1 All]. Shiv Shankar Mishra Vs. State of U.P. & Ors. 1 All]. Shiv Shankar Mishra Vs. State of U.P. &...

1 All]. Shiv Shankar Mishra Vs. State of U.P. & Ors. 1

APPELLATE JURISDICTIONCIVIL SIDE

DATED: ALLAHABAD 15.01.2015

BEFORETHE HON'BLE DR. DHANANJAYA YESHWANT

CHANDRACHUD, C.J.THE HON'BLE SUNEET KUMAR, J.

Special Appeal Defective No. 10 of 2015

Shiv Shankar Mishra ...AppellantVersus

State of U.P. & Ors. ..Respondents

Counsel for the Appellant:Sri R.K. Pandey

Counsel for the Respondents:C.S.C.

Constitution of India, Art.-226-Servicelaw-claim of interest on delayed paymentof arrears of salary as well as pension-inspite of earlier direction of Writ Court-payment made on highly belated stage-only reason disclosed for non payment thepaucity of fund-held-petitioner/appellantentitled for interest on delayed paymenton arrears of salary as well as pension-tothis extent order by Single Judge modified-appeal disposed of.

Held: Para-9We, therefore, have come to theconclusion that the learned Single Judgewas not justified in declining the prayerfor the payment of interest. Insofar asthe payment which was made to theappellant on 18 March 2014 isconcerned, the appellant was clearlyentitled to the payment of interest fromthe date of the filing of the writ petitionin 2010 (Writ -A No. 47141 of 2010). Theappellant would also be entitled to thepayment of interest on the pensionarypayment which was unlawfully withheldfrom March 2014 until actual payment ismade. We direct that interest shall beadmissible to the appellant at the rate of9% per annum from the date on which

the respective payments on account ofarrears of salary, or as the case may be,towards pensionary dues became dueand payable as directed earlier. Interestshall be computed in terms of theaforesaid directions within a period ofthree months from the date of receipt ofa certified copy of this order. The orderof the learned Single Judge declininginterest shall to that extent stand setaside and be substituted by the aforesaiddirections.

Case Law discussed:(1985) 1 SCC 429; (2014) 8 SCC 894.

(Delivered by Hon'ble Dr. DhananjayaYeshwant Chandrachud, C.J.)

1. The appellant was working as acollection amin in the office of theAssistant Commissioner / DistrictAssistant Registrar, CooperativeSocieties, Bhadohi, impleaded as thirdrespondent to these proceedings. Theappellant attained the age ofsuperannuation on 28 February 2013. Hisgrievance was that during the tenure ofhis service, he was not paid his monthlysalary for thirty one months betweenAugust 2004 to June 2007 and fromJanuary 2010 till the date of his retirementwithout any justification. Moreover, theappellant was not allowed the benefit ofthe payment of pay fixation and arrears inaccordance with the report of the SixthPay Commission as adopted by the State.He filed a writ petition (Writ-A No.47141 of 2010) for seeking the release ofhis salary and other retiral dues. A counterwas filed on behalf of the respondentsstating that an amount which was due hadbeen paid while the balance would bepaid over to the appellant as and whenfunds were made available. The learnedSingle Judge by an order dated 11September 2013 disposed of the petition

2 INDIAN LAW REPORTS ALLAHABAD SERIES

with the following observations anddirections:

"The paucity of fund cannot be takenas a ground for not paying the admitteddues to the petitioner. Petitioner has sinceretired and, therefore, the petitionershould be duly paid his arrears.

It is submitted that even the pensionetc. has not been finalized which iscausing grave hardship to the petitioner.

Under the circumstances, the writpetition is disposed of with the directionthat the respondent no. 2 will firstly paythe entire admitted arrears to thepetitioner within a period of four monthsand will take immediate steps fordetermination of pension etc. within thesame period and will make all endeavourto release the pension and other retiraldues to the petitioner within the sameperiod.

With the aforesaid directions, thewrit petition is finally disposed of."

2. Despite the order of the learnedSingle Judge, the admitted arrears were notpaid within a period of four months,following which a contempt petition wasfiled (Contempt Application (Civil) No.1765 of 2014). On 13 March 2014, alearned Single Judge acting on the contemptapplication granted one more opportunity tothe respondents to comply with the orderwithin one month failing which it wasdirected that the opposite parties wouldremain present before the Court.

3. On 17 February 2014, theAssistant Commissioner and the AssistantRegistrar issued a letter to the AdditionalCommissioner for sanctioning an amountof Rs.12,19,054.00 to the appellant.Eventually, on 20 March 2014, acommunication was addressed to the

Assistant Commissioner stating that acheque in the amount of Rs.12,19,054.00dated 18 March 2014 had been madeover.

4. The appellant movedrepresentations on 5 May 2014 and again on10 June 2014 complaining that his pensionhad not been released from the month ofMarch 2014 and seeking the payment ofinterest on the delayed payment of his dues.A writ petition was filed for a direction topay interest at the rate of 18% per annum onthe delayed payment of the arrears ofmonthly salary and retiral dues. Amandamus was also sought for the paymentof the monthly pension of the appellantw.e.f. March 2014.

5. The learned Single Judge, by anorder dated 26 November 2014, directedthat in view of the fact that the pensionarypayments have been stopped w.e.f. March2014, these should be paid on or before31 January 2015 failing which, if thepayment was not made by the said date,the appellant would be entitled for interest@ 9%. The learned Single Judge hasdeclined to grant interest on the delayedpayment of arrears of salary. Moreover,the claim for interest on the delayedpayment of the pensionary benefits hasalso been declined in the sense that ifpayment is made by 31 January 2015, nointerest would be admissible. The learnedSingle Judge has noted that payment wasnot released on the ground of paucity offunds and hence, there was no willfuldefault on the part of the respondents inthe payment of his salary or pensionarydues. This ground has weighed in denyingthe claim for interest.

6. The present case is an unfortunateinstance where an employee has been left

1 All]. Shiv Shankar Mishra Vs. State of U.P. & Ors. 3

in the lurch after having rendered longyears of service. Both the arrears onaccount of salary as well as pensionarydues have not been paid on time. Whenthe appellant had moved a writ petitionbefore the Court, an order was passed on11 September 2013 directing the paymentof the admitted arrears within four monthsand for immediate steps to determine thepensionary dues. This order was notcomplied with following which, he wasconstrained to file contempt proceedings.It is only thereafter that on 18 March 2014the payment of arrears of salary fromAugust 2010 until February 2013 wasmade. It was only then that the appellantwas also paid arrears on account ofgratuity, pension and other retiral dues.There was no reason or justification towithhold the payment of salary during theperiod when the appellant had workedwhen salary fell due for payment or forthe non payment of pensionary and retiraldues, the latter within a reasonable periodof retirement. There was no lapse on thepart of the appellant. The paucity of fundscannot surely be held up as an excuse notto pay the salary of an employee who hadworked for the period for which his salaryis due. Similarly, pensionary duesconstitute a rightful entitlement of anemployee. The State cannot be heard tosay that it would fail to pay the pensionon time and yet excuse itself from theliability to pay interest.

7. In the case of State of Kerala VsM Padmanabhan Nair and Som Prakash1,the Supreme Court held as follows:

"Pension and gratuity are no longerany bounty to be distributed by theGovernment to its employees on theirretirement but have become, under thedecisions of this Court, valuable rights

and property in their hands and anyculpable delay in settlement anddisbursement thereof must be visited withthe penalty of payment of interest at thecurrent market rate till actual payment."

8. In a more recent decision in D DTewari Vs Uttar Haryana Bijli VitranNigam Ltd2, the Supreme Court observedthat any culpable delay in settlement anddisbursement thereof is to be visited withpenalty of payment of interest. Hence,interest @ 9% on delayed payment wasawarded to be paid within six weeksfailing which interest @ 18% p.a. wouldneed to be paid. An erroneouswithholding of gratuity amount to whichthe employee is legally entitled, entailspenalty on the delayed payment.

