Special Appeal No. 138 of 2007 3. After perusing the record as well
as the judgment under appeal we are of
Shami Ahmad …Appellant/Petitioner the view that no interference is called for
Versus in this appeal. It appears that initially the
State of U.P. and others …Respondents appellant was posted as Live Stock
Extension Officer at Cattle Care Centre,
Counsel for the Appellant: Niyamtabad, District Chandauli
Sri Surendra Kumar Mishra wherefrom he was transferred to Cattle
Care Centre, Dulhipur vide Chief
Counsel for the Respondents:
Veterinary Officer, District Chandauli's
S.C.
order dated 14.8.2006 and in his place one
Constitution of India, Art. 226-Service Ram Awadh Yadav, Live Stock Extension
Law-Transfer-at behest of concern Officer was posted at Niyamtabad.
minister of department-held-Minister Subsequently vide order dated 24.8.2006
being responsible for acts and omissions the earlier order of transfer was modified
of his department-direction issued in and the appellant was posted at
public interest-can not be vitiated in law.
Kamalpur/Dhanapur instead of Dulhipur
Held: Para 7
and one Mohd. Hafiz was transferred
from Bhismpur Chakia to Niyamtabad.
Therefore the Minister of the concerned The order dated 24.8.2006 thereafter was
department being responsible for the cancelled by order dated 12.9.2006
acts and omissions of his department, pursuant to the direction issued by Deputy
has issued certain directions, it cannot Director, Animal Husbandry, Varanasi. It
be said that he has no business or reason
to direct the subordinate authorities to
appears that the Ministry of Animal
act in a particular manner so long as Husbandry thereafter intervened and
such direction is not inconsistent with pursuant to the Government Order dated
any statutory provision. 28.11.2006, the cancellation order dated
Case law discussed: 12.9.2006 was recalled. Thereafter by
2002 (1) UPLBEC-369 order dated 2.1.2007 the appellant has
1997 (1) SCC-35
AIR 1997 SC-3297
been posted at Bhismpur Chakia i.e. the
place wherefrom Sri Mohd. Hafiz was
(Delivered by Hon'ble S. Rafat Alam, A.C.J.) transferred to Niyamtabad and the said Sri
Mohd. Hafiz has been sent Niyamtabad
1. Heard Sri S.K. Mishra, learned whereagainst the appellant filed the
counsel for the appellant and also perused aforesaid writ petition which has been
the judgment of the Hon'ble Single Judge dismissed by the Hon'ble Single Judge.
dismissing the appellant's writ petition The only ground which has been taken by
challenging the order of his transfer. the appellant and argued before us is that
352 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
the impugned order of transfer having the area than with the higher officers. If
been passed pursuant to the orders of the in such circumstances, the MLA or MP
Minister of the concerned department, takes up the matter and brings to the
therefore, per se it is vitiated in law. We notice of the higher officers or the
do not find any force in the submission. A minister of the concerned department
Minister of the department in our view about the misdeeds of a Government
can give suitable direction in the interest servant, no exception can be taken to such
of the department to the officers a course of action. The representatives of
concerned, since for effective functioning the people (MLA and MP) hold
of the department he is answerable to the responsible constitutional position and
representatives of the people in the there is no presumption that whenever
House. A Division Bench in Narendra they drew attention to the misdeeds of a
Kumar Rai Vs. State of U.P. and Government servant they do so with mala
others, 2002(1) UPLBEC 369 while fide intention. A transfer order passed
considering the transfers made on the soon after a letter or complaint lodged by
representation of representative of people MLA or MP or a political person cannot
i.e. M.L.A. or M.P. observed as under:- be branded as having been done at the
dictate of such a person. There is no
"We are clearly of the opinion that presumption that the authority passing the
from the mere fact that in a Government transfer orders has not applied his
servant is transferred on the basis of a independent mind. It is quite likely that
complaint made by a MLA or MP or a the authority was not aware of the
leader of the political party, it cannot be situation and after the full and correct
held that the same is mala fide and the facts were brought to his notice he
transfer order cannot be struck down on decides to take appropriate action on
the said ground alone without there being objective consideration. We are,
anything more. A MLA or MP is the therefore, clearly of the opinion that
representative of the people and common without there being anything more, the
public has access to him. Often it is very mere fact that a transfer order has been
difficult for a common man to meet the passed soon after a complaint has been
higher officers and to bring to their notice sent by MLA or MP or a political person
the misdeeds or the wrong way of to the minister or superior officers of the
functioning of a Government servant at a concerned department, it cannot be
lower level. It is not possible for a branded as having been passed without
common man to go to the capital of the application of mind or on the dictate of a
State namely, Lucknow, and then to meet political person."
the higher officers to lodge a complaint
against the wrong manner of functioning 4. The position of a Minister of the
of a Government servant. The MLA and Department stands on a much higher
MP visit their constituency frequently and footing. The executive power of the state
meet the members of the public. It is far is exercised in the manner provided in the
easier for the public to lodge a complaint constitution and the various provisions
against the improper functioning of a made thereunder. The Governor runs the
Government servant with their executive Government of State with the
representative namely the MLA or MP of aid and advice of the Chief Minister and
2 All] Shami Ahmad V. State of U.P. and others 353
bureaucrats who work under him. long as such direction is not inconsistent
Therefore, he bears not only moral with any statutory provision. If under the
responsibility but also in relation to all rules something is required to be done in a
the actions of the bureaucrats who work particular manner and by a particular
under him, bearing actual responsibility authority in such case obviously a
in the working of the department under minister even if holding a high office
his ministerial responsibility. would not be competent to direct such
authority to exercise statutory power in a
13. All purposes or actions for which particular manner but in the absence of
moral responsibility can be attached are such provision the action taken on the
actions performed by individual persons directions of Minister cannot be said to be
composing the department. All vitiated in law per se. There is nothing on
government actions, therefore, means record to show that the order issued by the
actions performed by individual persons Minister is not in public interest or not in
to further the objectives set down in the the interest of department.
Constitution, the laws and the
administrative policies to develop 8. In the circumstances, we do not
democratic traditions, social and find any fault in the judgment under
economic democracy set down in the appeal and of the view that the writ
Preamble, Part III and Part IV of the petition has rightly been dismissed by the
Constitution. The intention behind the Hon'ble Single Judge. This appeal,
government actions and purposes is to therefore, lacks merit and is accordingly
further the public welfare and the dismissed summarily. Appeal dismissed
national interest. Public good is ---------
synonymous with protection of the APPELLATE JURISDICTION
CRIMINAL SIDE
interests of the citizens as a territorial
DATED: ALLAHABAD 22.02.2007
unit or nation as a whole. It also aims to
further the public policies. The limitations BEFORE
of the policies are kept along with the THE HON’BLE R.K. RASTOGI, J,
public interest to prevent the exploitation
or misuse or abuse of the office or the Crl. Misc. Application no. 3076 of 2007
executive actions for personal gain or for
illegal gratification." Shamsher and others …Applicants
Versus
6. The same view has been reiterated The State of U.P. …Opposite Parties
in Samatha Vs. State of Andhra
Pradesh and others AIR 1997 SC 3297. Counsel for the Applicants:
Sri S.R. Singh
7. Therefore the Minister of the Sri Rajesh Maurya
concerned department being responsible
Counsel for the Opposite Parties:
for the acts and omissions of his
A.G.A.
department, has issued certain directions,
it cannot be said that he has no business (A) Code of Criminal Procedure-Session
or reason to direct the subordinate Trail pending since 1993-after closure of
authorities to act in a particular manner so evidence-application to list both-the
2 All] Shamsher and others V. State of U.P. and others 355
pending session Trail as well as the cross absconding. After issuing proclamation
cases simultaneously Trail court rejected under sections 82 Cr.P.C. the court has
taking view that the applicant -misusing to wait for thirty days from the date of
the bail order-cancelled the Bail Bond- publication of proclamation and then
held-cancellation of bail bond proper but attachment under section 83 Cr.P.C. is to
taking into judicial custody and sending be issued. But if the court is of the view
jail not justified. that the accused is about to dispose of
the whole or any part of his property or
Held: Para 5 is about to remove the whole or any part
of his property from the local jurisdiction
It is true that the cases were of the year of the court, the proclamation under
1993 and when the aforesaid S.T. and its section 82 Cr.P.C. and attachment u/s 83
cross sessions trial were pending in the Cr.P.C. can be issued simultaneously. In
same court, both these cases should such a case, the court must be satisfied
have been listed for evidence on the on the basis of the evidence produced
same date in the court so that accused before it that these circumstances exist
as well as witnesses in both the cases and he has to mention these facts in the
may appear in the court and evidence order for issuing processes under
may be recorded in both the above sections 82 and 83 Cr.P.C.
sessions trials in presence of the parties. simultaneously.
The Presiding Officer of the court
concerned was of the view the accused (Delivered by Hon'ble R.K. Rastogi, J.)
were mis-using the bail and so he
cancelled their bail bonds. He could do
so, but there was no provision for taking 1. This is an application under
that accused into judicial custody and section 482 Cr.P.C. to quash the
sending him to jail, who was present in impugned order dated 11.1.2007 passed
court. The Presiding Officer is not by the Addl. Sessions Judge/Fast Track
justified in this regard. Court no.2, Azamgarh passed in Sessions
Trial no. 18 of 1993 (State Vs. Ram
(B) Code of Criminal Procedure-Section
482-power of court-Trail court issued
Bahore) under sections 147, 148, 149,
non-bailable warrant with process of 82 323, 352 & 307 I.P.C. police station Rani
and 83 Cr.P.C.-held-committed great Ki Sarai district Azamgarh.
error-both can not be issued
simultaneously. 2. Heard learned counsel for the
applicants and learned A.G.A. for the
Held; Para 6
State.
It further appears that on the above date
Presiding Officer further passed an order 3. The facts relevant for disposal of
for issuing non-bailable warrants and this application are that the aforesaid
processes under sections 82 and 83 sessions trial is pending in the above court
Cr.P.C. simultaneously against the and date 11.1.2007 was fixed in the case.
accused persons. He again committed
legal error because all these processes
On that date accused Arvind was present
cannot be issued simultaneously. The with his counsel, and the remaining
warrant is to be issued at the first accused Vijay Bahadur, Shamsher,
instance and when the accused does not Sarakchand, Subhash, Randhir,
appear in court even after issue of Raghunath, Smt. Radha Devi and Smt.
warrant, the process under sections 82 Salari Devi were absent. An application
Cr.P.C. can be issued only when there is
a report to this effect that he is
for exemption on their behalf was moved,
356 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
but the Presiding Officer of the court proper order would have been to grant
concerned was of the view that the above exemption for that date only with a
case as well as its cross case which were direction to all the accused to appear in
of the year 1993 were pending in his court person in the court on the next date
for evidence but the accused persons were further providing that no request for
delaying the proceedings of the case, exemption shall be entertained on the next
hence, he rejected the application for date and non-bailable warrant shall be
exemption holding that they were mis- issued against the defaulting accused, and
using bail and cancelled their bail bonds. in this way the delaying tactics could be
He took accused Arvind present in court lawfully curbed.
in judicial custody and sent him to jail and
passed orders for issuing non-bailable 6. It further appears that on the
warrants and processes under sections 82 above date Presiding Officer further
and 83 Cr.P.C. against the remaining passed an order for issuing non-bailable
accused and also issued orders for issuing warrants and processes under sections 82
notice to the sureties fixing 19.1.2007. and 83 Cr.P.C. simultaneously against the
Aggrieved with that order applicants have accused persons. He again committed
filed this application. legal error because all these processes
cannot be issued simultaneously. The
4. In this petition complainant Ant warrant is to be issued at the first instance
Lal has also been impleaded as O.P. no.2 and when the accused does not appear in
but since it is a State case there is no court even after issue of warrant, the
necessity to hear him. The learned process under sections 82 Cr.P.C. can be
counsel for the applicants submitted that issued only when there is a report to this
he wants to delete the name of O.P. no.2 effect that he is absconding. After issuing
and he is permitted to do so. proclamation under sections 82 Cr.P.C.
the court has to wait for thirty days from
5. It is true that the cases were of the the date of publication of proclamation
year 1993 and when the aforesaid S.T. ,and then attachment under section 83
and its cross sessions trial were pending Cr.P.C. is to be issued. But if the court is
in the same court, both these cases should of the view that the accused is about to
have been listed for evidence on the same dispose of the whole or any part of his
date in the court so that accused as well as property or is about to remove the whole
witnesses in both the cases may appear in or any part of his property from the local
the court and evidence may be recorded in jurisdiction of the court, the proclamation
both the above sessions trials in presence under section 82 Cr.P.C. and attachment
of the parties. The Presiding Officer of the u/s 83 Cr.P.C. can be issued
court concerned was of the view the simultaneously. In such a case, the the
accused were mis-using the bail and so he court must be satisfied on the basis of the
cancelled their bail bonds. He could do evidence produced before it that these
so, but there was no provision for taking circumstances exist and he has to mention
that accused into judicial custody and these facts in the order for issuing
sending him to jail, who was present in processes under sections 82 and 83
court. The Presiding Officer is not Cr.P.C. simultaneously.
justified in this regard. In such a case the
2 All] Shri Chandra Bhushan Singh V. B.S.A, Azamgarh and others 357
Constitution of India the petitioner has terminated by the institution by the order
sought a writ of Certiorari quashing the dated 12.9.1983. Hence the writ petition.
order dated 9.9.1983 passed by the A counter affidavit of Phool Chand,
District Basic Education Officer and a Manager of the institution has been filed
writ of Mandamus directing the wherein it has been stated that the
respondents not to interfere with the appointment of the petitioner was
function of the petitioner as Assistant terminated on 9.9.1983 under Rule 9 of
Teacher in the institution and to quash the the U.P. Recognised Basic Schools
order dated 12.9.1983 passed by the (Recruitment and Conditions of Service
Manager of the institution. Adarsh Junior of Teachers and Other Conditions) Rules,
High School, Kamaluddinpur, Azamgarh 1975. Further it has been stated that since
is an unaided institution and is not the appointment of the petitioner was not
governed by the' provisions of Payment of in accordance with the aforesaid Rules
Salaries Act, 1971. He was appointed as a 1975 so there is no question of
teacher in Junior High School in the year confirmation of petitioner under Rule 12
1978 in C.T. grade. The petitioner of Rules, 1978. The main defence is that
possesses the requisite educational the procedure as prescribed under Service
qualification and was selected by Rule, 1978 was not followed in toto.
Selection Committee and the Committee Therefore, the appointment of the
of Management in its meeting held on 25th petitioner is illegal and void.
of June, 1978 accepted the
recommendation of the Selection 2. A supplementary counter affidavit
Committee and appointed the petitioner is on the record wherein it has been stated
on probation of one year. The petitioner that since the institution in question is
joined the institution and is working as unaided institution and is not getting any
teacher w.e.f. 1st of July, 1978. The financial aid from the government, the
petitioner shall be deemed to have been writ petition is basically directed against
confirmed on expiry of probation period the Committee of Management. The
in view of Rule 12 of U.P. Recognized appointment of the petitioner was not
Basic School (Junior High Schools) made in accordance with the service rules.
(Recruitment and Conditions of Service
of Teachers) Rules, 1978 and is not 3. The learned counsel for the
related to any member of the Committee petitioner submitted that even though
of Management of the institution and as there is no formal approval of the
such has no disqualification for being appointment of the petitioner, the
appointed as a teacher in the institution. petitioner is continuing as Assistant
The District Basic Education Officer by Teacher since 1st of July, 1978. It was
letter dated 9.9.1983 Annexure-2) fault of Management to send the papers
disapproved the appointment of the late to the District Basic Education
petitioner as Assistant Teacher as he was Officer. Attention was invited towards the
appointed on 1st of July, 1978 after fact that an interim order was passed by
commencement of the Service Rules, this Court on 2nd of December, 1983
1978. In pursuance of the aforesaid letter staying the operation of the order of the
of the District Basic Education Officer, District Basic Education Officer dated 9th
the services of the petitioner has been of September, 1983. An application for
2 All] Shri Chandra Bhushan Singh V. B.S.A, Azamgarh and others 359
vacation of the said order was filed on petitioner played any fraud or adopted any
behalf of the Committee of Management. deceitful means to obtain the appointment
The interim order was confirmed on 11th in question. It does not lie in the mouth of
of July, 1984. It was submitted that the the Committee of Management who
petitioner, possesses the minimum appointed the petitioner, to say that the
educational qualification and is teaching appointment of the petitioner was made
in the institution since July, 1978 and .in without following the prescribed
this view of the matter, if there was any procedure. The Committee of
irregularity in his appointment, the Management is stopped to challenge the
appointment cannot be cancelled at this legality and validity of the appointment of
distance of time. the petitioner as Assistant Teacher in the
institution in question as he is
4. In reply, the learned counsel for uninterruptedly working in the institution
the respondent no.2 submitted that the since 1st of July, 1978.
appointment of the petitioner was made
by the Committee of Management 6. A Division Bench of this Court in
contrary to the relevant service rules. Rajendra Prasad Srivastava Vs. District
Reliance has been placed upon a Division Inspector of Schools 1994 (3) ESC 117
Bench Judgment of this Court in Ram has held that it will be highly unfair to
Ashrey Vs. District Judge, Bijnore remove a person from service after about
(2004) 2 U.P.L.B.E.C. 2070 and it was 20 years on the ground that his initial
contended that appointment/continuation appointment was illegal. Smt. Rani
in service by interim order, does not Srivastava Vs. State of U.P. (1990J 1
create any legal right in favour of the UPLBEC 425 is an authority for the
appointee. proposition that the Committee of
Management who appointed the Head
5. It is not in dispute that the Mistress initially on probation cannot put
petitioner was selected and was appointed to an end the appointment after 5 years for
as Assistant Teacher on 1st of July, 1978. infirmity in making the appointment.
He is working since then. In the counter
affidavit filed on behalf of the Committee 7. The Apex Court in Dr. M.S.
of Management it is not denied that the Mudhol and others Vs. S.D. Halegkar
petitioner is working since 1st of July, and others 1993 (2) E.S.C. 245 has held
1978. It is not clear either from the writ that it would be iniquitous to set aside the
petition from the counter affidavit filed on appointment of the Principal of the private
behalf of the respondent no.2 as to when aided School who was appointed without
the papers were sent by the Committee of having requisite qualification after 12
Management for obtaining approval of the years for default of Director of Education
petitioner's appointment. It was and Selection Committee.
encumbent upon the Committee of
Management to follow the procedure 8. The Apex Court in Miss Rekha
prescribed by law before offering Chaturvedi Vs. University of Rajasthan
appointment letter to the petitioner. In the 1993 ESC 231 held that selection of
counter affidavit it is not the case of the candidates was illegal but refused to set it
Committee of Management that the aside as selected candidates have been
360 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
working in their respective posts for the interim order, does not create any legal
last almost 8 years. right in favour of the appointee. There is
no quarrel to the above proposition of
9. In Shanti Devi Verma Vs. Deputy law. But the said proposition is not
Director of Education, 1982 applicable to the facts of the present case
U.P.L.B.E.C. 365 it has been held by this in as much as the petitioner was appointed
Court that if a candidate lacks prescribed on a substantive vacancy on a permanent
qualification at the time of appointment post. It was for the Management to obtain
but such appointment was not obtained by requisite approval from the concerned
fraud, it will be case of irregular authority for the appointment of the
appointment and as such disqualification petitioner. The Management who offered
can be cured by that teacher by getting appointment to the petitioner later on
himself qualified after his appointment. cannot turn around and say that the
appointment of the petitioner is illegal or
10. In view of the above void. It is of some interest to note that this
pronouncements particularly taking into Court on a stay vacation application filed
consideration that it is not a case of any on behalf of the-Committee of
fraud or connivance and the petitioner has Management has observed as follows:-
put in best part of his life in service, it is
not desirable at this distance of time to “At the instance of the Committee of
uphold the order the respondent no.1 Management I am not prepared to vacate
refusing to approve the appointment of the Interim order dated 2.12.1983. The
the petitioner. There is absolutely no application is rejected."
explanation why the Committee of
Management sat over the matter for a In any case, the contesting
period of about 5 years. respondent no.2 cannot be heard taking
shelter behind his own wrong.
11. Ram Ashrey Vs. District Judge,
Bijnore (2004) 2 U.P.L.B.E.C. 2070 was 12. In view of the above discussion,
relied upon by the learned counsel for the the writ petition is allowed. The
respondent no. 2. The said case is in impugned order dated 9.9.1983 filed as
respect of a temporary employee. It has Annexure - 2 to the writ petition so far as
been held that a temporary employee has it relates to the disapproval of the
no right to hold the post and his services appointment of the petitioner as Assistant
are liable to be terminated without Teacher is concerned, is quashed.
assigning any reason. In that connection, Resultantly, the consequential order
it has been held that no litigant can derive issued by the respondent no.2 is also
any benefit from mere pendency of a case quashed. The respondents are commanded
in court of Law, as the interim order not to interfere with the functioning of the
always merges in the final order to be petitioner as Assistant Teacher in the
passed in the case and if the writ petition institution. No order as to costs.
is ultimately dismissed, the interim order Petition allowed.
stands nullified automatically. In para 44 ----------
of the report it has been held that
appointment/continuation in service by
2 All] Anit Devi V. State of U.P. and another 361
Shailesh Pratap Singh is hereby set aside. interested must further be a person
The matter is remanded back to C.J.M. aggrieved by the award of the Collector.
Case law discussed:
Azamgarh to decide it in accordance with
AIR 1986 SCC(4) 151, 1995 (2) SCC 689, AIR
law. 1996 AWC-1237, 1995 (2) SCC 733, 1995 (2)
---------- SCC 735, 1995 SC 2259, 1995 (2) SCC 766,
ORIGINAL JURISDICTION AIR 1995 SC 812, 2004 (7) SCC 753, 1991 (1)
CIVIL SIDE SCC 174, 2003 (7) SCC 280, 1997 (6) SCC
DATED: ALLAHABAD 07.03.2007 280, AIR 1963 SC 1716
BEFORE
THE HON’BLE DR.B.S.CHAUHAN, J.
(Delivered by Hon'ble Dr. B.S. Chauhan, J.)
THE HON’BLE UMESHWAR PANDEY, J.
1. This writ petition has been filed
Civil Misc. Writ Petition No. 24773 of 2004 challenging the order dated 23.02.2004,
by which Reference Court rejected the
Chandra Kishori …Petitioner application of the petitioner under Section
Versus. 28-A of the Land Acquisition Act, 1894
The State of U.P. and others …Respondents (hereinafter called the Act).
18 of the Act. However, the issue is as to reason of their poverty and ignorance
whether such a poor person is to be have failed to take advantage of the
examined by the Court. But, it is right of reference to the civil court
admittedly only for those who had not under Section 18 of the Land Acquisition
filed the application for Reference under Act, 1894. On the contrary, the petitioners
Section 18 of the Act. The Reference belong to an affluent class.......”
Court placed reliance upon certain
judgments of the Hon'ble Supreme Court 6. The Apex Court approved the law
wherein it has been held that the laid down in Mewa ram (Supra) again in
application under Section 28-A can be Scheduled Caste Cooperative Owning
maintained provided an application under Society Ltd. Batinda Vs. Union of India
Section 18 had been filed. It does not be a and others, AIR 1991 SC 730.
correct preposition of law.
7. In Babua Ram Vs. State of U.P.
4. Section 28-A of the Act was 1995 (2) SCC 689, the Apex Court again
inserted in the Act by Amendment Act approved and reiterated the law laid down
No.68 of 1984 and it provides for re- in Mewa Ram (Supra) and observed as
determination of the amount of under:-
compensation on the basis of the award of
the Court in respect of a land which has "Legislature made a discriminatory
also been acquired in the same land policy between the poor and
acquisition proceedings if the applications inarticulate as one class of persons to
are filed within a period of three months whom the benefit of Section 28-A was to
from the date of the award of the Court. be extended and comparatively affluent
who had taken advantage of the reference
5. The scope of provisions of under Section 18 and the latter as a class
Section 28-A was considered by the to which the benefit of Section 28-A was
Supreme Court in Mewa Ram Vs. State of not extended. Otherwise, the phraseology
Haryana, (1986) 4 SCC 151 and the Court of the language of the non-obstante clause
placed particular emphasis on para 2(ix) would have been differently worded...... It
of the object and reasons which provided is true that the legislature intended to
for a special provision for inarticulate and relieve hardship to the poor, indigent and
poor people to apply for redetermination inarticulate interested persons who
of the compensation amount on the basis generally failed to avail the reference
of the court award in a land acquisition under Section 18 which is an existing bar
reference filed by comparatively affluent and to remedy it, Section 28-A was
land owner. The Apex Court observed as enacted giving a right and remedy for
under: redetermination.....The legislature appears
to have presumed that the same state of
"Section 28-A in terms does not affairs continue to subsist among the poor
apply to the case of the and inarticulate persons and they
petitioners.......They do not belong to that generally fail to avail the right under sub-
class of society for whose benefit the section (1) of Section 18 due to poverty or
provision is intended and meant, i.e. ignorance or avoidance of expropriation."
inarticulate and poor people who by
364 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
8. A similar view has been taken by policy and became disentitled to the
a Division Bench of this Court in Nanak benefit of" the State policy.
