
In this view of the matter, no recourse suit on 17 November 2000. In execution
can be had for exercise of writ proceedings, the movable property in
jurisdiction under Article 226 of the
question was put to auction on 30 May
Constitution. The District Magistrate,
Siddharth Nagar was absolutely justified 2009 at which the fourth respondent was
in declining to entertain the declared to be a purchaser. The sale was
representation filed by the petitioners. confirmed by the Executing Court on 26
The District Magistrate can exercise August 2009 and in pursuance of the
powers which are specifically conferred directions of the Court, possession was
upon him by law and he had no
handed over to the fourth respondent on
jurisdiction to entertain a representation
in respect of a sale which had taken 24 May 2011 and a registered deed of sale
place in pursuance of an execution of a was executed on 29 August 2012.
decree passed by the Civil Court in
pursuance of which a registered sale 3. The petitioners challenged the
deed had been executed and possession sale on the ground that they had acquired
had been handed over to the auction share in the land in pursuance of a registered
purchaser. Even otherwise, the District
Magistrate was not competent to
sale deed dated 19 October 2004 and 12
entertain such a request. The remedies December 2006. In an earlier writ petition
of the petitioner must, therefore, lie filed by the petitioners, a Division Bench of
under the provisions of Order XXI Rule this Court, noting that the petitioners had
90 as observed earlier. We leave it open submitted a representation to the District
to the petitioners to do so. Magistrate, Siddharth Nagar, directed that a
decision shall be taken in accordance with
(Delivered by Hon'ble Dr. Dhananjaya
law. In pursuance of the order of the Division
Yeshwant Chandrachud, C.J.)
Bench, the District Magistrate, Siddharth
Nagar has rejected the representation of the
1. The relief which the petitioners seek
petitioners on the ground that the land was
is for setting aside the sale deed dated 29
sold in execution of a decree of the Civil
August 2012 by which Gata No.884 ad
Court in pursuance of which a registered sale
measuring 0.9140 hectares of village
2 All] Irshad Vs. State of U.P. & Ors. 609

deed was executed and possession has been a decree including at the behest of a third
handed over to the auction purchaser. Hence, party which claims an interest or share in
the District Magistrate, Siddharth Nagar has the property which is affected by the sale.
stated that he had no jurisdiction to entertain
the representation. 9. In this view of the matter, no recourse
can be had for exercise of writ jurisdiction
4. In a matter as in the present, where under Article 226 of the Constitution. The
an immovable property has been sold in District Magistrate, Siddharth Nagar was
execution of a decree passed by the Civil absolutely justified in declining to entertain
Court, it would be most inappropriate for the the representation filed by the petitioners. The
Court in exercise of its writ jurisdiction under District Magistrate can exercise powers which
Article 226 of the Constitution to interfere are specifically conferred upon him by law
when sufficient remedies are provided under and he had no jurisdiction to entertain a
Order XXI Rule 90 of the Code of Civil representation in respect of a sale which had
Procedure, 1908. taken place in pursuance of an execution of a
decree passed by the Civil Court in pursuance
5. Order XXI Rule 90(1) stipulates of which a registered sale deed had been
that where any immovable property has executed and possession had been handed
been sold in execution of a decree, the over to the auction purchaser. Even otherwise,
decree holder, or the purchaser, or "any the District Magistrate was not competent to
other person entitled to share in a rateable entertain such a request. The remedies of the
distribution of assets, or whose interests petitioner must, therefore, lie under the
are affected by the sale", may apply to the provisions of Order XXI Rule 90 as observed
Court to set aside the sale on the ground earlier. We leave it open to the petitioners to
of a material irregularity or fraud in do so.
publishing or conducting it.
10. The writ petition is, accordingly,
6. Sub-rule (2) of Order XXI Rule 90 dismissed.
stipulates that no sale shall be set aside on the --------
ground of irregularity or fraud in publishing ORIGINAL JURISDICTION
or conducting it unless, upon the facts CIVIL SIDE
DATED: ALLAHABAD 16.04.2014
proved, the Court is satisfied that the
applicant has sustained substantial injury. BEFORE
THE HON'BLE DR. DHANANJAYA
7. Order XXI Rule 92(4) stipulates YESHWANT CHANDRACHUD, C.J.
that where a third party challenges the THE HON'BLE DILIP GUPTA, J.
judgment-debtor's title by filing a suit
against the auction-purchaser, the decree- Civil Misc. Writ Petition No. 21415 of 2014
holder and the judgment-debtor shall be
necessary parties to the suit. Irshad ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
8. Sufficient remedies are available
under the Code of Civil Procedure, 1908 Counsel for the Petitioner:
for applying to set aside an auction sale, Sri Akhilanand Pandey, Sri Suresh Chandra
which has been conducted in execution of Varma
610 INDIAN LAW REPORTS ALLAHABAD SERIES

Counsel for the Respondents: inspection by a Commissioner. The

C.S.C. petitioner has stated that on 9 March
2014, while he was carrying out
Constitution of India, Art.-226- Role of construction on the portion of the land
police-where Civil suit pending before Civil
which has fallen to his share, the third
Court-private respondent failed to get-
exparte injunction order-with collusion of
respondent sought to raise an obstruction.
private respondent police using extra
judicial method of coercion-highly 3. The grievance in these proceedings
depreciated-police can not discharge the is that the third respondent, who is the officer
duty of Civil Court. Incharge of the Police Station, is now
coercing the petitioner not to carry out any
Held: Para-3
We have no manner of doubt that it is not
construction though the fourth respondent
open to the police authorities to arrogate to has failed to obtain an injunction before the
themselves powers which are not conferred Trial Court. At the outset, we make it clear
upon them by law. Any such coercive that the issue as to whether the construction
methods would be violative of the rule of law. which is carried out by the petitioner is or is
The fourth respondent is entitled, in the not within his holding, as claimed, cannot be
pending suit, to seek all possible reliefs which
are legitimately open. However, a police
determined by this Court under Article 226
officer would have no justification whatsoever of the Constitution in the present proceeding.
to exercise those powers which are to be We are, however, entertaining the petition
exercised by the civil court on an adjudication only on the basis of the grievance that the
of facts between litigating parties. third respondent, who is the officer Incharge
of the Police Station, has taken the law in his
(Delivered by Hon'ble Dr. Dhananjaya own hands and despite the fact that the fourth
Yeshwant Chandrachud, C.J.) respondent has failed to obtain an interim
injunction, is using extra judicial methods to
1. The petitioner has moved this coerce the petitioner. We have no manner of
proceeding stating that he is a co-sharer in doubt that it is not open to the police
plots no. 177 and 178, situated in Mauja authorities to arrogate to themselves powers
Katauli Buzurg, Pargana Devgaon, which are not conferred upon them by law.
Tehsil- Lalganj, District Azamgarh. Any such coercive methods would be
violative of the rule of law. The fourth
2. The fourth respondent filed a suit respondent is entitled, in the pending suit, to
before the Civil Judge (Junior Division), seek all possible reliefs which are
Haveli, Azamgarh (Original Suit No. 381 legitimately open. However, a police officer
of 2014) in which the petitioner and the would have no justification whatsoever to
fifth respondents who are brothers have exercise those powers which are to be
been impleaded as the first and second exercised by the civil court on an
defendants, whereas respondents 6, 7 and adjudication of facts between litigating
8 who are sons of the fourth respondent- parties.
plaintiff were also impleaded as
defendants. The Civil Judge (Junior 4. We, however, clarify that these
Division) did not grant any interim observations are only confined to deal
injunction but by an order dated 3 March with the allegation against the third
2014 issued notice and directed a spot respondent and shall not amount to any
2 All] Dr. Anil Kumar Vs. D.D.C. District G.B. Nagar & Ors. 611

expression of opinion by the Court on the could have been required only if the sale
rights inter se as claimed by the petitioner deed was in favour of persons whose name
did not already exist in the record.
and the private respondents, which are left
Moreover, sale deed is of a share in a joint
to be decided in appropriate proceedings, Khata and the same, therefore, is not hit by
including those which are pending before provision 168-A of the Act as it existed in
the Civil Court. the statute book on the date of sale deed.
This provision has been deleted from
5. The petition is, accordingly, statute book w.e.f. 23.8.2004 vide Act No.
disposed of. There shall be no order as to 27 of 2004. Sale of share by one co-tenure
holder in favour of another co-tenure holder
costs. in a joint khata does not result in any
--------
fragmentation.
ORIGINAL JURISDICTION
CIVIL SIDE Case Law discussed:
DATED: ALLAHABAD 21.04.2014 1971 RD 518.

BEFORE (Delivered by Hon'ble Anjani Kumar Mishra ,J.)

THE HON'BLE ANJANI KUMAR MISHRA, J.

1. Heard Sri AK Sachan, learned

Civil Misc. Writ Petition No.21572 of 2014
counsel for the petitioner.
Dr. Anil Kumar ...Petitioner
Versus
D.D.C. District G.B. Nagar & Ors. 2. This writ petition arises out of an
...Respondents objection under section 9-A(2) filed by
Mushe and others,
Counsel for the Petitioner:
Sri Saurabh Sachan,Sri A.K. Sachan
Counsel for the Respondents: 3. The dispute in the writ petition
C.S.C. pertains to land of Khata No. 104 which
was recorded in the name of Smt.
U.P. Consolidation of Holdings Act-Section
48-Sale deed by one co-shareholder to
Saremwati, w/o Sri Kashi Ram, Mushe,
other-prior to consolidation scheme-not son of Solu, and Horam, son of Kale in
taken into consideration while determining the basic year. Three sets of objections
share-the C.O. Taken view as in pursuance were filed under section 9-A (2). Of the
of sale deed name not mutated-and the sale three objections, the writ petition pertains
transaction hit by provision of section 168-A to the objection filed by Mushe claiming
of U.P. Z.A. & L.R. Act-SOC as well as D.D.C.-
rightly set-a-side the order passed by C.O.
on the basis of the sale deed dated
In view of fact when sale deed executed- 11.12.1964 wherein Chandru had sold his
village was not under consolidation-more 1/4th share in favour of Horam, son of
over sale transaction between one coshare Kale and Mushe, son of Solu.
holder to other-neither mutation nor
provisions of 168-A of Z.A. Act attracted-
petition dismissed.
4. A counter objection was filed by
Held: Para-11 the petitioner's mother claiming the share
Under the circumstances, there was no of Chandru on the basis of sale deed dated
question of the sale deed requiring 17.4.1973 alleged to have been executed
mutation in the revenue record. Mutation in her favour by the said Chandru.
612 INDIAN LAW REPORTS ALLAHABAD SERIES

5. The Consolidation Officer by his 10. The record reveals that the sale
order dated 3.4.1989 determined the share of deed dated 11.12.1964 was executed in
the parties on the basis of the pedigree on favour of persons who were co-tenure
record. The claim based on the sale deed holders of the Khata in question and were
dated 11.12.1964 was not accepted on the recorded as such thereon from prior to the
ground that no mutation on the basis of the sale deed.
sale deed has been made and that the sale
itself was void in view of section 168-A of
the UP Zamindari Abolution and Land 11. Under the circumstances, there was
Reforms Act (the Act). no question of the sale deed requiring
mutation in the revenue record. Mutation
could have been required only if the sale
6. Aggrieved, an appeal was deed was in favour of persons whose name
preferred which was allowed by order did not already exist in the record. Moreover,
dated 7.7.2006 whereby relying upon the sale deed is of a share in a joint Khata and
sale deed dated 11.12.1964, an area of the same, therefore, is not hit by provision
1.160 was ordered to be recorded in the 168-A of the Act as it existed in the statute
name of successor in interest of Horam book on the date of sale deed. This provision
and Mushe. has been deleted from statute book w.e.f.
23.8.2004 vide Act No. 27 of 2004. Sale of
share by one co-tenure holder in favour of
7. Against the order passed by the another co-tenure holder in a joint khata does
appellate authority, the mother of the not result in any fragmentation.
petitioner preferred Revision No. 29. The
Deputy Director of Consolidation (the
DDC) by his order dated 1.8.2013 12. This view is fully supported by
dismissed the revision. Hence the present the judgment in the case of Santokhi Vs.
writ petition. Board of Revenue UP reported in 1971
RD 518, wherein it was held as under:

8. Learned counsel for the petitioner

Sri AK Sachan has submitted that the sale "Where undivided interest of one of the
deed dated 11.12.1964 was never mutated in co-tenure holders is transferred, it cannot be
the revenue records and in any case the said said that the transfer involves transfer of a
sale deed was void in view of Section 168-A 'fragment', ........"What is transferred is
of the Act. He submits that the orders of the undivided interest in the land and not any
appellate court and revisional court which specific land. The prohibition contained in
ignore the aforesaid two aspects of case are Section 168-A is in respect of land which is a
patently illegal and therefore deserve to be fragment i.e. which is lesser in extent than
set aside. the prescribed area and not of undivided
interest in the land..."

9. I have considered the submission

made by the petitioner and have perused 13. By the sale deed in question the
the record. share of one co tenure holder increased
2 All] Rameshwar Das Gupta & Anr. Vs. State of U.P. & Ors. 613

and that of the vendor decreased in an notification u/s 4-on 17.09.96-notification

undivided holding. Hence no under section 6 issued on 28.10.96-
compensation received as per Rule 1997 on
fragmentation resulted and the holding
05.02.01-claim based upon ground-no
remained the same. physical possession taken-and petitioners
are still in actual possession-except certain
photographs no documents produced-held-
14. The plea of fragmentation after receiving amount of award based
cannot be accepted for another reason. upon agreement possession of state
For this plea to succeed it is also required government itself presumed-if possession
retain petitioner-deemed dishonest can not
to be proved that the sale was of a invoke writ jurisdiction-petition dismissed.
fragment in a consolidated area. There is
nothing on record that consolidation Held: Para-9
operations had taken place prior to the We are further of the view that in case the
execution of the sale deed on 11.2.1964. petitioners had not handed over the
possession after the Award had been
passed even after receiving compensation
and also did not challenge the said
15. In view of aforesaid discussion proceedings before any competent court or
the submissions made by the learned authority by not handing over possession of
counsel for the petitioner have no force. the land, the petitioners had clearly not
The writ petition is devoid of merits and conducted themselves properly and had
is accordingly dismissed at the admission proceeded with a dishonest intention. Such
being the position, the petitioners would
stage.
not be entitled to any relief under the extra
-------- ordinary discretionary jurisdiction of this
ORIGINAL JURISDICTION Court under Article 226 of the Constitution
CIVIL SIDE of India.
DATED: ALLAHABAD 24.04.2014
(Delivered by Hon'ble Vineet Saran, J.)
BEFORE
THE HON'BLE VINEET SARAN, J. 1. Heard learned counsel for the
THE HON'BLE NAHEED ARA MOONIS, J. petitioners as well as learned Standing
Counsel appearing for the State-
Civil Misc. Writ Petition No.22113 of 2014 respondents no. 1 to 3 and Sri Ramendra
Rameshwar Das Gupta & Anr..Petitioners
Pratap Singh, learned counsel appearing
Versus for respondent no.4-Greater Noida
State of U.P. & Ors. ...Respondents Industrial Development Authority and
have perused the record.
Counsel for the Petitioners:
Sri Pankaj Dubey 2. The admitted case of the
petitioners is that by notification dated
Counsel for the Respondents: 17.9.1996 issued under section 4 of the
C.S.C., Sri Ramendra Pratap Singh Land Acquisition Act, 1894 (hereinafter
referred to as "the Act") and the
Right to fair compensation and transparency
subsequent notification dated 28.10.1996
in land Acquisition Rehabilitation and
Resettlement Act, 2013-Section 24-claim of issued under section 6 of the Act, the land
fair compensation-land acquired by of the petitioners was acquired by the
614 INDIAN LAW REPORTS ALLAHABAD SERIES