9. We, therefore, have come to theconclusion that the learned Single Judgewas not justified in declining the prayerfor the payment of interest. Insofar as thepayment which was made to the appellanton 18 March 2014 is concerned, theappellant was clearly entitled to thepayment of interest from the date of thefiling of the writ petition in 2010 (Writ -ANo. 47141 of 2010). The appellant wouldalso be entitled to the payment of intereston the pensionary payment which wasunlawfully withheld from March 2014until actual payment is made. We directthat interest shall be admissible to theappellant at the rate of 9% per annumfrom the date on which the respectivepayments on account of arrears of salary,or as the case may be, towards pensionarydues became due and payable as directedearlier. Interest shall be computed interms of the aforesaid directions within aperiod of three months from the date ofreceipt of a certified copy of this order.The order of the learned Single Judge


declining interest shall to that extent standset aside and be substituted by theaforesaid directions.

10. The appeal is, accordingly, disposedof. There shall be no order as to costs.

--------APPELLATE JURISDICTION

CIVIL SIDEDATED: ALLAHABAD 17.01.2015

BEFORETHE HON'BLE RAKESH TIWARI, J.

THE HON'BLE MRS. VIJAY LAKSHMI, J.

Special Appeal Defective No. 18 of 2015

State of U.P. & Ors. ...AppellantsVersus

Rana Shamsher Singh ...Respondent

Counsel for the Appellants:Sri A.K. Roy, S.C.

Counsel for the Respondents:Sri R.K. Singh

Constitution of India, Art.-226-arrears ofsalary-petitioner/respondent proceededon medical leave w.e.f. 21.02.13 to21.07.2013-the authority treated thatperiod on leave without pay-but imposedpunishment of censure for absence onduty without prior information-appeal alsorejected-held-order of Single Judgejustified-but authorities committedmistake ignoring this aspect-if transferorder passed during leave period andmedical leave application given at originalplace of posting-employee can not befaulted-such treatment absolutely inhuman approach-entitled for arrears ofsalary apart from claim of medical-reimbursement payable within twomonths-appeal disposed of.

Held: Para-6From record it is apparent that it is notthat respondent -Sub Inspector had notinformed the authorities about his

treatment. He did inform theSuperintendent of Police, Chandauli abouthis medical treatment but objection of theState-appellant is that since he had beentransferred during the period of absence,he should have submitted application atPAC Headquarter and not S.P. Chandauliwhere he was earlier posted. Approach ofthe appellant appears to be inhuman.Order of his transfer was made during theperiod of absence i.e. while undergoingtreatment, so even if application for leavewas made by him to the S.P. Chandauliwhere he was earlier posted, his leaveapplication could have been forwarded bythe S.P. to the appropriate authority.Further, during departmental enquiry,when it has been found that during theperiod of absence he was undergoingmedical treatment relating to his kidney, itcannot be said to be a case of absencewithout justifiable cause. In the aforesaidcircumstances, the writ Court has rightlycome to the conclusion that merelybecause he did not seek prior permissionor that he submitted applications in theoffice where he was earlier posted, may bea good ground for imposing some minorpunishment but the same cannot be aground for denial of pay for the period ofabsence particularly when punishment ofcensure has already been imposed. In ourview, instead of leave without pay, medicalleave should have been granted to therespondent-Sub Inspector.

(Delivered by Hon'ble Rakesh Tiwari, J.)

1. There is delay of 78 days in filingthe present appeal. After hearing thesubmissions and going through the affidavitfiled in support of delay condonationapplication, in our view, the cause shown issufficient. Accordingly, the delay in filingthe appeal is condoned and the delaycondonation application is allowed.

2. State of U.P. has preferred thisintra Court appeal against judgment andorder dated 2.9.2014 passed in Writ

1 All]. State of U.P. & Ors. Vs. Rana Shamsher Singh 5

Petition No. 45937/2014, Rana ShamsherSingh Vs. State and others,.

3. We have heard Sri H.M.Srivastava appearing for the appellant -State and perused the record.

4. Facts relevant to this appeal are thatRana Shamsher Singh, a sub inspector inP.A.C. remained absent from duty w.e.f.21.2.2013 to 21.7.2013, for he was admittedin a hospital for operation of kidney and heinformed the authorities in that regard. Afterhis joining the duty, an inquiry wasconducted wherein it was found that he wasunderoing aforesaid treatment but heabsented himself without prior permission,hence after show cause notice and its replyby him, leave without pay was sanctionedand punishment of censure was imposed onhim. Appeal preferred against the said orderhaving been rejected, he filed the aforesaidwrit petition. The writ Court whiledisposing of the writ petition, has directedthe appellate authority to reconsider thematter regarding denial of pay for the periodof absence and take a fresh decision in thematter within three months, against whichpresent appeal has been filed.

5. Learned standing counsel for theappellant has submitted that respondent-SubInspector, did not seek prior permissionbefore availing medical leave, therefore, theauthority has rightly passed the orders forleave without pay applying the principle of'No work no pay' and censure entry.

6. From record it is apparent that it isnot that respondent -Sub Inspector had notinformed the authorities about his treatment.He did inform the Superintendent of Police,Chandauli about his medical treatment butobjection of the State-appellant is that sincehe had been transferred during the period of

absence, he should have submittedapplication at PAC Headquarter and not S.P.Chandauli where he was earlier posted.Approach of the appellant appears to beinhuman. Order of his transfer was madeduring the period of absence i.e. whileundergoing treatment, so even if applicationfor leave was made by him to the S.P.Chandauli where he was earlier posted, hisleave application could have been forwardedby the S.P. to the appropriate authority.Further, during departmental enquiry, whenit has been found that during the period ofabsence he was undergoing medicaltreatment relating to his kidney, it cannot besaid to be a case of absence withoutjustifiable cause. In the aforesaidcircumstances, the writ Court has rightlycome to the conclusion that merely becausehe did not seek prior permission or that hesubmitted applications in the office where hewas earlier posted, may be a good ground forimposing some minor punishment but thesame cannot be a ground for denial of pay forthe period of absence particularly whenpunishment of censure has already beenimposed. In our view, instead of leavewithout pay, medical leave should have beengranted to the respondent-Sub Inspector.

7. Moreover, the Writ Court hasrecorded that from perusal of theimpugned order dated 24.2.2014 it isapparent that the order is cryptic one andbereft of any consideration of the replysubmitted as well as the recitals containedin the inquiry report.

8. For the aforesaid reasons, sincethe principle of 'No work no pay' wouldnot apply in the facts and circumstances ofthis case, we quash the order dated 24.2.2014sanctioning leave without pay as well asorder dated 23.5.2014 of the appellateauthority appended as annexure no. 14 and


15 respectively to the writ petition. Therespondent shall be treated on medical leavefor the aforesaid period of absence and shallbe paid salary and medical reimbursementwithin a period of two months.

9. With the above directions, theappeal stands disposed of. The judgmentand order passed by the writ Courtregarding reconsideration of matter byappellate authority stands modified to theabove extent. No order as to costs.


CRIMINAL SIDEDATED: ALLAHABAD 13.01.2015

BEFORETHE HON'BLE AMRESHWAR PRATAP SAHI, J.

THE HON'BLE OM PRAKASH-VII, J.

Crl. Misc. Leave Application (Defective)No. 67 of 2013(U/s 372 Cr.P.C.)

Manoj Kumar Singh ...AppellantVersus

State of U.P. & Ors. ...Opp. Parties.

Counsel for the Appellant:Sri Satish Chandra Singha

Counsel for the Respondents:A.G.A., Sri Rajiv Sharma

Cr.P.C. Section-372-Right to appeal againstacquittal-appeal by 'victim' as definedunder Section 2(wa)-whether a guardian orlegal heirs of victim can be allowed toprefer appeal on behalf of victim?-questionreferred to larger Bench.

Held: Para-25Considering the aforesaid position thatemerges, we find that it is necessary to referthis question of the maintainability of anappeal on behalf of a person claiming to be a"victim" for an authoritative pronouncementby a Larger Bench as in view of the decisions

aforesaid it will be difficult to agree with theview expressed by the Division Bench in thecase of Edal Singh (Supra) decided on10.4.2014. Consequently, the followingquestions are referred for being placedbefore a Larger Bench to answer theaforesaid issue in the light of theobservations made herein above namely:

1. "Whether the definition of the word"victim" as used in Section 2 (wa) wouldmean any person other than a"guardian" or "legal heir" also for thepurpose of maintaining an appeal underSection 372 Cr. P.C."