& Ors Vs. State of U.P. & Ors, 1996
AWC 1237 placing reliance of large 11. In Des Raj & Ors. Vs. Union of
number of judgments of the Hon'ble India & Anr., (2004) 7 SCC 753 it was
Supreme Court. held by the Hon'ble Supreme Court that if
a person has applied under Section 18 of
9. Thus, it is apparent that the the Act and pursued the matter further, he
legislature has carved out an exception in is not entitled to maintain the application
the form of Section 28 and made a special under Section 28-A for re-determination
provision to grant some relief to a of compensation. The Court further held
particular class of society, namely poor; that it is mandatory to file the application
illiterate, ignorant and inarticulate people. within prescribed limitation, which runs
It is made only for little Indians. The from the date of the Award under Section
provisions of Section 28-A refers to the 18 of the Act. While deciding the said
"person interested" which means the case the Court placed reliance upon its
original owner and that original owner earlier judgments, including Scheduled
interested must further be a person Caste Co-operative Land Owning Society
aggrieved by the award of the Collector. Ltd., Bhatinda Vs. Union of India & Ors.,
(1991) 1 SCC 174.
10. In G. Krishna Murthy & Ors.
Vs. State of Orissa, (1995) 2 SCC 733; D 12. In State of Andhra Pradesh &
Krishna Vani & Anr. Vs. State of Orissa, Anr. Vs. Marri Venkaiah & Ors., (2003) 7
(1995) 2 SCC 735; Union of India & Anr. SCC 280, the Hon'ble Supreme Court has
Vs. Pradeep Kumari & Ors., AIR 1995 dealt with the issue of limitation and held
SC 2259; and U.P. State Industrial as under:-
Development Corporation Ltd. Vs. State
of U.P. & Ors., (1995) 2 SCC 766, it has "Plain language of the aforesaid
been held by Hon'ble Supreme Court that section would only mean that the period
a person who prefers a Section 18 of limitation is three months from the date
reference cannot maintain an application of the award of the court. It is also
under Section 28-A of the Act. The provided that in computing the period of
benefit of such an exceptional rule cannot three months, the day on which the award
be extended to the petitioners as it would was pronounced and the time requisite for
be against the public policy. In a similar obtaining the copy of the award is to be
situation, the Hon'ble Supreme Court in excluded. Therefore, the aforesaid
Union of India Vs. Shivkumar Bhargava provision crystallizes that application
& Ors., AIR 1995 SC 812 , observed that under Section 28-A is to be filed within
the benefit of State policy which confers three months from the date of the award
certain beneficial rights on a particular by the court by only excluding the time
class of person is meant only for the requisite for obtaining the copy. Hence, it
person whose land was acquired and by is difficult to infer further exclusion of
necessary implication ''the subsequent time on the ground of acquisition of
purchaser was elbowed out from the knowledge by the applicant."
2 All] Kailash and others V. State of U.P. and others 365
13. While deciding the said case statutory provision itself and also run
Court placed reliance on its earlier counter to the law laid down by the
judgment in Tota Ram Vs. State of U.P. Hon'ble Supreme Court referred to herein
& Ors., (1997) 6 SCC 280. The Court above. The said judgments do not lay
further rejected the contention that down the correct legal proposition.
limitation would run from the date of
knowledge distinguishing the earlier 16. In view of the above, the order
judgments on fact and law in Raja Harish impugned cannot be sustained in the eyes
Chandra Raj Singh Vs. Deputy Land of law and is liable to be quashed.
Acquisition Officer, AIR 1961 SC 1500;
and State of Punjab Vs. Qaisar Jehan 17. The petition succeeds and is
Begum, AIR 1963 SC 1604. allowed. The impugned order dated
23.02.2004 is hereby set aside. The case is
14. In Union of India Vs. Munshi remitted to the learned Reference Court to
Ram & Ors., AIR 2006 SC 1716, the redetermine the whole issue addressing
Apex Court has laid down the law that itself to the issue of maintainability,
such an application is maintainable limitation, and then to decide on merit. In
provided a person has not filed an view of the fact that long time has elapsed
application under Section 18 of the Act. and the land has been acquired long back,
The Court held that Section 28-A seeks to learned Reference Court is requested to
confer the benefit of enhanced decide the controversy at the earliest.
compensation on those owners who did
not seek Reference under Section 18. In Learned Standing Counsel and Shri
fact under the said provision they are Shrikant, Advocate, appeared for
entitled for enhanced compensation respondents. Petition allowed.
decreed by the Reference Court and ---------
further as the decreed amount stands APPELLATE JURISDICTION
CRIMINAL SIDE
modified in appeal by the higher Courts.
DATED: ALLAHABAD 09.02.2007
Code of Criminal Procedure-Section 482- has been filed by any of the opposite
offence under Section 420 IPC allegation Parties.
against the applicant-by forged
resolution of L.M.C. got allotted the land
of Gaon Sabha-not eligible person- 4. The brief facts are that opposite
encroached upon the right of SC/SC-FIR party no.2 who was posted as Assistant
lodged by A.C.O.-while under section 198 Consolidation Officer, Tehsil Kher,
(4) of U.P.Z.& L.R. Act-only the collector District Aligarh lodged a first information
empowered to take action-held-FIR report against the applicant on 26.4.2001
lodged by A.C.O. without authority of
at 6.20 p.m. alleging that the applicants on
law-criminal proceeding liable to
quashed.
the basis of resolution dated 19.4.1986 of
Land Management Committee and in
Held: Para 9 collusion with the officers and officials of
the consolidation and revenue department
Therefore, in my opinion the contention obtained the order of mutation from
as raised by the learned counsel for the Consolidation Officer Sadar, Aligarh on
applicants that the Assistant 5.5.1998 in respect of Gram Samaj Land
Consolidation Officer had no authority to
file this first information report is
situate in Mauja Jalakaseru, Tehsil
correct. Therefore the report being Gawana, District Aligarh. Mutation was
without any right the criminal also done in their names, although the
proceeding cannot continue on the basis applicants belong to the general caste and
thereof. Moreover as mentioned above, were not eligible in view of the long list
the fact whether the allotment is legal or of landless labourers belonging to the
not is still subjudice and has to be
decided in the writ petition no. 46405 of
Scheduled Caste etc. In this manner, they
2005. In case it is found that allotments encroached upon the right of the
are not legal. the collector can take scheduled Caste landless labourers and
necessary action as permissible under also damaged the Gram Samaj property.
law. On the basis of this report, a case was
registered and after investigation charge
(Delivered by Hon'ble M. K. Mittal. J.) sheet was submitted against the
applicants. Learned Magistrate took
1. Application has been filed under cognizance and directed to summon the
Section 482 Cr.P.C. for quashing the accused persons by order dated 7.7.2005.
criminal case no. 1704 of 2001 State Vs.
Saroj and other under Section 420 IPC, 5. The contention of the applicants is
P.S. Chandaus, District Aligarh pending that the Land Management Committee
in the Court of Addl. Civil Judge, (J.D.) had passed a resolution recommending
Aligarh. the allotment of land in favour of the
applicant and the same was approved on
2. Heard Sri Gautam Chaudhary, 10.10.1986. Thereafter by order dated
learned counsel for the applicant, learned 5.5.1998 passed by the Consolidation
A.G.A. and perused the record. officer, mutation was directed to be
affected in their names. Against that order
3. In this matter, notices were issued objections were filed before the
to opposite party no. 2 and 3 which have Settlement Officer Consolidation and he
been served on them. No counter affidavit allowed the objection by order dated
2 All] Kailash and others V. State of U.P. and others 367
3.5.2001. A revision no. 172/139 was been properly made or not and that the
filed against the order dated 3.5.2001 Assistant Consolidation Officer had no
before the Deputy Director of occasion or authority to lodge any first
Consolidation and he by order dated information report against the applicants.
7.6.2003 dismissed the revision.
Thereafter applicants filed a writ petition 7. Section 198 (4) of U.P. Z.A. &
no. 29461 of 2003 and by order dated L.R. Act provides that Collector may of
16.7.2003 operation of the impugned his own motion and shall on the
orders dated 3.5.2001 and 7.6.2003 was application of any person aggrieved by an
stayed. The Deputy Director of allotment of land inquire in the manner
Consolidation while dismissing the prescribed into such allotment and if he is
revision on 7.6.2003 had also observed satisfied that the allotment is irregular, he
that the matter was already pending may cancel the allotment and the lease, if
before the Collector and according to his any. Sub Section (7) of the aforesaid
order the parties could take legal action in Section provides the consequence that
the competent Court. The Additional shall ensue in case the allotment or lease
Collector, Administration, Aligarh by is cancelled under Sub Section (4)).
order dated 22.1.2004 held that the Land
Management Committee had passed the 8. In the circumstances of the case,
valid resolution and same was approved Consolidation Officer had directed for
on 10.10.1986 and the complaint was mutation of the names of the applicants
made after 17-1 years on 9.5.2003. He by order dated 5.5.1998. The objection
also held that resolution was passed in filed before the Settlement Officer against
favour of 71 persons and out of them that order was decided on 3.5.2001. The
mutation was done in favour of 35 first information report was lodged by
persons. Against this order a revision no. Assistant Consolidation Officer on
96/2004 was filed before the Assistant 26.4.2001. The copy of this report has
Commissioner, Agra Region, Agra and he been filed as annexure no. 2 by the
by order dated 24.2.2005 partly allowed applicants. There is no mention in this
the revision and remanded the matter to report as to under what authority or order
the Collector. Against that order the the Assistant Consolidation Officer was
applicants filed Civil Misc. Writ Petition competent to lodge this report. According
no. 46405 of 2005 and by order dated to the allegations as made in the report,
7.7.2005 the operation of the impugned applicants had obtained mutation order
order dated 24.2.2005 has been stayed. It from the Consolidation Officer in
appears that this writ petition is still collusion with the officers of the
pending and it shows that the question consolidation and revenue department by
whether the allotment was legal or not is producing the photocopy of the resolution
still subjudice. dated 19.4.1986 i.e. they had played fraud
on the consolidation Court
6. Learned counsel for the applicants
has contended that the collector is 9. In the circumstances, if any
competent authority under Section 198(4) complaint was required to be filed, it
of U.P. Z.A. & L. R Act to see whether could be filed by the Settlement Officer or
the allotment of the Gram Samaj Land has any Court Officer senior to him and not
368 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
counsel for the applicants and has stated posted to a court of competent jurisdiction
that even the counsel did not appear who shall complete the trial expeditiously.
despite time was allowed by the court and
the case was taken up on a number of 8. With the aforesaid directions, this
occasions on the same day at short transfer application stands allowed.
intervals. An application with a prayer not ---------
to give effect to the order issuing non REVISIONAL JURISDICTION
CRIMINAL SIDE
bailable warrant was rejected as no one
DATED: ALLAHABAD 07.02.2007
was present to press the application.
Counter affidavit has been filed by Sub BEFORE
Inspector but no counter affidavit is on THE HON’BLE VINOD PRASAD, J.
record pursuant to the order passed by this
Court on 11.8.2006 directing the Senior Criminal Revision No.32 of 2007
Superintendent of Police, Bulandsahar to
file counter affidavit. Counter affidavit Sukhram …Accused-Revisionist
filed by Sub Inspector mentioned that the (In Jail)
proceeding under Section 82/83 has been Versus
initiated against the applicants and also The State of U.P. …Opposite Party
denied the averments of the affidavit filed
in support of the transfer application. Counsel for the Revisionist:
Sri Ravi Shanker Tripathi
Sri A.P. Tewari
6. After hearing the counsel for the
respective parties at length and taking into
Counsel for the Opposite Party:
consideration the entire facts and A.G.A.
circumstances and also the series of crime
by both the sides as a result of long Criminal Revision-offence under Section
standing enmity, I am of the considered 279, 304A, 427 I.P.C.-punishment of one
view that the trial should be held some month R. I -the accused/revisionist
where else to ensure that it is completed already undergone punishment of 15
expeditiously. The various orders passed days-No useful purpose served-if
revision dismissed and directed to serve
by this Court are sufficient to come to a the remaining period-remaining period
conclusion that if the trial is permitted to of one month R. I altered in to fine of
continue at Bulandshahar, the danger of Rs.15000/- out of which 12,000/- be
repetition of the offences on either side paid to bereaved family-direction issued
will continue to loom large. accordingly.
of 2000. Finding the revisionist guilty revisionist was the accused of the
under Sections 279, 304A, 427 I.P.C. the aforesaid offences and therefore, the
trial court convicted him under the charge sheet was laid against him.
aforesaid sections and sentenced him for
rigorous imprisonment of one month During the trial Anil Kumar
under Section 279 I.P.C, four months Agrawal, informant was examined as
rigorous imprisonment for each of the P.W. l, Y.P. Singhal P.W. 2, Sub
offences under Section 304 A and 427 Inspector J.K. Gangwar P.W.3, Neeraj
I.P.C vide its order dated 22.6.2004. The Garg P.W.4, Gagan Nanda P.W.5,
trial court further ordered that all the Pradeep Suxana P.W.6 in support of the
sentences shall run concurrently. prosecution version. The accused did not
Aggrieved by the aforesaid conviction examine anybody in his defense. From the
and sentences the revisionist preferred evidence on record and finding the case of
Criminal Appeal No.55 of 2004, Sukhram the prosecution to have been proved to the
vs. State, which appeal was heard and hilt, Additional Chief Judicial Magistrate,
decided by Additional Sessions Judge, court no.7, Ghaziabad convicted the
Court no.12, Ghaziabad who was please revisionist for offences under Section 279,
to dismiss the aforesaid appeal on 304A, 427 I.P.C and sentences him for
12.12.2006 in toto, hence this revision one month rigorous imprisonment on the
challenging both the aforesaid orders of first count and four month rigorous
conviction and sentences and the imprisonment each on the rest of the two
affirmation thereof. counts vide his impugned order dated
22.6.04. As has been stated above the
The synopsized allegations against appeal of the accused was also dismissed
the revisionist are that Sunil Kumar by the Lower Appellate Court.
Agrawal (deceased) who was the brother
of Anil Kumar Agrawal, informant, was I have heard Sri A.P, Tiwari, learned
returning on his Moped to his house on counsel for the revisionist as well as
17.12.2000 at 6.00 P.M. when at Rajnagar learned A.G.A. in support and opposition
Fly Over Crossin& Roadways Bus No. of this revision.
U.P.-24-1886 dashed against his Moped
from behind as result of which the Sri A.P. Tiwari learned counsel for
deceased Sunil Kumar Agrawal was the revisionist fairly conceded that so far
thrown on the ground and the said as findings of fact recorded in this
Roadways Bus crushed him to death. revision are concerned both the courts
Neeraj Kumar, a scooter rider chased the below did not commit any error in
said bus on which the driver of the bus recording the said findings of fact.
ran away from the spot after leaving the Consequently, learned counsel for the
bus, The F.I.R. of the said incident was revisionist did not lay much emphasis on
lodged by Anil Kumar Agrawal on the conviction part of the impugned
17.12.2000 at 6.45 P.M. at Police Station judgments and conceded that the
Kavi Nagar, District Ghaziabad, which revisionist has been rightly convicted.
was registered as Crime No. 728 of 2000 However, he addressed the court on the
under the aforesaid sections. The sentence part of the revisionist an
investigation revealed that the present contended that six years has lapsed since
372 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
the incident had taken place and to send of jail of rest of the period of two and a
the revisionist to jail at this belated stage half month should be altered by imposing
for a maximum period of four months a further fine of Rs.15000/- on the
rigorous imprisonment will not serve any revisionist out of which Rs.12000/- shall
useful purpose. He submitted that be given to the family members of the
sentencing the revisionist to jail is not deceased.
going to further cause of justice. Learned
counsel for the revisionist contended that In view of what I have stated above
after the appeal of the revisionist was this revision is allowed in part. While the
dismissed on 12.12.2006, the revisionist conviction of the revisionist is maintained
has already remain in jail for more than a on the aforesaid counts, his conviction of
month and therefore his substantive substantive imprisonment is altered to pay
sentence of imprisonment be altered into a fine of Rs.15000/- in all under all the
fine. three heads. The revisionist is granted one
month from to day to pay the said fine.
Learned A. G .A. on the other hand After the fine is deposited by the
contended that the sentence is too meager revisionist the trial court concerned is
and therefore it should not be altered. directed to pay Rs.12000- as
compensation to the entitled family
I have considered the submission of member of the deceased. For the purpose
both the rival sides. As of now after the of realizing the fine the revisionist is
appeal of the revisionist was dismissed on directed to be released from jail on his
12.12.2006, he is in jail till date. furnishing a personal bond of Rs.20000/-
Therefore one and a half months he has and two sureties each in the like amount
already served out the sentence. In my to the satisfaction of the trial court
view no useful will be served in concerned. In the event of failure by the
dismissing the revision in toto and allow revisionist to deposit the amount of fine,
the revisionist to serve the rest of the which has been awarded on him by this
period of his imprisonment. From the judgment, within the specified time
judgment of the trial court I find that the allowed by this judgment the trial court is
trial court even though has sentenced the directed to issue a warrant of arrest
revisionist for a smaller period of four against him, get him arrested and send
month but it has not cared to anoint the him to jail to serve out the remaining part
done by the revisionist to the bereaved of sentence imposed by it.
family. In matter of such nature I am of
the opinion that the accused must be With the aforesaid direction this
directed to compensate the deceased revision is allowed in part.
family adequately. During the e course of Revision allowed
the argument learned counsel for the ---------
revisionist has informed the Court that
under Motor Vehicles Accident Claim six
lac rupees has been paid to the family of
the deceased already. I am of the view
that under such facts the revision should
allow and, the substantive imprisonment
2 All] The Commissioner Sales Tax V. S/S R.N.P.Narain, Farrukhabad 373
Act (hereinafter referred to as "the Act"), Peppermint Oil and Raunsa Oil are
the limitation for making the assessment covered under the entry " Oil of all
was four years from the end of the kinds". In this regard, Tribunal held as
assessment order, which expired on follows:
31.03.1981, therefore, the assessment
should be made by 31st March, 1981. The "The second dispute in the present
notice under section 21 of the Act was appeals are as to whether Nagar Motha
admittedly not issued within four years Oil, Peppermint Oil, Raunsa Oil being
i.e. by 31st March, 1981, but was issued essential Oils are covered under the entry
on 6th March, 1982 by U.P. Sales Tax of "Oil of all kinds". It has been argued by
(Amendment and Validation) Act, 1983 the learned counsel for the assessee that
(U.P. Act no.16 of 1983), proviso to Nagar Motha Oil, Pepperment Oil and
section 21 (2) of the Act was amended Raunsa Oil are extracted from roots,
and the limitation to make assessment has herbs and plants and are essential oils,
been extended upto 31st December, 1982. hence the same is taxable as "Oil of all
Relying upon the decision of this Court in kinds". The learned counsel for the
the case of M/S Jaiswal Colour Trading assessee has further submitted that in the
Company Versus Commissioner of assessee's case, second appeal no.691/83,
Sales Tax reported in 1987 UPTC 504, Commissioner of Sales Tax Vs. M/S Ram
Tribunal held that the proceeding under Narain Pratap Narain (assessee), for the
section 21 of the Act was barred by assessment year 1975-75, decided on
limitation inasmuch as the amendment 14.4.1983, the Kanpur Bench of the
was not applicable because the entire Tribunal, after relying on the case of M/S
proceeding was closed when the R. Oil and Chemicals, Bareilly Vs.
amendment was introduced. Commissioner Sales Tax, 1983 STI (Alld
H.C) page-295, has already held that
3. Learned counsel for both the Rausa and Menthol Oils are
parties agreed that the question No.2 is manufactured from Rausa and Mentha
squarely covered by the decision of the grass. They are covered under the general
Apex Court in the case of Additional entry "Oil of all kinds". There is nothing
Commissioner (Legal) and another on record to show that the said decision
Versus M/S Jyoti Traders and another of the Tribunal has neither been set aside
reported in 1999 UPTC 45 in which it or the operation of the order is stayed.
has been held that the amendment made, Consequently, we hold that Nagar Motha
extending the period of limitation applies Oil, Peppermint Oil and Raunsa Oil will
to a case where no proceeding was fall under the entry of "Oil of all kinds".
pending.
6. The question for determination is
4. Respectfully, following the as to whether the Nagar Motha Oil,
decision of the Apex Court, question No.2 Peppermint Oil and Raunsa Oil being
is answered in favour of the Department essential oils are covered under the entry
and against the assessee and the order of "Oil of all kinds". It has been argued by
the Tribunal to this extent is set aside. the learned counsel for the assessee that
5. Now coming to question no.1. Nagar Motha Oil, Peppermint Oil and
Tribunal held that Nagar Motha Oil, Raunsa Oil are extracted from roots, herbs
2 All] National Insurance Co. Ltd. V. Smt. Madhulika Lal and others 375
and plants and are essential oils, hence the entry "Oil of all kinds". It is settled
same is taxable as Oil of all kinds. principle of law that effort should be to
Learned counsel for the assessee has classify a commodity under the entry and
further submitted that in the assessee's if it is not possible to classify under any
case in second appeal no.691 of 1983, of the entry then only the commodity
Commissioner of Sales Tax Versus M/S should be taxed as an unclassified goods.
Ram Narain Pratap Narain (assessee) for In the case of Collector of Central
the assessment year 1975-76 decided on Excise, Shillong Versus Wood Craft
14.04.1983, the Kanpur Bench of the Products Ltd. reported in 1995 (3) SCC
Tribunal, after relying on the case of M/S page 454, Apex Court held that the
R. Oil and Chemicals, Bareilly Versus residuary can be resorted to only when
Commissioner of Sales Tax, reported in even a liberal construction of the specific
1983 STI (Alld. H.C.) page 295 has held headings is not capable of covering the
that Raunsa and Menthol Oils are goods in question. Thus, in the absence of
manufactured from Rausa and Mentha any specific entry relating to the aforesaid
grass and they are covered under the three items, being essential oils has been
general entry "Oil of all kinds". There is rightly covered under the generic entry
nothing on record to show that the said "Oil of all kinds".
decision of the Tribunal is either set aside
or the operation of the order is stayed. 9. In the result, both the revisions
are allowed in part. The order of the
7. Learned Standing Counsel was Tribunal is set aside. Tribunal is directed
asked to file the copy of the order of the to pass appropriate orders under section
Tribunal for the assessment year, 1975-76 11 (8) of the Act. Revision allowed.
and to inform whether any revision ---------
against the order of the Tribunal was filed ORIGINAL JURISDICTION
CIVIL SIDE
or not. By supplementary affidavit dated
DATED: ALLAHABAD 7.12.2006
15th December, 2006, it has been
informed that the file relating to the BEFORE
assessment year, 1975-76 is not available THE HON’BLE V M SAHAI, J.
and the order dated 14.04.1984 passed in THE HON’BLE SABHAJEET YADAV, J
appeal no. 691 of 1983 is not traceable.
Learned Standing Counsel is not able to First Appeal From Order No. 820 of 1999
show any illegality in the decision of the
Tribunal. National Insurance Company Ltd.
…Appellant
8. There is no dispute that Nagar Versus.
Smt. Madhulika Lal and others
Motha Oil, Peppermint Oil and Raunsa
…Claimant-respondents
Oil are the oils and they are not been
classified elsewhere under any of the Counsel for the Appellant:
Notification. The entry "Oil of all kinds" Sri. M.S. Haq.
is a generic entry and includes all kinds of
oil. Thus, there appears to be no reason Counsel for the Respondents:
why Nagar Motha Oil, Peppermint Oil Sri. Shashi Nandan
and Raunsa Oil are not covered under the Miss Awantika Banerji
376 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
been that the insurer has no right to file dismissed as such. The tortfeasor can
an appeal to challenge the quantum of proceed with the appeal after the cause
compensation or finding of the Tribunal title is suitably amended by deleting the
as regards the negligence or contributory name of the insurer. In the said case, it
negligence of offending vehicle." also held thus: (SCC p. 206, para 5).
jurisdiction. Further, the view taken in the dependants of the victims of fatal
United India Insurance that since the accidents are really compensated in
insurance companies are nationalised and terims of money and not in terms of
are dealing with public money/fund and to promise. Such a benign provision enacted
deny them the right of appeal when there by the legislature having regard to the
is a collusion between the claimants and fact that in the modern age the use of
the insured would mean draining out or motor vehicles notwithstanding the
abuse of public fund is contrary to the attendant hazards, has become an
object and intention of Parliament behind inescapable fact of life, has to be
enacting Chapter XI of the 1998 Act. The interpreted in a meaningful manner which
main object of enacting Chapter XI of the serves rather than defeats the purpose of
1988 Act was to protect the interest of the the legislation. The provision has
victims of motor vehicle accidents and it therefore to be interpreted in the twilight
is for that reason the insurance of all of the aforesaid perspective".
motor vehicles has been made statutorily
compulsory. Compulsory insurance of 30. It was then urged that if there is
motor vehicle was not to promote the a collusion between the claimants and the
business interest of the insurer engaged in insured does not contest the claim and the
the business of insurance.' Provisions Tribunal does not implead the insurance
embodied either in the 1939 or the 1988 company to contest the claim on the
Act have been purposely enacted to grounds available to the insured or the
protect the interest of the travelling public persons against whom claim has been
or those using the road from the risk made, or in such a situation when the
attendant upon the user of motor vehicles insurer files an application for permission
on the roads. If law would have provided to contest the claim on merit and the same
for compensation to dependants of victims is rejected or where the claimant has
of a motor .vehicle accident, that would obtained an award by playing fraud, in
not have been sufficient unless there is a such cases the insurer has a right of
guarantee that compensation awarded to appeal to contest the award on merits and
an injured or dependant of the victims of the appeal would be maintainable.
a motor accident shall be recoverable
from the person .held liable for the 31. We have already held that unless
consequences of the accident. In Skandia the conditions precedent specified in
Insurance Co. Ltd. Vs.Kokilaben Section 170 of the 1988 Act are satisfied,
Chandravadan (1987) 2 SCC 654 it was an insurance company .has no right of
observed thus: appeal to challenge the award on merits.