State Government for respondent no.4. relating to the determination of

Then as per the Award dated 5.2.2001 compensation shall apply; or
passed on the basis of agreement entered
into under Land Acquisition (b) where an award under said
(Determination of Compensation and section 11 has been made, then such
Declaration of Award by Agreement) proceedings shall continue under the
Rules, 1997 (hereinafter referred to as provisions of the said Land Acquisition
"the Rules of 1997"), the petitioners had Act, as if the said Act has not been
been paid compensation as per the repealed.
agreement. In the said Award itself, which
has become final, it has been categorically (2) Notwithstanding anything contained
stated that the possession of the land has in sub-section(1), in case of land acquisition
been taken from the petitioners on proceedings initiated under the Land
20.1.1998. It is admitted to the petitioners Acquisition Act, 1894 (1 of 1894), where an
that the compensation has been duly paid award under the said section 11 has been
to them. made five years or more prior to the
commencement of this Act but the physical
3. Now after a gap of about 18 years possession of the land has not been taken or
of the notifications, 16 years after the the compensation has not been paid the said
possession of the land has been taken and proceedings shall be deemed to have lapsed
13 years after the Award which was and the appropriate Government, if it so
passed on the basis of a chooses, shall initiate the proceedings of
compromise/agreement under the Rules of such land acquisition afresh in accordance
1997, which compensation has been with the provisions of this Act:
accepted by the petitioners, this writ
petition has been filed claiming benefit of Provided that where an award has been
Section 24 of Right to Fair Compensation made and compensation in respect of a
and Transparency in Land Acquisition, majority of land holdings has not been
Rehabilitation and Resettlement Act, deposited in the account of the beneficiaries,
2013 (in short, "Act of 2013"). then, all beneficiaries specified in the
notification for acquisition under section 4 of
4. For ready reference, section 24 of the said Land Acquisition Act, shall be
the Act of 2013 is reproduced below:- entitled to compensation in accordance with
the provisions of this Act."
"24. Land acquisition process under
Act No. 1 of 1894 shall be deemed to have 5. Learned counsel for the
lapsed in certain cases.-(1) petitioners submits that actual physical
Notwithstanding anything contained in possession of the land has not been taken
this Act, in any case of land acquisition from the petitioners and as such since the
proceedings initiated under the Land Award in the case was made on 5.2.2001,
Acquisition Act, 1894 (1 of 1894),- which was more than five years prior to
the commencement of Act of 2013 (which
(a) where no award under section 11 came into force on 1.1.2014) and the
of the said Land Acquisition Act has been actual physical possession of the land has
made, then, all provisions of this Act not been taken, the petitioners would be
2 All] Smt. Kumkum Vs. Sri Arvinder Singh Bagga @ Bablu & Ors. 615

entitled to the benefit of sub-section (2) of completed once a compromise/agreement

Section 24 of the Act of 2013. had been entered into between the parties and
award was passed, which was accepted by
6. Except for merely stating in the petitioner. After accepting compensation
paragraph 7 of the writ petition that the under the award, the petitioners cannot turn
petitioners are still in actual physical around after more than a decade and say that
possession of the entire land which is still possession (as already mentioned in the
lying vacant and filing of some photographs award) was not given by or taken from them.
said to be relating to the land in question,
there is no proper evidence in the form of 9. We are further of the view that in
any document like Khasra etc. to show that case the petitioners had not handed over the
the petitioners still continue in possession of possession after the Award had been passed
the land. even after receiving compensation and also
did not challenge the said proceedings before
7. Even otherwise, once the any competent court or authority by not
compensation has been awarded and paid to handing over possession of the land, the
the petitioners on the basis of an agreement petitioners had clearly not conducted
executed under the Rules of 1997, it would themselves properly and had proceeded with
be presumed that the possession of the land a dishonest intention. Such being the
has been taken over from the petitioners. It is position, the petitioners would not be entitled
not a case where a normal Award has been to any relief under the extra ordinary
passed and thereafter the petitioners had been discretionary jurisdiction of this Court under
litigating with regard to the possession being Article 226 of the Constitution of India.
taken from them. Here is a case where after
the Award was passed, wherein it was 10. For the foregoing reasons, the
mentioned that the possession of the land has petitioners are not entitled to any relief, as
been taken on 20.1.1998, the petitioners kept we are of the opinion that the provisions
silent and had accepted the amount awarded of Section 24(2) of the Act of 2013 would
and did not dispute the fact at any stage that not be attracted in the facts of the present
the possession of the land had not been taken case. This writ petition is, accordingly,
from them, although specifically mentioned dismissed.
to be so in the Award itself. --------
ORIGINAL JURISDICTION
8. As such, we are of the firm view CIVIL SIDE
DATED: ALLAHABAD 23.04.2014
that in the circumstances, the petitioners
cannot be given the benefit of the BEFORE
provisions of the Act of 2013. Their claim THE HON'BLE PANKAJ MITHAL, J.
that they continued in possession of the
land even after receiving compensation Civil Misc. Writ Petition No.22619 of 2014
under the Award, which mentions about
the taking over of possession of the land Smt. Kumkum ...Petitioner
from the petitioners, does not deserve to Versus
Sri Arvinder Singh Bagga @ Bablu & Ors.
be accepted. Finality has to be given to a
...Respondents
proceeding/transaction at some stage. In
the present case, the transaction had been Counsel for the Petitioner:
616 INDIAN LAW REPORTS ALLAHABAD SERIES

Sri Siddharth Srivastava injunction. The said suit was decreed vide
judgment and order dated 20.5.2013
Counsel for the Respondents: restraining the defendants to the suit from
Sri Pavan Kishore, Sri Krishan Ji Khare interfering in the possession and ownership
of the petitioner over the suit property.
Civil Procedure Code-Order 41 Rule-5-
Power of Appellate Court-Trail Court-
decreed the suit for permanent
injunction-appeal against-first appellate 4. Aggrieved by it defendants No.5
Court stayed the operation of judgment and 6 preferred the above appeal.
during pendancy of appeal-argument that
Lower Appellate Court at the best can
stay the execution-but can not stay the 5. The appellate court by the
operation-held-court should not hyper impugned order, pending appeal, has
technical-under Section 151 C.P.C.-with
inherent power can pass such order-even
stayed the operation of the aforesaid
otherwise being interlocutory order-not judgment, order and decree vide order
liable to interfere under extra-ordinary dated 31.3.2014 till the disposal of the
jurisdiction of Writ Court. appeal for which 1.5.2014 has been fixed
as the next date.
Held: Para-8
It is pertinent to mention that wherever
any judgment, order and decree is likely 6. In challenging the above order the
to visit a party with civil consequences submission of Sri Srivastava is that in
and the same is under challenge, exercise of power under Order 41 Rule 5
normally pending adjudication it is C.P.C. the appellate court has no
always better to stay the effect and jurisdiction to stay the operation of the
operation of such an order. Thus, the
judgment, order and decree rather it can
appellate court in exercise of its inherent
power has not committed any error in only stay execution of the decree.
passing the impugned order.

(Delivered by Hon'ble Pankaj Mithal ,J.) 7. The argument advanced appears

to be attractive but on a closure scrutiny I
1. Heard Sri Siddhartha Srivastava, find that the stay of operation of the
counsel for the petitioner and Sri Pavan judgment, order and decree has the same
Kisore on behalf of respondents No.5 and 6. effect as stay of execution of the decree.
Moreover, the court below has the
jurisdiction to stay the operation and
2. Petitioner is aggrieved by the effect of the order which is under
order dated 31.3.2014 passed by the challenge in appeal before it in exercise of
appellate court disposing of application its inherent power so that justice may be
paper No.13-Ga in Civil Appeal No.95 of done to parties. Thus, the power of stay of
2013 (Nav Kalpna Sahkari Avas Samit the operation of the judgment, order and
and another Vs. Smt. Kumkum and decree may not be technically available
others). under Order 41 Rule 5 C.P.C. but is
traceable to same provision in law i.e.
3. It appears that the petitioner had
Section 151 C.P.C.
instituted a suit for a decree of permanent
2 All] Pradeep Shukla Vs. C.B.I. 617

8. It is pertinent to mention that High Court Rules-Chapter VIII-Rules-18-

wherever any judgment, order and decree is Application for extension of bail-on
second bail on medical ground interim
likely to visit a party with civil consequences
bail granted for six month-extension of
and the same is under challenge, normally bail application filed-based upon
pending adjudication it is always better to computer information by High Court-
stay the effect and operation of such an order. once second bail application disposed of-
Thus, the appellate court in exercise of its nothing further remains-can not be
inherent power has not committed any error treated pending application-extension
in passing the impugned order. application -held not maintainable-
warning given to registry from giving
such information.

9. The said impugned order is only Held: Para-24 & 25

an interlocutory order which is operative 24. Having recorded so, I find the
only till the disposal of the appeal for present application to be not
which a date has been fixed. It does not maintainable and, therefore, this Court
does not have the jurisdiction to
has the effect of deciding any substantive entertain this application as per the ratio
rights of the parties which may require of the judicial pronouncement of the
any interference in exercise of extra Apex Court in the case of Nazma Vs.
ordinary jurisdiction of this Court. Javed Alias Anjum, (2013) 1 SCC 376,
and the case of Rakesh Kumar Pandey
Vs. Udai Bhan Singh, (2008) 17 SCC 764.
10. In view of the above, I find no
25. The application, therefore, being not
merit in the petition and it is accordingly maintainable, is accordingly rejected
dismissed with no orders as to costs. without prejudice to the rights of the
applicant to move a proper regular fresh
bail application if so advised in
11. The writ petition is dismissed. accordance with law.

-------- Case Law discussed:

ORIGINAL JURISDICTION (2013) 1 SCC 376; (2008) 17 SCC 764; (1980)
CRIMINAL SIDE 2 SCC 559; Crl. Appeal. 689 of 2014; (2013) 1
DATED: ALLAHABAD 12.05.2014 SCC 376; (2008) 17 SCC 764.

BEFORE (Delivered by Hon'ble A.P. Sahi, J.)

THE HON'BLE A.P. SAHI, J.
1. This application to extend bail has
Crl. Misc. IInd Bail Application No. 22648 been filed on the assumption that Bail
of 2013 Application No.22648 of 2013 as per the case
Pradeep Shukla ...Applicant
status report obtained from the computer
Versus section of the High Court and even otherwise is
C.B.I. ...Opp. Party still pending. The said information received
from the computer section has been placed
Counsel for the Petitioner: before the Court.
Sri Sudeep Harkauli
2. The application, which arises out
Counsel for the Respondents: of the aforesaid bail application, has been
Sri Anurag Khanna
618 INDIAN LAW REPORTS ALLAHABAD SERIES

placed before this Bench as matters second bail on the ground that since the first
relating to the NRHM scam have been Bail Application had been rejected on merits
nominated by Hon'ble the Chief Justice to and the Special Leave Petition filed by the
this bench for hearing. applicant had been withdrawn, the second
Bail could not be entertained by this Court.
3. I have heard learned counsel for the
applicant and the learned Counsel for the 5. The learned single Judge held that
Central Bureau of Investigation at length and second bail Application was maintainable as
have perused the contents of the orders passed the SLP had been withdrawn and had not
from time to time by this Court as well as by been decided on merits. This finding recorded
the Apex Court. The applicant's First Bail by the learned single Judge in the order dated
Application No.13938 of 2013 was considered 31.10.2013 has not been put to any further
and rejected by a learned single Judge of this challenge by the C.B.I.
Court on 31.5.2013. The applicant challenged
the same before the Apex Court in Special 6. On the issue relating to the second
Leave to Appeal (Criminal) No.4974 of 2013 Bail being entertained on medical grounds, the
which was withdrawn by the applicant and was learned Judge observed that the C.B.I. has not
dismissed accordingly on 5.7.2013 by the challenged the deteriorating medical condition
following order:- of the applicant and on a consideration of the
said fact, the applicant was found to be
"Mr. Rakesh Dwivedi, learned Senior entitled for being enlarged on "Short Term
Counsel appearing for the petitioner, prays Bail" on medical grounds so that he may
that Crl. M.P. No.13625 of 2013 application receive proper treatment. The order passed by
for permission to withdraw the Special leave the learned single Judge in the later part of
Petition be allowed. Mr. Luthra, learned paragraph No.14 of the said order is extracted
Additional Solicitor General appearing for the here under:
C.B.I., has no objection to that. Accordingly,
Crl. M.P. No.13625 of 2013 is allowed and "Thus in the interest of justice, the
consequently, the Special Leave Petition shall applicant can be enlarged on short term bail
stand dismissed as withdrawn. on medical ground so as to enable him to
get proper treatment and in order to ensure
It will be open to the respondent to the speedy and fair trial, certain directions
apply to the Trial Court to proceed with can be imposed upon the applicant.
the trial at the earliest, preferably on day- Therefore, without touching the merit of the
to-day basis." case, the applicant be enlarged on
interim/short term bail for a period of six
4. The second Bail Application months to enable him to get proper medical
No.22648 of 2013 was filed praying for bail treatment."
on the grounds of continuing ailment and the 7. Thereafter, the learned single
medical treatment that was required to be Judge passed the operative part of the bail
undergone by the applicant apart from other order contained in Paragraph No.15
grounds. The Central Bureau of Investigation thereof which is extracted here under:-
filed a counter-affidavit and also took a plea
that ailment by itself cannot be a ground for "15.Let the applicant Pradeep Shukla
grant of bail. The C.B.I. also contested the involved in R.C. 220 2012 E 0002 under
2 All] Pradeep Shukla Vs. C.B.I. 619

section 120B I.P.C. read with 420, 468, 471 receive treatment and was discharged from
I.P.C. and section 13(2) PC Act read with hospital only on 3.12.2013. He has
section 13(1)(d) PC Act, P.S. CBI, EOU -IV, continuously been admitted to hospital on
EO II, New Delhi be released on short term several occasions even thereafter and the the
bail for six months on his executing a personal aforesaid diseases with which the applicant is
bond and two sureties each in the like amount suffering would leave no room for doubt and
to the satisfaction of the C.B.I. Court on his deteriorating health condition, which fact
following conditions. remains undisputed by the C.B.I., has made
him susceptible to conditions that are
1.That the applicant will not try to threatening to life. He has cited an authority of
influence the witnesses and will cooperate neurology and has also raised his submissions
in the speedy and expeditious trial before inviting the attention of the Court to the
the C.B.I. Court. continuing medical unfitness of the applicant
that is so serious that the applicant deserves to
2.That the applicant will produce the be continued on further bail.
progress/status report from the attending
physician or surgeon regarding his health 10. The issue of consideration of merits
after every two months. of the ailment would arise only if the present
application is found to be maintainable. The
3.That the applicant will not leave reason is simple, namely the application would
the country without prior permission of be maintainable if the Bail Application itself is
the Court." treated to be pending as urged by the learned
counsel for the applicant. Learned Counsel had
8. It is in the aforesaid background been apprised about the two decisions of the
that the present application has been filed Apex Court in the case of Nazma Vs. Javed
which is a Misc. Application praying for Alias Anjum, (2013) 1 SCC 376, and the case
extending the said period of bail in view of Rakesh Kumar Pandey Vs. Udai Bhan
of the continuing ailment of the applicant. Singh, (2008) 17 SCC 764, where the
observations indicate clearly to the effect that a
9. To substantiate his submissions, Sri misc. application in a disposed of matter in a
R. Basant, learned Senior Counsel, submits criminal case would not be maintainable as per
that the applicant is the victim of political the statutory law prescribed. It is this objection
cross fire as a result whereof he was that had been raised by the Bench itself on the
implicated in this case and has now landed up previous occasion that the learned Counsel had
in troubled waters on account of his poor been called upon to answer.
physical condition and serious ailment. The
applicant as per expert Medical diagnosis is 11. Sri Basant, therefore, submits that
suffering from spinal tumour due to growth what was intended by the order dated
detected between vertebrae T4 & T5, 31.10.2013, particularly the observations
recurring Transient Ischemic Attacks and contained in paragraph Nos. 14 and 15
Cardiac Artillery Disorder. Sri Basant has extracted herein above, has to be looked into
invited the attention of the Court to various holistically and not in isolation. He submits
documents and prescriptions from several that the Court clearly intended to grant a bail
hospitals to submit that in spite of the order as an interim measure on the ground of
dated 31.10.2013, the applicant continued to facilitating proper medical treatment and,
620 INDIAN LAW REPORTS ALLAHABAD SERIES