2. Whether the ratio of the decision of theDivision Bench of this Court in the case ofEdal Singh Vs. State (Supra) states the lawcorrectly keeping in view the conflictingratios of the Full Bench decision of thePunjab & Haryana High Court in the case ofM/s. Tata Steel Ltd. (Supra) and that of thePatna High Court in the case ofParmeshwar Mandal (Supra).

Case Law discussed:(2001) 3 SCC 462; (1985) 2 SCC 537; (2001) 6SCC 338; (2010) 6 SCC 1; (2010) 12 SCC 599;(2014) 4 SCC 252; (2014) 1 P.L.R. 1; CriminalAppeal (DB) No. 1078 of 2012; D.B. CriminalRevision Petition No. 411 of 2012; Crl. Misc.application u/s 372 Cr.P.C. (Leave to Appeal)No. 172 of 2014.

(Delivered by Hon'ble Amreshwar PratapSahi, J.)

1. Heard Sri Satish Chandra Sinha,learned counsel for the appellant and SriRajiv Sharma for the State.

2. This appeal has been preferred underSection 372 Cr. P.C. along with DelayCondonation Application. At the time ofentertaining the same following order waspassed by the Division Bench on 31.05.2013 :

"This application for grant of leaveto appeal has been filed by Manoj Kumar

1 All]. Manoj Kumar Singh Vs. State of U.P. & Ors. 7

Singh, who is the brother-in-law of thedeceased. The informant father of thedeceased has not preferred any appealagainst acquittal.

The application for condonation ofdelay in filing the appeal has been filedsupported by an affidavit.

The question arises that as to whetherthe applicant Manoj Kumar Singh has aright to file an appeal under section 372Cr.P.C. or not.

Learned counsel appearing on behalfof the applicant prays for and is grantedthree weeks' time to prepare the case.

List this application along withappeal in the second week of July, 2013before the appropriate Bench."

3. One of the questions that wasposed at the time of entertaining theappeal, as to whether the present applicantManoj Kumar Singh did have any right toprefer the appeal under Section 372 Cr.P.C. or not.

4. It is admitted on record that theappellant has described himself as thebrother-in-law of the deceased i.e.husband of the sister of the deceased.

5. The acquittal is founded on thewitnesses having become hostileincluding the parents of the deceased. Inthese circumstances, it is difficult toaccept the appellant as a victim so as toentitle him to file the present appeal whenhis wife, who is the sister of the deceased,is alive and could have filed an appeal.

6. It would be apt to quote Section 2(wa) of the Code of Criminal Procedure,1973 which provision has been insertedby Act No. 5 of 2009 w.e.f. 31.12.2009.The same is extracted hereunder :

"(wa) - "victim" means a person whohas suffered any loss or injury caused byreason of the act or omission for whichthe accused person has been charged andthe expression "victim" includes his or herguardian or legal heir;

7. Prior to the coming of the saidamendment, the issue as to who would beentitled to file an Appeal under Section 372Cr. P.C. can be gathered from the positionthat was explained in the case of J. K.International Vs. State (Govt. of NCT ofDelhi) and others reported in (2001) 3 SCC462. The Apex Court considered theprovisions of Section 301 and 302 of theCode of Criminal Procedure and deliberatedon the issue as to when a private person canbe permitted to conduct a prosecution andthen also relied on the decision, BhagwantSingh Vs. Commissioner of Police reportedin (1985) 2 SCC 537, to speak in favour ofthe informant where the Apex Court gaveits opinion with reference to Section 173 (2)(i) of the Code. The Apex Court then heldthat the doors cannot be closed in such asituation and the complainant deserves to beheard.

8. Then comes the next decision in thecase of Puran Vs. Rambilas and anotherreported in (2001) 6 SCC 338, where also thisissue was considered, though in a differentcontext of cancellation of a bail. That was acase where a third party had moved a bailcancellation application. It was held that thepower that was vested in the High Court forcancellation under Section 439 of Code ofCriminal Procedure can be invoked either bythe State or by any aggrieved party.

9. However, problems were beingfaced and consequently an amendmentwas brought and Section 2 (wa) wasintroduced.


10. The power of the court and thefiling of appeal where the State waslagging behind also came up forconsideration in the conduct of fair trial inthe case of Sidhartha Vashisht @ ManuSharma Vs. State (NCT of Delhi) reportedin (2010) 6 SCC 1. It was after the mediahad reflected extensively on thecredibility of the investigation and thetrial that the matter was taken up by theDelhi High Court and suo motu directionswere issued for filing of an appeal.However, the aforesaid, provision doesnot appear to have been considered in thesaid case.

11. Then comes the decision in thecase of National Commission for WomenVs. State of Delhi and another reported in(2010) 12 SCC 599, where the provisions ofSection 372 of the Code of CriminalProcedure were considered but it was heldto the contrary that since an appeal is acreature of statute, and cannot lie under aninherent power, then in that event to permitany body or an organization to file anappeal would be dangerous and wouldcause utter confusion in the criminal justicesystem. This change was registered in theaforesaid decision and then the matter wasagain referred to in the case of NationalCommission for Women Vs. Bhaskar LalSharma and others reported in (2014) 4SCC 252, where this issue of the locusstandi of National Commission for Womenof being heard was taken up and referred.

12. There are three other decisionsthat we have come across of other HighCourts namely that of the Full Bench ofPunjab and Haryana High Court in thecase of M/s. Tata Steel Ltd. Vs. M/s.Atma Tube Products Ltd. and othersreported in (2014) 1 P.L.R. 1. The seconddecision is in the case of Parmeshwar

Mandal Vs. State of Bihar and others(Criminal Appeal (DB) No. 1078 of 2012)by a Division Bench of the Patna HighCourt dated 26.11.2013 and the thirddecision is of the Rajasthan High Court inthe case of Dhanne Singh Vs. State ofRajasthan (D. B. Criminal Revision PetitionNo. 411 of 2012) decided on 2.12.2014.Here also the word "victim" and the word"complainant" have been considered.

13. However, in view of thejudgments of the Apex Court in the caseof National Commission for Women(Supra) it would be appropriate toconsider the applicability of the ratio ofthe aforesaid decisions in the present case.

14. At this stage a couple ofdefinitions of the word "guardian" as usedin Section 2 (6) of the U. P. Children Act,1951 and the definition of the word"guardian" under Section 4 (2) of theGuardians and Wards Act, 1890 has to betaken into consideration. This is to be readwith the definition of the word "person"as defined in Section 11 of the IndianPenal Code. This reference is necessaryinasmuch as Section 2 (y) of the Code ofCriminal Procedure requires that wordsand expressions used in the Code and notdefined, but defined in the Indian PenalCode will have the meaning respectivelyassigned to them in that Code.

15. The word "victim" has beenclearly defined in the Criminal ProcedureCode to mean a person who has sufferedany loss or injury caused by reason of theact or omission for which the accusedperson has been charged and it alsoincludes his or her guardian or legal heir.

16. With the aforesaid definitionsand the judgments at hand it would be


appropriate to refer to the status of thepresent appellant who is the husband ofthe sister of the deceased. He does notappear to be either the informant or thewitness of the crime. There is no fact orfoundation that may indicate any losshaving been suffered by the appellant.There is no authorisation by any of thefamily members of the deceased in favourof the appellant. The parents of thedeceased Prem Singh and her motherMadhuri Singh had virtually notsupported the prosecution story. The trialcourt did not find any evidence worth thename to prosecute the accused, but that isa different matter altogether which can belooked into when the appeal is filed by anaggrieved person or any other person whomay fall within the definition of the word"victim", as aforesaid. The appellant, inour opinion, does not fall within thedefinition either as a guardian, legal heiror victim himself, more so when the ownsister of the deceased has not comeforward to file the appeal. In the aforesaidcircumstances, we prima facie do not findany locus of the appellant to present thisappeal.