However, in a situation where there is a
"In other words, the legislature has collusion between the claimants and the
insisted and made it incumbent on the insured or the insured does not contest
user of a motor vehicle to be armed with the claim and, further, the Tribunal does
an insurance policy covering third-party not implead the insurance company to
risks which is in conformity with the contest the claim, in such cases it is open
provisions enacted by the legislature. It is to an insurer to seek permission of the
so provided in order to ensure that the Tribunal to contest the claim on the
injured victims of automobile accidents or ground available to the insured or to a
2 All] National Insurance Co. Ltd. V. Smt. Madhulika Lal and others 381
person against whom a claim has been tribunal on merits including the ground of
made. If permission is granted and the negligence and/or contributory negligence
insurer is allowed to contest the claim on of the offending vehicle.
merits, in that case it is open to the
insurer to file an appeal against an award 7. The contention of the learned
on merits, if aggrieved. In any case where counsel for the appellant that if an insured
an application for permission is has not filed any appeal, it means he has
erroneously rejected the insurer can failed to contest the claim and that the
challenge only that part of the order while right to contest includes the right to
filing appeal on grounds specified in sub- contest by filing an appeal against the
section (2) of Section 149 of the 1988 Act. award of Tribunal as well and in such
But such application for permission has to situation an appeal by the insurer
be bonafide and filed at the stage when questioning the quantum of compensation
the insured is required to lead his including negligence or contributory
evidence. So far as obtaining negligence would be maintainable or in a
compensation by fraud by the claimant is situation when the insurer files an
concerned, it is no longer res integra that application for permission to contest the
fraud vitiates the entire proceeding and in claim on merit and the same is rejected or
such cases it is open to an insurer to where the liability of payment of
apply to the Tribunal for rectification of compensation is fastened upon the insurer
award. and the insured does not prefer appeal
against the award of Motor Accident
32. For the aforesaid reasons, our Claim Tribunal in that situation the award
answer to the question is that even if no made by Motor Accident Claim Tribunal
appeal is preferred under Section 173 of on the question of quantum of
the 1988 Act by an insured against the compensation inasmuch as on the
award of a Tribunal, it is not permissible question of negligence or contributory
for an insurer to file an appeal negligence howsoever erroneous it may
questioning the quantum of compensation be, would attain the finality and if the
as well a, findings as regards negligence insurer cannot be permitted to challenge
or contributory negligence of the the same by filing appeal under Section
offending vehicle.” 173 of the Act on the quantum of
compensation on merit including
6. In view of the aforesaid legal negligence of offending vehicle in that
position as explained by the Apex Court, situation it would cause serious mischief
it is clear that in absence of any and miscarriage of justice, cannot be
permission granted by the tribunal under accepted for the simple reason that the
Section 170 of the Motor Vehicle Act the Hon'ble Apex Court has dealt with the
insurer/ Insurance Company can file issue in quite detail and has also repelled
appeal challenging the award only on the somewhat similar contention raised by
limited grounds available to the insurer appellant in the aforesaid case, therefore,
under Section 149(2) of the Act. In our this court cannot take different view in the
opinion, it is not open for the matter as the law declared by Hon'ble
insurer/appellant to challenge the Apex Court is binding upon us.
quantum of compensation fixed by the
382 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
Smt. Nausheeda and others …Petitioners We normally refuse to pass any order in
Versus respect of heinous crimes. But where the
State of U.P. and others …Respondents question of social object is involved, we
can not give an absolute go bye.
Therefore, we cannot construe that the
Counsel for the Petitioners: writ petition is not maintainable and
Mohd. Aslam Ansari deserves to be dismissed in limine
Sri Mukhtar Alam without the test of bonafide.
2 All] Smt. Nausheeda and others V. State of U.P. and others 383
(B) Issue a writ, order or direction in the R.C. Deepak, J. was pleased to pass
nature of mandamus commanding the following interim order:
the respondents not to arrest the
petitioners with reference to Case "In my opinion without expressing
Crime No.257 of 2006 under anything on the merit of the case, it is fit
Sections 363,366, 352,504,506 I.P.C. and proper in the interest of justice and
Police Station Gangoh, District equity both that the investigation into the
Saharanpur. case crime no. 257 of 2006 under Sections
363, 366, 352, 504, 506 IPC at Police
2. An F.I.R. has been lodged on 2nd Station Gangoh, District Saharanpur shall
September,2006 by one Safdar, the go on, but the arrest of the petitioners no.2
respondent no.4 herein saying that Afzal to 5 ( Afzal @ Mohd.Afzal, Imran,
alias Mohd.Afzal, kidnapped Gulshana @ Gullo and Sabra ) shall not
Km.Nausheeda, on 8th August,2006, who be effected by the investigating agency till
is allegedly about 15 years of age. the date fixed, provided they cooperate
with the investigation. The order is passed
3. In the writ petition, the concerned accordingly.
girl Nausheeda is the petitioner no.1 when Let a counter affidavit be filed by the
the accused Afzal is the petitioner no.2 investigating officer within three weeks.
along with others. The writ petition is Notice be issued to respondent no.4 to file
supported by the affidavit of Nausheeda counter affidavit within the period
herself describing her age is 22 years. The indicated above.
writ petition is supported by various The case shall appear on list on 1st
annexures including annexure 3 which is November, 2006."
very relevant for the purpose of due
384 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
fairness of the investigation and the trial directed to be personally present before
is in jeopardy. It may defeat the ends of this Court were identified by learned
justice. For the maintenance of the counsel appearing for the petitioners.
administration of justice and to avert the Irrespective of the consideration of issue,
defeat of the ends of justice, it is this Court was pleased to direct the
therefore, necessary that she be kept out petitioners on 15th December, 2006 to get
of the clutches of the accused of case the age proof of both the boy and girl
Crime No.257 of 2006. It is the high time through an ossification test. The part of
to pass a suitable and appropriate order the order dated 15th December, 2006 is as
regarding her custody or for her living in follows:
a healthy atmosphere under the care and
watch of a responsible person. Her natural "For the purpose of getting age
guardian is best person to whom her proof, both the girl and the boy (petitioner
custody may be restored. I do order that nos.1 and 2 herein) will be produced
her custody be restored forthwith to her before the C.J.M., Allahabad along with
natural guardian." their photographs, which will be attested
by the subordinate officer of the C.J.M.
9. In any event while R.C. concerned and then the petitioner nos.1
Deepak,J. was pleased to place the matter and 2 will be sent to the Chief Medical
before Hon'ble the Chief Justice to refer Officer, Allahabad along with the attested
the matter to the third Judge, keeping the photographs for their identification and
writ petition pending. V.D. Chaturvedi, completion of ossification test, report of
J. was pleased to send the matter to the which will be produced before the Officer
office to place the matter before the of the Court within a period of one month
Hon'ble Chief Justice to constitute a full by the learned Government Advocate. If
Bench for determination of the above any copy of the same is available with the
mentioned points. petitioners, they can also file the same."
Hon'ble the Chief Justice constituted 11. From the ossification test report
this Bench and forwarded the matter. it appears that as per the test dated 20th
December, 2006 the age of the boy is 22
The following questions are years when the age of the girl is 19 years.
formulated by the Bench after hearing the The F.I.R. was lodged on 2nd September,
matter on 15th December, 2006: 2006 describing 8th August, 2006 is the
date of the incident. Hence it appears to
(a) What would be the wisdom of the this Court that on the fateful day both the
writ Court under this jurisdiction? petitioners were major.
(b) What relief could be granted by
the writ Court? 12. Now we have to consider the
questions formulated by this Court.
10. We have carefully considered According to us, both the questions, are
the submission of learned counsel intermingled with each other. The relief
appearing for the petitioners and learned will be dependable upon the wisdom.
Government Advocate. Both the Therefore, the entire endeavour of this
petitioners i.e., boy and girl, who were Bench is confined to the question of
386 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
with a rider that in case of any doubt or in From the record it is clear that no rules
absence of any valid age proof document, were framed till the notice to the
petitioners have been given, therefore,
persons concerned will be directed to go
we are of the view that notice given by
for ossification being the valid scientific the respondents to the petitioners itself
test to determine the age and pass order is bad in law and no action under Section
on such determination. 21 of the Act for contravention of Section
4(1-A) can be initiated against the
23. With the above view, the petitioners.
Case law discussed:
reference is formally treated to be
AIR 1987 M.P.-74
disposed of. The matter is directed to be AIR 1995 SC-858
sent back to the appropriate Division 2004 (2) SCC-783
Bench for the purpose of final
adjudication. Reference decided. (Delivered by Hon’ble R.P. Misra, J.)
---------
ORIGINAL JURISDICTION
1. By means of the present writ
CIVIL SIDE
DATED: ALLAHABAD 21.05.2007
petition the petitioners have approached
this Court for quashing the impugned
BEFORE notices dated 6.4.2002 and 22.2.2002
THE HON’BLE R.P. MISRA, J. (Annexures 1 and 2 to the writ petition).
THE HON’BLE SHISHIR KUMAR, J.
2. The petitioners who are traders of
Civil Misc. Writ Petition No.35617 of 2002 sand/ morrum and gitti having their
business premises on different plots in
Suresh Dwivedi & another …Petitioners village Shitalpur and Kalauli in District
Versus
Hamirpur. The petitioners purchase the
The District Magistrate, Hamirpur and
another …Respondents minerals from open market and also from
various lease/permit holders from storing
Counsel for the Petitioners: and transporting for sale to various
Sri Mukesh Prasad customers to take the aforesaid minerals
for private consumption/use.
Counsel for the Respondents:
Sri Vishnu Pratap 3. Notices dated 6.4.2002 and
S.C. 22.2.2002 were received from the mines
officer by which the petitioners were
Mines and Minerals (Regulation and directed to clarify the position regarding
Development Amendment Act, 1979- the genuineness of the stock of morrum.
Rule-4 (1-A)-Liability of royalty-
According to the aforesaid notice, under
petitioners doing business of purchase
and sale of morrum, gitt in their different Section 4 (1-A) no person can stock or
business premises-purchase of morrum transport minerals without permission,
from open market from various leased otherwise action be taken under Section
permit holder-whether liable to pay 21 of the Act. Section 4 of the Act under
royalty? Held-‘No’. the heading "Prospecting or mining
operations to be under license or lease"
Held: Para 17
has been amended by the Mines and
Minerals (Regulation and Development)
2 All] Suresh Dwivedi and another V. The D.M., Hamirpur and another 389
Amendment Act, 1999 and a new of come to a standstill because even they
Section 4 (1-A) of the Act has been cannot transport or store sand even for the
inserted. Section 4(1-A) is being quoted construction purposes of their houses,
below:- since they will be liable for prosecution
under the amended section 21(1) of the
"4(1-A) - No person shall transport Act. Section 21(1) is being reproduced
or store or cause to be transported or below:-
stored any mineral otherwise than in
accordance with the provisions of this Act "21(1) Whoever contravenes the
and the rules made thereunder." provisions of sub-section (1) or
subsection (1-A) of Section 4 shall be
4. The aforesaid section is an punished with imprisonment for a term
enabling provision and it enables the which may extend to two years, or with
Central Government to make rules in fine which may extend to twenty-five
exercise of powers under Section 13 and thousand rupees, or with both."
the State Government has been conferred
power under Section 15 of the Act. It is 5. In case, the amended section are
not in dispute that till date no rules have applied even without framing any relevant
been framed under the Act or the 1963 rules, then a person cannot have a
Rules either by the Central Government, possession even a bagful of sand and will
in exercise of powers under Section 13 or be liable for prosecution under Section 21
13-A of the Act, or by the State of the Act.
Government in exercise of powers under
Section 15 of the Act, which prohibits the 6. Rule 70 of the U.P. Minor
storing and selling of minerals by Minerals (Concession) Rules 1963 is the
wholesale and retail dealers, who are not only provision in respect of
lease/permit holders and who are carrying Transportation of Minerals. Rule 70 is
on their business outside the mining areas. being reproduced below:-
There is no provision in the Act nor under
Rules which prohibits the storing of minor "70. Restriction of transport of
minerals outside any mining area for minerals.-
being sold by retail or wholesale by any
person who is not a lease or permit 1. The holder of mining lease or permit
holder. The intention of the legislature or a person authorised by him in this
while amending Section 4 and inserting behalf may issue a pass in Form MM-11
Section 4 (1-A) was to safeguard its to every person carrying a consignment of
royalty, which was being evaded by the minor mineral by a vehicle, animal or any
lease and permit holders by storing other mode of transport. The State
minerals within the mining area and Government may, through the District
removing them after expiry of mining Officer, make arrangements for the supply
lease or permit, without payment of of printed MM-11 Form books on
royalty. If the legislature was to apply payment basis.
amended section to all the minerals then
the entire construction work and repair 2. No person shall carry, within the
work even by the private persons will State, a minor mineral by a vehicle,
390 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
animal or any other mode of transport, business premises of the petitioners are
excepting railway, without carrying a outside the mining areas, as such, no
pass in Form MM-11 issued by sub-rule Form MM-11 is required for trading in
91). minor minerals and there cannot be any
restriction for the same. Form MM-11 is
3. Every person carrying any minor issued by the lease/permit holder as proof
mineral shall, on demand by any officer of payment of royalty. There is no
authorised under Rule 66 or such officer provision under the Act and rules under
as may be authorised by the State which any permission is required for
Government in this behalf, show the said storing any minerals. The amended
pass to such officer and allow him to section is an enabling provision and it
verify the Correctness of the particulars enables the Central Government to make
of the pass with reference to quantity of rules in exercise of powers under Section
the minor mineral. 13 and the State Government under
Section 15 of the Act, but till date, no
4. The State Government may establish rules have been framed under the Act or
a check post for any area included in any under 1963 Rules either by the Central
mining lease or permit, and when a check Government or by the State Government.
post is so established public notice shall There is no enabling provision under 1963
be given of this fact by publication in the Rules, which prohibits the storing or
Gazettee and in such other manner as transporting the minor minerals outside
may be considered suitable by the State any mining area for being sold by retail or
Government. wholesale by any person who is not a
lease or permit holder.
5. No person shall transport a minor
mineral for which these rules apply from 8. In view of the aforesaid fact, the
such area without first presenting the learned counsel for the petitioners submits
mineral at the check post established for that the notice itself is bad and is liable to
that area, for verification of the weight or be quashed.
measurement of the mineral.
9. Further submission has been
6. Any person found to have made that the Form MM-11 is issued for
contravened any provision of this rule transportation of minerals. It is not for the
shall, on convictions be punishable with purposes of storage of minerals. Rules 57,
imprisonment of either description for a 58 and 59 of the U.P. Minor Minerals
term which may extend of six months or (Concession) Rules, 1963 are not
with fine which may extend to one applicable in the case of the petitioners.
thousand rupees or with both.” Rule 57 provides regarding penalty for
unauthorised mining. Rule 58 is regarding
7. From the perusal of the aforesaid non-payment of royalty, rent or other dues
rule, it is clear that lease or permit holders and Rule 59 is regarding consequences of
will issue a pass in Form MM-11 to every contravention of certain conditions
person carrying a consignment of minor mentioning thereby that if a lease holder
minerals by a vehicle, animal or any other itself commits any breach of any
mode of transport. Admittedly, the conditions, provided in Rules 44 and 46
2 All] Suresh Dwivedi and another V. The D.M., Hamirpur and another 391
holder. It is not disputed that no rules which is to be both before the goods are
have been framed till date of notice issued taken out by the lease holder from the
to the petitioners. The expression quarries and the person who has
otherwise than in accordance with the purchased subsequently in terms of sale
provisions of the Act and Rules made either from the lease holder or from any
thereunder occurring in Section 4 (1-A) of person then it will not be possible for the
the Act is significant in the sense that if person like petitioners to have any
both the Acts and Rules are silent about document regarding payment of royalty.
the procedure for transportation or In this way these goods were coming to
storage, then it will be treated to be vague the market through several hands with the
and arbitrary. result that obviously the subsequent
purchaser do not have and cannot have
14. From the perusal of the aforesaid the royalty pay receipt relating to the
Act of 1957 Rules of 1963, no rules have articles.
been framed either by the Central
Government or by the State Government. 17. From the record it is clear that
no rules were framed till the notice to the
15. Admittedly, now the legislature petitioners have been given, therefore, we
only to prevent the illegal transportation, are of the view that notice given by the
mining and possession of minerals have respondents to the petitioners itself is bad
notified a Rule namely Uttar Pradesh in law and no action under Section 21 of
(Prevention of Illegal Mining the Act for contravention of Section 4(1-
Transportation and Storage) Rules 2002 A) can be initiated against the petitioners.
but the nature of the aforesaid rules are
prospective in nature it is not 18. In view of the aforesaid fact, the
retrospective. writ petition is allowed and the impugned
notices dated 6.4.2002 and 22.2.2002
16. Now the question for (Annexures 1 and 2 to the writ petition)
consideration by this Court is whether the are hereby quashed.
person involved in selling the minerals
after purchasing it from the lease holder No order as to costs. Petition allowed.
and stores in his godown for selling to the ---------
customers, whether it can be called an Act ORIGINAL JURISDICTION
CIVIL SIDE
in view of the provision of Section 4 (1-
DATED: ALLAHABAD 14.12.2006
A) of 1957 Act or in view of the provision
of Rule 70 of 1963 Rules because it BEFORE
clearly says that Form MM-11 is THE HON'BLE V.M.SAHAI, J.
necessary and the minerals cannot be sent THE HON'BLE SANJAY MISRA, J.
outside the mining area unless and until
royalty is paid and the requirement given First Appeal From Order No.1226 of 2000s
in Form MM-11 is complete. It clearly
indicates that immediately when the Smt. Pratima Srivastava and another
mineral is excavated and it is shifted to …Appellants
other place royalty has to be paid. The Versus
Debi Prasad @ Beni Prasad and others
Government has fixed the rate of royalty ...Respondents
2 All] Smt. Pratima Srivastava and another V. Devi Prasad and others 393
297 and has relied on paragraphs 69 and against whom the award is executable. In
98 which are quoted hereunder: case any amount has been paid by the
appellants in pursuance of impugned
"69. The proposition of law is no longer award, they shall be entitled to six percent
res integra that the person who interest on the amount from the date of
alleges breach must prove the same deposit upto the date it is recovered from
The insurance company is, thus, the insurer.
required to establish the said breach
by cogent evidence. In the event the 9. No order is passed as to costs.
insurance company fails to prove that Appeal allowed.
there has been breach of conditions ---------
of policy on the part of the insured, ORIGINAL JURISDICTION
CIVIL SIDE
the insurance company cannot be
DATED: ALLAHABAD 14.12.2006
absolved of its liability. (See Sohan
Lal Passi) BEFORE
98. "Nicolletta Rohtagi was a case where THE HON,BLE DR. B.S. CHAUHAN, J.
a question arose as to whether an THE HON,BLE DILIP GUPTA, J
appeal by the insurer on the ground
dehors those contained in Section Civil Misc. Writ Petition No. 67078 of 2006
149(2) would be maintainable. It was
held not to be. There cannot be any Jayanta Bandhopadhyay and another.
doubt or dispute that defences …Petitioners
enumerated in Section 149(2) would Versus
U.P. Power Corporation limited Lucknow
be available to the insurance & another. …Respondents
companies, but that does not and
cannot mean that despite such Counsel for the Revisionist:
defences having not been established, Sri. G.K. SINGH
they would not be liable to fulfill Sri. V.K. Singh
their statutory obligation under sub-
section (1) of Section 149 of the Counsel for the Opposite parties:
Act." Sri. R.D. KHARE
S.C.
7. In the present case the finding of
the Tribunal on issue no.2 has been found Constitution of India Act 226 -read with
-to be erroneous. The driver was holding a Limitation Act 1963 Section 5(1) (b), 14
claim petition-dismissed on the ground
valid driving license on the day of the of limitation-petitioner instead of
accident, therefore, when the contrary has addressing the tribunal under section 14
not been established by the insurer it of Limitation Act-approached under
cannot absolve itself of the liability. section 5 of the Act-held- petitioner
entitled for the benefit of section 14
8. In view of the foregoing although not addressed the Court -
tribunal directed to decide the claim on
discussion, the appeal is allowed to the merit.
extent that the amount awarded to the
claimant respondents is to be paid by the Held Para 8:
Insurance Company-respondent no.6
2 All] Jayanta Bandopadhyay and another V. U.P.P.C.L., Lucknow and another 395
In view of the above, as the learned advance the arguments on the basis of
Tribunal had not been addressed by the Section 14 of the Limitation Act, 1963.
petitioners for grant of benefit under
Section 14 of the Limitation Act, though
it could have very safely been advanced, 4. In Danda Rajeshwari Vs.
we are of the considered opinion, and it Bodavula Hanumayamma & Ors., (1996)
is also in the interest of justice, that the 6 SCC 199, the Hon'ble Supreme Court
learned Tribunal be requested to decide has held that in case the writ Court has the
the case on merit. We have also power to entertain a petition but does not
examined the matter that in case the
want to decide the same itself and
petitioner is given benefit of Section 14
of Limitation Act, the Claim Petition filed
relegates the party to some other statutory
by him, would not be barred by time forum, the Court can prescribe a
Case law discussed: particular time during which the party
1996(6) SCC-199 may file/present a petition before the said
2004(13) SCC-463 statutory authority. Therefore, this Court
2004(13) SCC-656 may, in exceptional circumstances, pass
1996(6) SC-101
2001(10) SCC-513
an order that in case the statutory
2004(3) SCC-458 authority is approached within the
2005(12) SCC-454 stipulated period, the authority can be
requested to decide the case on merit
(Delivered by Hon'ble Dr. B.S. Chauhan, J.) without entering into the issue of
limitation.
1. This writ petition has been filed
for challenging the impugned judgment 5. In Virendra Kumar Rai Vs. Union
and order dated 14th August, 2006, of India, (2004) 13 SCC 463, the Hon'ble
rejecting the Claim Petition No. 265 of Supreme Court held that where a party
2004 only on the ground of limitation. has approached the High Court or
The learned Tribunal has dealt with Supreme Court without approaching the
various provisions of the U.P. Public statutory forum, in a bona fide manner, he
Service Tribunal Act, 1976 and reached may be entitled of the benefit of
the conclusion that the Claim Petition was provisions of Section 14 of the Limitation
time barred, and the provisions of Section Act. A similar order has been passed in
5 (1) (b) of the Limitation Act, 1963 Trai Foods Ltd. Vs. National Insurance
would not apply in case of the main Co., (2004) 13 SCC 656 relegating the
petition. party by the Hon'ble Supreme Court to the
civil court, giving him the benefit of
2. We have heard Shri V.K. Singh, Section 14 of the Limitation Act. In such
learned counsel for the petitioners and a case, the period for which petition
Shri R.D. Khare, learned counsel for remained pending before the writ Court,
respondent. can be excluded therefrom.
3. The learned Tribunal has only 6. In Roshanlal Nuthiala & Ors. Vs.
been addressed to the effect that of R.B. Mohan Singh Oberai, AIR 1975 SC
Section 5 of the Limitation Act, and it 824, the Hon'ble Supreme Court
appears that the learned counsel appearing considered the provisions of Section 14 of
before the learned Tribunal did not the Limitation Act and held that the said
396 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
petitioner through the College from matter was going on, the report of which
where she appeared in the High School was likely to be submitted. Accordingly,
Examination, 2006 within three weeks
this Court fixed 20.11.2006. On the said
from today. It is further directed that the
petitioner shall be permitted to appear in date the Court directed the learned
the Intermediate Examination 2007- Standing Counsel to produce the result of
2008 and her form be accepted even if the enquiry report and case was directed
the last date has expired. to be listed today.
Ram Manorath and others …Appellants 1. This Review Application has been
Versus filed to review my judgment dated
Surya Pal and others …Respondents 8.12.2004 on the ground that no
permission of Settlement Officer,
Counsel for the Appellants: Consolidation was necessary to execute
Sri Satish Chandra Srivastava sale deed in respect of a land which was
Sri Radhey Shyam already excluded from the consolidation
Sri K.S. Misra scheme at the initial sage of consolidation
Sri Rajesh Dwivedi as is clear from Exhibit 27-C and further
that the execution of a sale deed of entire
2 All] Ram Manorath and others V. Surya Pal and others 399
before selling the disputed Chaks in scheme. He further urged that in the
favour of the appellants. present case as the admitted position at
the time of verification of the spot and
(2) Whether the provisions of the revenue records it was found that the land
Consolidation of Holdings Act do not in dispute was not connected with
apply in this case for reasons mentioned agriculture, horticulture, and animal
in para 12 at page 6 of the Memo of husbandry and did not form part of the
Appeal." land affecting consolidation scheme and,
therefore, Section 5(c)(ii) of the U.P.