therefore, the application has been rightly applicant, if the liberty of the applicant is
understood by the computer section of the curtailed, there is every likelihood of the
High Court to be pending. He contends that, applicant not receiving appropriate medical
however, he does not intend to canvass that assistance for the diseases from which he is
the Court is bound to accept the said suffering, and in the event of refusal, there is
indication of the computer section but what every likelihood of an irreversible loss being
can be reasonably inferred is that the word suffered by the applicant.
"interim" having been used by the Court, and
there being no concept of short-term bail, the 13. It is contended that apart from this,
application should be treated to be pending in such a piquant situation, where the third
particularly in view of the second condition bail application is not likely to be entertained
imposed in the order dated 31.10.2013. He as per Chapter-VIII Rule 18 immediately,
submits that submission of medical reports compassion should be shown by this Court
was intended to be placed before this Court to entertain this application for extending the
and, therefore, the bail application cannot be bail further so as to make available the
treated to have been finally disposed of. The applicant the medical facilities effectively. It
only legitimate inference, therefore, that can is submited that the applicant is cooperating
be drawn is that the matter was yet to be with the trial and has not abused any of the
disposed off after a periodical assessment, and conditions imposed in the order dated
even if there is a doubt about pendency, then 31.10.2013. Consequently, this Court may
in the back ground aforesaid, benefit should take a compassionate view in this piquant
enure to the applicant by adequately situation and entertain this application at a
protecting the liberty of the applicant more so juncture when where the applicant would be
when the trial is moving at a snail's pace. taken into custody without any opportunity
to pursue a fresh bail application.
12. The submission is that the applicant
was under a bona fide belief of the pendency 14. Opposing this application, Sri
of the said bail application and the semantic Anurag Khanna submits that the applicant's
inadequacy of the language, if any, in the bail had already been rejected on merits on
order dated 31.10.2013 should enure to the 31.5.2013 which stands affirmed by the Apex
benefit of the applicant. It is urged that the Court after the withdrawal application was
applicant had moved the extension application disposed off on 5.7.2013. He further submits
well within time before the expiry of 6 months that the second bail was filed with all prayers
on 24.4.2014 with a clear averment that the including the ground of medical ailment and
applicant had neither violated any terms of the the Court vide order dated 31.10.2013 chose
bail or has done nothing objectionable. only to grant a short term bail for a limited
Learned Counsel contends that the powers of period of 6 months only. He, therefore,
this Court even otherwise under Section 482 contends that the bail application stood
Cr.P.C. are clearly attracted in such a disposed of and no relief in the second bail
situation. He further submits that as a matter application any further remained to be granted
of protection, the applicant is also moving a or considered subsequently. He submits that
third bail application, even assuming though much capital is being made out by the learned
not admitting, that the present application is Counsel from the second condition imposed
not maintainable. On an over all view of the in the order dated 31.10.2013 which was
matter particularly the ailment of the clearly meant to be reported to the C.B.I. court
2 All] Pradeep Shukla Vs. C.B.I. 621

and not this Court. He contends that the 27.3.2014. Sri Basant submits that the
learned Counsel for the applicant cannot High Court should not be influenced by
dispute the legal proposition that there is no any external media reports magnifying the
concept of a short-term bail and, therefore, nature of the alleged scam so as to curtail
even assuming that the word "interim" has the liberty of the applicant which
been used in the order dated 31.10.2013, it otherwise is impermissible in law.
only reflects the intention of the Court to bail
out the applicant on medical grounds for a 17. Having heard learned counsel for
short period of 6 months only. According to the parties and having considered the
him, the application stood finally disposed of aforesaid submissions, it is clear that the first
by the order dated 31.10.2013 and any bail application of the applicant before the
information obtained by the applicant from High Court was considered on merits and
the computer section is absolutely misleading rejected on 31.5.2013. The applicant filed a
and is not authentic. Special Leave to Appeal that was dismissed as
withdrawn in terms as contained in the order
15. Sri Khanna submits that he has of the Apex Court dated 5.7.2013 where after
instructions to state that in case this Extension the second bail application was filed. The
Application is being treated by this Court to second bail Application was considered by the
be maintainable, then in that event the C.B.I. learned single Judge without touching the
proposes to file a detailed counter-affidavit on merits of the case purely on medical grounds
the merits of such claim of extension. Sri and on the footing that the C.B.I. has not
Khanna submits that the learned Counsel for challenged the deteriorating medical condition
the applicant is not correct in his submission of the applicant. Not only this, the Court
in construing the contents of order dated proceeded on a presumption that the applicant
31.10.2013 and there is no reason to believe can be enlarged for a short-term on bail on
that the applicant was unaware of the correct medical grounds. As canvassed by Sri Basant
gist of the bail order dated 31.10.2013. He and as understood by the law of the land, the
submits that the applicant cannot take any Criminal Procedure Code or any law for the
undue advantage on the plea of ignorance of time being in force does not acknowledge the
law as he is well assisted by efficient counsel, existence of a concept of a short-term bail.
who are aware of the legal position. The The issue, therefore, is as to whether the order
submission, therefore, is that the extension dated 31.10.2013 is an interim order of bail or
application is not maintainable. not?

16. Sri Basant, on the issue of 18. In my considered opinion, even

consideration of such matters and on the if it is a bail for an interim period, the
meaning of the word "custody" has relied entire tenor of the order would leave no
on the Apex Court decision in the case of room for doubt that the applicant was let
Niranjan Singh and another Vs. Prabhakar off for 6 months only on medical grounds.
Rajaram Kharote and others, (1980) 2 The tenor of the language employed
SCC 559, as explained in the latest reflects a unhesitant disposal with
decision of the Apex Court in the case of conditions without any direction to place
Sandeep Kumar Bafna Vs. State of the matter again for further
Maharashtra and another, Criminal reconsideration by the Court. As
Appeal No.689 of 2014, decided on suggested, the order is not a perpetual
622 INDIAN LAW REPORTS ALLAHABAD SERIES

retention of any discretion to be exercised the grant of an interim or a short-term bail.

on an interval of six months in the same The learned Judge, who disposed of the
application like a festive announcement. matter on 31.10.2013, exercised his judicious
discretion to grant a bail for 6 months
19. There is nothing like a renewal in especially on medical grounds. The
the same application as it would amount to description of the bail either as interim or
restoring the same application and reanimate short-term, in my opinion, is absolutely
the same. This resumption is not permissible immaterial for the purpose of status of the bail
after a pause or a rest. On the facts as application. The application had been
discussed above, the application cannot be considered after the counter-affidavit had been
revived by reinforcements of subsequent filed by the C.B.I. and after full scale
facts relating to medical grounds after the arguments. The learned Judge, therefore, in
order dated 30.10.2013 through an extension my opinion, had disposed of the application
application. The fresh grounds of continuing finally and nothing remained pending to be
ailment can be made a ground for a fresh bail reconsidered by the High Court in the same.
but such facts which were not available
before cannot be pressed into service for a
reopening and reconsideration in the same 22. The argument, which has been
application as it would set up a perpetual raised on the strength of the information
precedent to file an application in the same given by the computer section, is
bail application that would go contrary to the unacceptable inasmuch as the entire order-
correct procedure of law. sheet of the bail application as maintained by
the High Court and the endorsements made,
20. The order dated 31.10.2013 do not indicate the status of this application
disposing off the second bail application does to be pending. Sri Basant submits that the
not offer more than what it recites and this order-sheet even otherwise does not make
Court is not required to read more than what is even an endorsement of a final disposal. I am
written therein. To read between the lines to unable to accept this contention inasmuch as
find out an intention would be adding more on 2.10.2013, the entire bail application was
than what is transcribed. The order is not heard after Affidavits were exchanged and
benevolent to the extent as suggested by the orders were reserved. The learned single
learned Counsel. The language of the order Judge has not issued any direction to the
brooks no mystery for any further interpretation office so as to presume that the bail
nor can one suspect or doubt the clarity of it application shall again be listed for orders
which is as clear as a window pane. after 6 months. In the absence of any such
indication in the order dated 31.10.2013, the
21. To my mind, the learned Judge had raising of any such presumption would be
not left anything to be decided in future and incorrect and against the records.
the application stood disposed of on 23. It is not understood as to how the
31.10.2013 finally. There is yet another reason computer section was showing the status of
to conclude the above, namely, the prayer the case to be pending but it goes without
made by the applicant was not of either a saying that the case status report which is
short-term bail or an interim bail and, issued by the computer section clearly
therefore, it was not the case of either of the contains a disclaimer that it is not authentic or
parties before the learned Judge to consider certified copy of the order regarding the status
2 All] Smt. Arti Devi Vs. District Judge Siddharthnagar & Ors. 623

of a case. To remove any doubts it was for issuing appropriate instructions to the
open to the learned counsel for the computer section and to the office in this
applicant to have filed a question-answer, regard.
the provisions whereof are available under --------
the Allahabad High Court Rules, 1952, and ORIGINAL JURISDICTION
the applicant would have been informed CIVIL SIDE
DATED: ALLAHABAD 22.01.2014
about the correct legal status of the
disposal of the application. Thus, to argue BEFORE
that the applicant could draw a legitimate THE HON'BLE SUDHIR AGARWAL, J.
inference from such information of the
computer section of the High Court does Civil Misc. Writ Petition No. 23319 of 2001
not appear to hold water. The clear
intention of the learned Judge, while Smt. Arti Devi ...Petitioner
passing the order on 31.10.2013, was to Versus
District Judge Siddharthnagar & Ors.
bail out the applicant only for a period of 6
...Respondents
months and nothing further. There is,
therefore, no occasion to brook any doubt Counsel for the Petitioner:
about the same or extend the benefit Sri Chandeshwar Prasad, Sri Kushal Kant
thereof to the applicant.
Counsel for the Respondents:
24. Having recorded so, I find the C.S.C., Sri Ghanshyam Dubey, Jitendra
present application to be not maintainable Kumar Yadav
and, therefore, this Court does not have the
jurisdiction to entertain this application as C.P.C.-Order XXI- Exclusion of provisions
per the ratio of the judicial pronouncement of Section 5 of limitation-Suit barred by
of the Apex Court in the case of Nazma time-T/C not justified in entertaining
delay condonation application-it can be
Vs. Javed Alias Anjum, (2013) 1 SCC 376, entertained in appeal on revision by
and the case of Rakesh Kumar Pandey Vs. virtue of section 3 of Act-Revisional
Udai Bhan Singh, (2008) 17 SCC 764. Court rightly interfered with such order-
warrant no interfere by Writ Court.
25. The application, therefore, being not
maintainable, is accordingly rejected without Held: Para-5
Section 5 applies to the stages subsequent
prejudice to the rights of the applicant to move to institution of a valid suit and those
a proper regular fresh bail application if so proceedings which are construed as
advised in accordance with law. continuation of suit and not for seeking
condonation of delay in filing a time barred
26. The Registrar General is directed suit. The applicability of Section 5 has been
to instruct the office not to furnish any excluded specifically to applications which
fall under Order XXI C.P.C. It shows that
information without verifying the correct even when the suit proceedings have come
status of any proceeding before this Court to an end, in execution proceedings also
as the information given by the computer Section 5 shall not be applicable. A suit if
section in the present case has raised a otherwise is barred by time and is not saved
confusion even though the same is legally by other provisions of Sections 4 and 6 to
unfounded as indicated above. The 24 of Act, 1963 then it shall not be
entertainable by the Court and has to be
Registrar General may, therefore, take steps dismissed in view of the obligation created
624 INDIAN LAW REPORTS ALLAHABAD SERIES

vide Section 3 of Act, 1963. Section 5 is retrained to entertain the same by virtue
specifically says that it is applicable to an of Section 3.
appeal or in application but not to a suit.
The suit instituted by filing a plaint and a
plaint, in my view, would not be covered by
the term "application". 5. Section 5 applies to the stages
subsequent to institution of a valid suit and
Case Law discussed: those proceedings which are construed as
1982 AWC 591; AIR 1973 Raj. 29L AIR 1988 continuation of suit and not for seeking
Karnataka 83. condonation of delay in filing a time barred
suit. The applicability of Section 5 has been
(Delivered by Hon'ble Sudhir Agarwal, J.)
excluded specifically to applications which
fall under Order XXI C.P.C. It shows that
1. Heard Sri Jitendra Kumar Yadav,
even when the suit proceedings have come to
Advocate holding brief on behalf of Sri
an end, in execution proceedings also Section
Chandeshwar Prasad, learned counsel for
5 shall not be applicable. A suit if otherwise
the petitioner and perused the record.
is barred by time and is not saved by other
provisions of Sections 4 and 6 to 24 of Act,
1963 then it shall not be entertainable by the
2. The writ petition is directed
Court and has to be dismissed in view of the
against the order dated 03.03.2001 passed
obligation created vide Section 3 of Act,
by District Judge, Siddharth Nagar
1963. Section 5 specifically says that it is
allowing Revision No. 29 of 2001.
applicable to an appeal or in application but
not to a suit. The suit instituted by filing a
3. It appears that for cancellation of sale plaint and a plaint, in my view, would not be
deed dated 22.01.1991 Original Suit No. 264 covered by the term "application".
of 1997 was filed alongwith a delay
condonation application, whereupon the Trial
6. This Court in Smt. Jagwanta Vs.
Court passed order condoning delay in filing
Smt. Nirmala and others, 1982 AWC 591
suit. Subsequently, when an application was
has specifically said that Section 5 does not
filed for recall of that order, that was also
apply to suits or to applications under order
rejected by Trial Court vide order dated
XXI Rule 2 C.P.C. A similar view has also
08.02.2001 and thereagainst a revision was
been taken in Badri Narayan Sharma Vs.
preferred by defendant, which has been
Panchayat Samiti, Dhariawad, AIR 1973
allowed by District Judge, Siddharth Nagar
Raj. 29. The Karnataka High Court in
vide impugned order dated 03.03.2001.
Mahboob Pasha v. Syed Zaheeruddin and
Ors., AIR 1988 Karnataka 83 has said that
4. The Revisional Court has observed Section 5 does not apply to original cause of
that there is no provision in the Limitation Act action so as to extend the period of limitation
for condoning delay in filing suit. Learned by concession made by parties.
counsel for the petitioner could not show that 7. Learned counsel for the petitioner
Section 5 of Limitation Act, 1963 (hereinafter also could not place anything before this
referred to as the "Act, 1963") would apply to Court so as to pursue to take an otherwise
seek condonation of delay in filing a suit itself. view in the matter. In my view, the District
Once the suit itself is barred by time, the Court Judge has rightly set at naught the Trial
2 All] Shiva Nand Gupta & Anr. Vs. State of U.P. & Ors. 625

Court's order by allowing revision since the solatium on the assessed amount of Rs.
Trial Court has committed a serious 10,91,375/-. We further hold that on the
said amount of solatium the petitioners shall
jurisdictional error by entertaining a time
also be entitled to interest at rate of 15%
barred suit and making ti within time by per annum from 13.5.2010 till the date of
allowing application under Section 5 of Act, actual payment. The said amount shall be
1963. The Revisional Court's order, paid to the petitioners within three months
therefore, warrants no interference. from today failing which the respondents
shall be liable to pay interest at 24% per
annum from 13.5.2010 till the date of actual
payment.
8. Dismissed. Interim order, if any,
stands vacated. 11. Considering the fact that the land of the
-------- petitioners was taken over 36 years back,
ORIGINAL JURISDICTION and they were paid compensation only after
CIVIL SIDE filing of this writ petition, and before that
DATED: ALLAHABAD 26.05.2014
also the petitioners had to file another writ
petition earlier and had to wait for more than
three decades, because of which their family
BEFORE
members must have suffered substantial
THE HON'BLE VINEET SARAN, J.
loss, we direct that the respondents shall be
THE HON'BLE NAHEED ARA MONNIS, J.
liable to pay cost, which we assess at Rs.
One lac. The said amount of Rs. One lac shall
Civil Misc. Writ Petition No. 23465 of 2010 also be paid to the petitioners within the
aforesaid period of three months from today.
Shiva Nand Gupta & Anr. ...Petitioners The Principal Secretary, Public Works
Versus Department, Government of U.P., shall
State of U.P. & Ors. ...Respondents ensure that the order of this Court is
complied with within the specified time.
Counsel for the Petitioners:
Sri Ashok Kumar Dwivedi, Sri N.C. Case Law discussed:
Rajvanshi, Sri Lal Ji Pandey 2013(2) AWC 1795.

Counsel for the Respondents: (Delivered by Hon'ble Hon'ble Vineet

C.S.C. Saran, J.)