17. This, however, does not in anyway prevent any other person who mayfall within such definition to file anappeal or the State which is under anobligation to file an appeal particularly insuch matters. It is, therefore, open to theState to maintain its appeal and a copy ofthis order shall be made available to thelearned Government Advocate forinformation.

18. We, however, find that the viewthat has been expressed by us hereinabove may require an authoritativepronouncement as we have come acrossanother Division Bench judgment in the

case of Edal Singh Vs. State of U. P. andothers in Criminal Misc. Application u/s372 Cr. P.C. (Leave to Appeal) No. 172of 2014 decided on 10.4.2014 where thelearned Division Bench has made thefollowing observations :-

We also have some doubts where theappellant, who is not the grand father, butgrand uncle of the deceased Babloo hasany locus standi to file this appeal, as theright of filing the appeal, which has beenconferred under section 372 Cr. P. C. hasbeen given to a victim who has beendefined under section 2(wa) to mean aperson who has suffered any loss or injurycaused by reason of the act or omissionfor which the accused persons have beencharged and the expression "victim"includes his or her guardian or legal heir.It cannot be said that the grand uncle i.e.the brother of the grand father would beany person, who could be considered tohave suffered any loss or injury. Also thegrand uncle not being a lineal ascendantor descendant would not be his legitimatelegal heir and we doubt that such anenlarged meaning as has been suggestedby the learned counsel for the appellanthas been given to any person to file anappeal. We, therefore, do not find anyperversity or illegality in the judgment ofthe Trial Court calling for interference inthe order of acquittal recorded by theTrial Court. The application for leave toappeal is rejected and the appeal is,consequently, dismissed."

19. The aforesaid Division Bench,however, does not take notice of thejudgments which have been referred to byus herein above. In particular we wouldrefer to the judgment of the Full Bench ofPunjab & Haryana High Court in the caseof M/s. Tata Steel Ltd. (Supra) where the


Full Bench went on to answer thequestion directly raised in the followingterms in paras no. 64 to 69 :-

"64. It was contended and rightly sothat the meaning of the term "victim" orthat of his/her "legal heir" deserves to begiven widest amplitude to meet with allkinds of peculiar or unforeseen situations,two of which are illustratively givenbelow:-

(a) where a major, unmarried orphanis murdered and the accusedperson(s)/undertrial(s) was/were acquittedof the charges and the State does notprefer an appeal against the acquittal.

(b) where the entire family ismurdered and the accused person(s)/undertrial was/were acquitted of the chargesand the State does not prefer an appealagainst the acquittal.

In both the mis-happenings theremay not be any person known as 'legalheir' or a 'guardian' to file an appealagainst unwarranted acquittal and it willbe against all canons of justice to say thatthe appellate Court in such like situationswould be helpless and the offenders willgo unpunished. Since the Legislature hasfinally granted the right to appeal to a'victim', it is the duty of the Court totrenchantly affirm such right and provideappropriate remedy.

65.We say so also for the reason thatthe right to 'engage an advocate' or to'prefer an appeal' under proviso to Section372 does not ipso facto entitle theappellant to claim compensation as a'legal heir' or the next of kin of a deceased'victim'. That being so, every class orcategory of legal heirs of a deceased'victim' can have locus to invoke theremedy under proviso to Section 372 ofthe Code, without reading into Section2(wa) that if Class-I legal heir of a 'victim'

opts out of filing any appeal, the otherlegal heirs would also suffer from thesame disability.

66.The legislative intentment can begiven its fullest effect by permitting alllegal heirs, irrespective of theirclassification under the personal law toprefer appeal under proviso to Section372. Such a purposive interpretation ofthe expression "legal heir" within themeaning of Section 2(wa) does noviolence to nor does it conflict withSection 357 or 357-A of the Code. Even ifa Class-II legal heir prefers an appeal sayagainst inadequate compensation, theappellate court in the event ofenhancement of compensation shall beobligated to disburse the enhancedamount to those persons only who areentitled to the same under Sections357(1)(c) or 357-A of the Code, as thecase may be. We, therefore, hold that theexpression "legal heir" within themeaning of Section 2(wa) of the Codedoes not exclude other than the Class-Ilegal heirs of a deceased 'victim' nor theright to 'engage an advocate' or prefer anappeal is restricted to those persons onlyto whom compensation is payable underSections 357, 357-A of the Code or underthe Fatal Accidents Act, 1855.

67. The above-stated interpretationsaves the Court from legislating and re-writing Section 2(wa) and is otherwise inconformity with the pro-victimjurisprudence advanced by the SupremeCourt in PSR Sadhanantham; RamakanthRai; M/s JK International and Puran etc.cases.

68. The multiplicity of appeals bymore than one legal heir should hardly bea deterrent to hold otherwise as such likeprocedural difficulties can be effectivelystreamlined by the Appellate Courtthrough an appropriate set of rules or


instructions to its Registry. For example,if the appeal is preferred by other than aClass-I legal heir, such person can berequired to disclose particulars of theClass-I legal heir(s), if any, and hearing ofsuch an appeal can be deferred till theappellate court is satisfied that the Class-Ilegal heirs have not chosen to preferappeal despite informed knowledge of theorder which can be appealed againstunder proviso to Section 372 of the Code.More than one appeal, if preferred bydifferent legal heirs, can also be not acause of concern nor a seriousimpediment as all such appeals can beclubbed and decided together by passingone consolidated order.

69. It thus finally emerges that theLegislature, before and after amendmentof the Code vide Act No.5 of 2009, hasrecognized and conferred one right or theother on the following categories ofpersons:-

(i) a 'victim' as defined in Section2(wa) which includes his/her 'legal heirs'can be permitted by the Court under Section24(8) to engage an Advocate of his/herchoice to assist the prosecution and if he/sheis aggrieved at the acquittal of an accused(except acquittal in a case instituted on acomplaint), the conviction of the accusedfor a lesser offence or the imposition ofinadequate compensation on such accused,such 'victim' (including his/her legal heirs)have got a right under proviso to Section372 to prefer an appeal to the Court towhich an appeal ordinarily lies against theorder of conviction of such Court;

(ii) the legal heirs comprising thewife, husband, parent and child of adeceased 'victim' only are entitled to thepayment of compensation under Section357(1)(c) of the Code;

(iii) in the case of death of a 'victim',only those of his/her dependants who

have suffered loss or injury as a result ofthe crime and who require rehabilitation,are eligible to seek compensation in termsof the scheme formulated under Section357-A of the Code;

(iv) While the persons falling withinthe categories at Sr. No.(ii) & (iii) aboveshall necessarily include and form part ofthe persons falling in category No.(i),however, vice versa may not always betrue.

(B) Whether 'complainant' in aprivate complaint-case, who is also the'victim' and the 'victim' other than the'complainant' complainant' in such casesare entitled to present appeal against theorder of acquittal under proviso to Section372 or have to seek 'special leave' toappeal from the High Court under Section378(4) Cr.P.C.?"

20. The Full Bench in the case ofany private complaint case answered theissue in para 82 as follows :

"82. The above discussion thus canbe summed up to say that –

(i) the 'complainant' in a complaint-case who is a 'victim' also, shall continueto avail the remedy of appeal againstacquittal under Section 378(4) onlyexcept where he/she succeeds inestablishing the guilt of an accused but isaggrieved at the conviction for a lesseroffence or imposition of an inadequatecompensation, for which he/she shall beentitled to avail the remedy of appealunder proviso to Section 372;

(ii) the 'victim', who is not thecomplainant in a private complaint-case,is not entitled to prefer appeal againstacquittal under proviso to Section 372 andhis/her right to appeal, if any, continues tobe governed by the un-amended


provisions read with Section 378 (4) ofthe Code;

(iii) the Legislature has given noseparate entity to a 'victim' in thecomplaint-case filed by a public servantunder a special Statute and the appealagainst acquittal in such a case can also beavailed by the 'complainant' of that caseunder Section 378(4) of the Code only.