7. The Second Appeal was Consolidation of Holdings Act would not
dismissed by my judgment dated affect the impugned sale deed. Thus, the
8.12.2004. That judgment is sought to be sale deed executed by Indrapal may not
reviewed by the present Review be declared void which was also not
Application on the ground that the sale under challenge in the Civil Court by way
deed executed by Indrapal was not hit by of Suit for cancellation on any ground and
Section 5(c )(ii) read with Section 45- the suit for permanent injunction was not
A(2) of the U.P. Consolidation of maintainable against a co-
Holdings Act. tenureholder/co-sharer. Suit was wrongly
decreed. It was prayed that Second
8. On bringing the fact through this Appeal deserves to be allowed.
Review Application to the notice of the
Court that the land in dispute was out of 10. In reply to the same, learned
consolidation scheme right from very counsel for Respondents urged that the
beginning and was recorded in C.H. word ''holding' has been defined under
Form-18 and does not form part of the Section 3(4-C) of the U.P. Consolidation
consolidation scheme, parties had already of Holdings Act according to which
made construction of their residential ''Holding' means a parcel or parcels of
houses on the land in dispute which was land held under one tenure by a tenure-
not in cultivatory possession of parties, holder singly or jointly with other tenure-
they were directed to file their respective holders. He further urged that that the
replies to the Review Application. ''Land' has also been defined under
Pleadings are complete. Section 3(5) of the U.P. Consolidation of
Holdings Act according to which ''Land'
Heard learned counsel for the parties. means land held or occupied for purposes
connected with agriculture, horticulture
9. Learned counsel for the Appellant and animal husbandry. He further urged
urged that Section 5(c)(ii) of the U.P. that it includes all land including the land
Consolidation of Holdings Act will not which is not part of the consolidation
apply in the facts of the suit as intention scheme. He further urged that the
of Legislature while introducing Section judgment and decree passed by this Court
5(c)(ii) of the U.P. Consolidation of while affirming the judgment of the Trial
Holdings Act by way of U.P. Court was rightly passed in accordance
Consolidation of Holding (Amendment) with law. He further urged that the
Act, 1958 was to protect all the land questions again raised through the Review
which are included in the consolidation
2 All] Ram Manorath and others V. Surya Pal and others 401
from the consolidation scheme at the time provided that a tenure-holder may
of spot verification for proposed inclusion continue to use his holding, or any part
of the land in scheme for consolidation thereof, for any purpose for which it was
and was recorded in C.H. Form-18 and in use prior to the date specified in the
the construction also existed on a part of notification issued under Section 4."
the land in suit shown in the consolidation
records published in Village under 17. This very amendment also
Section 9 of the U.P. Consolidation of defines consolidation under Section 3(2)
Holdings Act are not disputed. It was not of the U.P. Consolidation of Holdings Act
brought to the notice of the Court by Sri which means rearrangement of holdings
Radhey Shyam, learned Counsel in a unit amongst several tenure-holders
appearing for Defendant-appellants at the in such a way as to make their respective
time of hearing of Second Appeal. It was holdings more compact. In explanation
brought to the notice of this Court by the there are seven exception by which it has
Review Application. In such a situation, been provided that the land falling in
the important question of law arises to be these exception will not be included in the
considered in undisputed fact is whether consolidation scheme. It is borne out from
Section 5(c)(ii) of the U.P. Consolidation the record that the land in dispute was not
of Holdings Act while enacting U.P. used for the purposes connected with
Consolidation of Holdings (Amendment) agriculture, horticulture and animal
Act, 1958 (U.P. Act No. XXXVIII of husbandry on the date on which the
1958) is applicable in the facts like in the notification under Section 4 of the U.P.
present case. For ready reference Section Consolidation of Holdings Act was issued
5(c) of the U.P. Consolidation of and was not included in the consolidation
Holdings Act introduced by U.P. Act No. scheme as it was exclusively used as
XXXVIII of 1968 is being reproduced Abadi land consisting old constructions.
below:-
18. The purpose for which U.P.
"5(c) notwithstanding anything Consolidation of Holding Act was
contained in the U.P. Zamindari Abolition enacted as mentioned in the Preamble is
and Land Reforms Act, 1950 (U.P. Act of to provide consolidation of agricultural
1951), no tenure-holder, except with the holdings in Uttar Pradesh for the
permission in writing of the Settlement development of agriculture. The purpose
Officer, Consolidation, previously of consolidation as defined under Section
obtained shall- 3(2) of the U.P. Consolidation of
Holdings Act is rearrangement of
(i) use his holding or any part thereof holdings in a unit amongst several tenure-
for purposes not connected with holders in such a way as to make their
agriculture, horticulture or animal respective holdings more compact.
husbandry including, pisciculture and Section 3(4-C) of the U.P. Consolidation
poultry farming; or of Holdings Act defines holding
(ii) transfer by way of sale, gift or according to which ''Holding' means a
exchange any part of his holding in parcel or parcels of land held under one
the consolidation area tenure by a tenure-holder singly or jointly
with other tenure-holder.
2 All] Ram Manorath and others V. Surya Pal and others 403
remedy. A perusal of the Statement of not used for the purposes connected with
Objects and Reasons and the preamble agriculture, horticulture and animal
will clearly establish that the intention of husbandry and not part of the
the Legislature was to provide for consolidation scheme for allotment of
consolidation of agricultural holdings for Chak, any transfer could not be declared
the development of agriculture. If an void as it does not affect consolidation
agricultural holding is used for purposes scheme in any way. This Court is of the
not connected with agriculture, firm view that restriction by way of
development will be retarded and introducing Section 5(c)(ii) of U.P.
similarly is a farmer is to travel from Consolidation of Holdings (Amendment)
place to place to look to his scattered Act, 1958 was to affect transfer of the
fields, again development will be land included in the consolidation scheme
retarded. The prohibition under sub-cl.(ii) and not the land which does not affect the
is to avoid fragmentation by sale, gift or consolidation scheme for allotment of
exchange. It appears to me that it is Chak and excluded from the consolidation
because of this that while under sub- scheme, though it may be in village on
clause(i), the prohibition applies to the notification under Section 4 of the U.P.
entire as well as to the part of a holding; Consolidation of Holdings Act. Therefore,
under sub-clause (ii) it extends to a party this Court fully agreeing with the
only, because if the whole holding is arguments of learned counsel for the
transferred, there can be no fragmentation Defendant-appellants (Opp. Parties
and the only effect will be the substitution herein) is satisfied that the provisions of
of the transferee in place of the transferor. Section 5(c) (ii) of U.P. Consolidation of
Sub-clause (i) and (ii) of the Clause (c), Holdings Act and its consequences
therefore, were purposely enacted to thereof as contained under Section 45-
subserve the purposes of the legislation A(2) of the U.P. Consolidation of
and to avoid the existing evil. Holdings Act shall not affect the
impugned sale deed by which a valid title
20. Considering the Preamble, passed to the Defendant-Appellants.
Object of the Act and other relevant
provisions of U.P. Consolidation of 21. In view of the discussions made
Holdings Act, this Court is of the view above, my order dated 8.12.2004 requires
that intention of introducing Section to be reviewed.
5(c)(ii) of the U.P. Consolidation of
Holdings Act was that if the land included 22. There is another aspect of the
in consolidation proceeding does not matter. Admittedly the land in dispute
affect allotment of Chak proceeding under was out of consolidation scheme in which
U.P. Consolidation of Holdings Act by Indrapal had 1/4th share who executed a
transfer by way of sale, gift or exchange, sale deed in favour of Defendant-
no prior written permission of Settlement Appellants after taking full consideration
Officer, Consolidation as required under by transferring his entire 1/4th share and
Section 5(c )(ii) of the U.P. Consolidation Defendant-transferee would also be co-
of Holdings Act was required. Intention tenureholder for entire 1/4th share of
of Legislature is clear that if any land is Indrapal by way of sale.
2 All] Smt. Risalo V. IInd A.D.J. and others 405
23. In view of the above, Substantial Counsel for the Opposite Parties:
question of law no.1 is decided in Sri Suneel Rai
negative as it was held that no prior S.C.
permission of Settlement Officer,
Consolidation was necessary as required Limitation Act-Section 5-Application for
condonation of delay-in filling
under Section 5(c )(ii) of the U.P.
application under order 9 rule 13 of
Consolidation of Holdings Act and the C.P.C.-Rejection on the ground of want
impugned sale deed could not be declared of proper explaination-held-view taken
void. The judgment of the lower by Trail Court contrary to law.
Appellate Court is vitiated in law and is
liable to be set aside and the suit is liable Held: Para 7
to be decreed. The Substantial question of
Learned counsel for the petitioner
law no.2 is answered in affirmative. submitted that in view of the decision of
the Apex Court, referred to above, is
24. With the result, Review abundant the view taken by the Courts
Application is allowed. The judgment- below in refusing to condone the delay in
dated 8.12.2004 passed in Second Appeal filing the application under Order IX,
stands reviewed and the Second Appeal is Rule 13 is contrary to law. Learned
counsel further submitted that in the
allowed. Judgment of Lower Appellate facts and circumstances the Courts
Court is set aside and the Suit is below ought to have condone the delay
dismissed, but no order as to cost. in filing the application for setting aside
Review allowed ex-parte decree.
--------- Case law discussed:
ORIGINAL JURISDICTION AIR 1987 SC-1353
CIVIL SIDE J.T. 2000 (2) SC-569
DATED: ALLAHABAD 20.03.2007 AIR 1978 486
Order IX Rule 13, read with Section 151 whereas the application has been filed
of the Code of Civil Procedure. On the beyond time and explanation filed for the
pleadings of the parties, it appears that the condonation of delay should not be
petitioner filed a suit before Munsif accepted. The petitioner stated that on
concerned being suit no. 743 of 1992. In 19th October, 1992 she obtained the copy
the aforesaid suit no. 743 of 1992, the of Intkhab from the concerned Lekhpal
defendant-contesting respondent in this and on 30th October, 1992 after the
petition filed written statement on 8th Courts were re-opened, she filed the
September, 1992 and it is only after filing application on 5th November, 1992. The
of the written statement, the petitioner trial Court found that the explanation is
came to know on 8th September, 1992 not sufficient for condonation of delay in
that suit no. 181 of 1989 has been decreed filing the aforesaid application under
ex-parte and the decree was also got Order IX Rule 13, read with Section 151
executed ex-parte passed in suit no. 181 of Code of Civil Procedure, thus rejected
of 1989. The petitioner has explained that the same vide its order dated 24th
on coming to know of the ex-parte decree January, 1998.
dated 30th May, 1989 on 8th September,
1992, the petitioner got the record 3. Aggrieved by the order passed by
inspected on 13th October, as 11th 12th the trial Court dated 24th January, 1998,
and 13th September, 1992 were holidays the petitioner filed appeal before the
and from 14th September, 1992 to 12th lower appellate authority, which vide
October, 1992, the Advocates of the judgment and order dated 13th April, 1998
judgeship were on strike and has filed the dismissed the appeal and confirmed the
application on 5th November, 1992 order passed by the trial Court, thus this
wherein it has been explained that for th writ petition.
first time, as stated above, the petitioner
came to know of the ex-parte decree, it Heard learned counsel appearing on
was therefore prayed that the ex-parte behalf of the parties.
decree may be set aside and the delay, if
any, in filing the aforesaid application 4. Learned counsel appearing on
may be condoned. behalf of the petitioner in support of his
contention relied upon the law laid down
2. The defendant-contesting by the Apex Court reported in AIR 1987
respondent in this petition contested the S.C., 1353 - Collector, Land
statement made by petitioner and Acquisition, Anantnag and another Vs.
submitted that even on her own saying the Mst. Katiji and others, wherein the
petitioner has acquired knowledge of the Apex Court in paragraph 3 has held,
ex-parte decree on 8th September, 1992 which reads as under:-
but she has not given any satisfactory
explanation of not filing the application "3. The legislature has conferred the
for setting aside the ex-parte decree up to power to condone delay by enacting S. 5
9th October, 1992 and even assuming that of the Indian Limitation Act of 1963 in
12th October, 1992 was a holiday for the order to enable the Courts to do
Court, she should have filed the said substantial justice to parties by disposing
application on 13th October, 1992, of matters on 'merits'. The expression
2 All] Smt. Risalo V. IInd A.D.J. and others 407
therefore, set aside. Delay is condoned. 496, wherein the Apex Court has held that
And the matter is remitted t the High "we are inclined to the view that, as far as
Court. The High Court will now dispose possible, Courts' discretion should be
of the appeal on merits after affording exercised in favour of hearing and not to
reasonable opportunity of hearing to both shut out hearing".
the sides.
7. Learned counsel for the petitioner
5. In view of above law laid down submitted that in view of the decision of
by the Apex Court in the case of the Apex Court, referred to above, is
Collector, Land Acquisition (supra), abundant the view taken by the Courts
which has been followed by the Apex below in refusing to condone the delay in
Court in the subsequent decisions in the filing the application under Order IX,
case of G.P. Srivastava Vs. Shri R. K. Rule 13 is contrary to law. Learned
Raizada & Ors. JT 2000 (2) SC, 569 and counsel further submitted that in the facts
International Airports Authority of India and circumstances the Courts below ought
Vs. M.L. Dalmia & Co. Ltd., particularly to have condone the delay in filing the
in view of the law laid down in the case of application for setting aside ex-parte
Collector, Land Acquisition (supra), in decree.
clause 4, 5 and 6, which read thus, in my
opinion the present writ petition deserves 8. On the other hand, learned
to be allowed. counsel for contesting respondent has
submitted that the Courts below have not
4. When substantial justice and committed any error which may warrant
technical considerations are pitted against any interference by this Court.
each other, cause of substantial justice
deserves to be preferred for the other side 9. In view of the above discussions,
cannot claim to have vested right in the writ petition succeeds and is therefore
injustice being done because of a non- allowed. The order dated 13th April, 1998,
deliberate delay. passed by IInd Additional District Judge,
5. There is no presumption that delay is Ghaziabad and the order dated 24th
occasioned deliberately, or on account of January, 1998, passed by the trial Court
culpable negligence, or on account of are hereby quashed. The ex-parte decree
mala fides. A litigant does not stand to dated 30th May, 1989 is recalled and the
benefit by resorting to delay. In fact he suit is restored to its original number on
runs a serious risk. the payment of cost of Rs.500/- to be paid
6. It must be grasped that judiciary is by the petitioner to the defendant-
respected not on account of its power to contesting respondent in this petition. The
legalize injustice on technical grounds but matter will now go back to the trial court
because it is capable or removing injustice with the direction to decide the same after
and is expected to do so. affording an opportunity of hearing to the
petitioner within a period of six months'
6. Learned counsel for the petitioner from the date of presentation of a certified
has also relied upon the decision in the copy of this order before it.
case of Ramji Dass and others Vs. Petition allowed.
Mohan Singh reported in ARC 1978, ---------
2 All] Walliullah V. State of U.P. 409
unable to get lawyer of his choice and previous Sessions Trial No. 872 of 2001,
most of the senior lawyers of the city have the brothers met the applicant in
refused to appear on behalf of the Allahabad Court. Therefore, the applicant
applicant in the trial of the is being denied of his legal right of being
aforementioned three cases. It is further defended by the pleader of his choice as
contended that the atmosphere at the contemplated under Section 303 of the
Court of Sessions at Varanasi is very Code of Criminal Procedure, which is
hostile towards the applicant so much so against Articles 21 and 22(1) of the
that on 21.4.2006, while the applicant Constitution of India. Without his choice,
\Vas produced before the court after his an Amices Curiae has been appointed to
so called arrest, heavy stone pelting was defend the case of the applicant, which is
done by the public and activists of various also against the provision of Section 303
organization posing serious threats to the of the Code of Criminal Procedure. It is
life of the applicant. Photocopy of news- further contended that no lawyers from
paper cutting to the effect is available on out side of Varanasi are ready to go and
record as Annexure-XI to the application. conduct the trials at Varanasi on behalf of
It is further contended that when the the applicant. I t is further contended that
applicant was again produced in court on the applicant is inside jail and he does not
23.4.2006, a mob of lawyers, numbering have any near relative or friend at
in hundreds, gathcrc9 and assaulted the Varanasi who may do Pairvi for him at
applicant in court premises itself while, Varanasi. The learned counsel for the
the administration and police party remain applicant has attracted the attention of the
a silent spectator. Photocopy of news- Court on the following decisions of the
paper cutting to this effect is available on Apex Court:-
record as Annexure-XII to the application.
It is further contended that the atmosphere (1) Ravir Godbole vs. State of M.P.
of Court of Sessions at Varanasi is so (2006) 3 Supreme Court Cases (Cri) 400.
charged that on 3.10.2006, a resolution (2) Sri Jayendra Saraswathy Swami gal
was brought to the Bar Association on a (II) T.N Vs. State of T.N. and others;
signature campaign by the local lawyers (2005) 8 Supreme Court Cases 771
that no lawyer would appear on behalf of (3) Zalziura Habibulla H. Sheikh and
the applicant in the aforesaid connected another Vs.
sessions trials. The true copy of the said State of Gujarat and others 2.004
resolution is also available on record as Supreme Court Cases (Cri) 999
Annexure-XIII to the application. It is (4) Ranchod Mathur Wasawa vs. State of
further contended that the applicant and Gujarat, 1974 Supreme Court Cases (Cd)
his father also brought these facts to the 59.
notice of the Sessions Judge, Varanasi (5) Sesamma Phillip & ETe Vs. P.
and, thereafter, the dates in the trials arc Phillip & Etc.
being given inside jail in specially 1973 Supreme Court Cases (Cd) 349.
constituted court. It is also contended that
till dates none of the family members 4. On the other hand, it is submitted
were allowed to meet the applicant at by the learned A.G.A. that there will be
Varanasi and it was only when the difficulty of the prosecution witnesses,
applicant was produced at Allahabad in a who are fifty five in nwnber in each
2 All] Walliullah V. State of U.P. 411
sessions trial, to go in another district for under this Code, may of right be defended
giving their evidence. It is further by a pleader of his choice.”
contended that hearing of the above
sessions trials is being made in Varanasi 6. The resolutions of Bar, which are
Jail as per the orders of the appropriate Annexures 12 and SA-1 available on
authority. In such circumstances, there record, to the application and
will be no danger to the applicant in jail supplementary affidavit, reveal that
for doing the Pairvi of the ease. It', is resolution was made in the Bar
'further contended that the Advocates of Association for not doing the Pairvi on
outside district can also be engaged to do behalf of the applicant but doing the
the Pairvi of his case. The names of the Pairvi of the prosecution free of costs and
Advocates have not been disclosed in the fee will be paid from the funds of the Bar
transfer application to whom the Pairokar Association of Varanasi. Although such
of the applicant had met to do the Pairvi resolution was deferred in the absence of
of the above sessions trials. In these adequate quorum. However, no Advocate
circumstances, the session’s trials should has been prepared for defending the case
not be transferred merely on the choice of of the applicant in district Varanasi.
the applicant and the transfer application Similarly, no Advocate of the outside of
is liable to be rejected. district is ready to go to Varanasi for
doing the Pairvi of the case of the
5. The incident had alleged applicant. These facts have been
happened in the city of Varanasi at a very mentioned in the affidavit and
religious place i.e. premises of Sankat supplementary affidavit filed on behalf of
Mochan Mandir by making bomb blast at the applicant. No counter affidavit or
three places simultaneously on the same supplementary counter affidavit has been
date and time. Photocopy of news-paper filed on behalf of the State controverting
cutting (Annexure-XI) reveals that heavy the facts. In such circumstances, Amicus
stone pelting was done by the public Curiae have been appointed by the Court
upon-the applicant when he was produced for doing the Pairvi of the case on behalf
firstly in the court of Varanasi. Similarly, of the applicant. This shows that the
second time, stone pelting was made as applicant cannot engage an Advocate of
per Annexure-XII. Therefore, it appears his choice for doing the Pairvi of the case.
that after considering the safety of the It is also the fundamental right of the
applicant, who is facing the above citizen as provided in Articles 21 and
sessions trials, the trials are being 22(1) of the Constitution of India which
conducted inside the District Jail, are quoted as below:-
Varanasi as per the orders of the
appropriate authority. "21. Protection of life and personal
liberty: - No person shall be deprived of
Section 303 of the Code of Criminal his life or personal liberty except
Procedure, 1973 is produced as under:- according to procedure established by
law.
"303. Any person accused of an 22. Protection against arrest and
offence before a Criminal Court, or detention in certain cases:-(1) No person
against whom proceedings are instituted who is arrested shall. be detained in
412 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
custody without being informed, as soon 9. After considering the facts and
as may be, of the grounds for such arrest circumstances of the case and
nor shall he be denied the right to submissions made on behalf of both the
consult, and to be defended by, a legal parties, this transfer application is liable
practioner of his choice.” to be allowed.
ignored by Government Order-State can means of judgment and order dated Dec
create Revenue judicial Service -no 13,2005.
ground to review direction -issued
following the decision of Apex Court
made out. 2. After the review petition had been
filed by the State on 24.3.2006 alongwith
Held Para 7 an accompanying application to condone
the delay, the same was presented before
Moreover, the question involved in the the Court on 18.5.2006 alongwith office
writ petition was not the question akin
report dated 17.5.2006 on which date
to one referred to the High Court on
administrative side before the G.O.
learned Standing counsel prayed for
Dated 29.9. 1967 and the State rightly adjournment on the ground that learned
took decision permitting to constitute Advocate General would appear to argue
separate judicial cadre of judicial officers the case. On the request aforesaid the case
working in the revenue side under the was adjourned to 22.5.2006 on which date
supervision of the High Court. Further it on further. request made by learned
is clear that by the aforesaid G.O the
judicial officers who became member of
Standing counsel, the case was adjourned
a separate judicial service were to 25.5.2006. Learned Advocate General
permitted to decide revenue cases with was heard on 25.5.2006 but on his
the permission of the High Court on request, the case was adjourned to 14th
deputation. Since the government order July 2006. On 14.7.2006, the case was
dated 29.9.1967 issued by the State directed to be put up on 17.7.2006 on the
specifically mentions that revenue cases
could-be-disposed of even after creation
request made by learned Standing
of separate judicial service of judicial counsel. On 17.7.2006, Chairman Board
offices on deputation with the of Revenue appeared in person and
permission of the High Court, it is prayed for permission to seek clarification
clarified that the State can create and also to discuss the nitty gritty of the
revenue judicial service by direct consequences flowing from the main
recruitment or by way of getting
members of the Civil Services (Judicial
decision aforesaid. Thereafter, on
Branch) appointed on deputation till 28.7.2006, judgment was reserved in the
regular separate judicial revenue cadre review petition. On 2.8.2006, learned
is created as is clear from the Advocate General appeared and prayed
Government order dated 29.9.1967. Such for rehearing of the matter on certain
a deputation can be granted with the points claiming the same to be of pivotal
permission of the High Court to dispose
of revenue cases as was done under the
significance and in deference to the
Government order dated 29th Sept 1967 request, the matter was directed to be put
Case Law discussed up on 3.8.2006. On 3.8.2006, the learned
AIR 1977 Alld 310 Advocate General stated across the bar
1995(I) J.T. SC-180 that the matter was under active
consideration of the Government and on
(Delivered by Hon'ble. S.N.Srivastava. J.) this ground sought adjournment and again
in deference to the request, the case was
1. This review petition has been directed to be put up on 18.8.2006. On
preferred on behalf of the State of U.P. 18.8.2006, again the case was adjourned
seeking reconsideration of certain points to 11th Sept 2006 on the request of learned
considered and decided by this Court by Advocate General. Thereafter, the matter
414 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
stood de-listed and has come up today for the U.P. Zamindari Abolition and Land
hearing. Reforms Act and by this reckoning, were
intra-vires the Constitution of India. It is
3. It may be aptly mentioned here significant to mention here that Sri Sudhir
that learned Advocate General was heard Agarwal, learned Addl. Advocate General
at prolix length on earlier occasion who (as he then was) was called upon to argue
was then assisted by Sri Sanjai Goswami on the question of creation of separate
learned Standing counsel and the learned judicial revenue cadre and consequently,
Advocate General assisted by Sri Sanjai he made elaborate submissions on this
Goswami had then pressed into service point and judgment was pronounced after
two arguments cloaking the same as the hearing both the parties on this question.
basis for review of the judgment of this The case laws were profusely cited on
Court but today Sri Sanjai Goswami behalf of the State, which were duly
learned Standing counsel appeared and noticed and discussed in the judgment of
argued only those two points. The first the Court itself. No precise ground then
argument brought to bear was that this was raised opposing creation of separate
Court framed certain issues for judicial cadre for revenue/consolidation
determination including issue whether the cases. Come what may, one very Import
qualification and training as conceived in aspect may be referred to here. At page 20
the relevant service Rules of the of the judgment of this Court, the objects
consolidation authorities dealing with embodied in Amending Act XXXVIII of
consolidation cases is sufficient training 1958 were excerpted and cited from a
to meet the essentials required of a perusal of which it would appear that
judicial officer performing judicial while conferring power on consolidation
functions but no specific issue was authorities through U.P. Act No.
formulated regarding creation of separate XXXVIII of 1958, the State had enlisted
revenue judicial cadre for the purpose and the basis to the effect that "Since the
by this reckoning, it is further argued, the jurisdiction for Bhumidhari suits is being
Court was precluded from issuing writ of transferred to revenue courts, it has
mandamus commanding the State to become necessary to do away with the
create separate judicial cadre for trial of provisions for arbitration, which used to
consolidation cases as also the suit arising cause great delay." It is also worthy of
out of U.P.Z.A. & L.R. Act. mention herein this connection that after
coming into force the Constitution of
4. The specific argument advanced India, the power to deal with all revenue
across the bar on behalf of the State was suit pertaining to title of Bhumidhari
that order to create revenue cadre should rights in agricultural land vested in the
not have been made and further that the civil court and it was subsequently that
power to be exercised by the Authorities the power to decide title was transferred
dealing with consolidation cases as well to revenue courts. In proceeding for
as cases arising out of U.P.Z.A. & L.R. consolidation on notification under
Act were strictly in accordance with law section 4 of the U.P. Consolidation of
the same having been conferred by the Holdings Act, the power to decide title in
provisions of the statute i.e. the U.P. the land in consolidation area stands
Consolidation of Holdings Act and also of transferred to the Consolidation
2 All] Chandra Bhan and others V. Dy. Director of Consolidation and others 415
condition. It would further appear that this Divisional Officer, Deputy Collectors or
Government order was considered by a such judicial officers obtained on
Division Bench of this Court in Dinesh deputation from the High Court from time
Chand Srivastava v. State of U.P. AIR to time for the purpose and the High
1977 Alld 310 which matter journeyed Court agreed to lend service of judicial
upto the Apex Court and the decision of officers for revenue work vide D.O. letter
the Apex Court is reported in 1995 (1) JT dated 7th Sept 1967. It was further
SC 180. The ratio flowing from the mentioned in paragraph 4 that those
decision rendered by the Apex Court was judicial officers who will work and
that a separate judicial cadre could be dispose of revenue cases on deputation
created other than U.P. Civil Services from High Court will not be assigned any
(Judicial) and in view of the above, this duties relating to maintenance of law and
Court following the ratio of the Apex order.