Constitution of India, Art.-226- 1. This is a case where it is admitted

Compensation-land occupied by PWD- by the respondents that the land of the
without following procedure of Land petitioners was taken over by the State
Acquisition Act-for last 30 years petitioner
authorities more than three decades back
running from pillar to post-lastly in the year
2009 with mutual settlement agreed to pay on 1.3.1978 without resorting to the
compensation at circle rate of 2001-although procedure of acquiring the land under the
not entitled for interest-but entitled 30% Land Acquisition Act or by adopting any
solatium-payble within 3 month with other procedure prescribed in law. It
interest by 15% per annum in case of shows complete high-handedness of the
default interest rate shall be 24 % apart State-authorities in depriving the
form cost of Rs. One Lacs-petition allowed.
petitioners, who are villagers, of their land
Held: Para-10 & 11 without following the procedure of law. It
We, however, hold that the petitioners is not expected of the State authorities to
would be entitled to an amount of 30% illegally take over the land of any citizen
626 INDIAN LAW REPORTS ALLAHABAD SERIES

and sit tight over the matter, and it is only List on 25.05.2010."
after a marathon innings of struggle by The said order has not been
the land owners, in chasing their case complied with.
before the State-authorities and filing writ Learned Standing Counsel states that
petition in this Court, that the respondents the Principal Secretary, Ministry of
now come up with the case that during the Public Works Department had already
pendency of this writ petition the consent sent the proposal for payment of the
has been taken from the petitioners in the compensation and the payment of
year 2010 to the effect that they would be compensation would be made to the
agreeable to accept the compensation at petitioners very shortly.
the circle rate in terms of the G.O. dated Accordingly, on request of the
29.9.2001. Such agreement had been learned Standing Counsel, list on 8th
arrived at only after this Court had passed July, 2010, by which date the respondent
an order on 4.5.2010 to the effect that the No.1 shall ensure payment of
respondents shall ensure payment of compensation to the petitioners, and also
compensation to the petitioners for the file his personal affidavit explaining the
land which had been taken over by them, delay in making such payment to the
or to show cause by the next date. petitioners when the land was acquired in
Thereafter on 26.5.2010, 8.7.2010, the year 1978.
3.5.2013 and 14.5.2013 this Court had ORDER DATED: 8.7.2010
passed the following orders:- In compliance of this Court's order
dated 26.5.2010 Sri Ravindra Singh,
"ORDER DATED: 26.5.2010 Principal Secretary, Government of U.P.
On 04.05.2010, this Court had P.W.D. has filed his affidavit of
passed the following order:- compliance. In the said affidavit it is not
"The grievance of the petitioners is explained as to under what circumstances
that though his land has been acquired in the payment of Rs. 10 lacs and odd has
1978 but till date no compensation has been made to the petitioners on 23.6.2010
been paid. when by communication dated 13.8.2009
(Annexure-10 to the writ petition) the
Learned Standing Counsel has, on Executive Engineer had requested the
having received instructions, stated that Government for a sum of Rs. 62,37,511/-
with regard to the said issue, a meeting for payment of compensation.
has been called for by the District
Magistrate on 13.05.2010, on which date Such affidavit of compliance, which
it is likely that the matter regarding has been filed today, is not satisfactory,
compensation would be taken. inasmuch as it is not explained as to how
the figure of Rs. 10 lacs and odd, which
In view of the aforesaid has been paid to the petitioner has been
circumstances, it is directed that the arrived at.
respondents shall ensue payment of Let the Principal Secretary,
compensation to the petitioner for the Government of U.P.. P.W.D file his
land, which has been acquired by them personal affidavit explaining such
or they may show cause by the next difference as to how the compensation has
date. been reduced from Rs. 62 lacs and odd to
2 All] Shiva Nand Gupta & Anr. Vs. State of U.P. & Ors. 627

Rs. 10 lacs and odd. The said officer shall Certified copy of this order be made
also file his counter affidavit in reply to available to the learned Standing Counsel
the averments made in the writ petition. without any payment and to the counsel
Such affidavit may be filed within three for the petitioner on payment of usual
weeks. The petitioners shall have one charges by Tuesday i.e. 7.5.2013.
week thereafter to file rejoinder affidavit. ORDER DATED: 14.5.2013
List on 11th August, 2010. Personal affidavit of Dr. Rajneesh
ORDER DATED: 3.5.2013 Dube, Principal Secretary, has been filed
On 8.7.2010, this Court did not to demonstrate that whatever was agreed
accept the compliance of the affidavit by the petitioner was paid.
filed by Sri Ravindra Singh, Principal Annexure No. 4 to the affidavit
Secretary, Government of U.P. P.W.D. in clearly indicates that the amount payable
respect of payment of Rs. 10 lacs against to the tenure holder has been calculated
the amount of Rs. 62,37,511/- which was after adding the interest and solatium
to be paid by way of compensation. also.
In the counter affidavit, still no After preparing the amount which is
explanation is there. If the amount to the in all to the tune of Rs. 62,37,511/- the
tune of Rs. 62,37,511/- pursuant to the Executive Engineer appears to have
acquisition of the petitioner's land is written to the District Magistrate for the
payable to him then why for such a long sanction of the same what can be the
period he has been paid only an amount reason on the part of the petitioner to
of Rs. 10 lacs, although the Executive decline to accept that amount.
Engineer had requested the Government Counsel for the petitioner submits
for a sum of Rs. 62,37,511/-. The matter that the petitioner accepted the amount at
appears to be very serious. the circle rate but that never mean that he
In respect to non-payment/delay in denied the acceptance of the amount of
payment of amount at least after 8.7.2010, interest and solatium.
the interest payable of that amount will Be as it may, affidavit filed by Sri
have to be directed to be paid by the Dube is taken on record. Counsel for the
concerned Officer from his personal petitioner is permitted to file affidavit in
pocket, will also be a question which will reply and to improve his own case.
be dealt with on the next date.
As requested, list this matter in the
If satisfactory explanation by the second week of July, 2013."
personal affidavit of the Principal 2. When this writ petition was filed
Secretary, Government of U.P. P.W.D, there was no such compensation offered
who may be holding the post held as on by the respondent-authorities, and the
date, is not filed on or before the date prayer made in this writ petition was to
fixed, then this Court will have no option pay a sum of Rs. 62,35,511/- plus
but to direct the personal appearance of solatium and interest etc. as had been
that Officer, so as to pass appropriate assessed by the Special Land Acquisition
orders. Officer vide his calculation chart prepared
on 3.8.2009, a copy whereof has been
Let this matter be listed on filed as Annexure-9 to the writ petition. It
14.5.2013. is this compensation which the learned
628 INDIAN LAW REPORTS ALLAHABAD SERIES

counsel for the petitioners asserts that the rate would be different from market value.
petitioners would be entitled to. In the The committee has not proceeded to
rejoinder affidavit the specific case of the determine the market value but has mis-
petitioners is that the consent of the interpreted the G.O. and determined the
petitioners (which was during the compensation payable to the petitioners at the
pendency of the writ petition) was taken prevailing circle rate.
by force in the circumstances when the
son of the petitioner no.2 died due to 5. It may be relevant to mention that
kidney problem, and during the cremation the compensation of Rs.62,37,511/- plus
of his son he was called upon by the solatium and interest etc. claimed by the
District Magistrate to be present in the petitioners on the basis of the report dated
meeting. It is thus contended that in such 3.8.2009 of the Special Land Acquisition
circumstances the consent which was Officer does not appear to be very
taken from the petitioner no.2 cannot be appropriate as after calculating the current
said to be free and fair, but by force and market value, solatium at 30% has been
pressure exerted on the petitioners by the assessed, plus interest from the date of
respondents. acquisition till the date of the report has
also been calculated. In the present case,
3. We have heard Sri N.C.Rajvanshi, since the value of the land at the circle
learned senior counsel assisted by Sri Lal rate as on the date of the assessment has
Ji Pandey, learned counsel for the been calculated, interest of 30 years
petitioners as well as learned Standing would not be payable. As such, the claim
Counsel appearing on behalf of the of the petitioners to be paid compensation
respondents and have perused the record. at the rate assessed by the report dated
3.8.2009 of the Special Land Acquisition
4. On the basis of the alleged Officer does not deserve to be granted.
compromise the compensation to be paid to
the petitioners was in terms of the G.O. dated 6. Now this Court has to consider as
29.9.2001. The said G.O. speaks of market to whether the compensation which has
value and not the circle rate. The Committee been paid on the basis of the assessment
constituted under the said G.O. dated and report of the committee submitted
29.9.2001 assessed the compensation amount after the filing of this writ petition would
for the land taken from the petitioners at the be adequate and appropriate.
circle rate and not the market value. The same
was assessed at Rs. 10,91,375/- which was 7. Depriving a citizen of his land,
paid to the petitioners by two separate cheques especially at the hands of the State
dated 23.6.2010. Even the said amount has authorities, is a very serious matter.
now been paid to the petitioners after they However necessary or laudable the
were made to run from pillar to post for over purpose for acquisition of land may be,
three decades, and had to file writ petition and yet the State-authorities would be obliged
take recourse to other legal measures. Learned to comply with the provisions of law
counsel for the petitioners has submitted that before depriving any citizen of his land.
the amount determined by the committee The present is a case where all procedures
constituted under the G.O. dated 29.9.2001 is have been done away with by the State-
also not as per the terms of the G.O. The circle authorities and they have admittedly taken
2 All] Shiva Nand Gupta & Anr. Vs. State of U.P. & Ors. 629

over the land of the petitioners without the case of Bhimandas Ambwani (supra) and
any authority of law, by using their might. also as per provisions of the Land
Such action of the State-authorities Acquisition Act, the petitioners would be
appears to be akin to the method normally entitled to solatium at 30% plus interest.
resorted to by the land mafias in depriving
persons of their land. Such action of the 10. To put a quietus to the litigation so
State-authorities shocks the conscience of that the agony suffered by the petitioners
the Court. may be put to rest, the petitioners have
agreed to the assessed amount of
8. In the light of the aforesaid facts, compensation at circle rate provided they
this Court has now to consider as to in are paid 30% solatium and interest
what manner the petitioners can be thereupon. Keeping in view that the amount
compensated for having been deprived of was calculated at the circle rate as on the
their valuable land by the respondents, date of the meeting i.e. 13.5.2010, we hold
without resorting to any procedure of law. that the same would be the amount of
compensation awarded under the provisions
9. In the case of Bhimandas of the Land Acquisition Act. Since the
Ambwani Vs. Delhi Power Corporation assessed amount of Rs. 10,91,375/- was
2013(2) AWC 1795, the Apex Court, paid to the petitioners on 23.6.2010, which
while dealing with a case where the land was immediately after 13.5.2010, the
owner had been dispossessed without question of payment of interest on the said
resorting to any valid procedure for amount would not arise. We, however, hold
acquisition of land, and where land had that the petitioners would be entitled to an
already been utilized and the land owner amount of 30% solatium on the assessed
could not be restored back into amount of Rs. 10,91,375/-. We further hold
possession, it was held that the that on the said amount of solatium the
respondents should make an award petitioners shall also be entitled to interest at
treating the notification under section 4 of rate of 15% per annum from 13.5.2010 till
the Land Acquisition Act as having been the date of actual payment. The said amount
issued on the date of judgment, which in shall be paid to the petitioners within three
that case was 12.2.2013. The present is a months from today failing which the
similar case where the land of the respondents shall be liable to pay interest at
petitioners has been taken away without 24% per annum from 13.5.2010 till the
following any procedure, and now their date of actual payment.
consent is said to have been taken on 11. Considering the fact that the land
13.5.2010 (which may be voluntary or under of the petitioners was taken over 36 years
compulsion), and a meeting is held on the back, and they were paid compensation
same day i.e. 13.5.2010 and the only after filing of this writ petition, and
compensation is assessed at the circle rate. before that also the petitioners had to file
Admittedly as per Government Order dated another writ petition earlier and had to
29.9.2001, the petitioners ought to have been wait for more than three decades, because
given compensation at the market rate, but of which their family members must have
the same has been determined at the circle suffered substantial loss, we direct that
rate, which is not in terms of the Government the respondents shall be liable to pay cost,
Order. As per judgment of the Apex Court in which we assess at Rs. One lac. The said
630 INDIAN LAW REPORTS ALLAHABAD SERIES

amount of Rs. One lac shall also be paid registration certificate-stood confirmed
to the petitioners within the aforesaid from record of Bar Council-continuance of
further proceeding amounts to wasted of
period of three months from today. The
precious time of Court-in view of Apex
Principal Secretary, Public Works Court-decision-entire proceeding quashed.
Department, Government of U.P., shall
ensure that the order of this Court is Held: Para-11
complied with within the specified time. Coming to the instant case, the
prosecution case was based only on the
12. This writ petition stands allowed allegation that the applicant being an
enrolled advocate made a false
to the extent as indicated above. statement that he was not an advocate
so as to obtain registration as a
13. The office is directed to supply a contractor. Whether a person is a
copy of this order to the learned Standing practicing advocate or has surrendered
Counsel so as to enable him to forward his license to practice can no better be
the same to the Principal Secretary, Public ascertained than from the record of the
Bar Council. Therefore, once from the
Works Department, Government of U.P., record produced by the Bar Council
Lucknow for necessary compliance. before this Court in Writ C no.45873 of
-------- 2012, this Court, by its judgment and
ORIGINAL JURISDICTION order dated 11.10.2012, held that the
CRIMINAL SIDE applicant had surrendered his certificate
DATED: ALLAHABAD 13.01.2014 of enrollment on 28th January, 1979 and
that he had not applied for renewal of
BEFORE his certificate of enrollment, the
THE HON'BLE MANOJ MISRA, J. statement made by the applicant in the
affidavit of the year 2011 that he is not a
Criminal Misc. Application No.23662 of practicing Advocate, cannot be said to be
2012 false or misleading so as to justify
drawing of proceedings against him.
Vijendra Singh ...Applicant Thus, the very foundation of the
Versus prosecution case stands demolished, by
State of U.P. & An.r ...Opp. Parties a document which is none other than a
judgment of this Court and the
correctness of which has not been
Counsel for the Petitioner:
doubted by the learned counsel for the
Sri V.P. Srivastava, Sri Amit Kumar Singh, parties, further, when there is no dispute
Sri Umesh Vats, Sri Ranjay Kumar, Sri of it having attained finality. In such
Sanjay Kumar Dwuvedi circumstances, there is no shadow of
doubt that the prosecution of the
Counsel for the Respondents: applicant would be an exercise in futility
A.G.A, Sri Satya Prakash Srivastava, Sri and waste of precious time of the court.
Kamlesh Kumar Tiwari, Sri K.K. Rao. Holding of trial now, when the
fundamental issue has already been
decided by this Court in favour of the
Cr.P.C.-482-Quashing of criminal
applicant (accused), would be travesty of
proceeding-offense under section 420
justice. Accordingly, this Court considers
I.P.C.-allegation of making false
it to be a fit case where the proceedings
declaration in affidavit-regarding non
deserve to be quashed.
practicing lawyer-very allegation stand
falsified-from judgment of High Court in
which petitioner-found surrendered his (Delivered by Hon'ble Manoj Misra, J.)
2 All] Vijendra Singh Vs. State of U.P. & Anr. 631

1. Heard Sri Umesh Vats, holding 4. The submission of learned

brief of Sri Amit Kumar Singh, learned counsel for the applicant is that although
counsel for the applicant; Sri K.K. Rao, the applicant was initially enrolled as an
holding brief of Sri Satya Prakash Advocate, on 5th October, 1972, with the
Srivastava, for the opposite party no.2; Bar Council of U.P., having enrollment
and the learned AGA for the State. no.1018 of 1972, but the said enrollment
certificate was surrendered on 28th
January, 1979 along with an application
2. By the present application, under that the applicant will not be practising
Section 482 Cr.P.C., the applicant has law and, therefore, the original certificate
sought for quashing of the proceedings of enrollment may be treated as
of criminal case no.1595 of 2012, arising 'surrendered'. It has been submitted that in
out of charge-sheet submitted by the connection with the matter, the Regional
police under Section 420 IPC in case Food Controller, Basti region, Basti had
crime no.464 of 2012, police station passed an order dated 23rd August, 2012,
Kotwali, district Ballia, pending in the thereby cancelling the registration of the
Court of Chief Judicial Magistrate, applicant as a contractor on ground that in
Ballia. the inquiry it was found that on 27th
April, 2012, the applicant had deposited
Rs.1,290/- for renewal of his enrollment
3. A perusal of the record reveals as an Advocate. It has been submitted that
that the opposite party no.2 lodged a first the applicant had contested the
information report alleging therein that proceedings with regard to cancellation of
the applicant Vijendra Singh is working his registration as a contractor claiming
as a registered thekedar (contractor) in the before the authority concerned that he had
food and civil supplies department of not applied for renewal of enrollment by
district Ballia. For attaining eligibility to depositing Rs.1,290/- and that it appears
be registered as a thekedar certain that some impostor, in order to cause
formalities are to be completed. One of damage to the applicant, has made such
them is to have a character certificate. It is deposit. It has been submitted that the said
alleged that in paragraph no.4 of the matter travelled to this Court vide Writ C
affidavit filed by the applicant, for no.45873 of 2012, wherein the original
obtaining character certificate, it has been record was summoned from the Bar
falsely alleged by him that he is not an Council of U.P. and this Court had found,
advocate enrolled with the Bar Council as a fact, that the enrollment certificate
when, in fact, he is enrolled as an was surrendered by the applicant on 28th
advocate with enrollment number 1018 of January, 1979 and that the deposit of
1972. It was thus alleged that for the Rs.1,290/- seeking renewal of the
purpose of obtaining registration as a enrollment was not made by the applicant
contractor, the applicant made a false and, accordingly by order dated 11th
representation and, as such was guilty of October, 2012, this Court had set aside
an offence punishable under section 420 order passed by the Regional Food
IPC. The poilce conducted investigation Controller, Basti Region, Basti after
and laid charge sheet dated 30.06.2012 on recording a categorical finding to the
which cognizance was taken on 5.7.2012. above effect. It has been submitted that
632 INDIAN LAW REPORTS ALLAHABAD SERIES