(iv) those 'victims' of complaint-cases whose right to appeal have beenrecognized under proviso to Section 372,are not required to seek 'leave' or 'specialleave' to appeal from the High Court inthe manner contemplated under Section378(3) & (4), for the Legislature whileenacting proviso to Section 372 hasprescribed no such fetter nor has itapplied the same language used forappeals against acquittals while enactingsub-Section (3) & (4) of Section 378 ofthe Code.

21. The other question answered bythe Full Bench in para 93 to 95 is asfollows :

"(D) Whether presentation of appealagainst acquittal is a 'right' or an'obligation' of the 'State' stemming fromthe Constitution?

93 The evolution of right to appealagainst acquittal discussed in extenso inthe earlier part of this order unveils thatthe right to appeal against acquittal hasseen roller-coaster like changes rangingfrom the 'no right to appeal' [1861] to 'theunconditional right to appeal' [1898]followed by a 'conditional right to appeal'[1973 Code] and again 'unconditionalright to appeal' in some of the cases to befiled in the Court of Session [2005] infavour of the State. While thecomplainant in a case instituted oncomplaint got a conditional right to appeal

against acquittal under Section 378(4)[1973], a 'victim' as defined or explainedby us has also now got unconditional rightto appeal [2009].

94. Right to live with human dignitywithout any fear or actual subjection toany kind of unlawful, unsocial andphysical or mental abuse and be amember of the self-regulated civic societytoo is one of the most cherisedfundamental right bestowed on everyperson under Article 21 of theConstitution. The protection orconferment of certain rights on a victimunder the Code therefore cannot bemirrored as a favour shown to him/her bythe Legislature. These are only aminuscule part of the fundamental rightsof vast magnitude guaranteed under theConstitution. The State as a custodian ofthe power for enforcement of the rule oflaw owes a corresponding duty to protectthese Fundamental Rights. The State alsoperforms the duty of parens patriaebesides making an endeavour to fulfill thepromises contained in Articles 38 or 39-Aof the Constitution. The right to prosecutea wrong-doer, to bring his guilt home andto compel such guilty person to undergothe awarded sentence is an essential partof the State's enormous duties. Thepresentation of appeal against anunmerited and reckless acquittal is also anintegral duty of a welfare State, who "hasan overall control over the law and orderand public order of the area under itsjurisdiction", even if such a duty has beenassigned by the Legislature as a 'right' inthe literal sense. State of Rajasthan vs.Sohan Lal & Ors. (2004) 5 SCC 573,lends full support to us in this regardwhen it holds that "The State does not inpursuing or conducting a criminal case oran appeal, espouse any right of its ownbut really vindicates the cause of society


at large, to prevent recurrence as well aspunish offences and offendersrespectively, in order to preserveorderliness in society and avert anarchy,by upholding the rule of law".

95. In an era of enlightened and well-informed society who justifiably demandsits rights or frowns upon the beliedpromises, it will be too farfetched to say thatthe 'duty' of the State under Sections 377 or378 is actually a 'right' exercisable at thediscretion of State Executive. The fact thatthe Legislature has chosen to grantunconditional right to appeal to a 'victim' ascompared to the conditional right given to aState under Section 378(3) implies towardsthe failure of the State machinery inpreserving the fair balance upto theexpectations of the people. The Statetherefore no longer enjoys any privilegedstatus as an 'appellant' and hitherto thereshall be no legal distinction between anappeal preferred by the 'State' or a 'victim'."

22. There are other questionsanswered but we find that there has beenan extensive consideration by the FullBench of the Punjab & Haryana HighCourt which may require an authoritativepronouncement even if we take our viewand the view expressed in Edal Singh'scase (Supra) to be correct.

23. The aforesaid decision of thePunjab and Haryana High Court has also beenfollowed by the Rajasthan High Court in thecase of Dhanne Singh Vs. State of Rajashsan(Supra). However, the Division Bench of thePatna High Court has not agreed with theview taken by the Punjab & Haryana HighCourt in the case of Parmeshwar Mandal Vs.State of Bihar (Supra).

24. We have taken all the threedecisions on record and we find that the

Patna High Court has in paragraph 38 to44 held as under:-

"38. It may be pointed out that thedefinition of "victim" contained in the154th Report of the Law Commission wastoo wide and sweeping, which has notbeen accepted by the Legislature. InsteadLegislature has chosen to define theexpression "victim" in much narrowerterms by including only the above threecategory of persons in the definition whoget a vested right to appeal in terms of thesaid proviso to section 372. In the opinionof this Court, in the first category, anyperson, who can establish before theCourt, to its satisfaction, that he hassuffered "loss" or "injury", as a result ofthe crime complained of, can qualify as"victim". Hence, if the subject of thecrime is dead or incapacitated to theextent or suffers from such a disabilitythat he/she cannot take steps to exercisehis/her right under the said proviso toSection 372, any of his/her next of kin,who can establish before the Court, to itssatisfaction, that the crime had caused"loss" or "injury" to him/her also, besidesto the subject of the crime, can, in theopinion of this Court, maintain an appealunder the said proviso. The expressions"loss" or "injury", have not been definedin the Code. Hence, by virtue of Section 2(y) of the Code, definition of injury givenin Section 44 of the Indian Penal Codehas to be imported to determine the scopeand limitation of the word "injury" inSection 2 (wa). Section 44 of the IndianPenal Code defines "injury" denoting 'anyharm whatever illegally caused to anyperson in body, mind, reputation orproperty'. So far as the word "loss" usedin the said proviso is concerned, itsdefinition is also not available in theCode. The nearest definition is available


in section 23 of the Indian Penal Codewhich defines "wrongful loss". But thisdefinition is confined to loss of propertyonly. On the other hand, dictionarymeaning of "loss", and its types, runs intomany pages in the Black's Law Dictionaryand Oxford Advanced Learner‟sDictionary. However, as held by the saidFull Bench also, in the opinion of thisCourt, the expression "loss" used in thesaid proviso to Section 372, has to beunderstood as synonymous to the word"injury" used therein, and in the contextof the definition of "injury" appearing inthe Penal Code only, and not with the aidof its dictionary meaning. In this context,the following observations of the ApexCourt in the case of CCE Vs. Fiat India(P) Ltd. [(2012)9 SCC 332] settles downthe rule of interpretation in clear terms :

"39. It is well settled that wheneverthe legislature uses certain terms orexpressions of well-known legalsignificance or connotations, the courtsmust interpret them as used or understoodin the popular sense if they are notdefined under the Act or the Rules framedthereunder. "Popular sense" means "thatsense which people conversant with thesubject-matter, with which the statute isdealing, would attribute to it."

(emphasis supplied)39. Therefore, this Court is of the

opinion that, it has to be ultimately left tothe prudence of the Court to assesswhether the appellant before it hadactually suffered any 'loss' or 'injury' inthe course of the crime complained of, ornot, so as to be eligible to maintain hisappeal in terms of the said proviso. By notproviding the definitions of theexpressions in the Code, or qualifyingthem in any manner, the Legislatureclearly intended to leave it to the Court, toarrive at a conclusion independently in

respect of standing of an appellant beforeit, in the facts and circumstances of eachcase, as and when it may be called uponto do so.

40. The other two categories,included in the definition of 'victim' -guardian and legal heir - have also beengiven the liberty to step into the shoes of a'victim', by virtue of the language of thesaid definition clause, notwithstanding thefact that they may not have suffered any'loss' or 'injury' on account of the crimecomplained of. Here again the expressions'guardian' and 'legal heir' are notexplained in the clause itself nor havebeen defined in the Code. As against this,if we refer to Sections 198, 198(1)(a), 256and 394 of the Code, it is clear thatwherever the Legislature intended toclarify the persons eligible to take steps ina criminal proceeding under the Code, itdid clarify it in clear terms. Hence, thisdeliberate omission by the Legislature todefine 'guardian' or 'legal heir' in theCode, in the opinion of this Court, clearlydepicts its intention to leave an appellant,preferring an appeal under the saidproviso to Section 372 of the Code, solelyon the basis of his/her status as a'guardian' or a 'legal heir', to establish thelegal heirs of his status as such, either interms of and under the provisions of thelaws governing the field, with all theirlimitations and qualifications, orotherwise also (e.g. a judicial order).