Court-issued mandamus to create a
separate revenue judicial cadre. This 6. There is nothing in the
Government Order issued. by the State Government relied upon by the standing
Govt does not confer any power on the counsel to show that members of earlier
State to act against the mandate of Article judicial officer cadre transferred to the
50 of the Constitution. In my considered High Court will not try and dispose of
view, after coming into force the revenue cases. The effect of the
Constitution, that power cannot be taken Government order was that all judicial
away and conferred on such officers may work thereafter on
Administrative authorities who are neither deputation and may also try and dispose
equipped with qualification of law or have of revenue cases with the permission of
training for judicial work to deal with the High Court on deputation only.
important issue like adjudication of title in
land which is the very backbone of India 7. In view of the above, the
economy. There is yet another aspect to argument of learned Standing counsel that
be reckoned with and it is that all the land this Government order supports the case
has already vested in the State by virtue of of the State that the revenue cases may be
Section 4 of the U.P.Z.A. & L.R. Act and decided by the Deputy Collector/Sub
the State in turn has conferred different Divisional officer only and direction to
kind of rights on various tenure holders create separate judicial cadre for revenue
namely, Bhumidhari, Sirdari, Asami cases is against policy decision taken by
rights or other rights. It appears that the the Government in the G.O. mentioned
State has not carefully gone through its above, is not loaded with any substances.
own Government order dated 29th Sept Rather, it would appear that the
1967 quoted in the main judgment of this Government order aforesaid lends
Court dated 13.12.2005 by which affirmance to the view taken by this Court
accepting policy of separation of judiciary that there should be separation of
from executive, the State placed all judiciary from executive. Moreover, the
judicial officers under the control of the question involved in the writ petition was
High Court. The State has further not the question akin to one referred to the
mentioned in the G.O. that revenue High Court on administrative side before
matters may be decided by the Sub the G.O. Dated 29.9. 1967 and the State
2 All] Vishwanath Ram V. G.M., Obra Thermal Power Station and others 417
11. For the reason that neither the Indian Penal Code-Section 406-Criminal
petitioner is at fault nor was instrumental breach of Trust-complaint by wife
in fixation of his alleged wrong salary and against her husband, family member of
her in-laws including 11 members-
in view of the decision in the case of particular of Stridhan not specified- only
State of U.P. and others Vs. State a general and vague statement that all
Public Services Tribunal, U.P. Luckow the accused have usurped the property-
and another (2004) 1UPLBEC-127 held-continuation of proceeding-be an
(supra) and for the reasons stated above, abuse of process of court-proceeding
the writ petition is allowed. The quashed.
impugned order is quashed. No order as to Held: Para 9
costs. Petition allowed.
---------- The requirement of Section 406 Indian
Penal Code being attracted as
enumerated in the aforesaid case,
cannot be said to be available in the
present case, because, there is no clear
mention of the entrustment of items to
any particular accused and there is only
a general and vague statement that all
the accused have usurped the property.
Even on merits, the case of the
complainant- wife is unsuccessful.
Case law relied on:
1991 Cr.L.J.-2333
420 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
(Delivered by Hon'ble Barkat Ali Zaidi, J.) certificate of Taj Hotel, Bombay has been
filed to this effect.
1. Wife filed a complaint (No. 1088
of 1999) against the husband and ten 5. There is no allegation that the
other relatives for non-return of Stridhan petitioners took any Stridhan to Bombay
property under Section 406 Indian Penal for their own use, and, there is no
Code and the Magistrate (A.C.J.M.) Agra likelihood of their having appropriated
issued process. Two of the eleven any Stridhan property of the wife. This is
accused, named above, being the brother an illustrative of the reckless and ruthless
and the wife of husband's brother have manner for which the accused have been
come under Section 482 Cr.P.C. to quash arrayed in this complaint.
the proceedings.
6. The other aspect is that the
2. The complainant-Opp. Party no.2 complaint seems to be barred, prima-facie
has mentioned the Stridhan given in para by Limitation. Marriage of the
No. 6 of the complaint, and the list complainant-Opp. Party took place at
annexed which are as follows:- Udaipur. She alleges that she was turned
out of the house by the accused on
(i) Cash amount of Rs. 35,000/- 13.4.1996. The Limitation for filing the
(ii) One Bajaj Chetak Scooter. complaint under Section 406 Indian Penal
(iii) One Big Almirah. Code is 3 years from the date of
(iv) Polar Ceiling Fan. entrustment as provided in Section 468
(v) Two HARS of Gold and (2) ( c) Cr.P.C. The complaint, therefore,
(vi) One Ring of Gold be deemed to have been filed beyond
(vii) Etc. Limitation and becomes un-maintainable
on this ground.
3. It was mentioned in the complaint
that she was turned out of the house by 7. There is another ground on which
his Kinsmen while the husband had gone complaint seems to be un-maintainable in
out of the country and they retained the the court at Agra, and that is, that, the
Stridhan item for themselves. A notice marriage of the complainant took place in
was also given for return of Stridhan Udaipur, and the Stridhan items are
property by the wife (Opp.Party No.2) to naturally delivered at the time of marriage
the accused but the Stridhan property was and must have been so delivered at
not returned and thereafter, she filed this Udaipur. It is, therefore, the Udaipur
complaint. Court, which will have the jurisdiction. It
is for the first time, in this Court, in her
4. The two petitioners, who have counter affidavit that the wife-Opp.party
come to this Court, who are husband's has mentioned that the Stridhan property
brother and his wife, are residing at was given 3 days before marriage at Agra.
Bombay since 1980 i.e. since before the At first, no such thing was mentioned
marriage of the complainant wife and the either in the notice nor in the complaint.
petitioner no.1 (Sri Ashok Baxi) is an This has now been deliberately inserted in
employee in Taj Hotel, Bombay. A order to bring the matter within the
jurisdiction of Court at Agra. The
2 All] Ashok Kumar Buxi and another V. State of U.P. and another 421
contention that the Stridhan property was for whose exclusive use such article were
given even before the marriage is allegedly entrusted to him, no prima-facie
obviously a manipulated move to bring case for commission of such offence
the matter within the jurisdiction of Agra would be made out against that particular
Court. The Agra Court, therefore, seems accused. Normally, in the cases relating
to have no jurisdiction to entertain the to commission of offence of criminal
complaint. breach of trust punishable under Section
406 of the Indian Penal Code, a
8. Besides limitation and particular accused can prima-facie be
jurisdiction, even on merits, the said to be responsible only for his
complaint's case against so many of her individual acts and cannot be fastened
husband's relatives seems infirm and with joint or vicarious liability."
depreciated. The reason is that there is no
clear mention of any entrustment of 9. The requirement of Section 406
Stridhan property to any particular Indian Penal Code being attracted as
accused, which is necessary for enumerated in the aforesaid case, cannot
constituting the offence under Section 406 be said to be available in the present case,
Indian Penal Code. There is a general because, there is no clear mention of the
averment about so many accused about entrustment of items to any particular
retaining the property. It would be accused and there is only a general and
appropriate to quote here the observations vague statement that all the accused have
made in case of Vinod Kumar Goyal Vs. usurped the property. Even on merits, the
Union Territory, 1991 Cri. L.J.,2333( P & case of the complainant- wife is
H), which is as follows:- unsuccessful.
13. A copy of this order be sent by the bail prayer of the applicant can be
the Registry forthwith to Addl. Chief considered even by one member. Thus
the prayer of the applicant that CJM be
Judicial Magistrate through District and
directed to consider the bail of the
Sessions Judge, Agra for information and applicant cannot be allowed against the
compliance. provisions of the Act. If the applicant
--------- wants he can move his bail application
APPELLATE JURISDICTION before the Board who is under the legal
CRIMINAL SIDE duty to consider his prayer for bail.
DATED: ALLAHABAD 22.02.2007
(Delivered by Hon’ble Vinod Prasad, J.)
BEFORE
THE HON’BLE VINOD PRASAD, J.
1. The applicant has filed this
application under section 482 Cr.P.C.
Criminal Misc. Application No. 9728 of 2006
with the prayer that his bail be directed to
Rahul …Applicant
be considered by the CJM, Mathura as
Versus Juvenile Justice Board is not functioning
State of U.P. & another …Opposite Party in District Matura because one of it's
member has resigned.
Counsel for the Applicant:
Sri S.R. Verma 2. From the facts it seems that the
applicant is an accused for offence under
Counsel for the Opposite Parties: section 401 IPC which means that the
A.G.A. allegations against him that he belongs to
a gang of thieves. He is alleged to have
Code of Criminal Procedure-Section 437- been apprehended on the intervening
readwith javenalie justice (care and
night of 16/17-7-2006 at about 1.45 AM
protection of children) Act 2000-accused
below 16 years of age-seeking direction and FIR against him was lodged by R.S.
-the Magistrate concerned to consider Malik, Sub Inspector of police PS
the bail application under Act of 2000-as Kotwali District Mathura at 3.15 AM on
one member of the Board resigned-held- 17.7.2006 as crime number 394 of 2006.
such application can be considered even
by one member-it does not make the
3. I have heard Sri S. R. Verma,
Board non functional-requires no
direction by High Court. learned counsel for the applicant and the
learned AGA in support and opposition of
Held: Para 10 this applicant.
Coming to the facts of the present 4. Learned counsel for the applicant
application it is to be noted that it has
has mainly argued that there is no bar in
not been averred anywhere that there is
no member of the Board. The only Cr.P.C. under section 437 for considering
ground, which it taken in this application the bail of a juvenile if the Juvenile
is that one of the member of the Board, Justice Board is not functioning. He
has had resigned and therefore the further contended that under section 437
Board is not functioning. To my mind Cr.P.C. it is provided that if the accused is
resignation of one of the member of the
less than 16 years of age then he may be
Board does not make the Board non
functional. As has been discussed above released on bail by the Magistrate.
2 All] Rahul V. State of U.P. and another 423
the Act deals with Board's power in any of the provisions of this Act (other
matters of grant of bail. It provides thus:- than for the purpose of giving evidence),
is a juvenile of the child, he shall without
“Bail of Juvenile (1) When any any delay record such opinion and
person accused of a bailable or non- forwarded juvenile or the child and the
bailable offence, and apparently a record of the proceeding to the
juvenile, is arrested or detained or competent authority having jurisdiction
appears or is brought before a Board, over the proceeding
such person shall, notwithstanding (2) The competent authority to
anything contained in the code of which the proceeding is forwarded under
Criminal Procedure, 1973 (2 of 1974 or sub section (1) shall hold the injury as if
in any other law for the time being in the juvenile or the child had originally
force, be released on bail with or without been brought before it.”
surety but he shall not be so released if
there appear reasonable grounds for 9. From a joint reading of all the
believing that the release is likely to above sections of the Act, in conjunction
bring him into association with any with each other, it is conspicuously clear
known criminal or expose him to moral, that for passing of interim orders like bail,
physical or psychological danger or that remand etc. full quorum of the Board
his release would defeat the ends of under the Act is not required and the
justice. presence of one of it's member is
(2) When such person having been sufficient. Sub section 5(3) provides for
arrested is not released on bail under sub such an eventuality. Under that sub
section (1) by the officer in charge of the section, absence of any member can be
police station, such officer shall cause because of any reason, which may include
him to be kept only in an observation reason for resigning also. The said sub
home in the prescribed manner until he section also provides that no order of the
can be brought before a Board. Board shall be invalid only by the reason
(3) When such person is not that any of it's member was absent during
released on bail under subsection (1) by any proceeding. The requirement of Act is
the Board it shall, instead of committing that for final disposal of a case the
him to prison, make an order sending quorum should be or at least two
him to an observation home or a place of members to be present.
safety for such period during the
pendency of the inquiry regarding him , 10. Coming to the facts of the
as may be specified in the order." present application it is to be noted that it
has not been averred anywhere that there
Section 7 of Act is also to be referred is no member of the Board. The only
to here as that makes the exposition of ground, which it taken in this application
law more clear. Section 7 provides thus:- is that one of the member of the Board,
has had resigned and therefore the Board
"(1) When any Magistrate not is not functioning. To my mind
empowered to exercise the powers of a resignation of one of the member of the
Board under this Act is of the opinion Board does not make the Board non
that a person brought before him under functional. As has been discussed above
2 All] Udaiveer V. State of U.P. and others 425
the bail prayer of the applicant can be Counsel for the Petitioner:
considered even by one member. Thus the Sri Rahul Chaturvedi
prayer of the applicant that CJM be
directed to consider the bail of the Counsel for the Respondents:
applicant cannot be allowed against the Sri W.H. Khan
provisions of the Act. If the applicant Sri Rajendra Kumar Mishra
wants he can move his bail application Sri V.S. Mishra
before the Board who is under the legal Sri A.K. Sand
duty to consider his prayer for bail. Sri Ranjeet Saxena
A.G.A.
11. In view of the proceeding
Constitution of India, Art. 226-Petition
analysis of law and of facts, this for Quashing F.I.R.-stay of arrest-offence
application lacks merit and deserves to be under section 135 of Electricity Act,
dismissed and is here by dismissed. 2003-earliar High Court disposed of all
Application dismissed petitions with direction to Police or other
--------- concerned officer to approach before
ORIGINAL JURISDICTION Magistrate seeking direction for
CIVIL SIDE investigation and warrant of arrest-court
DATED: ALLAHABAD 21.02.2007 expressed its great concern with
shocking state of affairs that-no action
BEFORE taken in furtherance of direction of
THE HON’BLE AMAR SARAN, J.
Court-electricity theft being non-
cognizable offence-such negligence on
THE HON’BLE R.N. MISRA, J.
the part of power corporation resulted
irreparable loss of revenue and immense
Criminal Misc. Writ Petition No. 15622 of suffering to honest consumers direction
2006 issued to approach before the Magistrate
with under section 155 (2) of the Code-
Criminal Misc. Writ Petition No. 15687 of submit the progress report in the next
2006, Criminal Misc. Writ Petition No. date-the C.M.D. Power Corporation shall
1190 of 2007, Criminal Misc. Writ Petition personally appear before the Court.
No. 9510 of 2006, Criminal Misc. Writ
Held: Para 13
Petition No. 1974 of 2007, Criminal Misc.
Writ Petition No. 14711 of 2006, Criminal
We, therefore think it imperative to now
Misc. Writ Petition No. 15624 of 2006, issue a mandamus directing that that
Criminal Misc. Writ Petition No. 13109 of immediate measures be taken in the
2006, Criminal Misc. Writ Petition No. present cases as well as in all other
15721 of 2006, Criminal Misc. Writ cases relating to Section 135 of the
Petition No. 10358 of 2006, Criminal Misc. Electricity Act and other related
Writ Petition No. 14524 of 2006, Criminal provisions, in which arrest were earlier
Misc. Writ Petition No. 14974 of 2006, stayed or are sought to be stayed, to
Criminal Misc. Writ Petition No. 9903 of immediately file applications before the
Court concerned for investigations and
2006
arrests of the accused under section
155(2) P.C within three weeks. The
Udaiveer …Petitioner compliance report in all the cases
Versus mentioning details of all the cases
State of U.P. and others …Respondents relating to power thefts and the dates
when the applications have been moved
426 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
Thus, the writ petition stands parties, which included Sri Ashok Nigam,
disposed of." learned Additional Solicitor General for
Union of India, the learned Government
4. To our dismay although the said Advocate for the State and Shri W.H.
judgement was delivered 5 months ago, Khan and Shri Ranjit Saxena for U.P.
we find that neither the police, nor the Power Corporation to inform this Court as
electricity department/ power corporation to what follow up measure have been
has taken any steps in furtherance of the taken in pursuance of the earlier order of
said decision for obtaining permission the Division Bench comprising Hon'ble
from the competent Court for Amitava Lala and Hon'ble Shiv
investigating cases against the accused, in Shanker,JJ dated 15.9.2006. We had
blatant violation of the mandate of the directed that the Central Government,
earlier Division Bench to obtain the said State Government and U.P. Power
permission within one month of the order. Corporation act in a coordinated manner
to give effect to the directions of the
5. This unpardonable laxity does aforesaid Division Bench in writ petition
lead this Court to wonder whether the No. 10090 of 2005 and that in the
department/ power corporation and the meantime the order passed in the said writ
police are not hands in gloves or petition was to apply mutatis mutandi to
sympathetic to the thieves of electricity as this petition as well.
they do not appear to be at all serious in
bringing to book thousands of offenders 7. In writ petition No. 1190 of 2007
involved in power thefts who have preferred by Parasu Ram Pandey, a
obtained stays of arrest on the technical supplementary counter affidavit has been
plea that the offence is non-cognizable, filed by the Chief Engineer (Distribution)
when the answer to the problem was U.P.P.C.L. on behalf of U.P. Electricity
provided by the earlier division bench Power Corporation, which contains a
itself, viz. proceeding with the letter dated 9.10.2006 written by the
investigations and arrests after filing Superintending Engineer (Legal)
applications before the Court concerned Lucknow, addressed to the Managing
under section 155(2) Cr.P.C within a Directors of various divisions of the U.P.
fixed time frame. Such negligence and Power Corporation asking them to
inaction on part of the power corporation comply with the order of the High Court.
and the police has resulted in irreparable
loss of revenue to the electricity 8. Now it appears that in
department/ power corporation and consequence of the correspondence of
immense suffering to honest consumers, Shri W.H. Khan enquiring as to what
who regularly pay their electricity dues steps have been taken by the Power
and yet are denied regular and continuous Corporation in pursuance of the directions
supply of power which is largely due to of the earlier Division Bench, another
power thefts. letter dated 17.2.2007 has been written by
the Chief Engineer (Commercial) to the
6. In writ petition No. 15622 of 2006 Managing Directors of all the divisions
preferred by Udaiveer, we had passed an that the subordinate officers of their
order on 4.1.2007 after hearing various divisions have not given any compliance
428 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
15.9.2006 and five months have elapsed cases mentioning details of all the cases
and the Union of India is still only relating to power thefts and the dates
thinking of filing an SLP against the said when the applications have been moved
judgement. One wonders whether the before the Courts concerned, the progress
Power Corporation, the State and Central of investigations including arrests shall be
governments are at all serious in checking submitted to this Court on or before
thefts of electricity and in increasing the 19.3.2007. The Court will take an
revenue earning from electricity so that extremely serious view in case of any
there could be smooth and continuous non-compliance with this order and may
supply of electricity to honest consumers. be constrained to summon the Managing
Likewise, only a hope is expressed that in Director, (U.P. Power Corporation
all likelihood the amendment bill seeking Limited) Lucknow, or the DIG (Public
amendment of the Electricity Act (2003) Grievances), DGP Headquarters,
and the Rules framed thereunder shall be Lucknow and hold them answerable if it
passed in the forthcoming budget session finds any laxity in compliance with this
and that offences of power theft shall be order.
made cognizable offences. In the same
vein we also notice that no clear 14. The Registry is also directed to
directions have been issued by the U.P. furnish the list of cases in which interim
Power Corporation or its legal cell stays of arrests or other relief have been
directing the Executive Engineers or passed or which have been disposed of
subordinate officers concerned or by the along with writ petition No. 10090 of
DIG (Public Grievances), DGP 2005 on the next date of listing.
Headquarters, Lucknow to the
subordinate police officers about the steps 15. The Managing Director, U.P.
needed and the manner in which Power Corporation Limited, Lucknow is
applications are to be moved before the also directed to furnish details of the
Courts concerned under Section 155(2) of amount and percentage of loss in revenue
the Code of Criminal Procedure for due to power theft and non-payments for
commencing investigation and for power consumed on the next date of
arresting the accused for offences under listing. On that date the State of U.P.,
the Electricity Act. Power Corporation and Union of India
shall also apprise the Court about the
13. We, therefore think it imperative progress made in having the Bill passed in
to now issue a mandamus directing that Parliament amending the Electricity Act
that immediate measures be taken in the (2003) and the Rules framed for treating
present cases as well as in all other cases offences under the Electricity Act as
relating to Section 135 of the Electricity cognizable and/ or moving the apex Court
Act and other related provisions, in which for challenging the decision of the earlier
arrest were earlier stayed or are sought to Division Bench in Cr. Misc. Writ Petition
be stayed, to immediately file applications No. 10090 of 2005, Mustaq Vs. State of
before the Court concerned for U.P. and others declaring offences under
investigations and arrests of the accused the Electricity Act as non-cognizable
under section 155(2) P.C within three offences.
weeks. The compliance report in all the
430 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
the Constitution of India, it is incumbent 18. Such being the case, the
upon every State, Tribunal, Courts and petitioner having been tried and judicially
functionary of the State to comply with it acquitted which was later on confirmed
in letters and spirit. by the Hon'ble Apex Court by its order
dated 23.9.2003, there could be no doubt
16. It is also contended on behalf of that the he has been ''judicially acquitted'
the State that the petitioner is not entitled and therefore he is entitled for the benefit
to any back wages on the principle of "no of Regulation 493 (c) of the U.P. Police
work no pay" and the petitioner is also not Regulations. The order dated 30.10.2000,
entitled to any other consequential by which the distinction has been sought
benefits for the duties that he has not to be made, is clearly misconceived and
discharged from the date of acquittal. The deserves to be quashed.
petitioner was acquitted with effect from
24.2.1994 and he made a representation to 19. I therefore command the
be reinstated on 7.12.1995. The respondents to reinstate the petitioner
authorities concerned has frustrated the with all consequential benefits from the
attempt of the petitioner to get reinstated. date of acquittal which is dated 24.2.1994.
Despite the fact that the Regulation 493 The impugned order dated 30.10.2000 as
(c) clearly provides that once a person is well as the order of dismissal dated
acquitted on criminal charges, he is liable 28.5.1990 is hereby set aside.
to get reinstated.
The writ petition is allowed as above.
17. The Hon'ble Supreme Court in There will be no costs.
the case of Union of India versus K.V. ---------
Jankiraman, reported in AIR 1991 SC ORIGINAL JURISDICTION
CIVIL SIDE
2010, held that normal rule of "no work
DATED: ALLAHABAD 07.05.2007
no pay" cannot be applied to cases such as
the present one where the employee BEFORE
although he is willing to work is kept THE HON’BLE S.U. KHAN, J.
away from work by the authorities for no
fault of his. This is not a case where the Civil Misc. Writ Petition No.43617 of 1999
employee remained away from work for
his own reasons. Other than the criminal Rishi Kumar Katiyar …Petitioner
proceedings, which were initiated against Versus
the petitioner from which he was Labour Court, Vth, U.P., Kanpur and
judicially acquitted, there is not even another …Opposite Parties
censor note against him. In the present
case the authority concerned failed to Counsel for the Petitioner:
Sri V.K. Barman
exercise the jurisdiction vested in him
under Regulation 493 (c) by not passing
Counsel for the Opposite Parties:
an appropriate order of reinstatement. Sri Prakash Padia
Therefore in view of the above S.C.
discussion, I am of the opinion, the
petitioner deserves to be reinstated with Constitution of India Art. 226-Practice
full consequential benefits. and Procedure-burden of proof-240 days
434 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
working-despite of specific pleading of four years (in the impugned order, year of
workman-not denied by employer- C. P. case is mentioned as 829/1992).
burden shifts upon employer.
workman has filed some, documents then reinstatement with fullback wages. In
the burden shifts upon the employer to such scenario, award of consolidated
dispute the version of the employee. damages/compensation is proper relief.
3. Heard Sri Satish Trivedi, learned the learned Magistrate directed for
Senior Advocate assisted by Sri Roshan registration of the case and after
Khan for the petitioner, Sri O.S. investigation the Investigating Officer
Chaturvedi, learned Senior Advocate submitted a final report. Against the final
assisted by Sri Udai Chandani for report respondent no.2 filed a protest
respondent no.2, learned A.G.A. and petition and along with that protest
perused the material on record. Counter petition he also filed his affidavit as well
and rejoinder affidavits have been as affidavits of his witnesses Brijesh
exchanged. Singh, Santosh Kumar, Chandan Pandey
and Ajai Singh. The learned Magistrate
4. The brief facts of the case are that after considering the case diary and
respondent no.2 Deepak Kumar Singh affidavits allowed protest petition holding
filed an application under Section 156(3) that the Investigating Officer had not
of Cr.P.C. on 15th December, 2005 correctly recorded the statements of the
alleging that the election of the Students witnesses and had wrongly concluded that
Union, Allahabad University, had no incident had taken place. The learned
concluded on 24th November, 2005. Magistrate also held that the medical
Manoj Kumar Singh elder brother of evidence on record proved that the
Deepak Kumar Singh was a candidate for incident took place. Consequently he
the President's post. On that day, in the rejected the final report and allowed the
night at about, 8 P.M. respondent no.2 protest petition and directed to summon
and his supporters had collected at the the accused under Section 190 (1)(b) of
room of Ajai Singh in Chhota Baghara Cr.P.C. Against that order the applicant
and they had some programme for dinner preferred Criminal Revision No.879 of
etc. At that time Chandan Pandey, driver 2006 but the same has been dismissed in
of the brother of respondent no.2, Brijesh limine, hence this writ petition.