since the issue has already been set at rest certificate surrendered in the year 1979 is
by an authoritative pronouncement of this still available in the file of Bar Council.
Court in Writ C no.45873 of 2012 and the The applicant has not withdrawn the
order passed by this Court has become surrender and had not applied for
final between the parties, the continuance duplicate identity card nor had deposited
of proceedings, as against the applicant, Rs.1290/-."
on the same issue, which has already been
decided in favour of the applicant, would
amount to abuse of the process of the 7. From the decision of this court it
Court and, as such, to secure the ends of is thus established that the applicant
justice, the proceedings be quashed. The having surrendered his enrollment as an
copy of the order dated 11th October, advocate in the year 1979, did not make
2012, passed by this Court in Writ C any false misrepresentation, with a
No.45873 of 2012 has been produced in dishonest intention, in the affidavit dated
Court, which has been taken on record. 8.8.2011 (Annexure 2 to the affidavit filed
in support of the application), by stating
he was not an advocate. Therefore, the
5. Learned counsel for the opposite very basis of his prosecution stands
parties do not dispute the passing of the nullified.
order dated 11th October 2012 in Writ C
No.45873 of 2012. They also do not
dispute that the aforesaid order has 8. Ordinarily, while considering a
attained finality. prayer for quashment of the criminal
proceedings, only the prosecution
documents are to be considered and the
6. I have perused the order passed defence documents or the defence version
by this Court in Writ C No.45873 of given by the accused in support of his
2012. A perusal thereof reveals that this case cannot be considered while
court has rendered a clear finding that the exercising the power under section 482 of
applicant had surrendered the enrollment the Code of Criminal Procedure.
certificate in the year 1979 with the Bar However, there is no absolute bar that the
Council, which is still lying in the file of Court, in exercise of its power under
the Bar Council and that the applicant has section 482 of the Code, cannot at all
not withdrawn the surrender and had consider the documents--which are
neither applied for duplicate identity card beyond suspicion or doubt--placed by the
nor had deposited Rs.1290/- towards accused, if on the face of those
renewal fees. The relevant observation of documents, the accusations cannot stand.
this Court's order dated 11.10.2012 passed In Harshendra Kumar D. v. Rebatilata
in Writ C No.45873 of 2012, as contained Koley, (2011) 3 SCC 351, the apex court,
in paragraph 10 of the order, is in paragraphs 25 and 26 of the report,
reproduced herein below: observed as follows:
"The original record of the Bar "25. In our judgment, the above
Council of Uttar Pradesh and the order observations cannot be read to mean that
passed by the Chairman, Bar Council in a criminal case where trial is yet to
clearly establishes that the enrollment take place and the matter is at the stage of
2 All] Vijendra Singh Vs. State of U.P. & Anr. 633

issuance of summons or taking the appellant has resigned much before

cognizance, materials relied upon by the the cheques were issued by the
accused which are in the nature of public Company."
documents or the materials which are
beyond suspicion or doubt, in no
circumstance, can be looked into by the 9. Further, in the case of Rajiv
High Court in exercise of its jurisdiction Thapar v. Madan Lal Kapoor, (2013) 3
under Section 482 or for that matter in SCC 330, the apex court, while laying
exercise of revisional jurisdiction under down the various tests as to when a
Section 397 of the Code. It is fairly settled defence document can be considered for
now that while exercising inherent quashing the proceedings, in exercise of
jurisdiction under Section 482 or power under section 482 of the Code, in
revisional jurisdiction under Section 397 paragraph 29 onwards of the report,
of the Code in a case where complaint is observed as follows:
sought to be quashed, it is not proper for
the High Court to consider the defence of
the accused or embark upon an enquiry in 29............................To invoke its
respect of merits of the accusations. inherent jurisdiction under Section 482
However, in an appropriate case, if on the CrPC the High Court has to be fully
face of the documents -- which are beyond satisfied that the material produced by the
suspicion or doubt -- placed by the accused is such that would lead to the
accused, the accusations against him conclusion that his/their defence is based
cannot stand, it would be travesty of on sound, reasonable, and indubitable
justice if the accused is relegated to trial facts; the material produced is such as
and he is asked to prove his defence would rule out and displace the assertions
before the trial court. In such a matter, contained in the charges levelled against
for promotion of justice or to prevent the accused; and the material produced is
injustice or abuse of process, the High such as would clearly reject and overrule
Court may look into the materials which the veracity of the allegations contained
have significant bearing on the matter at in the accusations levelled by the
prima facie stage. prosecution/complainant. It should be
sufficient to rule out, reject and discard
the accusations levelled by the
26. Criminal prosecution is a serious prosecution/complainant, without the
matter; it affects the liberty of a person. necessity of recording any evidence. For
No greater damage can be done to the this the material relied upon by the
reputation of a person than dragging him defence should not have been refuted, or
in a criminal case. In our opinion, the alternatively, cannot be justifiably
High Court fell into grave error in not refuted, being material of sterling and
taking into consideration the impeccable quality. The material relied
uncontroverted documents relating to the upon by the accused should be such as
appellant's resignation from the post of would persuade a reasonable person to
Director of the Company. Had these dismiss and condemn the actual basis of
documents been considered by the High the accusations as false. In such a
Court, it would have been apparent that situation, the judicial conscience of the
634 INDIAN LAW REPORTS ALLAHABAD SERIES

High Court would persuade it to exercise 30.5.If the answer to all the steps is in
its power under Section 482 CrPC to the affirmative, the judicial conscience of
quash such criminal proceedings, for that the High Court should persuade it to quash
would prevent abuse of process of the such criminal proceedings in exercise of
court, and secure the ends of justice. power vested in it under Section 482 CrPC.
Such exercise of power, besides doing
justice to the accused, would save precious
30. Based on the factors canvassed court time, which would otherwise be
in the foregoing paragraphs, we would wasted in holding such a trial (as well as
delineate the following steps to determine proceedings arising therefrom) specially
the veracity of a prayer for quashment when it is clear that the same would not
raised by an accused by invoking the conclude in the conviction of the accused."
power vested in the High Court under
Section 482 CrPC:
10. The view taken in Rajiv Thapar's
case has been followed and reiterated by
30.1. Step one: whether the material the Apex Court in the case of Prashant
relied upon by the accused is sound, Bharti Vs. State (NCT of Delhi) : (2013)
reasonable, and indubitable i.e. the 9 SCC, 293.
material is of sterling and impeccable
quality?
11. Coming to the instant case, the
30.2. Step two: whether the material
prosecution case was based only on the
relied upon by the accused would rule out
allegation that the applicant being an
the assertions contained in the charges
enrolled advocate made a false statement
levelled against the accused i.e. the
that he was not an advocate so as to
material is sufficient to reject and
obtain registration as a contractor.
overrule the factual assertions contained
Whether a person is a practicing advocate
in the complaint i.e. the material is such
or has surrendered his license to practice
as would persuade a reasonable person to
can no better be ascertained than from the
dismiss and condemn the factual basis of
record of the Bar Council. Therefore, once
the accusations as false?
from the record produced by the Bar Council
30.3. Step three: whether the before this Court in Writ C no.45873 of
material relied upon by the accused has 2012, this Court, by its judgment and order
not been refuted by the dated 11.10.2012, held that the applicant had
prosecution/complainant; and/or the surrendered his certificate of enrollment on
material is such that it cannot be 28th January, 1979 and that he had not
justifiably refuted by the applied for renewal of his certificate of
prosecution/complainant? enrollment, the statement made by the
applicant in the affidavit of the year 2011 that
he is not a practicing Advocate, cannot be
30.4. Step four: whether proceeding said to be false or misleading so as to justify
with the trial would result in an abuse of drawing of proceedings against him. Thus,
process of the court, and would not serve the very foundation of the prosecution case
the ends of justice? stands demolished, by a document which is
2 All] Raja John Bunch Vs. Union of India & Ors. 635

none other than a judgment of this Court Counsel for the Petitioner:
and the correctness of which has not been Sri Tanveer Ahmad Siddiqui, Sri Bidhan
doubted by the learned counsel for the Chandra Rai
parties, further, when there is no dispute
of it having attained finality. In such Counsel for the Respondents:
circumstances, there is no shadow of A.S.G.I., Sri Bhoopendra Nath Singh, Sri
doubt that the prosecution of the applicant Krishna Agrwal
would be an exercise in futility and waste
Constitution of India, Art.-226- Public
of precious time of the court. Holding of Interest Litigation-petitioner seeking to
trial now, when the fundamental issue has quash the provisions of section 33(7) and
already been decided by this Court in section 70 of Representation of people Act
favour of the applicant (accused), would 1951 contrary to provisions of Art. 101 of
be travesty of justice. Accordingly, this constitution-held-if a person elected as M.P.
Court considers it to be a fit case where Or MLA has vacate on seat-within
prescribed period-otherwise both shall be
the proceedings deserve to be quashed. deemed vacated-considering such clear
provision-no interfere on called far-petition
can not be entertained-nor mandamus can
12. For the reasons stated here-in- be issued to the legislative body to enact
above, the application is allowed. The particular law sole-wisdom of legislature-
proceedings of criminal case no.1595 of petition dismissed.
2012, arising out of charge-sheet
Held: Para-14&15
submitted by the police, under Section 14. These, in our view, are matters of
420 IPC, in case crime no.464 of 2012, legislative policy. What the Election
police station Kotwali, district Ballia, Commission of India has observed is
pending in the Court of Chief Judicial undoubtedly a matter which must be
Magistrate, Ballia, are hereby quashed. attributed the greatest weight and
deference but that would not result in an
existing provision of law being rendered
unconstitutional or arbitrary.
13. There shall be no order as to
costs. 15. In a cases pertaining to the
enactment of a particular law or policy,
--------
the Court would not be justified in
issuing a writ of mandamus directing
ORIGINAL JURISDICTION
that the law should be amended. A
CIVIL SIDE
mandamus to that effect cannot be
DATED: ALLAHABAD 28.04.2014
issued by the High Court under Article
226 of the Constitution. No direction can
BEFORE be issued to a legislative body to enact a
THE HON'BLE DR. DHANANJAYA law or to amend an existing law. The
YESHWANT CHANDRACHUD, C.J. alternate reliefs which have been sought
THE HON'BLE DILIP GUPTA, J. in the petition are all basically matters of
legislative policy. The Election
Civil Misc. Writ (P.I.L) Petition No.24206 Commission of India, which is vested
of 2014 with the authority under Article 324 of
the Constitution of superintendence,
Raja John Bunch ...Petitioner direction and control over elections, has
Versus formulated its suggestions for electoral
Union of India & Ors. ...Respondents reforms. The matter must rest there,
636 INDIAN LAW REPORTS ALLAHABAD SERIES

insofar as this Court is concerned. We (a) in the case of a general election to

find no reason to entertain the petition the House of the People (whether or not
or to accept the submission that Section
held simultaneously from all
33 (7) and Section 70 of the
Representation of the People Act, 1951
Parliamentary constituencies), from more
are contrary to Article 101 of the than two Parliamentary constituencies;
Constitution. We also decline to
entertain the other reliefs which have (b) in the case of a general election to
been pressed in the alternate. the Legislative Assembly of a State
(whether or not held simultaneously from
(Delivered by Hon'ble Dr. Dhananjaya all Assembly constituencies), from more
Yeshwant Chandrachud, C.J.) than two Assembly constituencies in that
State;
1. This petition has been filed in the
public interest. The petitioner is an RTI activist (c) in the case of a biennial election
and is a life member of the National Campaign to the Legislative Council of a State
for People's Right to Information. The having such Council, from more than two
petitioner challenges the constitutional validity Council constituencies in the State;
of the provisions of Section 33 (7) of the
Representation of the People Act, 1951 on the (d)in the case of a biennial election
ground that these provisions are inconsistent to the Council of States for filling two or
with Article 101 of the Constitution. The more seats allotted to a State, for filling
petitioner also seeks a writ of mandamus to more than two such seats;
implement the recommendation which was
made by the Election Commission of India to (e) in the case of bye-elections to the
restrict a candidate from contesting an election House of the people from two or more
from more than one constituency in a particular Parliamentary constituencies which are
election. The petitioner further seeks a held simultaneously, from more than two
mandamus to recover the entire expenses such Parliamentary constituencies;
incurred in a constituency in which a seat gets (f) in the case of bye-elections to the
vacated as a consequence of a candidate Legislative Assembly of a State from two
resigning his seat. Finally, the petitioner seeks or more Assembly constituencies which
that guidelines be framed to debar every are held simultaneously, from more than
member from contesting an election for a two such Assembly constituencies;
stipulated duration upon resigning his or her
seat. (g) in the case of bye-elections to the
Council of States for filling two or more
2. Section 33 (7) of the seats allotted to a State, which are held
Representation of the People Act, 1951 simultaneously, for filling more than two
provides as follows: such seats;
(h) in the case of bye-elections to the
"(7) Notwithstanding anything Legislative Council of a State having such
contained in sub-section (6) or in any Council from two or more Council
other provisions of this Act, a person shall constituencies which are held
not be moninated as a candidate for simultaneously, from more than two such
election,-- Council constituencies.
2 All] Raja John Bunch Vs. Union of India & Ors. 637

Explanation.--For the purposes of contrary to and inconsistent with Article

this sub-section, two or more bye- 101 of the Constitution.
elections shall be deemed to be held
simultaneously where the notification 6. Article 101 provides as follows:
calling such bye-elections are issued by
the Election Commission under sections "101. Vacation of seats.-- (1) No
147, 149, 150 or, as the case may be, 151 person shall be a member of both Houses
on the same date." of Parliament and provision shall be made
by Parliament by law for the vacation by a
3. Section 70 makes the following person who is chosen a member of both
provisions: Houses of his seat in one House or the
other
"70. Election to more than one seat
in either House of Parliament or in the (2) No person shall be a member
House or either House of the Legislature both of Parliament and of a House of the
of a State--If a person is elected to more Legislature of a State, and if a person is
than one seat in either House of chosen a member both of Parliament and
Parliament or in the House or either of a House of the Legislature of a State,
House of the Legislature of a State, then, then, at the expiration of such period as
unless within the prescribed time he may be specified in rules made by the
resigns all but one of the seats by writing President, that person's seat in Parliament
under his hand addressed to the Speaker shall become vacant, unless he has
or Chairman, as the case may be, or to previously resigned his seat in the
such other authority or officer as may be Legislature of the State.
prescribed, all the seats shall become
vacant." (3)If a member of either House of
Parliament--
4. Under clauses (a) and (b) of (a) becomes subject to any of the
Section 33 (7), it is provided that a person disqualifications mentioned in clause (1)
shall not be nominated as a candidate for or clause (2) of Article 102, or
an election from more than two
constituencies at a general election to the (b) resigns his seat by writing under
House of the People or, as the case may his hand addressed to the Chairman or the
be, to the Legislative Assembly of a State. Speaker, as the as may be, and his
In the case of bye-elections to the House resignation is accepted by the Chairman
of the People, a candidate cannot be or the Speaker, as the case may be,
nominated from more than two
Parliamentary constituencies. In the case his seat shall thereupon become
of bye-elections to the Legislative vacant:
Assembly of a State, a candidate cannot Provided that in the case of any
be nominated from more than two resignation referred to in sub- clause (b),
Assembly constituencies in that State. if from information received or otherwise
and after making such inquiry as he thinks
5. The submission before the Court fit, the Chairman or the Speaker, as the
is that the provisions of Section 33 (7) are case may be, is satisfied that such
638 INDIAN LAW REPORTS ALLAHABAD SERIES

resignation is not voluntary or genuine, he file his/her nomination during the course
shall not accept such resignation. of a general election. Such a restriction is
imposed in sub-section (7) of Section 33
(4)If for a period of sixty days a of the Representation of the People Act,
member of either House of Parliament is 1951. There is nothing inconsistent
without permission of the House absent between Article 101 and Section 33 (7).
from all meetings thereof, the House may Under Section 70, if a person is elected to
declare his seat vacant: more than one seat in either House of
Parliament or of the Legislature of a State,
Provided that in computing the said he has to resign from all but one of the
period of sixty days no account shall be seats within the prescribed time failing
taken of any period during which the which all the seats shall become vacant.
House is prorogued or is adjourned for
more than four consecutive days" 10. The submission is that the
provision by which a candidate may
7. Article 101 does not contain any contest or file his nomination from more
prohibition or restriction on a person than one seat (subject to a maximum of
contesting an election or filing a two) results in a situation where the
nomination from more than one constituency would be unrepresented once
constituency. Clause (1) of Article 101 the candidate resigns from the seat. This
provides that a person shall not be a circumstance would not, in our view,
member of both the Houses of Parliament. render a provision unconstitutional. A seat
Clause (2) of Article 101 provides that no may fall vacant for a variety of reasons
person shall be a member of Parliament including, amongst them, the
and of a House of the Legislature of a disqualifications which are contained in
State. If such an eventuality occurs, then, Article 102 of the Constitution. The seat
upon the expiry of the period specified in which falls vacant has to be filled up in
the rules made by the President, the seat accordance with law.
held in Parliament would become vacant,
unless the person has previously resigned 11. As a matter of fact, Article 101
his seat in the Legislature of the State. (3) (b) contemplates that a seat would
become vacant when the resignation of a
8. Sub-clause (b) of Clause (3) of member of either House of Parliament
Article 101 allows a member of either from his seat is accepted by the Chairman
House of Parliament to resign his seat by or the Speaker, as the case may be.
writing under his hand addressed to the
Chairman or the Speaker, as the case may 12. The Election Commission of
be. The seat becomes vacant upon the India had, in its Proposals for Electoral
acceptance of the resignation by the Reforms of 2004, suggested that the law
Chairman or the Speaker. should be amended to provide that a
person cannot contest from more than one
9. Consequently, a plain reading of constituency at a time. In the alternate, it
Article 101 would indicate that it does not was suggested that if the provision
place any restriction on the number of facilitating a candidate to contest from
constituencies from which a person may two constituencies is to be retained, an
2 All] Raja John Bunch Vs. Union of India & Ors. 639

express provision should be made in law deposit in the government account an

to deposit, with the Government, an appropriate amount of money being the
appropriate amount of money being the expenditure for holding the bye-election.
expenditure for holding the bye-election. The amount could be Rs.5,00,000/- for
The observations in the report of the State Assembly and Council election and
Election Commission of India are of Rs.10,00,000/- for election to the House
significance and read as follows: of the People."