41. In the opinion of this Court, thewide interpretation given by the FullBench to the expression 'legal heir' maylead to unwarranted results, in as much as,for example, if all the heirs of a Hindu, asthe per the Hindu Succession Act, 1956,i.e. class I heirs, class II heirs, agnates andcognates, get simultaneous right to preferan appeal in terms of the proviso tosection 372, it may virtually open gates


for 'pro bono publico' appeals, denouncedby the Apex Court, and may expose theaccused to perpetual risk of harassment onaccount of malafide litigations. This Courtis also of the opinion that, if such liberalinterpretation of the expression 'legal heir'is allowed to be read in clause 2(wa), thestatus of 'legal heir' itself may become amajor and primary issue in a given case,essentially to be decided first onexamination of evidence, documentary aswell as oral. In this context, this Court isalso of the opinion that, if once an appealagainst any of the three kinds of order,mentioned in the said proviso, preferredby a person claiming to have suffered lossor injury or a 'guardian' or a 'legal heir', isentertained on merits by the appellatecourt, to whatever result, no fresh/secondappeal by any other party/personcan/should be entertained against thesame order.

42. Therefore, this Court, with allhumility, is unable to accept the saidconclusion of the Full Bench andrespectfully agrees with the judgment ofthe Delhi High Court [2007(8) (AD)(Delhi) 478], and other judgmentsreferred to in the judgment of the FullBench, and the with the judgment of theAndhra Pradesh High Court in the case ofDr. Sudhakar (supra) on the issue, inwhich it has been held that, for thepurposes of determining the locus standiof the legal heir of a victim to file anappeal under the said proviso to Section372, the court has to necessary fall backupon the line of succession to his propertylaid down in his/her personal law. ThisCourt also endorses the view of GuwahatiHigh Court Agartalla Bench) in GaurangDeo Nath [Cr.Appeal No.13 of 2011 (C)],that in case of allegations of crime beingcommitted was on the husband of thedeceased (e.g.- u/s 304B IPC), father of

the lady (or her any close relation) mayalso come within the definition of 'victim',on account of loss or emotional injurysuffered by him, so as to maintain hisappeal under the said proviso to Section372 of the Code. The two examples, citedby the Full Bench in paragraph 65, tojustify 'widest amplitude' given to theexpression 'legal heir', are misconceived.In both the examples the order ofsuccession, in terms of the personal law,still remains open and therefore theapprehension of the right of appealgranted to the victim under the saidproviso to Section 372 of the Code gettingfrustrated, is unfounded.

43. The second question wasdiscussed by the Full Bench fromparagraphs 71 to 82 and it was summedup in paragraph 83 and answered inparagraph 139, as reproduced above. TheFull Bench has tried to distinguishbetween a case investigated by the policeon a complaint/information received andreport submitted and a case of complaintfiled by a complainant in the courtdirectly and proceeded with under chapterXV of the Code, and has held that acomplainant in a complaint case and avictim other than the complainant in thecomplaint case has the only remedy byway of an appeal under Section 378(4) ofthe Code against an order of acquittal,except in cases where guilt is establishedbut conviction is for lesser offence or withimposition of inadequate compensation,in which case only he/she will have aright to appeal under proviso to Section372 of the Code.

44. With all reverence to the FullBench, this Court is unable to agree withthis proposition of law also. If that wouldhave been the intention of the Legislature,instead of giving unfettered right to thevictim to file appeal in the opening


section of the Chapter itself, it could haveadded one more sub-section in Section378 itself. It has to be presumed that whenunfettered right of appeal was beingconferred upon the victim in the openingsection of the Chapter itself, theLegislature was conscious of therestricted right of appeal granted to theState and the complainant under Section378 of the Code. The recommendations inthe Malimath Committee Report, whichhas been adopted and implemented in theform of amendment in various provisionsof the Code of Criminal Procedure by Act5 of 2009, would show that, by theamendment, victim was intended to beplaced at much higher pedestal in criminaljustice delivery system than the State(prosecuting agency) or the complainant.Therefore, instead of adding one moresub-section in Section 378, providing fora right of appeal to a victim also, at parwith the complainant of a complaint case,or with State in a police case, he/she hasbeen conferred upon the right in theopening section of the Chapter itselfwithout any qualifications. Clearly byintroducing this amendment, theLegislature has recognized the victim inhis/her independent capacity in thecriminal justice delivery system than theState or informant or complainant. If theinterpretation of the Full Bench isaccepted, it will result into the victimgetting a right to file an appeal only for alesser wrong done to him/her by acriminal court, i.e. for convicting theaccused for lesser offence or for awardinglesser compensation, but will not be ableto file an appeal, without a special leave,for greater wrong done to him/her byacquitting the accused altogether.Therefore, this Court is of the opinion thatno distinction can/should be madebetween a case instituted by a

complainant/informant with the policeand by a complainant before the Courtdirectly, for the purposes of determiningthe scope and ambit of right of a victim tofile an appeal under the said proviso toSection 372. Consequently, this Court isof the opinion that, any person, coveredunder the definition of 'victim' ascontained in clause (wa) of Section 2 ofthe Code, and thus getting a right to filean appeal in terms of the said proviso toSection 372, cannot be held, in any way,handicapped in exercise of his/her saidright by the provisions of Section 378 ofthe Code specially in the background ofdisadvantageous status of victim in thepresent criminal justice delivery system inthe country. This view of the Court, onthis issue, stand buttressed also by thefindings of the Full Bench in respect ofquestion (C) holding that the victim is notobligated to seek 'leave' or 'special leave'of the High Court for presentation ofappeal under the said proviso to Section372 of the Code and also by the learnedSingle Judge of Allahabad High Court inthe case Ashok Kumar Srivastava (supra)and by a Division Bench of Delhi HighCourt in its judgment dated 24.01.2011 inthe case of Jagmohan Bhola Vs. DilbaghRai Bhola & Ors."

25. Considering the aforesaidposition that emerges, we find that it isnecessary to refer this question of themaintainability of an appeal on behalf of aperson claiming to be a "victim" for anauthoritative pronouncement by a LargerBench as in view of the decisionsaforesaid it will be difficult to agree withthe view expressed by the Division Benchin the case of Edal Singh (Supra) decidedon 10.4.2014. Consequently, thefollowing questions are referred for beingplaced before a Larger Bench to answer

1 All]. Mohd. Irfan Vs. State of U.P. & Ors. 17

the aforesaid issue in the light of theobservations made herein above namely :

1. "Whether the definition of theword "victim" as used in Section 2 (wa)would mean any person other than a"guardian" or "legal heir" also for thepurpose of maintaining an appeal underSection 372 Cr. P.C."

2. Whether the ratio of the decision ofthe Division Bench of this Court in the caseof Edal Singh Vs. State (Supra) states thelaw correctly keeping in view theconflicting ratios of the Full Bench decisionof the Punjab & Haryana High Court in thecase of M/s. Tata Steel Ltd. (Supra) and thatof the Patna High Court in the case ofParmeshwar Mandal (Supra).

26. Let the papers be placed beforeHon'ble the Chief Justice for referring theaforesaid questions to be answeredaccordingly.





Special Appeal No. 1015 of 2014

Mohd. Irfan ...AppellantVersus

State of U.P. & Ors. ...Respondents

Counsel for the Appellant:Sri Suresh Chandra Dwivedi

Counsel for the Respondents:C.S.C., Sri Pankaj Srivastava

High Court Rules-Chapter VIII-Rule-5-Special Appeal-against the order passedin Habeas Corpus petition-whether

maintainable?-held-'yes'-if related todetermination of civil rights.

Held: Para-10Hence, in view of the legal positiondiscussed above, the special appealagainst an order passed on the writpetition of habeas corpus, if related tothe determination of civil rights, ismaintainable.