Singh and Santosh Singh were also
present. The boys were making noise 5. It may be noted that a report was
expecting the victory of their candidate. lodged by Shiv Bhan Singh Yadav on
But at that time, Kamlesh Yadav with his 24.11.2005 at 10.30 P.M. regarding the
supporter Dilip Agrahari and his uncle incident that took place the same day at 9
Surya Bhan and 8-10 persons came at the P.M. and the case was registered as case
room and started pulling Deepak Kumar crime No.6237050358 of 2005 under
Singh saying as to why they were talking Section 302I.P.C. In this report Manoj
against them. They took Deepak outside Kumar Singh, Deepak Kumar Singh
and Dilip Agrahari struck a butt blow on (respondent no.2) and Chandan Pandey
his head. At that time Surya Bhan have been named as accused persons and
exhorted to shoot him and Kamlesh it has been alleged that after conclusion of
Yadav wanted to make a second fire but the students union election, the informant
he could not do so as someone fired from Shiv Bhan Singh Yadav along with
his (Deepak Kumar Singh) side to save nephew Kamlesh Kumar Singh Yadav
them and the shot hit Kamlesh Yadav. who was candidate for the post of General
Surya Bhan also made fire but it missed. Secretary had hardly reached near the
Thereafter, the injured were taken to the house of Dilip Kumar Agrahari, a friend
hospital. On the basis of this application, on motorcycle, the accused persons came
438 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
in a black Safari vehicle which was being therefore, the learned Magistrate could
driven by Chandan Pandey. They abused not have summoned the accused under
Kamlesh Kumar Singh Yadav and Manoj Section 190 (1)(b) of Cr.P.C.
Kumar Singh fired at the right temple of
Kamlesh Kumar Singh Yadav from point 7. Learned counsel for the
blank range. He was injured and fell respondent no.2 has contended that if the
down. The accused also made several material collected during investigation
fires in air and one of them hit Chandan shows that the offence has been
Pandey. Kamlesh Kumar Singh Yadav committed, the accused can be summoned
was taken to hospital, but the doctors under Section 190(1)(b) of Cr.P.C. even if
present there, declared him dead. there is any extraneous material and at the
most it is irregularity and not illegality.
6. Learned counsel for the petitioner
has contended that, the learned Magistrate 8. Section 190 provides for
has not properly exercised jurisdiction cognizance of offence by a Magistrate.
vested in him while summoning the The relevant portion of sub section (1)
accused under Section 190 (l)(b) of reads as under:
Cr.P.C. and has committed mistake Subject to the provisions of this
regarding procedure itself. According to Chapter, any Magistrate of the first class,
the learned counsel for the petitioner, the and any Magistrate of the second class
Investigating Officer has statutory duty to specially empowered in this behalf under
investigate on the basis of report and after subsection (2), may take cognizance of
collecting evidence he can submit charge any offence-
sheet or can give a final report in the “(a) upon receiving a complaint of facts
matter. Although, he has further which constitute such offence;
contended that the Magistrate is not (b) upon a police report of such facts;"
bound by the opinion of the Investigating
Officer and can form his own independent 9. It shows that a Magistrate can
opinion but only on the basis of materials take cognizance upon receiving a
collected by the Investigating Officer, the complaint of facts which constitute such
Magistrate can either accept the final offence in sub-clause (l)(a) and upon a
report or reject the same and take police report of such facts under sub-
cognizance of the offence under Section clause (1)(b). The Criminal Procedure
190(1)(b). But if there is any extraneous Code provides for separate procedures for
matter, then the Magistrate can take cases in which the cognizance has been
cognizance under Section 190 (l)(a) of taken on a complaint and on a police
Cr.P.C. and can proceed under Sections report. Therefore, these are two separate
200 and 202 of Cr.P.C. or can direct the categories and cannot be intermixed.
Investigating Officer for further These are statutory provisions and have to
investigation under Section 173(8) of be followed as such.
Cr.P.C. According to him, in this case the
Investigating Officer submitted final 10. In the case of Pakhando and
report and against that respondent no.2 others Vs. State of U.P. and another 2001
filed a protest petition with affidavits (43) ACC 1096, a Division Bench of this
which was extraneous matter and, Court has held that where the Magistrate
2 All] Surya Bhan V. State of U.P. and another 439
receives final report the following four investigation. It is not permissible for him
courses are open to him and he may adopt at that stage to make use of any material
anyone of them as the facts and other than investigation records, unless
circumstances of the case may require: he decides to take cognizance under
Section 190(1)(a) of the Code and calls
(I) He may agreeing with the upon the complainant to examine himself
conclusions arrived at by the police, and the witnesses present, if any, under
accept the report and drop the Section 200.
proceedings. But before so doing, he
shall give an opportunity of hearing 12. Therefore, this shows that the
to the complaint: or Magistrate while taking cognizance under
Section 190(1)(b) can only rely on the
(II) He may take cognizance under police report that means evidence and
Section 190(l)(b) and issue process material collected by the Investigating
straightaway to the accused without Officer during investigation. The
being bound by the conclusions of Magistrate can not, therefore, take into
the investigating agency, where he is consideration any extraneous material and
satisfied that upon the facts if he does so, he should, take cognizance
discovered or unearthed by the under Section 190(1)(a) and should
police there is sufficient ground to proceed in the matter as a complaint case.
proceed; or
13. It is relevant to quote the
(Ill) he may order further investigation, if following passage of the case of Ajit
he is satisfied that the investigation Kumar Palit Vs. State of West Bengal
was made in a perfunctory manner; 1963 Supp (1) SCR 953 as quoted in the
or case of CREF Finance Ltd. Vs. Shree
Shanthi Homes (P) Ltd. and another
(IV) he may, without issuing process or (2005) 7 Supreme Court Cases 467:
dropping the proceedings decide to
take cognizance under Section 190( “The word 'cognizance' has no
l)(a) upon the original complaint or esoteric or mystic significance in criminal
protest petition treating the same as law or procedure. It merely means-
complaint and proceed to act under become aware of and where used with
Sections 200 and 202 Cr.P.C. and reference to a court or judge, to take
thereafter decide whether complaint notice of judicially. It was stated in Gopal
should be dismissed or process Marwari V. emperor by the learned
should be issued. Judges of the Patna High Court in a
passage quoted with approval by this
11. In this case it has also been held Court in R.R. Chari V. State of U.P. (SCR
that it would, however, be relevant to at p.320) that the word, 'cognizance' was
mention that for forming such an used in the Code to indicate the point
independent opinion the Magistrate can when the magistrate or judge takes
act only upon the statements of witnesses judicial notice of an offence and that it
recorded by the police in the case diary was a word of indefinite import, and is
and other material collected during not perhaps always used in exactly the
440 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
same sense. As observed in Emperor Vs. of the offence alleged to have been
Sourindra Mohan Chuckerbutty (ILR at p. committed cannot be taken without the
416) 'taking cognizance does not involve sanction of the competent authority etc. In
any formal action; or indeed action of any such matters Magistrate should refuse to
kind, but occurs as soon as a Magistrate, take cognizance but if the Magistrate
as such applies his mind to the suspected takes cognizance in such matters, and
commission of an offence'. Where the proceeds, the same may be curable under
statute prescribes the materials on which Section 460 Cr.P.C. But in the case where
alone the judicial mind shall operate statute directs as to how and on what
before any step is taken, obviously the material the cognizance is to be taken, any
statutory requirement must be fulfilled." violation thereof will he illegality and not
irregularity. As for instance if the
14. Therefore, the legal position is Magistrate takes cognizance on a
clear that where the statute prescribes the complaint and directs to proceed as a
materials on which alone the judicial police case or conversely takes
mind shall operate before any step is cognizance on a police report and directs
taken, obviously the statutory requirement to proceed as a complaint case, this defect
must be fulfilled, Applying this principle in cognizance would not be irregularity
to Section 190(1)(b), it becomes apparent and would not be curable as it would
that the Magistrate while taking vitiate the procedure. Such contingency is
cognizance of the offence under this not permissible under law and in the
section cannot rely on any material other circumstances the contention as raised by
than the police report of such fact. the learned counsel for the respondent
no.2 is not tenable and cannot be
15. The contention of learned accepted.
counsel for the respondent no.2 is that
even if the Magistrate takes wrong 16. In this case the learned
cognizance under section 190(l)(a)or(b), it Magistrate while passing the impugned
is merely on irregularity. But this order has given a finding that the
contention cannot be accepted as statute Investigating Officer did not correctly
itself provides as to what material is to be record the statements and wrongly
considered by the Magistrate before concluded that the incident had not taken
taking cognizance and procedure for trial place and submitted final report whereas
of the case will depend on the cognizance the medical and documentary evidence
taken in accordance with those materials. fully proved that the incident took place.
The cognizance is taken of the offence It is well settled that the cognizance is
and, therefore, the court on perusal of the taken of the offence and not of the
complaint or report has to satisfy itself on offender and at the stage of cognizance
the basis of the facts which constitute the the learned Magistrate is only required to
offence. There may be instances where see whether prima facie any offence has
the Magistrate finds that the complaint is been committed. But the learned
not made by the person who can lodge the Magistrate instead of giving any such
complaint or the complaint is not findings has concluded that the incident
entertainable by that Court or cognizance did take place.
2 All] Raj Pal Singh V. State of U.P. and others 441
All those references arose out of the 4. Learned counsel for the appellants
award dated 15.12.1981 given by he has argued that the learned court below in
Special Land Acquisition Officer, determining the market value of the land
Ghaziabad in respect of 39-323 acres of arbitrarily determined the market value at
land of village Mohammadpur Khuralia the rate of Rs.20,000/- per bigha whereas
Pargna and Tehsil Garh District it should not be where as it should not be
Ghaziabad. The said land was acquired less than Rs.40,000/- per bigha.
for the construction of Madhya Ganga
Nahar, Nirman Khand 9, Garh, 5. The learned Addl. District Judge
Ghaziabad. The notification under section while determining the market value of the
4 (1) of Land Acquisition Act was land has first of all considered the sale
published on 28.7.1979 and notification deed dated 7.12.1978 allegedly executed
under section 6 of Land Acquisition Act by one Hari Prakash in favour of
read with section 17 of the said Act was Hoshiyar Singh in respect of Khasra No.
published on 15.9.1979. Possession of the 245 measuring 2-17-12 bighas. In this
land was taken on 21.11.1979. The sale deed the vendor had sold his 1/3
Special Land Acquisition Officer, share for a consideration of Rs.12,000/-.
Ghaziabad awarded compensation at the This sale deed was considered by the
rate of Rs.12,500/- per bigha. The S.L.A.O. but the learned Reference Court
claimants preferred Land Acquisition after considering the evidence on record
References noted above which were came to the conclusion that the S.L.A.O.
decided by the impugned judgment dated erred while awarding compensation on
19.2.1987 whereby it was held that the the basis of this sale deed.
market value of the land was Rs.20,000
per bigha. The claimants were also given 6. The next sale deed which was
additional amount under section 20(1-A) considered, and examined by the learned
at the rate of 12% per annum on the Reference Court is the sale deed dated
2 All] Raj Pal Singh V. State of U.P. and others 443
4.9.1975 executed by Kalu and others in 8. The learned Reference Court has
favour of Harish Chandra for a referred an award of S.L.A.O. dated
consideration of Rs.18,000/-. The land in 2.3.1983 relied upon by the claimant
this sale deed was sold at Rs.20/- per sq. which relates to village Badha. In the said
yard. The said land situated at a distance case S.L.A.O. has awarded compensation
of 12 miles from Hapur. The said sale at the rate of Rs.18,500/-,per bigha. The
deed was executed 4 years before the said land is 6 kms away from National
notification under section 4 (1) of the Act. High Way but the land in question is near
As the sale deed was for a very small National High Way. Moreover the land
piece of land measuring 8.84 sq. yard and situates near Simbholi Sugar Factory
the land was abadi land, therefore this sale therefore the learned Reference Court has
deed was neither relied upon by the opined that the S.L.A.O. must have
S.L.A.O. nor by the learned Reference granted compensation at least at the rate
Court. However as the sale deed relates to of Rs.18,500/- per bigha.
abadi land and very small piece of land
therefore this sale deed was rightly 9. The claimants in the Reference
discarded. Court has submitted another sale deed
dated 10.8.1983 which was executed for
7. The claimants have filed another Rs.52,000/- but the sale deed was rejected
sale deed dated 23.3.1978 whereby a land because it was executed after 5 years from
measuring 0-1-17 was sold for a the date of notification.
consideration of Rs.14,250/-. The land of
the sale deed situated in the same village. 10. It appears that the learned
This sale deed was executed one year Reference court has determined the
before the notification under section 4 (1) market value at the rate of Rs.20,000/·
of the Act. The learned Reference Court influenced by the demand of the claimants
has held that the land in question can be as shown in the award of S.L.A.O.
equated with the land involved in the sale wherein it is mentioned that the tenure
deed, as regard to the potentiality because holders demanded compensation at the
both the land situate in the same village. rate of Rs.20,000/- per bigha. No counter
The learned Reference Court has not appeal has been filed by the State nor
considered the said sale deed in there is any counter objection preferred by
determining the compensation without the State. It appears that the Reference
assigning any reason. The learned court has come to conclusion that the
Standing Counsel has argued that the sale market value of the land in question
consideration of the land if calculated will should be at least at the rate of
come more than Rs. One lac per bigha Rs.20,000/- per bigha because the land in
and the appellants have never claimed question stands on the better footing than
compensation at such excessive rate but the land involved in the award given by
only at the rate of Rs.40,000/- per bigha the S.L.A.O. dated 2.3.1983 in respect of
therefore it cannot be a basis for a different village Badha. As the
determining compensation of the land appellants themselves claimed
involved. compensation at the Rs.20,000/- per bigha
before the S.L.A.O. therefore they cannot
be held entitled for larger amount.
444 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
Moreover they could not show any neither the selection nor appointment of
exemplar which may entitle him more the appellant nor the appointment of the
respondent no.3 was in order and,
compensation than awarded by the
therefore, the learned Single Judge was
Reference Court. perfectly justified in holding that no
selection or appointment has been held
11. The appeals fail and are in accordance with law to the post of
dismissed. Head of the Institution.
---------
APPELLATE JURISDICTION (B) Constitution of India-Art. 226-
CIVIL SIDE Recovery of Salary-petitioner no eligible
DATED: ALLAHABAD 15.03.2007 for the post of head of institution-applied
and got appointed as Head Master-Not
BEFORE occasion for making application for Head
THE HON’BLE DR. B.S. CHAUHAN, J. Master in Junior High School-payment of
THE HON’BLE RAN VIJAI SINGH, J.
salary-complete fraud on statute in
contravention of law-recovery held
proper.
Special Appeal No. 200 of 2007
Held: Para 20
Ajay Pratap Rai …Respondent-Appellant
Versus In sum and substance, we are of the
District Basic Education Officer Jaunpur view that after upgradation of an
and others …Petitioner-Respondents institution from Junior High School to
High School and then to Intermediate,
Counsel for the Applicant: the lower section of the institution, i.e.
Sri P.N. Saksena Junior High School looses its existence
Sri R.M. Vishwakarma and merges into the higher section and
in that eventuality, the question of
making the appointment of Head Master
Counsel for the Respondents: for the Junior High School, a Principal for
Sri Ashok Khare the High School and another Principal to
Sri P.N. Triapthi run the Intermediate classes would lead
S.C. to complete chaotic situation and
absurdity. Thus, the appointment on the
(A) Constitution of India-Art. 226- post of Head Master could not be made.
Doctrine of Merger-upgradation of junior The appellant did not possess the
High School to High School then eligibility, i.e. experience as required
Intermediate-No existence of Junior under the law in making an application
High School-or the High School-No to the said post and had illegally been
question of appointment of Head Master appointed. Further, the serious
of Junior High School-except under the illegality/irregularity in advertising the
provisions of U.P. Inter Mediate vacancy existed and the possibility of
Education Act 1921. committing fraud cannot be ruled out. As
the appointment of the appellant had
Held: Para 13 been made in total violation of law and
without possessing the eligibility, the
The contention of Shri Saxena, therefore, recovery of salary received by him in
to the effect that institution did not loose contravention of the order passed by the
its identity as a Junior High School has to Statutory Authority does not warrant any
be necessarily rejected. Accordingly, we interference.
are of the considered opinion that
2 All] Ajay Pratap Rai V. Distt. Basic Education Officer and others 445
staked their claims and the dispute came Ashok Khare, learned Senior Counsel
to this Court in several writ petitions assisted by Shri P.N. Tripathi for
which have been referred to in the respondent no.3 and the learned Standing
judgment of the learned Single Judge. For Counsel for the other respondents.
the purposes of this controversy, suffice
would be to say that Shri Raja Ram 6. On behalf of the appellant, it has
Vishwakarma as a Manager claimed that been urged that the identity of the Junior
he appointed the appellant Ajai Pratap High School is intact and, therefore, the
Rai. The said alleged appointment of the appellant's appointment as Head Master
appellant is stated to have been approved of the Junior High School was in
on 07.03.2003 by the District Basic accordance with the provisions of U.P.
Education Officer, which was challenged Recognized Basic (Junior High School)
by the respondent no.3 in Writ Petition (Recruitment and Condition of the
No. 14612 of 2003, which has given rise Service of Teachers) Rules, 1978 (herein
to the present Special Appeal. An order of after referred to as the ''Rules 1978'). It
status quo was passed on 21st May, 2003, has further been contended that the
yet the salary has been disbursed by the appointment of respondent no.3 was never
District Basic Education Officer to the made in accordance with the said Rules
appellant. The District Inspector of 1978 and there is no valid approval and as
Schools intervened and issued directions such the claim of the respondent no.3
in favour of respondent no.3 which was deserves to be rejected. Shri Saxena has
reviewed by him on 03.03.2006. The further stated that the appellant is fully
order dated 7th March, 2003 had been qualified and possesses the requisite
assailed by the respondent no.3 and the qualification for the post of the Head
order dated 03.03.2006 was again Master of the Junior High School. He has
challenged by the respondent no.3 in Writ further contended that the learned Single
Petition No. 16925 of 2006, which has Judge has erred by ordering prosecution
also been disposed by the same judgment without there being any enquiry with
of the learned Single Judge. regard to the genuineness or otherwise of
the newspapers from the Information
4. The relief claimed in this Special Bureau and further the direction for
Appeal is confined only to the judgment refund of salary from the appellant is
insofar as it rejects the claim of the unsupported in law.
appellant in Writ Petition No. 14612 of
2003 and a prayer has been made to 7. Replying to the aforesaid
dismiss the said writ petition filed by submissions, Shri Khare has taken us to
respondent no.3. In essence, the relief the findings recorded by the learned
claimed is that the judgment of the Single Judge with the aid of the Full
learned Single Judge be set aside and the Bench decision in the case of State of
appellant be permitted to continue as U.P. & Ors. Vs. District Judge, Varanasi
Head of the Institution. & Ors., 1981 UPLBEC 336 and the
decision of the learned Single Judge in the
5. We have heard Shri P.N. Saxena, case of Dr. Smt. Sushila Gupta Vs.
learned Senior Counsel assisted by Shri Regional Joint Director of Education,
R.M. Vishwakarma for the appellant; Shri (2006) 1 ALJ 523 and has urged that the
2 All] Ajay Pratap Rai V. Distt. Basic Education Officer and others 447
entire claim of the appellant has to be therein and has also indicated the ratio of
rejected in view of the findings recorded the decision in Sushila Gupta's case to be
by the learned Single Judge and, fully applicable to the facts of the present
therefore, the appeal deserves to be controversy.
dismissed.
10. The issue raised by the
8. The learned Standing Counsel has appellant, therefore, in respect of the
also made his submissions and has invited status of the institution as still to be that
the attention of the Court to the various of a Junior High School for the purposes
definitions as contained in Act 1972, the of appointment on the post of Head of the
Rules 1978, the U.P. Junior High School Institution, has to be rejected for the
(Payment of Salaries of Teachers and reasons given by the learned Single Judge
other Employees) Act, 1978, the with which we find ourselves to be in full
provisions of the Act 1921 and the U.P. agreement with. The word "upgradation"
Secondary Education Services Selection in its normal connotation means
Boards Act, 1982 (hereinafter called the improvement; enhancement of status;
''Act 1982') and has urged that the more efficient. The word "grade" is
directions given by the learned Single derived from the latin word ''gradus'
Judge in respect of the claim on the post which means degree, step. In Hari Nandan
of the Head of the Institution do not Sharan Bhatnagar Vs. S.N. Dixit & Anr.
deserve any interference as no ground has AIR 1970 SC 40; and A.K. Subraman Vs.
been made out either in law or in fact for Union of India & Ors., AIR 1975 SC 483,
any further judicial intervention. the Apex Court held ''grade' means rank,
position in a scale, a class or position in a
9. Having considered the rival class according to the value. It means a
submissions, we find that the learned degree in the scale of rank, dignity,
Single Judge after having noticed the Full proficiency etc. (Section 15 of Code of
Bench decision in the case of State of Civil Procedure, 1908). The word
U.P. & Ors. (supra) and the judgment of ''upgradation' therefore means
the learned Single Judge in Sushila Gupta improvement in degree, raising of status,
(supra) has held that once a Junior High rank, quality or in value. It is an
School stands upgraded as a High School improvement in proficiency and reflects a
or an Intermediate College, then in that rising gradient. The institution was
event the post of the Head of the admittedly a Junior High School and was
Institution has to be filled up in raised to the status of a High School in
accordance with the procedure prescribed 1993 and to that of Intermediate College
under the Act 1921 read with Act 1982. It in the year 1999. It is undisputed that
has been held that in such eventuality the upon being upgraded as a High School,
Junior High School looses its identity as the institution has been recognized as
such and upon upgradation of the such under the provisions of Act 1921.
institution, there cannot be any This undisputed position, therefore,
appointment of a Head Master in a Junior clearly establishes that the institution
High School under Rules 1978. For this, ceases to be a Junior High School and for
the learned Single Judge has placed the purposes of appointment of Head of
reliance upon the decisions referred to the Institution, the appointment can only
448 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
be made by resorting to the provisions as brought to our notice any provision which
indicated in the judgment rendered in have altered the legal position.
Sushila Gupta's case (supra). The
observations made by the Full Bench in 12. From the aforesaid discussions,
the case of State of U.P. Vs. District it is evident that status of an institution
Judge Varanasi (supra), which have been after being upgraded looses its
quoted in detail by the learned Single significance and the lower section of the
Judge are worth reiterating to the effect school after upgradation completely
that Basic School or a Junior High School merges into the upgraded institution.
is different from a High School or an Interpreting the provisions otherwise
Intermediate College as the same would lead to complete absurdity and
institution cannot be called Basic School create a chaotic situation even for
or a Junior High School as well as a High governance of the different parts of the
School or an Intermediate College. The same institution. An institution cannot
Full Bench above referred to held as have a multiple Code for its governance.
under:- There is no provision permitting
continued applicability of the laws in
"On a Basic School or a Junior High relation to a Junior High School even
School being upgraded as a High School after its upgradation.
or Intermediate College, the identity of
the institution known as Basic School or a 13. The contention of Shri Saxena,
Junior High School is lost and it ceases to therefore, to the effect that institution did
exist as a legal entity and in its place not loose its identity as a Junior High
another institution with a legal entity School has to be necessarily rejected.
comes into being. One cannot be equated Accordingly, we are of the considered
with the other." opinion that neither the selection nor
appointment of the appellant nor the
11. The aforesaid observations of appointment of the respondent no.3 was
the Full Bench as explained in the in order and, therefore, the learned Single
judgment of Sushila Gupta's case, Judge was perfectly justified in holding
therefore, leave no room for doubt that the that no selection or appointment has been
selection and appointment on the post of held in accordance with law to the post of
Head of the Institution which has been Head of the Institution.
recognized as a High School and
Intermediate College cannot be made 14. The second submission made by
under the provisions which are applicable Shri Saxena that the finding has been
to a Junior High School. In Sushila Gupta recorded by the learned Single Judge that
(supra), the learned Single Judge the appellant did not possess the
considered all the Amendment made in eligibility as he did not have experience
the Statute and held that in spite of so of three years as required under the law
many amendments to the statutory for being appointed as a Head Master in
provisions, the proposition of law laid the Junior High School is liable to be set
down by the above referred to Full Bench aside only on the ground that such an
remained the same. Mr. Saxena has not issue had been raised by the petitioner-
respondent while filing the rejoinder
2 All] Ajay Pratap Rai V. Distt. Basic Education Officer and others 449
affidavit. Had it been the ground in the the data list (Annexure RA-I and RA-II of
writ petition, the appellant could have rejoinder affidavit dated 11.01.2004)
taken the pleadings to rebut the same. The maintained at Madhyamik Shiksha
learned Single Judge has dealt with the Parishad, Regional Office Varanasi, qua
issue as under:- teachers of institution name of Sri Ajai
Pratap Rai is conspicuously missing. All
"There is requirement of three years these circumstances mentioned above,
experience as teacher for being appointed prima facie speaks for itself, and until and
as Headmaster of Junior High School unless there is nexus in between Manager,
under Rule 4(2) (c) of 1978 Rules. Large candidate and the District Basic
Scale manipulation appears to have been Education Officer, such appointment is
made. Ajai Pratap Rai in his affidavit not at all feasible."
dated 30.12.2003, has mentioned that he
has worked as Assistant Teacher at 15. Admittedly, in this case such a
Mahantha Ram Asrey Das Madhyamik plea had been taken by filing a rejoinder
Vidyalaya Madhuban Nagar, Laparey, affidavit and annexing the affidavit of the
Jaunpur since 01.07.1999 to June 2002 Manager of the institution where the
and said fact finds support from the appellant alleged to have served from
certificate issued by the Principal of the 01.07.1999 to June 2002. The copy of the
college on 18.01.2003 and also from the rejoinder affidavit had been served upon
attendance register of July 1999 to June the learned counsel for the appellant on
2002. Certificate dated 18.01.2003, 4th May, 2006 though the matter was
certifying functioning of Sri Ajai Kumar decided on 09.01.2007. Thus, there was a
Rai has been given by Manager Ram sufficient time of eight months for the
Daur Yadav. Sri Ram Daur Yadav, appellant to file reply to the rejoinder
pursuant to letter written by petitioner has affidavit rebutting the averments made in
categorically informed that Sri Ajai the rejoinder affidavit. The plea taken by
Pratap Rai has never functioned in the Shri Saxena is preposterous as there was a
institution and has never been appointed notice of new facts to the appellant and
in the institution. Notarial Affidavit has sufficient time for rebuttal of the same but
also been given, by Sri Ram Daur Yadav, he, for the reasons best known to him, did
reiterating same statement of fact and not avail the opportunity to controvert the
further documents submitted in this same. In Sri-La Sri Subramania Desika
regard be treated as forged. These Gnanasambanda Pandarasannidi Vs. State
documents have been filed as Annexure of Madras & Anr., AIR 1965 SC 1578,
RA-2 and 3 to rejoinder affidavit filed in the Hon'ble Supreme Court considered the
Civil Misc. Writ Petition No. 16925 of similar issue and held that such a plea is
2006, copy of which has been served on permissible provided the defendant does
Sri R.M. Vishwakarma, Advocate on not have a notice of new facts taken in the
04.05.2006 and qua which no dispute has replication or did not have sufficient time
been raised. In attendance register which to rebut the same. In the instant case, no
has been appended at various places, Sri attempt had ever been made by the
Ajai Pratap Rai who claims himself to be appellant to rebut the said factual
Assistant Teacher has appended his averments taken in the rejoinder affidavit
signature below Class IV employee. In nor any attempt has been made in appeal
450 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
to show that the factual averments made agency shall also take notice of the above
in the rejoinder affidavit could not be while initiating proceedings and copies of
factually correct. In view of the above, the the newspapers shall be made available
learned Single Judge was justified in and obtained for the said purpose as the
drawing adverse inference against the involvement of the publishing and
appellant. Thus, the aforesaid finding printing agency in this matter cannot be
does not warrant any interference in ruled out. The investigation shall
appeal. forthwith be set into motion as per the
directions of the learned Single Judge.