"RESTRICTION ON THE 13. To the same effect, is a

NUMBER OF SEATS FROM WHICH Background Paper on Electoral Reforms
ONE MAY CONTEST published by the Legislative Department
of the Ministry of Law and Justice,
As per the law as it stands at present Government of India. The suggestion in
[Sub-Section (7) of Section 33 of the the Background Paper is thus:
Representation of the People Act, 1951], a
person can contest a general election or a "6.5 Restriction on the number of
group of bye-elections or biennial seats which one may contest.
elections from a maximum of two
constituencies. Section 33 of the Representation of the
People Act, 1951, a person can contest a
There have been several cases where general election or a group of bye-elections
a person contests election from two or biennial elections from a maximum of two
constituencies, and wins from both. In constituencies. There have been several cases
such a situation he vacates the seat in one where a person contests election from two
of the two constituencies. The constituencies, and wins from both. In such a
consequence is that a bye-election would situation he vacates the seat in one of the two
be required from one constituency constituencies. The consequence is that a
involving avoidable labour and bye-election would be required from one
expenditure on the conduct of that bye- constituency which apart from involving
election. avoidable labour and expenditure on the
conduct of that bye-election.
The Commission is of the view that
the law should be amended to provide that * Recommendations
a person cannot contest from more than
on constituency at a time. The Election Commission is of the
view that the law should be amended to
The Commission will also add that in provide that a person cannot contest from
case the legislature is of the view that the more than one constituency at a time."
provision facilitating contesting from two 14. These, in our view, are matters of
constituencies as existing at present is to legislative policy. What the Election
be retained, then there should be an Commission of India has observed is
express provision in the law requiring a undoubtedly a matter which must be attributed
person who contests and wins election the greatest weight and deference but that
from two seats, resulting in a bye-election would not result in an existing provision of law
from one of the two constituencies, to being rendered unconstitutional or arbitrary.
640 INDIAN LAW REPORTS ALLAHABAD SERIES

15. In a cases pertaining to the Counsel for the Respondents:

enactment of a particular law or policy, the C.S.C., Sri M.C. Chaturvedi, Sri Piyush
Court would not be justified in issuing a writ Shukla
of mandamus directing that the law should be
amended. A mandamus to that effect cannot Urban Planning Development Act-1973-
Section 13-petitioner representation-
be issued by the High Court under Article 226
rejected on ground-the plot in question
of the Constitution. No direction can be issued ermarked for park-after inviting objection-
to a legislative body to enact a law or to published under public notice-petitioner did
amend an existing law. The alternate reliefs not choose to file any objection-after 6
which have been sought in the petition are all years representation about alteration duly
basically matters of legislative policy. The approved-can not be entertained-petition
dismissed.
Election Commission of India, which is
vested with the authority under Article 324 of Held: Para-9
the Constitution of superintendence, direction Sri Sharma is correct to this extent and
and control over elections, has formulated its location or relocation cannot be altered
suggestions for electoral reforms. The matter without any procedure being followed in
must rest there, insofar as this Court is this regard, but in the instant case the
alteration which is permissible under the
concerned. We find no reason to entertain the
provisions of 1973 Act has been carried out
petition or to accept the submission that after due public notice in the newspapers.
Section 33 (7) and Section 70 of the The petitioner claims to be ignorant about
Representation of the People Act, 1951 are such notice. A public notice in the
contrary to Article 101 of the Constitution. newspapers cannot be discarded as such
We also decline to entertain the other reliefs allegations. Admittedly, the petitioner did
not file any objection in relation to the
which have been pressed in the alternate.
proposed alteration in the Master Plan.

16. The petition is, accordingly, Case Law discussed:

dismissed. There shall be no order as to AIR 1991 SC 1902; AIR 1993 Allahabad 57.
costs.
-------- (Delivered by Hon'ble Amreshwar Pratap
ORIGINAL JURISDICTION Sahi, J.)
CIVIL SIDE
DATED: ALLAHABAD 05.03.2014 1. Heard Dr. Akhilesh Kumar
Sharma, learned counsel for the petitioner
BEFORE
THE HON'BLE AMRESHWAR PRATAP
and perused the counter affidavit filed by
SAHI, J. the respondent-authority.
THE HON'BLE VIVEK KUMAR BIRLA, J.

Civil Misc. Writ Petition No. 24469 of 2012 2. The petitioner has come up
questioning the order passed by the Agra
Satish Kumar Sharma ...Petitioner Development Authority, Agra dated
Versus 3.4.2012 whereby his representation has
State of U.P. & Ors. ...Respondents
been rejected on the ground that the land in
dispute over which the petitioner alleges to
Counsel for the Petitioner:
Sri Akhilesh Kumar Sharma, Sri U.N.
have raised constructions, has been
Sharma earmarked as a park and also for other
2 All] Satish Kumar Sharma Vs. State of U.P. & Ors. 641

purposes under the Master Plan which now been permitted on which the finding
stands revised after the approval of the recorded is that two wrongs cannot make
Zonal Plan. The same has been approved by a right. Learned counsel for the petitioner
the State Government as per the provisions has been unable to point out any such
under Section 13 of the U.P. Urban provision under which such alteration of
Planning and Development Act, 1973. user can now be permitted by this Court
after the Master Plan has already been
finalised and published.
3. The finding recorded is that with
regard to alteration in the user of the land was
proposed under a public notice which was 7. Sri Sharma then contends that in
published in hindi dailies "Dainik Jagran" and view of the judgement of the Apex
"Amar Ujjala" in the year 2006, whereafter Court in the case of Bangalore Medical
objections were invited. The petitioner did not Trust vs. S. Muddappa and others AIR
choose to file any objections to the said public 1991 SC 1902 and the Division Bench
notice whereafter the Zonal Plan was approved Judgement of this Court in the case of
and sent to the State Government, which has D.D. Vyas and others vs. Ghaziabad
been finalised taking the shape of Agra Development Authority AIR 1993
Development Authority Master Plan 2021. Allahabad 57, the location of the park
cannot be altered.

4. In the aforesaid circumstances, the

representation of the petitioner has been 8. Learned counsel submits even
rejected holding that the land in question has otherwise there was land available with
already been reserved for a park and a part of the authority to relocate the park for
the said land is also shown in the road which certain suggestions has been made.
widening plan of Master Plan 2021.

9. Sri Sharma is correct to this

5. The constructions, which have extent and location or relocation cannot
been raised by the petitioner, do not be altered without any procedure being
appear to have been made after any due followed in this regard, but in the
sanction of a map or a plan by the instant case the alteration which is
respondent- Development Authority. In permissible under the provisions of
such circumstances, there being no 1973 Act has been carried out after due
challenge raised to the competence of the public notice in the newspapers. The
State Government in changing the Master petitioner claims to be ignorant about
Plan or approving the Zonal Plan, no such such notice. A public notice in the
relief can be granted to the petitioner as newspapers cannot be discarded as such
prayed for which is only for quashing of allegations. Admittedly, the petitioner
the order dated 3.4.2012. did not file any objection in relation to
the proposed alteration in the Master
Plan.
6. Learned counsel for the petitioner
10. In these circumstances, this
submits that certain change land user has
petition, which has been filed in 2012 after
642 INDIAN LAW REPORTS ALLAHABAD SERIES

six years of the alteration of the Master Plan in accordance with law keeping in view of
in the year 2006-2007 cannot be entertained. direction of High Court.
Even otherwise no other ground has been
Held: Para-15
raised to challenge the Master Plan, which is We have no hesitation to record that
a Legislative Act. such reports, which do not even take
into consideration as to what has been
found and recorded by the C.B.C.I.D in
11. Consequently, we do not find its report seeking prosecution, is
any merit in this petition. patently unjust. The opinion appears to
be tailor-made to suit only the interest of
the police officers involved. Even the
order of the High Court dated
12. The writ petition is, accordingly, 22.07.2011 and its impact has gone
rejected. unnoticed in the report of Special
Secretary (Law) & Addl. Legal
--------
Remembrances, Govt. of U.P., Lucknow.
ORIGINAL JURISDICTION
CIVIL SIDE Case Law discussed:
DATED: ALLAHABAD 22.05.2014 (2014) 1 Supreme Court Cases (Cri) 515.

BEFORE (Delivered by Hon'ble Arun Tandon, J.)

THE HON'BLE ARUN TANDON, J.
THE HON'BLE SHASHI KANT, J.
1. Heard P. K. Upadhyay, counsel
Criminal Misc. Writ Petition No. 24999 of for the petitioner and V. C. Mishra,
2013 Advocate General on behalf of the State
as well as other respondent authorities.
Shila Devi ...Petitioner
Versus 2. Petitioner seeks quashing of the order
State of U.P. & Ors. ...Respondents dated 23.05.2013 passed by Principal
Secretary, Home, Government of U. P.,
Counsel for the Petitioner: Lucknow whereby he has refused to grant
Sri P.K. Upadhyay sanction for prosecution of three police
personnel in Case Crime No.829 of 2010
Counsel for the Respondents:
under Sections 306, 506, 323, 120 B IPC.
A.G.A., Sri V.C. Mishra (Advocate General)

Code of Criminal Procedure-Section-197- 3. Facts in short as on record of the

Sanction for prosecution-offence under present writ petition are as follows :
Section 306,506,323, ILO-B IPC against FIR being Case Crime No.829 of
police personal-on direction of High Court- 2010, under Sections 306, 506, 323, 120
C.B.C.I.D. Completed investigation found B IPC, P. S.Kerakat, District-Jaunpur was
those police persons involved-applied for
registered on 20.10.2010, by Smt. Shila,
sanction accompanied with investigation
report-after 6 month by impugned order- mother of the deceased Yogendra Kumar.
rejection on ground no possibility of In the FIR it was mentioned that her son
conviction-held-such opinion-tailor made Yogendra Kumar was forced to commit
to suit the police officers involved-ignoring suicide because of the undue pressures
the impact of High Court direction-order brought upon him by his accused wife as
quashed with direction to pass fresh order
well as by constables Prabhu Nath Ram,
2 All] Shila Devi Vs. State of U.P. & Ors. 643

Madhusudan Mishra and S.I., Vikas report before the court concerned till further
Pandey, In-Charge of the police outpost- order of this court, at this stage it is not proper
Gaddi. to discuss all the facts and the allegations but
the circumstances are of such nature in which
4. The case was investigated by civil for ensuring the fair investigation, the
police, a charge sheet was filed against the investigation of the above mentioned case is
wife of the deceased only. The informant- required to be done by the investigating
mother filed Writ Petition No.23269 of 2010 agency other than the local police because the
alleging therein that the investigation has not allegations have been made against three
been done in free and fair manner because of police personnel of the same police station
the involvement of the police officers as where the alleged occurrence has taken place.
detailed above. The investigation had not Therefore, we direct that the investigation of
been done in the right direction with specific case crime no.829 of 2010 under sections 306,
reference to the suicide note recovered near 506, 323 and 120-B IPC, P.S.Kerakat,
the dead body of the deceased as well as in District-Jaunpur shall be done by the
respect of the deceased being called at the C.B.C.I.D. The S.P. Jaunpur is directed to
police station and being asked to wait for ensure that shall be handed over to C.B.C.I.D.
long periods and being harassed by the police Forthwith, who shall submit the police report
officers without making any mention of the after completing the investigation before the
same in the G.D. court concerned.

5. The High Court after considering Accordingly the writ petition is

the facts pleaded by the mother and after finally disposed of."
affording opportunity to the prosecution and
the State-respondents, it came to a 6. In terms of the order of the High
conclusion vide order dated 22.07.2011 that Court C.B.C.I.D proceeded with the
the investigation has not been done by the investigation. It prepared a draft police
Investigating Officer in right direction report. Thereafter, C.B.C.I.D made an
specifically with reference to the suicide application to the State Government vide
note and summoning of the victim to the letter dated 3 December 2012 for sanction
police outpost on 18.10.2010 and being granted for the prosecution of the
20.10.2010 where he is alleged to have been police officers. The said application was
tortured. The details of his being called to accompanied with the details of the
the police outpost were not mentioned in the investigation done by the C.B.C.I.D. On
G.D. of the respective dates. In the totality receipt of the said application it appears that
of the facts on record the High Court went the Principal Secretary, Home, U. P.
on to pass following orders : Government, who was competent person to
sanction prosecution, asked for a report from
"The investigation has not been made by the Law Department of the State of U.P.
the I.O. on the basis of the suicide note but Special Secretary (Law) & Addl. Legal
during the pendency of the writ petition the Remembrances, Govt. of U.P., Lucknow
I.O. completed the investigation in which the submitted a report on 23.05.2013 i.e. after six
charge sheet has been proposed only against months of the receipt of the application for
Smt. Reena Devi, wife of the deceased, but this sanction of the prosecution. On the basis of
court has directed not to submit any police said legal opinion the Principal Secretary,
644 INDIAN LAW REPORTS ALLAHABAD SERIES