(B) Constitution of India, Art.-226-Habeas Corpus-custody of minor childabout 2 ½ years-under MohammedanLaw-father entitled to received custody-but welfare of minor child-beingparamount consideration-where fathermarried second time-while respondentbeing natural mother-not interested intoany marriage-Learned Single Judgerightly directed appellant to handoverthe custody of minor child in favor ofrespondent-require no interference.

Held: Para-20Thus, the paramount consideration beforethis Court is the welfare of the child andkeeping in view the welfare of the infantand the fact that admittedly her father hasremarried whereas her natural mother hasnot performed re-marriage, the realmother Shaista Anjum appears to be bestperson for having the custody and care ofthe infant girl Amal Irfa. The learned writcourt has rightly ordered thefather/appellant to hand over the minorchild Amal Irfa and we find no goodground to interfere in the said order.

Case Law discussed:1980 (Supp.) Supreme Court Cases 696; 2011(89) ALR 779; Mohammedan Law Volume 11pages 304; (2001) 5 Supreme Court Cases247.

(Delivered by Hon'ble Vijay Lakshmi, J.)

1. This intra-court appeal arises outof the judgment and order dated8.10.2014 passed by learned Single Judgein Habeas Corpus Writ Petition No.


12616 of 2014 ( Amal Irfa Vs. State ofU.P. and 2 others) whereby the learnedSingle Judge while allowing the writpetition has directed the appellant, who isthe father of corpus -little girl Amal Irfato hand over her custody to her motherMrs. Shaista Anjum at the earliest and notlater than 15th October, 2014.

2. At the very outset, learned counselfor the respondent Mrs. Shaista Anjum hasraised a preliminary objection regarding themaintainability of this special appeal on theground that the proceedings in writ ofhabeas corpus are criminal in nature, sospecial appeal against it is not maintainablein view of provision of Chapter VIII Rule 5of Allahabad High Court Rules whichspecifically bars special appeal against anorder of single judge passed in exercise ofcriminal jurisdiction.

3. On the other hand, learnedcounsel for the appellant has submittedthat the special appeal is maintainableagainst such order and that is why theStamp Reporter has not reported anythingagainst its maintainability.

4. We have heard learned counselfrom both the sides on the point ofmaintainability of this special appeal.

5. The writ jurisdiction is an extraordinary jurisdiction providing aconstitutional remedy for enforcement ofnot only fundamental rights but also forenforcement of any legal right whethercivil, criminal, administrative or relatingto personal laws. Right to appeal is astatutory right and a person can invokesuch right if it is so provided by Statute.

6. Chapter VIII Rule 5 of AllahabadHigh Court Rules, 1952 which is

reproduced below, provides for specialappeal :

"5. Special appeal - An appeal shalllie to the Court from a judgment {notbeing a judgment passed in the exercise ofAppellate Jurisdiction in respect of adecree or order made by a Court subjectto the Superintendence of the Court andnot being an order made in the exercise ofrevisional jurisdiction or in the exercise ofits power of Superintendence or in theexercise of criminal jurisdiction (or in theexercise of jurisdiction conferred byArticle 226 or Article 227 of theConstitution in respect of any judgment,order or award (a) of a tribunal, Court orstatutory arbitrator made or purported tobe made in the exercise or purportedexercise of jurisdiction under any UttarPradesh Act or under any Central Act,with respect to any of the mattersenumerated in the State List or theConcurrent List in the Seventh Scheduleto the Constitution or (b) of theGovernment or any Officer or authority,made or purported to be made in theexercise or purported exercise ofAppellate or Revisional Jurisdiction underany such Act} of one Judge."

7. A perusal of the aforesaidprovision shows that a special appeal willnot lie when :

1.the judgment passed by one Judgein the exercise of appellate jurisdiction, inrespect of a decree or order made by aCourt subject to the superintendence ofthe Court;

2.the order made by one Judge in theexercise of revisional jurisdiction;

3.the order made by one Judge in theexercise of the power of superintendenceof the High Court;


4.the order made by one Judge in theexercise of criminal jurisdiction;

5.the order made by one Judge in theexercise of jurisdiction conferred byArticle 226 or Article 227 of theConstitution of India in respect of anyjudgment, order or award by the tribunal,Court or statutory arbitrator made orpurported to be made in the exercise orpurported exercise of jurisdiction underany Uttar Pradesh Act or under anyCentral Act with respect to any of thematters enumerated in the State List or theConcurrent List in the Seventh Scheduleto the Constitution of India;

6. the order made by one Judge in theexercise of jurisdiction conferred by Article226 or 227 of the Constitution of India inrespect of any judgment, order or award bythe Government or any officer or authoritymade or purported to be made in theexercise or purported exercise of appellateor revisional jurisdiction under any suchAct, i.e. under any Uttar Pradesh Act orunder any Central Act, with respect to anyof the matters enumerated in the State Listor the concurrent list in the SeventhSchedule to the Constitution of India."

8. Hon'ble Supreme Court in thecase of Union of India and others Vs.Inderjit Barua and others; 1980 (Supp)Supreme Court Cases 696; has observedthat writ of habeas corpus cannot said tobe purely criminal in nature. Earlier underSection 491 of old Code of CriminalProcedure, 1898, power was conferred onthe High Court to issue writ of habeascorpus. So writ of habeas corpus wastreated as a criminal proceeding.However, Section 491 of old Cr.P.C. wasultimately omitted by the new Cr.P.C. of`1973 and there is no provision analogousto it in the new Cr.P.C. After coming intoforce of our constitution, the scope of writ

of habeas corpus become much larger andwider as our Constitution does not makeany difference between civil and criminalnature of the proceedings so far as thewrit jurisdiction is concerned. Moreover,the present petition relates to the custodyof child which is a civil right. ACoordinate Bench of this Court in thecase of Riya Singh Vs. State of U.P.;2011 (89) ALR 779 has observed as under:

"....certain category of specialappeals have been excluded from thepurview of Chapter VIII, Rule 5 but thereis no exclusion with regard to judgment oflearned Single Judge deciding a writpetition in the nature of Habeas Corpus.Had the Legislature intended to excludethe said appeal also, the same could havebeen specifically provided."

9. Learned counsel for respondentno. 3 could not show any provision underwhich special appeal against an orderpassed in the writ of habeas corpus is notmaintainable.

10. Hence, in view of the legalposition discussed above, the specialappeal against an order passed on the writpetition of habeas corpus, if related to thedetermination of civil rights, ismaintainable.

11. By means of this appeal, SriSuresh Chandra Dwivedi, learned counselfor the appellant has assailed the validityand correctness of the order passed by thelearned Single Judge on the followinggrounds :-

1)the order impugned has beenpassed in complete violation of principleof natural justice.


2)Learned Single Judge has notdecided the habeas corpus petition but hehas decided the guardianship applicationwhich is without jurisdiction.

3)The case laws cited in theimpugned judgment are not applicable tothe present controversy.

4)According to the Muslim Law,father is the natural guardian of a child.After divorce between the parties, theappellant was maintaining his daughterAmal Irfa (corpus) with the help of hisfamily members. Hence the impugnedorder is against the law of "Shariyat".

5)The impugned order has been passedwithout affording any opportunity of hearingto the appellant for rebuttal of the allegationsmade in the habeas corpus petition.

6)The habeas corpus petition in thiscase was not maintainable. The petitionerhad chosen a wrong forum and instead offiling a case under Guardianship Act, shehad filed the habeas corpus petition.

7)The question relating to custody ofchild could have only be decided underMuslim Guardians Act because both theparties are muslims. But the learnedsingle judge has passed the order withoutjurisdiction.

8)Smt. Shaista Anjum, ex-wife of theappellant, by means of agreement ofdivorce dated 10.2.2014 had herselfabandoned her rights as she was notinterested in maintaining her daughterAmal Irfa, Therefore, she had no right tofile habeas corpus petition. However, thelearned Single Judge without taking noteof the divorce agreement dated 10.2.2014has passed the impugned order which isliable to be set aside.

9)The habeas corpus petition hasbeen decided by the learned single judgewithout calling for counter affidavit,therefore, the impugned order is liable tobe set aside.