16. The contention with regard to
the direction of the learned Single Judge 17. So far as the issue of refund of
in respect of lodging a First Information the salary received by the appellant is
Report also does not deserve to be concerned, Mr. Saxena, learned Senior
interfered with as the learned Single Counsel has vehemently submitted that
Judge having recorded his finding in the appellant had been working on the
respect of the manipulations in the post of Head Master and, therefore, the
publication in the newspaper, has order of refund of the salary received by
concluded that the same requires to be the appellant could not have been passed.
investigated by an investigating agency. The learned Single Judge has dealt with
We do not find any error in the same as, the issue in detail observing as under:-
prima facie, there was ample material
before the learned Single Judge to have "The fact of the matter is that
arrived at the aforesaid conclusion. We appointment letter had been issued in his
have ourselves also perused the two favour, signature had also been attested,
copies of the Hindi Daily "Dainik but he never functioned in the institution,
Manyavar" alleged to have been and this is fortified from the circumstance
published on Monday, the sixth of that Sri Raja Ram Vishwakarma on
January, 2003. On page two of the said 26.05.2005 asked Sri Krishna Dixit to
newspaper there is a clear difference as hand over the charge to Sri Ajai Pratap
the same space in one copy carries a news Rai and Sri Krishna Dixit then apprised
item of arrest of two persons whereas the the Manager of interim order of this
other copy contains the advertisement Court. There is voluminous documents on
under scrutiny. The same therefore leaves record to suggest that it was Sri Dixit who
no room for a genuine doubt that fraud had functioned as Principal, at all point of
has been apparently practiced. Both time and not Sri Ajai Pratap Rai, filed
copies at page four disclose the name of along with rejoinder affidavit, copy of
the Editor Sri Om Prakash Jaiswal and which has been served on Sri R.M.
recite the name and address of Mamta Vishwakarma, Advocate on 04.09.2003.
Printers, Khwajgi Tola, Jaunpur as On 20.06.2003, Additional Director of
Publishers. The same further discloses the Education, Basic gave categorical
name of the printing press as Bharatdoot direction for not ensuring salary to Sri
Press, 6 Rampuri, Varanasi. The Ajai Pratap Rai, but ignoring the same it
telephonic and E-mail address are also appears salary has been ensured to Sri
indicated therein. The investigating Ajai Pratap Rai."
2 All] Ram Rama Pal V. D.I.O.S., Allahabad and others 451
18. In the aforesaid factual matrix, the Intermediate classes would lead to
as the finding of fact has been recorded by complete chaotic situation and absurdity.
the learned Single Judge that the appellant Thus, the appointment on the post of
had not worked and the said finding Head Master could not be made. The
seems to be correct otherwise there was appellant did not possess the eligibility,
no occasion for the Manager of the i.e. experience as required under the law
institution to ask Mr. Sri Krishna Dixit on in making an application to the said post
26.05.2005 to hand over the charge to the and had illegally been appointed. Further,
appellant and there was no need to pass an the serious illegality/irregularity in
order by the Additional Director of advertising the vacancy existed and the
Education on 20.06.2003 for ensuring that possibility of committing fraud cannot be
the appellant does not get the salary. The ruled out. As the appointment of the
salary has been paid to him definitely in appellant had been made in total violation
violation thereof. of law and without possessing the
eligibility, the recovery of salary received
19. Recovery of the salary received by him in contravention of the order
by the appellant at such a belated stage is passed by the Statutory Authority does
admittedly very harsh and the Court must not warrant any interference.
be alive of the existing circumstances that
such a refund may cause great hardship to 21. In view of the above, the appeal
him but in view of the fact that we have is misconceived and accordingly
already reached the conclusion that he dismissed.
was not even eligible to make an ---------
application for want of experience and ORIGINAL JURISDICTION
CIVIL SIDE
there was no occasion for making the
DATED: ALLAHABAD 17.11.2006
appointment of Head Master after
upgradation of the Junior High School to BEFORE
High School and subsequently THE HON’BLE PANKAJ MITHAL, J.
Intermediate, the entire proceedings had
been nothing but fraud upon the Statute. Civil Misc. Writ Petition No. 24458 of 1989
In such circumstances, recovery of the
salary paid to him cannot be held to be Ram Rama Pal …Petitioner
unjustified. Versus
District Inspector of Schools, Allahabad
20. In sum and substance, we are of and others …Respondents
the view that after upgradation of an
institution from Junior High School to Counsel for the Petitioner:
Sri A.K. Srivastava
High School and then to Intermediate, the
Sri M.B. Saxena
lower section of the institution, i.e. Junior
Dr. Y.K. Srivastava
High School looses its existence and
merges into the higher section and in that Counsel for the Respondents:
eventuality, the question of making the Sri Tribeni Prasad
appointment of Head Master for the S.C.
Junior High School, a Principal for the
High School and another Principal to run
452 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
U.P. High School and Intermediate Standing Counsel for the respondent
College (Payment of Salaries and No.2.
Teachers & other Employees) AC 1971-
Section-3-Payment of Salary-petitioner
appointed by Principal as class 4th 2. The petitioner was appointed as
employee-appointment on substantive peon in Ishwar Sharan Intermediate
vacancy-payment of salary denied by College, Allahabad. The appointment
D.I.O.S.-On grounds firstly no approval letter was issued by the Principal
secondly the said post ought to have (respondent No.2) on 17.5.1989
fulfilled by compassionate appointment-
(Annexure 1 to the writ petition). The
held-for class 4th employee the Head of
Institution is the appointing authority-
petitioner joined his duties in pursuance
approval of D.I.O.S. not required under of the said appointment letter on
law-when employee died in the 1989, No 18.5.1989. The said appointment of the
existences of Regulation 101-107 petitioner is said to be against a clear
inserted vide notification dated 2.2.95- substantive vacancy. The DIOS vide letter
entitiled for salary from the date of dated 4.7.1989 raised certain objections
appointment with all consequential
benefits.
against the aforesaid appointment of the
petitioner. The objections so raised by the
Held: Para 8 DIOS were duly replied by the Principal
and proper clarification was given.
Thus at the time when the petitioner was However, the DIOS insisted that the post
appointed in the year 1989 there was no be offered to one Shiv Lochan the
Regulation such as Regulation 101
providing for obtaining prior approval of
dependent of an employee of K.P. Inter
the DIOS to the appointments of class IV College who had died-in-harness.
employees at the institution. This aspect Accordingly, the salary bills of the
of the matter was considered by the petitioner submitted by the college along
Division Bench of this Court in case of with the other staff members were not
Om Prakash Vs. DIOS, Budaun [1982 cleared and no payment of salary was
UPLBEC 232] and it was clearly held that
the appointment of class IV employees
made to the petitioner.
i.e. of Chaukidar made by the Principal of
the institution requires no approval of 3. In the above background the
the DIOS as there is no provisions to this petitioner filed the present writ petition
effect and, therefore, such appointees commanding the DIOS to pay salary to
are entitled for salary. The aforesaid the petitioner from the date of his
decision has duly been followed by the
another decision of this Court in case of
appointment i.e. 17.5.1989. The Hon'ble
Mool Chandra Maurya vs DIOS, Jaunpur Court vide interim order dated 20.3.1991
[1991 (1) UPLBEC 50]. Therefore, no directed the DIOS to pay the salary to the
approval by the DIOS was necessary to petitioner in accordance with law subject
the petitioner's appointment. to the final decision of the writ petition.
Case law discussed: Accordingly the petitioner started
1982 UPLBEC-232
1991 (1) UPLBEC-50
receiving salary.
(Delivered by Hon'ble Pankaj Mithal, J.) 4. The petitioner in the writ petition
has also contended that the objection on
1. Heard Sri M.B. Saxena, learned which his salary was withheld by the
counsel for the petitioner and learned DIOS was not tenable and had ceased to
2 All] Ram Rama Pal V. D.I.O.S., Allahabad and others 453
exist when the petitioner was appointed. appointed by the Principal and, therefore,
The dependent of Khandan Lal who died- even if the Committee of Management
in-harness while in service in K.P. has passed a resolution in support thereof
Intermediate College i.e. Shive Lochan it would not affect the appointment of the
had already been appointed in K.P. petitioner. Therefore, the defence taken
Intermediate College itself on 12.2.1987 by the DIOS in the counter affidavit has
and his appointment had also been no substance and is not acceptable.
approved by the DIOS vide letter dated
7.2.1987. He had even joined his duties. 7. The only objection taken to the
The petitioner further contents that the petitioner's appointment was in relation to
time of his appointment the provisions of the appointment of Sri Shiv Lochan on
Regulation 101-107 of the Regulations compassionate ground. The said Shiv
were not in existence. It has also been Lochan had already been appointed in the
contended there was no provision under K.P. Intermediate College itself where his
the U.P. Intermediate Education Act or father was an employee. This fact has not
the regulations framed therein for seeking been disputed in the counter affidavit.
any formal approval of the DIOS to the Therefore, the said ground of objection
appointment of class IV employees at the had ceased to exist and as such the DIOS
relevant time. was not justified in withholding the salary
of the petitioner on this ground.
5. Learned Standing counsel has
placed reliance upon Paragraphs 3, 6 and 8. It is not the case of the
9 of the counter affidavit filed on behalf respondents that the appointment of the
of the DIOS by Sri H. S. Dubey, Assistant petitioner was not against any substantive
Supervisor in the office of DIOS, sanctioned post or was in excess of the
Allahabad. It has been stated therein that sanctioned posts. It is also not their case
the petitioner was appointed by the that the procedure prescribed for the
resolution of the Committee of appointment was not followed. Now the
Management dated 12.5.1989 and since only question which remains to be seen is
the appointing authority of the class IV as to whether any formal approval from
employee is the principal of the college, the DIOS to the appointment of the
the resolution of the Committee of petitioner, who was appointed as a class
Management is without jurisdiction and, IV employee was necessary under the
therefore, the petitioner cannot be said to relevant provisions. Learned Standing
have been validly appointed. No other counsel has placed reliance upon
defence has been taken in the counter Regulation 101 under Chapter III of the
affidavit. Regulations framed under the Act.
Regulations 101 to 107 which were
6. It is admitted on record that the inserted w.e.f 28.8.1992 vide Government
appointment of the petitioner dated notification No.400/15-7-2(1)/90 dated
17.5.1989 has been made by the principal 30.7.1992 and Regulations 101 and 103 to
of the college and not by the committee of 107 have been substituted vide
Management. This appointment has not notification No.300/15-7-2(1)/90 dated
been disapproved by any specific order of 2.2.1995. Thus at the time when the
the DIOS. The petitioner has been petitioner was appointed in the year 1989
454 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
provided under Section 274 of the Act did with regard to the service of the notice as
not arise and the suit as such cannot be sufficient, are wholly justified and do not
said to be barred by Section 41 of the require any interference in this second
Specific Relief Act. appeal.
chamber. The fact that the son of the accommodation, which was situate at
landlord was having his chamber in main road for setting up the clinic of his
another’s accommodation either as doctor son in-law. The tenant pointed out
licensee or as tenant fully proved that the that the father of the doctor was having a
need for establishing chamber was quite vacant accommodation in which clinic.
bonafide and landlord was not having any On the same principle landlord can not be
suitable accommodation for the said compelled to establish the chamber of his
purpose. It is important to note that tenant advocate son in the residential house
himself asserted with great force that the which is away from the main road and
son of the landlord was having his connected with narrow congested passage
chamber in another accommodation of with the main road.
which he was tenant. This clearly
amounted to admission of the facts that 11. Accordingly I hold that the
landlord's son was actually practising as finding of the appellate court that the need
an advocate and was not having any of the landlord was not bonafide is utterly
accommodation of his own to establish erroneous in law. The facts found by the
Chamber and the chamber was being run Appellate Court clearly proved the
in a very small accommodation. bonafide need. The Appellate Court
completely mis-construed the true
10. The Supreme Court in V. meaning and import of bonafide need.
Radhakrishnan vs. S.N.L.Mudaliar The Supreme Court in Shenoy’s case
(A.I.R. 1998 S.C. 2696) has held that if reported in Siddalingama vs. M. Shenoy
the release application is filed for the need (A.I.R. 2001 S.C. 2896) has held that the
of the son, then the property in occupation Rent Control Acts are basically meant for
and use of the land lord is not relevant the benefit of the tenant and provision of
and can not be taken in to consideration. release on the ground of bonafide need is
Similarly in A.G. Nambiar vs. K. the only provision which treats the
Raghavan (A.I.R. 1998 S.C. 3146 ) it has landlord with some sympathy.
been held that the other alternative
accommodation available with the 12. As far the question of
landlord which is not suitable for the comparative hardship is concerned, tenant
business proposed to be established by the himself pleaded that its business was of
landlord is not relevant and can not be quite a large scale. It could, therefore,
taken in to consideration. purchase or take on rent other
accommodation. Tenant did not even
In Chandrika Prasad (Dead) make any effort in the direction. Nothing
through L.Rs. and others vs. U.K. was brought on record in that regard by
Verma and others (A.I.R. 2002 S.C. the tenant. The Supreme Court in
108) the Supreme Court has held that a B.C.Butada vs. G.R.Mundada (A.I.R.
less suitable accommodation available to 2003 S.C.2713) has held that after filing
the landlord is no ground to reject the of release application it is utmost essential
release application in respect of tenanted for the tenant to make efforts either to
accommodation which is more suitable. In purchase or take on rent other
the said case the landlord had sought accommodation otherwise question of
release of the tenanted commercial
460 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
hardship maybe decided against the (ii) For this period of six months
tenant. which has been granted to the tenant to
vacate it is required to pay Rs.12,000/- (at
13. The Appellate Court has given a the rate of Rs.2000/-per month) as
very strange finding in this regard. damages for use and occupation. This
Appellate Court held that for 'the amount shall also be deposited within one
landlord, getting possession of the month before the Prescribed Authority
property in dispute was merely a matter of and shall immediately be paid to the
convenience, while the tenant actually petitioner-landlord.
needed the same. Tenant is having a very
good business for several decades. In case of default in compliance wit~
Landlord's son has got no proper either of these conditions, tenant
accommodation for establishing his respondent shall be evicted after one
Chamber. The balance of hardship month through process of Court.
therefore tilts heavily in favour of the
landlord. 16. It is further directed· that in case
undertaking is not filed or Rs.12000/- are
14. The Supreme Court in G.C. not deposited within one month then
Kapoor vs. N.K. Bhasin (A.I.R. 2002 tenant respondent shall be liable to pay
S.C, 200) reversed the concurrent findings damages at the rate of Rs.3000/- per
of all the three courts i.e. the Prescribed month since after one month till the date
Authority, Appellate Court/District Judge of actual vacation.
and the High Court on the question of
bonafide need and comparative hardship 17. Similarly, if after filing the
and out rightly allowed the release aforesaid undertaking and depositing
application, of the landlord holding that Rs.l2,000/- the accommodation in dispute
the findings of all the three courts below is not vacated after six months then
were erroneous in law. damages for use and occupation shall be
payable at the rate of Rs.3000/- per month
15. Accordingly writ petition is since after six months till actual vacation.
allowed. Judgment and order passed by ---------
the Appellate Court is set aside and ORIGINAL JURISDICTION
CIVIL SIDE
judgment and order passed by the
DATED: ALLAHABAD 28.11.2006
Prescribed Authority is restored.
BEFORE
Tenant respondent is granted six THE HON’BLE PRAKASH KRISHNA, J.
months time to vacate provided that:
Civil Misc. Writ Petition No.40429 of 1998
Within one month from today it files
an undertaking before, the Prescribed Munendra Pal Singh Chauhan …Petitioner
Authority to the effect that on or before Versus
the expiry of period of six months it will The Chairman and Managing
willingly vacate and handover possession Director(C.M.D.), U.P. Rajya Vidyut Utpadan
Nigam Ltd. & others …Respondents
of the accommodation in dispute to the
petitioner-landlord.
2 All] Munendra Pal Singh Chauhan V. C.M.D., Rajya Vidut Utpadan Nigam and others 461
and he could not be traced out, but in Section 108 of Indian Evidence Act when
absence of any cogent material about the the competent authority has treated such
date of death or place of death, it would employee as dead. In contra, the learned
not be proper to treat that he died during counsel for the Department supported the
the service. By extending the benefit of impugned order and submitted that the
Dying in Harness Rules, it will not be father of the petitioner has been found
proper to offer the appointment to the missing only two days prior to the date of
petitioner. The due date for the retirement his superannuation. The petitioner cannot
of the petitioner's father was 31st of claim compassionate appointment as only
August, 1990 who after availing medical two days were left and the object of
leave w.e.f. 22.8.1990 to 27.8.1990 giving compassionate appointment is to
attended the duty in the last night shift give support to such families to tide over
(from 22 hours to 6 hours) on 28/29th of the sudden crisis.
August, 1990 in "D" group at Harduaganj
"A" Thermal Plant Station. After due date 4. I have given careful consideration
of retirement, the mother of the petitioner to the respective submissions of the
has been paid G.P.F. amounting to learned counsel for the parties. Before
Rs.23,488-78, encashment balance leave considering the nature of the
Rs.8,348.67 and arrears of pension compassionate appointment, it is desirable
amounting to Rs.1,32,633-69. Besides, to notice the law dealing with when
the family pension is being paid every presumption about the death of a person
month. from the fact that a person has not be
heard of for 7 years to be drawn. The
3. The sole argument raised by the Privy Council in Lal Chand Marwari Vs.
learned counsel for the petitioner, in the Mahant Ram Rup Giri and another
present writ petition is that indisputably A.I.R 1926 Privy Council 9 held that
the father of the petitioner was in service there is no presumption, under law as to
on 28th of August, 1990, since when he is when a person has died, if such person is
missing. A reference has been made to a not heard of for 7 years. There is only one
circular dated August 16, 1996 issued by presumption, and that is the person was
the Mukhya Karmik Adhikari wherein, no longer alive. There is no presumption
according to the learned counsel for the at all as to when such person has died,
petitioner it has been provided that in case like any fact, is a matter to proof. Their
of such employees whose whereabouts Lordships quoted with approval law of
are not known and the presumption of England and held that there is no
their civil death should be drawn, the difference both in India and in England on
payment of pension and other pensionary this issue. Their Lordships have quoted
benefits and the balance amount has been following passage:
provided for. In the said circular it has
been clarified that in the case of such "If a person has not been heard of
employees whose whereabouts are not for 7 years, there is a presumption of law
known, the compassionate appointment that he is dead. But at what time within
shall not be made within a period of one what period he died is not a matter of
year. The facility of compassionate presumption but of evidence, and the onus
appointment shall be admissible as per of proving that the death took place at any
2 All] Munendra Pal Singh Chauhan V. C.M.D., Rajya Vidut Utpadan Nigam and others 463
particular time within 7 years lies upon Vs. Munendra Singh Chauhan and
the person who claims a right to the another decided on 17.1.1998. The Civil
establishment of which that fact is Judge has held only this much therein,
essential.” that a presumption may be drawn about
the death of Mahendra Pal Singh as there
5. The aforesaid judgment of the is no evidence that he is alive, under
Privy Council has been approved by the Section 108 of the Indian Evidence Act.
Apex Court in Darshan Sinah and others Even in the said judgment no finding has
Vs. Gujar Singh JT 2002 (1 J S.C. 11. A been recorded about the actual date of
suit was filed claiming property of Jagjeet death of Shri Mahendra Pal Singh
Singh who was reported to be not being Chauhan.
'heard for more than 7 years. The High
Court considered Jagjeet Singh to be 7. In view of the above discussion,
"dead only on the date on which the the argument that Shri Mahendra Pal
present suit was filed." In this fact Singh Chauhan, the father of the
situation the Supreme Court held that petitioner has expired on 29th of August,
succession to the estate of Jagjeet Singh 1991 or while in service, is not tenable in
would open only on the death of Jagjeet law and is therefore rejected. There is no
Singh and as the plaintiff could not prove material on record to show nor the
the date of death of Jagjeet Singh petitioner has made any attempt by
therefore his succession to the estate did producing evidence of unimpeachable
not open on the date of filing of the suit. character to prove that his father actually
In para 5 of the report, the Apex Court expired on 29th of August, 1990 or in
noticed the decision of the Privy Council harness.
of Lal Chand Marwari Vs. Mohan Ram
Rup Giri (supra). 8. There is another aspect of the case
also. The entire thrust of the argument is
6. Thus from the above discussion it that as the father of the petitioner has
boils down to this that the burden to prove expired on 29th of August, 1990 while in
the actual date of death, lies upon the service, therefore, the petitioner is entitled
person who propounds the death of such for compassionate appointment. The
person. Under Sections 107 and 108 of aforesaid argument has been made
the Evidence Act only this much ignoring the very concept of
presumption can be drawn that such a compassionate appointment.
person is no longer alive but there is no
presumption about the actual date of death 9. The object of compassionate
of such person. In view of this legal appointment is not to give a member of
proposition, the argument of the learned deceased family a post. Mere death of an
counsel for the petitioner that the father of employee in harness does not entitle his
the petitioner has died on 29th of August family to such source of livelihood. The
1990 while in service cannot be accepted employer or the government as the case
in absence of any proof about his actual may be, has to examine the financial
death on that date. Reliance has been condition of the family of the deceased
placed upon a judgment of Civil Judge in and compassionate appointment shall be
O.S. suit No.588 of 1997 Smt. Murti Devi offered only when the employers come to
464 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
the conclusion that the family will not be appointment against the post which would
able to meet the crisis on account of the have been available, but for the provisions
sudden death of the employee, then a job enabling appointment being made on
is to be offered to the eligible member of compassionate grounds of the dependants
the family (See Umesh Kumar Nagpal of the deceased employee, it has been
Vs. State of Hariyana and others 1994 held that appointment on the
AIR SCW 2309). compassionate ground is not another
source of recruitment.
Punjab National Bank and others
Vs. Ashwani Kumar Taneja AIR 2004 11. Coming to the facts of the
S.C. 4155 is an authority for the present case and the law as discussed
proposition that the appointment on above, it is clear that in any view of the
compassionate ground is not source of matter it is not a case of sudden crisis.
recruitment but merely an exception to the Indisputably, the father of the petitioner
requirement of making appointment on was due to retire on 31st of August, 1990.
open invitations of applications on merits. Two days prior to the date of
Basic intention is that on the death of superannuation, according to the
employee concerned his family is not petitioner, he has been found missing. The
deprived of the means of livelihood. The father of the petitioner indisputably was
object is to enable the family to get over going to retire on 31st of August, 1990 and
the sudden financial crisis. In Union as such even assuming for the sake of
Bank of India Vs. M. To Latheesh 2006 argument that he has not been actually
AIR SCW 4626, the Apex Court has heard of since 29th of August, 1990, the
reiterated its above view. family has not suffered any sudden
financial crisis to entitle the petitioner to
10. In M/s. Indian Drugs and lay his claim for compassionate
Pharmaceuticals Vs. Devki Devi and appointment. As pointed out by the Apex
others 2006 (5) ALJ 489, the Apex Court Court that the very object of granting
has considered its other earlier decisions compassionate appointment is to provide
on the point and reached to the same financial support to the family of an
conclusion that compassionate employee on account of sudden death. By
appointment is given out of purely no stretch of imagination, in the present
humanitarian consideration and having case it can be said that it is a case of
regard to the fact that unless some source sudden financial crisis to the family even
of livelihood is provided the family would if it is assumed that the father of the
not be able to make both the ends meet, petitioner is no longer alive. Taking into
provisions are made for giving to one of consideration the entire stock of situation
the dependants of the deceased who may this Court is of the view that the petitioner
be eligible for appointment. Care has, has not been able to prove the actual death
however, to be taken that the provision for of his father as 29th of August, 1990 or the
grant of compassionate employment fact that his father died in harness.
which is in the nature of an exception to Secondly, even if accepting the case of
the general provisions does not unduly the petitioner for the sake of argument,
interfere with the right of those other the petitioner is not entitled for any relief
persons who are eligible to seek as very avow object of the compassionate
2 All] Smt. Sheela Devi V. M.D., Union Bank of India and others 465
but as has been noted hereinabove, on 3.3.2005 holding that under the
twice the Bank has raised the same scheme there was no such limitation and
bogey and misleading grounds to reject
as such it remanded the matter to the
the claim of the widow. Since the Bank
appears to have a closed mind on the respondent-bank to consider her claim
issue and is harassing a young widow by afresh in view of the scheme dated
forcing her to approach the Court time 19.2.1997.
and again it would be against the
interest of justice to remand the matter 4. In pursuance thereof the said
for decision afresh. Applying the ratio of
impugned order has been passed rejecting
a Division Bench of this Court rendered
in the case of Dr. Sangeeta Srivastava
her claim on various grounds which we
Vs. University of Allahabad and others would presently examine.