Home has proceeded to pass the order dated evidence relied upon in support of the
23.05.2013 impugned in the petition. He has conclusion drawn by the C.B.C.I.D. has
refused to grant sanction for prosecution, the specifically been mentioned along with
reason assigned in the order for the purpose the recommendation in the matter.
reads as follows :
11. The relevant portion of the
"bl leca/k esa eq>s dgus dk funs'Z k gqvk gS report of the C.B.C.I.D. is being quoted
fd mijksDr nks"kh iqfyldfeZ;ksa ds fo:} vfHk;kstu herein below :
Lohd`fr iznku fd;s tkus ds miyC/k lk{;ksa @ "blds vfrfjDr LFkkuh; iqfyl ds tks izFke
vfHkys[kksa ds vk/kkj ij lQyrk dh lEHkkouk {kh.k lwpuk fjiksVZ esa ukfer mifujh{kd izHkkjh pkSdh Fkkuk
gksuk ik;s tkus ij 'kklu }kjk lE;d~ fopkjksijkUr xn~nh Jh fodkl ik.Ms; iq= Lo0 jke fujatu
mDr nks"kh iqfyldfeZ;ksa ds fo:} vfHk;kstu Lohd`fr ik.Ms; fuoklh lR;kuxat Fkkuk vgjkSjk fetkZijq
iznku fd;s tkus dk vkSfpR; ugha ik;k x;k gSA" gky rSukrh lajk; iq[rk iqfyl pkSdh Fkkuk lnj
dksrokyh tuin tkSuiqj vkj{kh 984 uk0iq0 e/kqlwnu
7. Before we address ourselves to the feJk iq= Lo0 lq/khj feJk fu0 pks[kuk Fkkuk estk
report of the Special Secretary (Law) & Addl. tuin bykgkckn gky irk Fkkuk cMslj tuin
Legal Remembrances it may be recorded that xkthiqj o vkj{kh 113 uk0 iq0 izHkw ukFk jke iq= Jh
the order of the Principal Secretary, Home does 'kadj jke fuoklh xzke pkspdiqj Fkkuk dj.Mk
not even refer to the report of the Special tuin xkthiqj gky irk Fkkuk dqjkao tuin
bykgkckn ds fo:} e`rd ;ksxUs nz xqIrk dks
Secretary (Law) & Addl. Legal vukf/kd`r :i ls iqfyl pkSdh Fkkuk xn~nh cqykdj
Remembrances. iRuh ds lkeus izrkfMr ,oa viekfur fd;k x;k
rFkk vfHk;qDr fot; dqekj xqIrk o e`rd ;ksxUs nz
8. It is settled law that the orders are to }kjk fn, x;s izkFkZuk i= dk u rks th0 Mh0 esa
be judged for the reasons recorded therein. vken fd;k vkSj u gh cjoDr okilh vkSj u gh
From the order of the State Government dated Jherh jhuk xqIrk dks ?kj ds vanj dejs esa can ik;s
23.05.2013 it is clear that the only reason tkus dk rfLdjk th0 Mh0 esa vafdr fd;k tks fof/k
disclosed is that on the basis of the evidence fo:} gS vkSj vukf/kd`r :i ls okfnuh] okfnuh ds
available on the records, the chances of ifr fo'oukFk xqIrk] jkds'k xqIrk ,oa xkao ds lqjUs nz
offence being brought home against the police dsoV] lkew flag] f'ko dqekj xqIrk] yYyu ;knu o
fnyhi dqekj flag vkfn ds dFkuks ,oa e`rd ds
officers are minimal. Therefore, sanction for
lqlkbV uksV ds vk/kkj ij e`rd ;ksxUs nz dks iqfyl
prosecution is being refused. us pkSdh Fkkuk xn~nh ij cSBk;s j[kk ,oa ljsvke
viekfur fd;k ftlds dkj.k ;ksxUs nz us Xykfuo'k
9. We may record that, from page 9 of vkRegR;k dj yh tks /kkjk 306@342@506 Hkk0 na0
the report of the C.B.C.I.D., which has been fo0 ds varxZr izFke n`"V;k vijk/k dks izekf.kr gksuk
enclosed as Annexure No.1 along with the ik;k x;k gSA
counter affidavit filed on behalf of the State,
sufficient facts and materials have been 10 ¼2½ vfHk;qDrksa dk Li"Vhdj.k o cpko ds
disclosed for charge sheet being filed against rdZ%&
the police officers and the matter being
investigated against them also. Jherh xhrk xqIrk ds NksVs HkkbZ fot; xqIrk
}kjk fnukad 12&10&10 dks iqfyl pkSdh Fkkuk xn~nh
10. In paragraphs 10 (2) and 10(3) ds izHkkjh mifujh{kd fodkl ik.Ms; ds uke fn;s
of the report of C.B.C.I.D., the x;s f'kdk;rh izkFkZuki= ds vk/kkj ij e`rd ;ksxUs nz
explanation of the police officers, the dks vkj{kh e/kqlwnu feJk ,oa vkj{kh izHkw ukFk jke
}kjk iqfyl pkSdh pkSjkgs ij iwNrkN gsrq cqykdj
reason for not accepting the same and the yk;k x;k Fkk fdUrq rhuks iqfyldfeZ;ksa }kjk pkSjkgs
2 All] Shila Devi Vs. State of U.P. & Ors. 645

ij ;ksxUs nz xqIrk dks ekjus ihVus] xkyh xykSt djus iRuh e`rd ;ksxUs nz dqekjx xqIrk fuoklh [kxZlsuiqj
vFkok viekfur u fd;s tkus ds rdZ fn;s x;s gSSA ]Fkkuk dsjkdr tuin tkSuiqj gky irk xzke
fVdjx< Fkkuk nsoxkao vktex< ds fo:} /kkjk 306
10 ¼3½ vfHk;qDrksa ds Li"Vhdj.k o cpko ds Hkk0na0 fo0 dk vijk/k l`ftr gksuk ik;k gS ] 'ks"k
rdksZ dks u ekuus dk dkj.k%& izFke lwpuk fjiksVZ esa ukfer vt; xqIrk iq=x.k
vxuw] gjh yky vxuw o unuyky ds fo:} vijk/k
dk l`ft gksuk ugha ik;k x;k gSA LFkkuh; iqfyl ds
vfHk;qDrksa }kjk fd;k x;k dFku ek= vius foospd }kjk Jherh jhuk xqIrk ds fo:} fnukad
cpko esa fn;k x;k gS tks ekuus ;ksX; ugha gSA 31&3&11 dks vkjksi i= la[;k 08@11 /kkjk 306
vfHk;qDrksa ds fo:} U;k;ky; esa vkjksi i= izsf"kr Hkk0na0 fo0 izfs "kr fd;k x;k gS vijk/k 'kk[kk dh
fd;s tkus o U;k;ky; esa vfHk;ksftr fd;s tkus gsrq foospuk ls LFkkuh; iqfyl }kjk izsf"kr vkjksi i= esa
i;kZIr lk{; miyC/k gSA fdlh ifjorZu dh vko';drk ugha gSA fot; dqekj
xqIrk iq= vxuw xqIrk fuoklh fVdjx< Fkkuk nsoxkat
10 ¼4½ lcwr i{k ,oa cpko i{k ds rF;ksa dk tuin vktex< ds fo:} vijk/k la[;k dh xgu
fo'ys"k.k%& foospuk ls viuh cgu Jherh jhuk xqIrk ds lkFk
lkFk e`rd ;ksxUs nz dks Qkalh yxkdj vkRegR;k fd;s
mifujhf{kd Jh fodkl ik.Ms; vkj{kh Jh tkus ds fy, mRrsftr djus ds dkj.k /kkjk
e/kqlwnu feJk ,oa vkj{kh Jh izHkwukFk jke }kjk 306@120ch0] Hkk0na0fo0 ds vijk/k dk nks"kh ik;k
vafdr djk;k x;k dFku ek= vius vki dks cpkus x;k gSA blds vfrfjdRk LFkkuh; iqfyl ds tks izFke
dh fu;r ls fn;k x;k gSA lwpuk fjiksVZ esa ukfer mifujh{kd izHkkjh pkSdh Fkkuk
xn~nh Jh fodl dqekj ik.Ms; iq= Lo0 jke fujatu
vijk/k 'kk[kk dh foospuk ls mijksDr ik.Ms; fuoklh lR;kuxat Fkkuk vgjkSjk fetkZijq
vfHk;qDrx.k ds fo:} izFke n`"V;k vijk/k vUrxZr gky rSukrh lajk;iq[rk iqfyl pkSdh Fkkuk lnj
/kkjk 306@342@506 Hkk0 na0 fo0 izekf.kr gSA dksrokyh tuin tkSuiqj vkj{kh 984 uk0 iq0
e/kqlwnu feJk iq= Lo0 lq/khj feJk fuoklh pks[kuk
fu"d"kZ%& Fkkuk estk tuin bykgkckn gky irk Fkkuk cMslj
tuin xkthiqj o vkj{kh 113 uk0 iq0 izHkwukFk jke
foospuk ds e/; ladfyr ekSf[kd vfHkys[kh; iq= Jh 'kadj jke fuoklh xzke pkspyiqj Fkkuk
,oa ifjfLFkfrtU; lk{;ksa ds fo'ys"k.k ls dj.Mk tuin xkthiqj gky irk Fkkuk dqjkao tuin
f'kdk;rdrkZ Jh 'khyk nsoh }kjk fnukad 23&10&10 bykgkckn ds fo:} e`rd ;ksxUs nz xqIrk dks
dks iathd`r djk;s x;s izFke lwpuk fjiksVZ esa fot; vukf/kd`r :i ls iqfyl pkSdh Fkkuk xn~nh cqykdj
xqIrk] vt; dqekj xqIrk] gjh yky mi fujh0 fodkl iRuh ds lkeus izrkfMr ,oa viekfur fd;k x;k
ik.Ms; vkj{kh e/kqlwnu feJk ,oa vkj{kh izHkwukFk jke rFkk vfHk;qDr fot; dqekj xqIrk o e`rd ;ksxUs nz
dks ukfer fd;k gS ftlesa ls vt; dqekj xqIrk] gjh }kjk fn, x;s izkFkZuki= dk u rks th0Mh0 esa vken
yky xqIrk ds fo:} fdlh vijk/k dk izekf.kr gksuk fd;k vkSj u gh cjoDr okilh vkSj u gh Jherh
ugha ik;k x;k gSA cfYd izFke lwpuk esa ukfer jhuk xqIrk dks ?kj ds vanj dejs esa can ik;s tkus
vfHk;qDr Jherh jhuk xqIrk iRuh e`rd ;ksxUs nz dqekj dk rkfLdjk th0Mh0 esa vafdr fd;kA tks fof/k
xqIrk ,oa vfHk;qDr fot; dqekj xqIrk iq= vxuw fo:} gS vkSj vukf/kd`r :i ls okfnuh ds ifr
xqIrk ¼e`rd ;ksxUs nz dk lkyk½ ds }kjk thou;kiu o fo'oukFk xqIrk] jkds'k xqIrk ,oa xkao ds lqjUs nz dsoV]
ngst mRihMu dks ysdj ,d i{kh; vnkyrh lkew flag] f'ko dqekj xqIrk] yYyu ;kno o fnyhi
dk;Zokgh ,oa >wBa k vfHk;ksx iathd`r djk;k x;k Fkk dqekj flag vkfn ds dFkuksa ,oa e`rd ds lqlkbV
ftlds mRihMu ,oa vkfFkZd raxh ds dkj.k ;ksxsUnz uksV ds vk/kkj ij e`rd ;ksxUs nz dks iqfyl us pkSdh
xqIrk }kjk vius gh edku esa yxs lhfyax Qsu esa Fkkuk xn~nh ij cSBk;s j[kk ,oa ljsvke viekfur
yqx
a h ls Qank cukdj vkRegR;k dj fy;k x;kA fd;k ftlds dkj.k ;ksxsUnz us xykfuo'k vkRegR;k
lanfHkZr vfHk;ksx ds foospuk rRrdkyhu {ks=kf/kdkjh dj yh tks /kkjk 306@342@506@120 ch] Hkk0 na0
dsjkdr Jh us=iky flag }kjk dh x;h rFkk fo0 ds vUrxZr izFke n`"V;k vijk/k dk izekf.kr
foospuksijkUr Jherh jhuk xqIrk }kjk vius ifr gksuk ik;k x;k gSA
e`rd ;ksxUs nz dqekj xqIrk dks iw.kZ:is.k mRihfMr
djus dk nks"kh ik;s tkus ij dsoy Jherh jhuk xqIrk laLrqfr%&
646 INDIAN LAW REPORTS ALLAHABAD SERIES

vijk/k 'kk[kk dh lEiw.kZ foospuk ds e/; for passing the order impugned. We may
miyC/k vfHkys[kh;@ekSf[kd ,oa ifjfLFkfrtU; lk{; record that the report runs in two and half
ds fo'ys"k.k ls vfHk;qDr Jherh jhuk xqIrk iRuh Lo0 pages. The first two pages deals with the
;ksxUs nz dqekj xqIrk ,oa vfHk;qDr fot; dqekj xqIrk investigation done by the civil police,
iq= vxuw xqIrk ds fo:} /kkjk 306@120ch] Hkk0 na0
which was not accepted by the High
fo0 dk vijk/k izekf.kr gksuk ik;k x;k gSA Jherh
jhuk xqIrk ds fo:} tuinh; iqfyl ds foospd Court as per its judgment dated
}kjk iwoZ esa vkjksi i= izsf"kr fd;k tk pqdk gS 22.07.2011 referred to above and
ftlesa fdlh cnyko dh vko';drk ugh gSA vr% investigation was directed through
vfHk;qDr fot; dqekj xqIrk ds fo:} /kkjk C.B.C.I.D. The facts upto that stage are
306@120 ch0] Hkk0 na0 fo0 ds vUrxZr /kkjk 173 not of much relevance. The later part of
na0 ia0 la0 ds rgr iwjd vkjksi i= izsf"kr ,oa mi the report contains the judgment of
fujh{kd izHkkjh] pkSdh Fkkuk xn~nh Jh fodkl ik.Ms;] Supreme Court, which deals with
vkj{kh e/kqlwnu feJk o vkj{kh izHkwukFk jke ds fo:} protection to be provided to the officers. It
/kkjk 306@342@506@120ch] Hkk0na0 fo0 dk vijk/k is the law applicable.
izFke n`"V;k izekf.kr ik;k x;k gSA ek0 U;k;ky; esa
vfHk;ksx pyk;s tkus gsrq i;kZIr lk{; gSA vfHk;qDr
jhuk xqIrk o vfHk;qDr fot; dqekj xqIrk ds fo:} 14. The consideration of the report of the
vfHk;kstu Lohd`fr dh vko';drk ugha gS buds C.B.C.I.D is only in the last paragraph of the
fo:} vkjksii= izfs "kr fd;k tk jgk gSA opinion of Rangnath Pandey, Special Secretary
(Law) & Addl. Legal Remembrances, Govt. of
vr% mifujh{kd@rRdk0 izHkkjh pkSdh Fkkuk U.P., Lucknow, which reads as follows :
xn~nh Jh fodkl ik.Ms; vkj{kh e/kqlwnu feJk o
vkj{kh izHkwukFk jke mijksDr dks U;k;ky; esa "bl izdkj iz'kklfud foHkkx }kjk i`"B 18 ls 22
vfHk;kstu fd;s tkus gsrq /kkjk 197 ¼2½ na0 iz0 ij vafdr fVIIk.kh rFkk foospukf/kdkjh }kjk voxr djk;s
la0 ds vUrxZr vfHk;kstu Lohd`fr ,oa /kkjk 45 x;s rF;ksa ,oa iqfyl v/kh{kd vijk/k 'kk[kk] vijk/k
¼2½ na0 iz0 la0 ds vUrxZr fxjQrkj fd;s tkus vuqla/kku foHkkx y[kuÅ ds i= fnukad 14&2&2012 ds
dh vuqefr okafNr gSA lkFk gh lkFk ;g Hkh lkFk layXu vfHkys[kh; ,oa ekSf[kd lk{;ksa ds izdk'k esa
vuqjks/k gS fd vfHk;kstu Lohd`fr ds fy, frfFk eqdnek vijk/k la[;k 829@1010] vUrxZr /kkjk
306]506] 323] 120ch] Hkk0 na0 fo0 Fkkuk dsjkdr tuin
fu/kkZfjr dj voxr djkus dh d`ik djs rkfd tkSuiqj ls lecfU/kr mifujh{kd fodkl ik.Ms; vkj{kh
lecfU/kr foospd dks le; ls fopkj foe'kZ izHkwukFk vkSj vkj{kh e/kqlwnu ds fo:} vfHk;kstu
fd;s tkus gsrq Hkstk tk ldsA" Lohd`fr iznku fd;s tkus ij lQyrk dh lEHkkouk {kh.k
izrhr gksrh gSA"
12. From the order of the State
Government, it is apparently clear that there 15. We have no hesitation to record
has been complete non application of mind to that such reports, which do not even take
the facts disclosed in the report of the into consideration as to what has been
C.B.C.I.D. along with the evidence collected found and recorded by the C.B.C.I.D in
and reasons assigned for investigation being its report seeking prosecution, is patently
done against the police officers also. unjust. The opinion appears to be tailor-
made to suit only the interest of the police
13. Now turning to the Annexure- officers involved. Even the order of the
CA-2 of the counter affidavit i.e. report of High Court dated 22.07.2011 and its
the Special Secretary (Law) & Addl. impact has gone unnoticed in the report of
Legal Remembrances, Govt. of U.P., Special Secretary (Law) & Addl. Legal
Lucknow, which is alleged to be the basis Remembrances, Govt. of U.P., Lucknow.
2 All] Smt. Meena Manral & Ors. Vs. State of U.P. & Anr. 647

16. From the records we find that for Vs. Mahesh G. Jain reported in (2014) 1
six months no action was taken in the matter Supreme Court Cases (Cri) 515.
of passing of the orders in respect of the
application to sanction for prosecution made 21. We have gone through the
by the C.B.C.I.D. It was only when a judgment and we find that the same is clearly
contempt petition was filed before the High distinguishable in the facts of the case.
Court being Contempt Petition No.2689 of
2012 that the State Government got an 22. Writ petition is allowed with
opinion from the Special Secretary (Law) & aforesaid observations.
Addl. Legal Remembrances noted above. --------
Thereafter, the Special Secretary (Law) & ORIGINAL JURISDICTION
Addl. Legal Remembrances, Govt. of U.P., CIVIL SIDE
DATED: ALLAHABAD 13.05.2014
Lucknow has proceeded to refuse the sanction
for prosecution. We may record that the date
BEFORE
fixed in the contempt proceedings for decision THE HON'BLE AMRESHWAR PRATAP
being taken on the request of the C.B.C.I.D SAHI, J.
was 27.05.2013. THE HON'BLE RAJAN ROY, J.

17. In the aforesaid circumstances we Civil Misc. Writ Petition No. 61522 of 2012
feel it just and proper to quash the order dated
23.05.2013. It is ordered accordingly. Smt. Meena Manral & Ors. ...Petitioners
Versus
State of U.P. & Anr. ...Respondents
18. Having regard to the report of the
C.B.C.I.D we direct the Principal Secretary, Counsel for the Petitioners:
Home, Govt. of U. P., Lucknow to revisit the Sri L.C. Srivastava, Sri Neeraj Srivastava
matter and act in accordance with law
preferably within a period of two weeks of Counsel for the Respondents:
the receipt of a certified copy of this order. It C.S.C.
may only to be noticed that the High Court in
its order dated 22.07.2011 quoted above had Constitution of India, Art.-226-Protection of
specifically directed that the report shall be status and pay-given by High Court-
confirmed by Apex Court-petitioner working
submitted by the C.B.C.I.D. to the Court as Project officer under Basic Education
concerned. department-by order 23.03.01 treated ex-
cadre holder post-quashed-with finding once
19. So far as Rangnath Pandey, Special government decided to absorbs considering
Secretary (Law) & Addl. Legal long period of their service-petitioner
became surplus employee entitled for pay
Remembrances, Govt. of U. P., Lucknow is
protection as well as status-by impugned
concerned, he is a judicial officer on deputation order government again decide to absorbs
with the State Government. He is cautioned to on post of LT grade-in revise pay scale-held-
be more careful in future. order nothing but mud wash quashed-
direction to reconsider fisibility of pay
20. Learned Additional Government protection as well as status-if found entitled
shall be given every consequential benefit.
Advocate has placed reliance upon the
judgment in the case of State of Maharashtra Held: Para-14
648 INDIAN LAW REPORTS ALLAHABAD SERIES

Consequently, we direct the State the State Government taking a lenient view
Government to reconsider the matter passed an order on 24.03.2001, by which the
pertaining to the issue of grant of
petitioners, i.e. the project officers, who were
equivalent status to the petitioners as
ordered by this court in its judgment
not having any lien anywhere, their services
dated 05.04.2002 by considering all the were decided to be absorbed as Assistant
relevant aspects of the matter including Teachers in L.T. Grade instead of terminating
the recommendation dated 23.06.2010 their services and in pursuance of the said
against existing post or any other decision, the petitioners were adjusted against
equivalent post. It shall be open for the the said post in government inter colleges in
petitioners also to file appropriate
representation stating therein their
the pay-scale of Rs.4500-7000/-.
version before the State Government. The
State Government shall take a decision in
this regard within a period of three 2. Not being satisfied with the aforesaid
months from the date of production of a orders dated 23.03.2001 and 24.03.2001, the
certified copy of this order before it and in petitioners approached this court by filing
the event, the claim of the petitioners is
accepted then all consequential benefits
various writ petitions, which were clubbed
flowing therefrom shall also be granted to together and decided on 05.04.2002. The order
them. The pay protection granted under dated 23.03.2001 was quashed. This court was
the order dated 27.09.2012 shall be of the view that as the government had not
subject to the fresh decision to be taken addressed itself to factors relevant to the
as aforesaid. question as to protection of pay and status, the
same should be remitted to the State
(Delivered by Hon'ble Amreshwar Pratap
Government for reconsideration. Accordingly,
Sahi, J.)
the order dated 23.03.2001 was quashed. The
matter was remitted to reconsider the feasibility
1. The petitioners were engaged under a of protection of pay and status of the petitioners
non-formal education scheme on temporary after taking into reckoning of the relevant
basis against newly created post of Project factors stated in the judgment and, if necessary,
Officer in the pay-scale of Rs.770/- to to modify its order dated 24.03.2001
Rs.1600/-. In the year 2001, the Government accordingly. Thus, essentially the court was of
of India took a decision to abolish the said the view that while absorbing the petitioners as
scheme of non-formal education and initiated assistant teachers in L.T. Grade, the State
another scheme in the name of E.G.S./ A.I.A. Government had not considered the pay and
Consequent to the abolition of the scheme, the status commensurate with the post of Project
petitioners were faced with a situation of Officer, which was being held by them earlier
termination of their services. In these and accordingly, the aforesaid directions were
circumstances, a writ petition being Civil given.
Misc. Writ Petition No.42806 of 2000 was
3. A perusal of the aforesaid judgment
filed by Pradeshiya Pariyojna Adhikdari,
makes it amply clear that the order dated
Anopcharik Shiksha Sangh, U.P., which was
23.03.2001 was quashed and the matter was
disposed of on 09.10.2000 with a direction to
remanded to the State Government to
the State Government to consider the
reconsider the feasibility of "protection of pay
representations of the petitioners. The said
and status of the petitioners after taking into
representations came to be dismissed by the
reckoning all the relevant factors stated in the
State Government on 23.03.2001. However,
2 All] Smt. Meena Manral & Ors. Vs. State of U.P. & Anr. 649

said judgment and if necessary to modify its SLP(C) No. 12422 of 2002 [@ C.M.W.P.
order dated 24.03.2001, accordingly." No. 18619 of 2001], this appeal also
merits dismissal. We order accordingly.
However, insofar as the enforcement of
4. The said judgment was challenged order dated 5th September, 2002 passed
by the State Government before the Supreme by the High Court of Uttarakhand at
Court by means of Civil Appeal No.8658 of Nainital in terms of the subsequent order
2002 and connected appeals, which were dated 8th June, 2004 passed in Civil
dismissed on 01.12.2011. The order passed by Contempt Petition No. 96 of 2003 is
the Supreme Court is being quoted concerned, it will be open to the parties to
hereinbelow: pursue appropriate remedy as may be
available to them in this behalf."

"Having heard learned counsel for the

parties and perused the impugned judgment, 5. After the aforesaid matter attained
we are of the opinion that the direction by finality, the opposite parties considered
the High Court to the Government to the matter and passed an order on
consider the question of protection of pay 27.09.2012, whereby the petitioners were
and status of the writ petitioners in the light granted the revised pay scale
of the observations made in the impugned corresponding to the pay scale of post of
judgment, does not warrant our interference Project Officer/ Assistant Project Officer
with the impugned judgment. Accordingly, after seeking approval of the finance
the appeal is dismissed. department. The relevant extract of the
order dated 27.09.2012 is being quoted
hereinbelow:
However, having regard to the fact that
the issue is hanging fire for over 10 years, we
would request the authorities concerned to "2 bl laca/k essa 'kklu }kjk ekuuh; mPpre U;k;ky; esa
take a final decision in the matter, as ;ksftr dh x;h fo'ks"k vuqKk ;kfpdk la[;k& 8658@2002 ]
expeditiously as practicable and in any case, fnukad 01 fnlEcj] 2011 esa fn;s x;s vkns'kksa ds dze esa
not later than 6 months from the date of iquZfopkj djrs gq;s foRr foHkkx }kjk dh x;h fVIi.kh ds izdk'k
receipt of a copy of this order. esa fuEuor fu.kZ; fy;k x;k gS%&

"ifj;kstuk vf/kdkjh ,oa lgk;d ifj;kstuk vf/kdkjh ds inksa

In view of the order passed in the ij in/kkjd dze'k% osrueku :0 6500&10500 ,oa 5000&8000
appeal, all applications for impleadment esa rSukr Fks k NBs osru vk;ksx ds lanHkZ esa bu osruekuksa dk
lkekU; iqujh{k.k dze'k% osru cS.M&2 :0 9300&34800 ,oa xzsM
and intervention are rendered infructuous osru :0 4600 ,oa osru cS.M&2 :0 9300&34800 ,oa xzsM osru
and are disposed of accordingly. :0 4600 ,oa osru cS.M&2 :0 9300&34800 xszM osru :0 4200
ds inksa ij rSukrh fn;s tkus ls muds osru ,oa Lrj dk laj{k.k
(protection of pay and status) gks tkrk gS k
CIVIL APPEAL NO. 631 of 2007
3 bl laca/k esa eq>s dgus dks funsZ'k gqvk gS fd ,sls ifj;kstuk
vf/kdkjh @ lgk;d ifj;kstuk vf/kdkjh dks 'kklu ds i= la0
In light of the order passed in Civil 454@15&68&izkS0&2001&200'93'@2000 fnukad 24 ekpZ] 2001
Appeal No. 8658 of 2002 arising out of }kjk ,y0Vh0xzsM ds lgk;d v/;kid ds laoxhZ; inksa ij
650 INDIAN LAW REPORTS ALLAHABAD SERIES

lek;ksftr fd;k x;k Fkk k rRle; 281 ifj;kstuk vf/kdkjh@ "By means of this writ petition the
lgk;d ifj;kstuk vf/kdkjh }kjk dk;ZHkkj xzg.k fd;k x;k Fkk petitioners have challenged the order
dsoy 36 ifj;kstuk vf/kdkjh@ lgk;d ifj;kstuk vf/kdkjh us dated 27.9.2012 passed by the State
,y0Vh0xzsM ds lgk;d v/;kid ds laoxhZ; inksa ij dk;ZHkkj Government in-purported compliance of
ugha xzg.k fd;k Fkk k mudh iwoZ dh lsokvksa dks n`f"Vxr j[krs
gq;s ek0 mPpre U;k;y; ds vkns'k ds vuqikyu esa mijksDr the earlier judgment of the Apex Court
'klukns'k dk ykHk iznku djrs gq;s ,y0Vh0xzsM ds lgk;d dated 1.12.2011 passed in Civil Appeal
v/;kid ds laoxhZ; fjDr inksa ij lek;ksftr @ rSukrh fd;s No.8658 of 2002 and connected matters.
tkus dh dk;Zokgh lEiUu djk;k tk; k

4 mDr vkns'k rRdky izHkko ls ykxw ekuk tk;sxk k" By means of the impugned order as per
the State Government the claim of pay and
status of the post of Project Officer/Assistant
6. Still not being satisfied, the Project Officer have been granted to the
petitioners filed instant writ petition petitioners who have been absorbed as L.T.
challenging the aforesaid order dated Grade Assistant Teachers. However, the
27.09.2012 on the ground that the State grievance of the petitioners is that under the
Government has not properly considered judgment dated 1.12.2011 their case for
their cases in the light of the earlier judgment grant of status equivalent to the post of
of this court dated 05.04.2002. It has been Project Officer was required to be
contended on behalf of the petitioners that considered which has not been done by the
while passing the impugned order, the State State Government.
Government has failed to apply its mind to
the aspect of grant of status equivalent to the
post of Project Officer/ Assistant Project The contention is that in view of the
Officer and has erroneously granted pay said judgment they are entitled to be
scale of the said post assuming that by doing considered for being absorbed on the post
so, the equivalent status has also been equivalent to the post of Project Officer,
automatically confirmed. namely, D.I./A.D.I/.D.I.G.S. and to be
given salary in the pay scale
corresponding to the said post which has
7. While entertaining this writ not been done in the instant case.
petition, an interim order was passed on
27.11.2012, by which the operation of the
impugned order dated 27.09.2012 was Sri Sashi Nandan, learned senior
stayed leaving it open for the State counsel appearing for the petitioners in one of
Government to pass appropriate orders the matters has invited the attention of the
dealing with the issue. However, no such Court to certain recommendations made by
decision has been taken by the State Under Secretary, Education Department,
Government during the pendency of the Government of U.P. to the State Government
writ petition. by which he has proposed that the post of
Deputy Basic Education Officers in the pay-
scale of Rs.6000-10500/- which are vacant
8. On 09.03.2014, after hearing the should be kept vacant and the absorption of
matter at length, this court had passed the the petitioners should be considered against
following order:
2 All] Smt. Meena Manral & Ors. Vs. State of U.P. & Anr. 651

the said post which are equivalent to the scale of the erstwhile post of Project
earlier post of Project Officer. Officer, status of Project Officer/
Assistant Project Officer also stood
conferred. Learned counsel for the
The contention is that this petitioners have contended that under the
recommendation has not been considered non-formal education scheme, they were
and the impugned order has been passed not performing a teaching job but were
in a mechanical manner. exercising supervisory functions, whereas
their absorption has been made on the
post of Assistant Teachers in L.T. Grade,
Put up this matter on Tuesday next, i.e. which is a teaching post. Learned counsel
13.5.2014. for the petitioners have also invited the
attention of the court to a
recommendation dated 23.06.2010 made
Learned counsel for the respective parties by the Under Secretary, Department of
shall address the Court on the issue that Education to the State Government, a
what would be the modality for absorbing copy of which is annexed as Annexure-6
the petitioners on a post equivalent to the to the writ petition. The relevant extracts
post of Project Officer as also the of the said recommendation are as under:
feasibility by such an exercise keeping in
view the relevant service rules applicable
to the said post and the promotional "bl laca/k esa iwoZ i`"B&7 ,oa 8 ij fLFkfr Li"V dh tk pqdh gSa k
opportunities etc. of the Feeder Cadres as izdj.k esa ;g mYys[kuh; gS fd dkfeZd vuqHkkx&2 ds 'kklukns'k
also the nature of duties to be performed." l[a;k&20@1@91@dk&2&2008 fnukad 9 twu 2009 esa ;g uhfrxr
fu.kZ; fy;k tk pqdk gS fd foHkkxksa esa miyC/k ljIyl dkfeZdksa
dk lek;kstu dj fn;k tk;s vkSj buds lek;kstu gksus rd
9. Today, the matter has been heard fjDr inksa dks u Hkjk tk;s k blfy, ljdkj @ foHkkx dk ;g
again on the issue of according status nkf;Ro curk gS fd budk vfr'kh?kz lek;kstu dj fn;k tk;s k
equivalent to the post of Project Officer/ buds iSrd` foHkkx csfld f'k{kk vUrxZr gh fujh{k.k vuqHko ds
vuq:i osrueku :0 6500&10500 esa mi csfld f'k{kk vf/kdkjh
Assistant Project Officer. ds 27 vkLFkfxr in fjDr gS k blfy, mDr fjDr inksa ds lkis{k
lek;kstu fd;s tkus esa dksbZ
10. After hearing learned counsel for
the petitioners as also the learned standing fof/kd vFkok vU; dfBukbZ ugha gS k vr% fouez vuqjks/k gS fd
counsel for State and after perusing the iz'uxr ljIyl ifj;kstuk vf/kdkfj;ksa dk bUgha ds iSr`d
material on record including the affidavits foHkkx csfld f'k{kk vUrxZr mi csfld f'k{kk vf/kdkjh ds fjDr
27 vkLFkfxr inksa ds lkis{k lek;kstu vkns'k fuxZr fd;s tkus
filed, we are of the view that the State has
not considered the matter strictly in ds laca/k esa d`i;k mPpkns'k izkIr djuk pkgsa k"
accordance with the observations of this
court made in the earlier judgment dated 11. On an overall consideration of
05.04.2002. Under some misconception, it the facts and circumstances of the case,
has arrived at the conclusion that by we find that the impugned order does not
absorbing the petitioners in L.T. Grade as show any consideration of the
Assistant Teachers and granting the observations made in the report of the
revised pay-scale in respect of the pay- Under Secretary as quoted hereinabove.
652 INDIAN LAW REPORTS ALLAHABAD SERIES

The relevant aspects noted by us in the of the petitioners is accepted then all
order dated 09.05.2014 have also not been consequential benefits flowing therefrom
adverted to by the State Government shall also be granted to them. The pay
while taking the impugned decision. protection granted under the order dated
27.09.2012 shall be subject to the fresh
decision to be taken as aforesaid.
12. The reasons given in the
impugned order for granting of status of
Assistant Teacher in L.T. Grade does not 15. The existing status of the
appear to be sound. The State has not petitioner shall continue till the aforesaid
considered the relevant aspects of the decision is taken by the State
matter, as directed by this court on Government.
05.04.2002 and as has been noticed by us
in the order dated 09.05.2014.
16. The writ petition is partly
allowed.
13. In the aforesaid circumstances, --------
the impugned order, in so far as it relates
to the grant of status of Assistant Teacher
in L.T. Grade to the petitioners is
concerned, is not sustainable and the same
is quashed, and so far as the grant of
status equivalent to the post of Project
Officer/ Assistant Project Officer was
concerned, the same requires no
interference at this stage.

14. Consequently, we direct the

State Government to reconsider the matter
pertaining to the issue of grant of
equivalent status to the petitioners as
ordered by this court in its judgment dated
05.04.2002 by considering all the relevant
aspects of the matter including the
recommendation dated 23.06.2010 against
existing post or any other equivalent post.
It shall be open for the petitioners also to
file appropriate representation stating
therein their version before the State
Government. The State Government shall
take a decision in this regard within a
period of three months from the date of
production of a certified copy of this
order before it and in the event, the claim