(2002) (3) U.P.L.B.E.C. 2502, which has
been affirmed by the Apex Court, remand 5. When this petition was heard on
would be futile. 7.7.2005 it was directed to come up
Case law discussed: alongwith record of earlier writ petition
2002 (3) UPLBEC-2502
which had been allowed on 3.3.2005.
(Delivered by Hon'ble D.P. Singh, J.)
6. Before examining the grounds on
which the claim has been rejected, it
1. Heard counsel for the petitioner
would be appropriate to examine the
and Sri Vivek Ratan for the respondent-
background facts.
bank and perused the records of both the
writ petitions.
7. Admittedly, the deceased husband
of the petitioner who joined the Bank in
2. This petition is directed against an
September, 1989 died in harness at the
order dated 3.5.2005 by which the claim
age of 33 years leaving behind his widow,
for compassionate appointment has been
the petitioner aged about 30 years and two
rejected.
sons and a daughter who were minors and
students. The total terminal benefits
3. The husband of the petitioner was
payable at the time of death under the
working as Clerk /Typist in the Union
heads of Provident Fund, Gratuity,
Bank of India and posted at Ballia. He
Insurance and Leave encashment
died in harness on 22.3.1999 and the
amounted to Rs.3,02,640/- while the
petitioner moved an application alongwith
liability under various loans was
relevant documents seeking
Rs.2,13,800/- so the net payable amount
compassionate appointment on 10.4.1999.
was only Rs.88,840/- which according to
By an order dated 19.2.2000 the claim
the Bank itself could have earned interest
was rejected on the ground that the
of Rs.740/- only. In the order dated
husband of the petitioner had not
19.2.2000 the Bank admits that the entire
completed ten years of service in the
burden of the family has fallen on the
respondent-bank and as such she was not
shoulder of the petitioner as there is no
entitled for compassionate appointment.
other earning member in the family. The
This was subjected to challenge in writ
husband of the petitioner would have
petition no. 43349 of 2003 and after
normally been in service till the year 2024
exchange of pleadings the said writ
or 2026 depending on the retirement age.
petition was allowed by a reasoned order
2 All] Smt. Sheela Devi V. M.D., Union Bank of India and others 467
8. In the aforesaid background, let recited in the impugned order reflects that
us examine the ground on which the claim the object of compassionate appointment
has been rejected. is "to enable the family to tide over the
sudden crises". But twice the Bank has
9. In paragraph no. 9 of the rejected her claim firstly on non-existing
impugned order the first ground taken for ground and secondly on false or
rejection is that "the deceased employee misleading grounds. She has been made
had served the Bank for a very short to approach this Court second time which
period." This very ground was repelled by reflects that the Bank has a closed mind
this Court in its judgment dated 3.3.2005 and does not want to abide by the scheme
passed in the earlier writ petition. The framed by itself. Being an instrumentality
second ground of rejection is that "family of the State, it has to justify deviation
of the deceased employee received a from its policy enshrined under the
terminal benefits amounting to Rs.3.02 scheme. It is not their case that no
lacs". This is palpably false and compassionate appointment was given
misleading. The net amount allegedly under the scheme to anyone.
paid to the petitioner was only
Rs.88,840/- which admittedly could earn 11. However, the learned counsel
a monthly income of Rs.740/- only. The appearing for the Bank contended that the
next ground given is that "the present petitioner had earlier approached this
claim, after a lapse of six years from the Court against the order dated 19.2.2000
death of the employee, defeats the very after a delay of 3 ½ years and the Court
object of the scheme". This ground is also did not consider the issue of laches and
palpably false as it is the own case of the allowed the writ petition. Be it so,
respondent Bank that after the death of admittedly no appeal was filed against the
her husband on 22.3.1999 the petitioner judgment and order dated 3.3.2005 and
had applied within a month on 10.4.1999. this Court in coordinate jurisdiction
Thereafter, the order goes on to recite that cannot sit in appeal against the said
the claim of compassionate appointment judgment.
is not a vested right but it holds that "It is
to be granted at its discretion only in 12. Next it is urged that now since
deserving cases." more than six years have expired and the
family has managed to survive, thus,
10. As noted hereinabove out of giving any relief at this point of time
three grounds given for rejecting the would defeat the object of lending a
claim, two have been found to be false or helping hand to tide over the sudden
misleading. Can a family of four, crises. Foremost, such a plea cannot be
including three minor students survive on raised by the Bank because the widow
notional monthly income of Rs.740/-? had approached them within a month
The answer can only be a big no. No claiming compassionate appointment and
doubt, none can claim compassionate the Bank rejected her claim and forced
appointment as a matter of right but the her to approach this Court earlier. Again it
Bank which is a Government of India has rejected her claim which grounds
Undertaking has to act in a fair manner. have been held to be incorrect or
The scheme framed by it and so also misleading.
468 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
In case we uphold the order of Director been found over age and ineligible for
then it would result in re-advertisement of appointment.
the vacancy and unnecessary expenses
would be involved in making the 7. In the result, this writ petition
advertisement which would further delay succeeds and is allowed. The order dated
the appointment of a regular principal. 5.3.2005 passed by respondent no.2
Further, since Regulation 14(6) clearly cancelling the selection process and
states that the select list will contain the directing for fresh advertisement,
recommendation more than the number of Annexure-6 to the writ petition, is
vacancy, the intention of the Regulation quashed. A writ of mandamus is issued to
making authority appears to be that there the Director, Technical Education, U.P.,
should be panel of names. If the intention Kanpur to consider the name of the
was that only one name for the post of petitioner for appointment on the post of
principal should be recommended then it Principal, Chandauli Polytechnic,
would have been clearly provided in Chandauli within a period of one month
Regulation 14(6). The Regulation has to from the date a certified copy of this order
be interpreted in such a manner that it is produced before Respondent No.2.
advances the purpose for which it had
been framed. Therefore, we hold that 8. The parties shall bar their own
panel of at least two names for the post of costs.
principal is required to be sent by the ---------
selection committee so that if the ORIGINAL JURISDICTION
CIVIL SIDE
candidate at serial no.1 is found ineligible
DATED: ALLAHABAD 20.02.2007
or he does not join then the second
candidate could be offered appointment. BEFORE
THE HON’BLE TARUN AGARWALA, J.
6. From the perusal of records as
well as the counter affidavit, we do not Civil Misc. Writ Petition No.48466 of 2004
find that any finding has been recorded by
the Director that the selection made by the U.P. State Road Transport Corporation
selection committee in recommending the and others …Petitioner
panel of names any illegality or mal- Versus
practice was committed by the selection Kashi Nath and others …Respondents
committee. We are of the opinion that the
Director was not justified in setting aside Counsel for the Petitioner:
Sri Samir Sharma
the entire selection process initiated by
Sri Sheshadri Trivedi
respondent no.4 and directing for fresh
advertisement for appointment on the post
Counsel for the Respondents:
of principal. The Director is required to Sri K.S. Rathor
consider the claim of the petitioner who S.C.
was at serial no.2 in the panel for
appointment on the post of principal, Constitution of India, Art. 226-
Chandauli Polytechnic, Chandauli as the Termination order passed by the
candidate at serial no.1 in the panel had management on the ground workman
produced forged and false caste
472 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
required to be taken under the said arms was essential to the preservation of
provision, the authority was required to the life and property of the licence holder.
consider the material facts of the case and
form a bonafide opinion on relevant 10. In Shesh Nath Nayak vs.
consideration as to whether there was a District Magistrate, Sant Kabir Nagar
sufficient ground for proceeding under and another, 2004 (5) AWC 4675, a
that Section and whether immediate single judge of this Court held that even
prevention or speedy remedy was though the Election Commissioner could
desirable. The Court further found that if issue orders directing the District
the authority found that such a situation Magistrate to get the fire arms deposited
existed, in that eventuality, the authority as a preventive measure for conducting
could direct any person to abstain from free and fair election, nonetheless, the
doing a certain act but could not pass a deposit of the fire arms could only be
general order for depositing the fire arms. sought through legitimate means, i.e., on a
review of each individual case on
6. Subsequently, the Court in objective assessment.
Shahabuddin and others vs. State of
U.P. And others, 2000 (38) A.L.R. 44 11. In Yaduvir Singh Chauhan vs.
issued a mandamus directing the State District Magistrate, Etah and other,
Authorities not to compel the licence 1993, A.C.J 1312, this Court quashed the
holders to deposit the firm arms on the notification of the Election Commissioner
basis that elections are going to be held in as well as the order of the District
the near future. Similar direction was Magistrate with regard to the deposit of
again issued in Mohd. Arif Khan and fire arms of the valid licence holders.
others vs. State of U.P. and others 2002 Similar view was reiterated in Shri
A.C.J. 586. Narayan Shukla and another vs.
District Magistrate, Allahabad and
7. In Ram Hit Vs. State of U.P. others decided on 12.1.1996 in Civil
and others, 2000 (40) ALR 281, the Misc. Writ Petition No.12755 of 1996.
Court held that the authority cannot
compel a citizen to deposit the fire arms 12. Inspite of the aforesaid
unless there was a specific order by a directions, upon the announcement of the
competent authority under the Arms Act. ensuing Assembly elections, a bunch of
writ petitions have again been filed
8. In Israr Khan Vs. State of U.P., alleging that the State Administration has
1996(27) ALR 198, the Court held that issued some orders for the deposit of the
the weapon could only be deposited in weapons and based on such orders, the
accordance with law as contemplated Station House Officer was compelling the
under the Arms Act and that the weapon petitioners and other law abiding citizens
could not be deposited under an oral order to deposit the fire arms.
of the Station House Officer.
13. In this bunch of the writ
9. In Pandhari Yadav vs. State of petitions, the petitioners before the Court
U.P. And others, 2004 A. L.J. 2246, the is a Member of Parliament, a Member of
Court held that the retention of the fire Legislative Assembly, a Doctor, an
478 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
Advocate, a farmer , a businessman, a licence nor any orders had been passed
prospective candidate in the ensuing cancelling their licence under the Arms
election, a Security Guard, a Central Act, and therefore, the petitioners cannot
Government Employee, etc. Some of the be compelled to deposit the fire arms
writ petitioners have approached this merely because the Assembly election
Court contending that they are valid were going to be held in the near future.
licence holders of the fire arms and could The petitioners have further contended
not be compelled to deposit their arms on that no notice has been issued for
the basis of some general orders being depositing the fire arms. A learned
issued by the Administration. Some of the Advocate of this Court submitted that
petitioners have alleged that the licence only yesterday he had heard an
was granted to them because of the announcement on a loudspeaker directing
danger to their life and property. Another the citizens to deposit the fire arms at the
petitioner has approached this Court local police station. The counsel
contending that he is a security guard and submitted that such general orders could
that he is required to carry the fire arms as not be issued by the local Administration.
part of his employment. Another
petitioner has contended that in the last 15. This Court had directed the
election his brother was shot dead by a Standing Counsel appearing on behalf of
rival candidate and that he was also State of U.P. and the local administration
seriously wounded, and therefore requires to seek necessary instructions.
the weapon to protect himself. There is
yet another petitioner, who has The Standing Counsel has filed an
approached this Court contending that as application today bringing on record an
a law abiding citizen he had deposited the order dated 11.2.2007 issued by the Chief
weapon in the last election as per the Secretary and the Director General of
direction of the Administration and the Police directing all the District
Station House Officer, and that the Magistrates and other officers for
Station House Officer refused to hand compliance of various directions in the
back the weapon to him after the elections ensuing Assembly elections. Para 6 of this
were over. The weapon was only released order pertains to the deposit of the fire
when a mandamus was issued by the High arms, in which the State Government has
Court in his petition. The petitioner directed the authorities to reappraise the
contends that he does not want to undergo fire arms licence issued by them and take
the same harassment again. appropriate action for the deposit of fire
arms, suspension or cancellation in
14. All the petitioners, by and large, accordance with the provisions of law,
contend that no sweeping orders could be where it was found that the licence holder
issued by the Administration for was likely to misuse the weapon.
depositing the fire arms. The petitioners
contend that they are law abiding citizens In my view, the aforesaid direction
and that no criminal cases are pending of the State Government as contained in
against them nor have they misused their paragraph No.6 of its order dated
weapons. It was urged that no orders had 11.2.2007 is in consonance with the
been passed either suspending their provision of the Arms Act and in
2 All] Uma Kant Yadav. V. State of U.P. and others 479
the State Government in its order dated Counsel for the Respondents:
11.2.2007 and S.C.
(b) if it is found by the competent
authority that there is a chance of the Arms Act-Section-14-Refusal to grant
misuse of the weapon, an appropriate arm licence-No reason assigned by
District Magistrate-only reason disclosed
order in writing is required to be for refusal that the application not
passed by the competent authority contains any reason for grant of licence-
for the deposit of the fire arms. held-order of refusal on the face of
(c) The order of the deposit of the record itself suffer from error of law by
weapon made by the competent quashing the impugned order-direction
authority in writing should be issued for fresh consideration.
communicated to the licence holder. Held: Para 9
(d) The directions contained aforesaid
will apply not only for this election In view of the above, the order passed
but for all elections. by the District Magistrate, Allahabad
refusing to grant Arm's license to the
19. A certified copy of this order petitioner suffers from error of law
apparent on the face of record and the
shall be made available to the parties on order passed by the Appellate authority
payment of usual charges within four days affirming the same was also passed
from today. The registry is also directed without application of mind, though the
to supply a certified copy of this judgment Appellate authority mentioned in its
to Sri J.K. Khanna, the learned Standing order that the petitioner is a
Counsel within the same period, who businessman and requires an Arm's
license for protection of his life and
shall immediately forward it to the Chief property.
Secretary of the State of Uttar Pradesh,
for necessary communication to all the (Delivered by Hon’ble S.N. Srivastava. J.)
authorities in the State of Uttar Pradesh,
for immediate compliance. 1. This writ petition is directed
---------
against the order dated 9.10.2002, passed
ORIGINAL JURISDICTION by the District Magistrate, Allahabad and
CIVIL SIDE the order dated 4.3.2003, passed by the
DATED: ALLAHABAD 01.11.2006 Commissioner, Allahabad Division,
Allahabad in Appeal affirming the order
BEFORE passed by the District Magistrate refusing
THE HON’BLE S.N. SRIVASTAVA, J. to grant Arm's license to the petitioner.
Civil Misc. Writ Petition No. 35360 of 2003 2. Inspite of the order dated
4.10.2006 passed by this Court, neither
Krishna Mohan Srivastava …Petitioner
any counter affidavit has been filed by the
Versus
State of U. P. and others …Respondents State nor original application of petitioner
has been produced before the Court.
Counsel for the Petitioner:
Sri D.K. Tiwari Heard learned counsel for the parties.
2 All] Krishna Mohan Srivastava V. State of U.P. and others 481
3. The petitioner applied for grant of but rejected the application of petitioner
an Arm's licence of D.B.B.L. Gun on on the ground that application does not
22.8.2001. The District Magistrate did not contain any reason for grant of Arm's
pass any order, hence petitioner filed Writ license.
Petition No.22881 of 2002. This C6urt by
an order dated 24.5.2002 directed the 8. This Court on 4.10.2006 directed
District Magistrate, Allahabad to pass learned Standing Counsel to produce the
appropriate orders on petitioner's original Application of petitioner, but
application within six months' and in neither original application was produced
compliance of the said order, the District nor averments made by the petitioner in
Magistrate by an order dated 9.10.2002 the writ petition were controverted by
rejected the application of petitioner for filing a counter affidavit. In the facts of
grant of Arm's license. An appeal the case, this Court is of the view that the
preferred against the said order was also District Magistrate was duty bound to
dismissed on 4.3.2003. These two orders consider report submitted by the Police
have been impugned in the present writ authorities alongwith Application of
petition. petitioner and other materials on record.
Uncontroverted averments made in the
4. Duly considered arguments of writ petition are that petitioner is a
learned counsel for the parties and reputed person and requires an Arm's
perused the materials on record. license for safety of his life and security
of his property. The Appellate authority in
5. From perusal of the record, it its order also mentioned that the petitioner
clearly transpires that the District is a business-man. It is also borne out
Magistrate while passing the order did not from the uncontroverted averments made
consider petitioner's application alongwith in the writ petition that petitioner has right
the report of the Police authorities and to live with dignity and for protection
other materials on record. against criminals and the antisocial
elements of the area and, therefore, he
6. Section 14(2) of the Arms Act requires an arm's license. These
makes it clear that in case the licensing averments made in the writ petition have
authority refuses to grant the license, he not been denied by the State by filing
shall record reasons in writing for such counter affidavit: The matter relates to the
refusal and furnish to that person, on City of Allahabad, but the State did not
demand, a brief statement of the same care to challenge or controvert the
unless in any case the licensing authority averments made in the writ petition
is of the opinion that it will not be in the denying these facts and as such
public interest to furnish such statement. petitioner's requirement of an Arm's
license to protect his life and property is
7. In the present case, no reasons established. The In the present scenario
have been recorded in the order of the where life and property of the civilized
District Magistrate. The order passed by citizens of the society is under threat from
tile District Magistrate makes it clear that criminals and antisocial elements and the
he admitted that Police authorities have law and order situation prevailing in the
submitted a report in favour of petitioner,
482 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
State also makes out a case for grant of an Sri Rajesh Nath Tripathi
Arm's license to the petitioner. Sri S.K. Tiwari
2. This petition is directed against an are only two material disclosed in the
order of compulsory retirement dated counter affidavit. One is that
3.8.2005. miscellaneous advance amounting to
Rs.5,35,173/- was neither deposited by'
3. The petitioner was working as a the petitioner nor accounted for. The other
Junior Engineer in the respondents is an alleged bad entry for the year 1998-
Corporation and by the impugned order 99.
dated 3.8.2005 he has been compulsory
retired in view of U.P. State Electricity 6. In the writ petition itself the
Board Employees (Retirement) petitioner has annexed a copy of the
Regulations, 1975 (hereinafter referred to report dated 30.9.2004 showing that an
as 'Regulations'). amount of Rs.5,03,477/- had already been
accounted for through vouchers and
4. Learned counsel for the petitioner verified in form no. A-9 of March 2000
has urged that neither any adverse entry but for the remaining amount of
was ever communicated to him nor any Rs.31,696/-, the Deputy General Manager
enquiry or charge sheet was ever served vide his letter dated 7.1.2005, which is
on him. He has also urged that there was Annexure-6 to the petition had declared
no adverse material available before the that it is being recovered from the
respondents to have taken action under petitioner through his salary. These
Regulation 2 (b) and 2 (c)(i). Regulation allegations or the annexures have not been
2-A of the said Regulations provides as denied specifically. Once the amount had
under. already been duly accounted for and
explained, it could not be said by any
''In order to be satisfied whether it stretch of imagination that it reflected
will be in the public interest to require a upon the efficiency or suitability of the
Boards servant to retire under Clause (b) petitioner. The record relating to the
the appointing authority or any authority award of bad entry for 1998-99 has not
to whom the appointing authority is been annexed with the counter affidavit.
subordinate may take into consideration The award of the bad entry and its
any material relating to the efficiency and communication has been specifically
suitability of the Boards servant including denied in the rejoinder affidavit.
Service Records, Annual Confidential However, learned counsel for the
Reports, any report of the Vigilance respondent has produced some of the
Establishment or any other Inquiry service record of the petitioner. There is
Report and other relevant material." an order mentioning about bad entry
against the petitioner but neither in the
5. A perusal of the aforesaid Annual Confidential Report of 1998-99 it
Regulation shows that the Appointing is reflected nor its communication is
Authority has to take into consideration demonstrated by any material on record.
any material relating to the efficiency and To the contrary the service record shows
suitability of the incumbent including any that right from 1992-93 till 1996-97 the
report of vigilance or any other enquiry petitioner was awarded "Very Good" or
report to decide whether it is necessary to "Good" entries. No· service record
compulsorily retire the incumbent. There subsequent to 1998 has been produced to
484 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
justify the action against the petitioner. Counsel for the Petitioner:
Assuming that there is one bad entry of Sri Naveen Yadav
1998-99 but that has also not been Sri Y.S. Bohra
communicated to him. It is aptly said one
swallow does not bring a spring. One bad Counsel for the Respondents:
entry in more than three decades of A.G.A.
service cannot be said to be sufficient to
Code of Criminal Procedure-Section-299-
hold that the public interest requires the
Power of Magistrate-when accused
compulsory retirement of the petitioner. absconded-even after 82 and 83,
From the service record, it is also proceeding and the closure of
apparent that throughout his service, the proceeding under section-299-if
integrity of the petitioner was never magistrate gets information about
doubted. The counsel for the respondent existence of any immovable property-
has failed to point out any material which Magistrate should pass attachment
order-inaction on the part of concerned
could show that the conduct or the Magistrate despite of the particulars
method of working of the petitioner was given by the informant/complainant-
adversely telling up on the efficiency of court expressed its great concern.
the unit where he was working or of the
corporation at large. Therefore, the Held: Para 3
exercise of power of compulsory
Learned Magistrate is also directed to
retirement appears to be arbitrary and not proceed, under Section 299 Cr.P.C.
based on any relevant material. Therefore, against the accused, if he is satisfied that
it has to be quashed. there is no immediate prospects of
arresting the accused after passing a
7. For the reasons above, this detailed order. Even if while proceeding,
petition succeeds and is allowed and the under Section 299 Cr.P.C., the Magistrate
gets information from the police or
impugned order dated 3.8.2005 is hereby complainant-informant about existence
quashed and it is directed that the of any moveable and immoveable
petitioner shall be treated to be in service property of the accused, there is no
till the date of his actual retirement and impediment in issuing as attachment
will also be entitled to consequential order.
benefits. No order as to costs.
--------- (Delivered by Hon’ble Amar Saran, J.)
ORIGINAL JURISDICTION
CIVIL SIDE 1. In this case, F.I.R was registered
DATED: ALLAHABAD 29.11.2006 on 7.5.2003 under Section 302 I. P. C.
and the charge sheet was submitted on
BEFORE
1.6.2003. The accused have not been
THE HON’BLE AMAR SARAN, J.
THE HON’BLE R.N. MISRA, J.
arrested so far in collusion with the
Investigating Officer as alleged in the writ
Crl. Misc. Writ Petition No.7662 of 2004 petition. The C.J.M. concerned has also
not taken effective steps for arresting the
Smt. Yasoda …Petitioner. accused persons despite several orders,
Versus passed by this Court. It has been
State of U.P. and others …Respondents mentioned ¥ in the supplementary
2 All] Smt. Yasoda V. State of U.P. and others 485
affidavit, filed by Vinod Kumar, the prospects of arresting the accused after
present S.H.O, Adarsh Nagar, district passing a detailed order. Even if while
Muzaffarnagar that he has already moved proceeding, under Section 299 Cr.P.C.,
the C. J. M, Muzaffarnagar for the Magistrate gets information from the
proceeding, under section 299 Cr.P.C. and police or complainant-informant about
that application is still pending. It has also existence of any moveable and
been informed by the prosecution side immoveable property of the accused,
that the police had applied to the there is no impediment in issuing as
Magistrate concerned for attachment of attachment order.
the properties of the accused, under
Section 83 Cr.P.C. but that application 4. Learned C.J.M. is directed to
was rejected. In that application, a paper submit his explanation about laches on his
mill was desired to be attached belonging part. The Investigating Officer/S.H.O.
to the accused Rakesh Jain, but the C.J.M concerned is also directed to be present in
concerned has rejected the application this Court in person on 19.12.2006 to
vide order dated 28.6.2006 on the ground apprise this Court about the steps taken by
that it was leased to one Anuj Jain. It them for arrest of the accused and or
appears that the police and magistrate identifying their properties.
both were passing time, which was in
favour of the accused. 5. The application for impleadment
of accused in this petition is also allowed
2. Admittedly, the process under and they be impleaded as opposite parties
Sect ion 82 Cr. P. C. has been exhausted in this case.
and under Section 83 Cr.P.C the
moveable and immoveable properties of 6. List this case on 19.12.2006.
the accused are to be attached. Learned
counsel for complainant-informant says Let a copy of this order may be given
that besides paper mill, there are other to learned A.G.A. within one week for
properties also belonging to the accused, compliance.
which may be attached. He is directed to ---------
furnish details of the properties owned by
the accused before the C.J.M. concerned
at the earliest. The police is also directed
to trace out the properties of the accused
and inform the Magistrate concerned. The
Magistrate concerned is directed to take
immediate steps for attachment of the
properties of accused, so that pressure
may be built up for procuring their
attendance.