10)There is no such allegation in thehabeas corpus petition that Amal Irfa hasbeen illegally detained by the appellant andin absence of illegal detention, the saidhabeas corpus petition is not maintainable.

12. We have heard Sri SureshChandra Dwivedi, learned counsel for theappellant, Sri Pankaj Srivastava, learnedcounsel appearing for respondent no. 3and learned A.G.A. appearing on behalfof respondent nos. 1 and 2 and perusedthe records.

13. Briefly stated, the facts givingrise to the controversy involved in thiswrit petition, are that Shaista Anjum, (themother) through whom the habeas corpuswrit petition was moved, was married toMohd. Irfan on 2.12.2010. Out of theirwedlock Amal Irfa (corpus) was born(who is aged about two and half years atpresent). Unfortunately, the marriagewrecked on the bedrock of strainedrelations. The appellant by proclamationthrice as 'Talak', 'Talak, 'Talak' divorcedhis wife. It has been further alleged in thewrit petition that the appellant(respondent No. 3 in the writ petition)with his aides came at the house of theparents of Shaista Anjum, where she wasstaying. He forcibly obtained hersignatures on a fabricated 'Talaknama' andsnatched the girl child Amal Irfa from hermother, who made vain attempt to lodgeFIR and being unsuccessful moved anapplication under Section 156 (3) Cr.P.C.before the Magistrate concerned. In thewrit petition, it was prayed that thepetitioner being an infant in need of careand protection of her mother and themother being the best qualified to cherisha child during infancy, the respondent no.3 be directed to deliver the custody ofcorpus Amal Irfa to her mother.


14. A perusal of the impugned ordershows that the writ court vide order dated27.2.2014 issued notice upon respondentno. 3 ( here appellant) directing him tofile his counter affidavit and also toproduce in court his minor daughter AmalIrfa on the next date of listing. Theappellant appeared before the writ courtthrough his learned advocate andproduced his minor daughter. Sri IrshadAhmad and Sri Sheikh Moazzam Inam,Advocates filed their power for theRespondent No. 3 on 22.4.2014, butdespite the fact that two learned advocateswere there to represent theappellant/respondent no. 3 and despitehaving considerable time and opportunitysince 22.4.2014 till 8.10.2014 i.e. about 6months, he did not file any counteraffidavit. Under these circumstances,learned writ court heard both the partiesand passed the impugned judgment.

15. In view of the aforesaid factsand circumstances, we find no force in theargument advanced by learned counsel forthe appellant that he was denied of naturaljustice and no opportunity of hearing orfiling counter affidavit was given to him.

16. The age of the infant girl wasonly 2 years 3 months at the time ofjudgment by the writ court. At present tooshe does not look more than 2½ or 3 yearsof age. There is no doubt that underMohammadan Law, the father is thenatural guardian but the mother is entitledto the custody (Hizanat) of her child untilshe attains puberty. This positioncontinues even through the mother isdivorced except in cases where she re-marrys.

17. Amir Alli in Mohammedan LawVolume 11 at page 304 has observed:

"The mother can on no account giveup her right of 'Hizanat' for even if shewere to obtain a Khula in lieu ofabandonment of her right to her childcustody Khula will be valid and she willretain a right of Hizanat"

18. In the case of Syed SaleemuddinVs. Dr. Rukhsana and others; (2001)5Supreme Court Cases 247 the Hon'bleApex Court has held that :

"In an application seeking a writ ofhabeas corpus for custody of minorchildren, the principal consideration forthe court is to ascertain whether thecustody of the children requires that thepresent custody should be changed andthe children should be left in the care andcustody of somebody else. The principleis well settled that in a matter of custodyof a child the welfare of the child is ofparamount consideration for the court."

19. The father (appellant) wassummoned by us alongwith minor AmalIrfa in court on 26.11.2014 and he hadadmitted the fact that after divorce withShaista Anjum, he had re-married. Thus,on one side there is step mother to lookafter the child and on the other side thechild has the benefit of love, care andaffection of her real mother. In aproceeding concerning the custody of aminor, the Courts must have supremeregard to the welfare of the minor as firstand paramount consideration and musttreat any rights, priorities or preferencesof the parents or of either of them or ofany other person as subordinate thereto.

20. Thus, the paramountconsideration before this Court is thewelfare of the child and keeping in viewthe welfare of the infant and the fact that


admittedly her father has remarriedwhereas her natural mother has notperformed re-marriage, the real motherShaista Anjum appears to be best personfor having the custody and care of theinfant girl Amal Irfa. The learned writcourt has rightly ordered thefather/appellant to hand over the minorchild Amal Irfa and we find no goodground to interfere in the said order.

21. The special appeal is liable to bedismissed and is hereby dismissed. Incompliance of the order dated 8.10.2014passed by the writ court whereby the writcourt had fixed the specific date fordelivery of child, the interim custody ofchild Amal Irfa has already been given toher real mother Mrs. Shaista Anjum in thecourt. The minor Amal Irfa shall remainin custody of her mother till she attainsthe age of puberty. The appellant Mohd.Irfan shall bear all the expenses necessaryfor her proper maintenance till she attainsthe age of puberty. The father shall havethe right to visit and see his daughterAmal Irfa once in a month at the house ofsome common relative which the partymay decide with the help of their learnedcounsel.




CHANDRACHUD, C.J.THE HON'BLE PRADEEP KUMAR SINGH

BAGHEL, J.

Special Appeal No. 1088 of 2014

State Bank of India, Corporate Center,Mumbai & Ors. ...Appellants

VersusRajesh Kumar & Anr. ...Respondents

Counsel for the Appellants:Sri S.K. Kakkar

Counsel for the Respondents:A.S.G.I., Sri Siddharth Khare

Constitution of India, Art.-226-Terminationof Assistant clerk-during probation period-on ground during written examinationpetitioner allowed another person bypersonification-hence appointment beingvoid ab inito-on basis of hand writingexpert signature on admit card founddifferent than admitted signature-SingleJudge quashed termination being punitivein nature-can not be passed without fullfledge enquiry-confirmed-so far 50% backwages concern shall be subject to outcomeof disciplinary proceeding if Bank decide toinitiate disciplinary proceeding as perdirection of Single Judge-order modified-appeal disposed of.

Held: Para-8 & 98. In this view of the matter, the order ofthe learned Single Judge insofar as it directsreinstatement of the respondent and holdsthat the termination should have beenpreceded by a full fledged disciplinaryenquiry, cannot be faulted. As the recordbefore the Court would indicate, thetermination of service was preceded by areport of a forensic expert. The forensicexpert opined that the material producedbefore him establishes an act ofimpersonation. In a disciplinary enquiry, ifthis allegation is to be proved, theemployee, who was a probationer, wouldhave an opportunity of stating his defenceand rebutting the case of the Bank. Butmore importantly, once it is evident fromthe order of termination that thecancellation of appointment was on accountof a misconduct allegedly committed by therespondent, a disciplinary enquiry ought tohave been held.

9. However, on the issue of back wagesand other consequential benefits, we areof the view that the learned SingleJudge, while exercising jurisdictionunder Article 226 of the Constitution,

1 All]. State Bank of India, Corporate Center, Mumbai & Ors. Vs. Rajesh Kumar & Anr. 23

ought to have taken due steps to structurethe relief so as to protect the publicinterest. We deem it appropriate andproper to grant liberty to the State Bank ofIndia to hold a disciplinary enquiry againstthe respondent in accordance with law.The competent authority would considerwhether, in accordance with the applicableservice rules, the respondent should beplaced under suspension in contemplationof a disciplinary enquiry. We direct that theBank shall take a decision on whether itintends to commence a disciplinaryproceeding against the respondent withina period of three months of the receipt of acertified copy of this order. In the eventthat within the aforesaid period of threemonths, the Bank decides to hold adisciplinary enquiry against therespondent in terms as aforesaid, theimpugned direction of the learned SingleJudge for the payment of 50% back wagesand other consequential benefits, shallstand set aside and the ultimate decisionin regard to the payment of the backwages and other consequential benefitsshall abide by the result of the disciplinaryproceedings.


1. This appeal arises from ajudgment of the learned Single Judgedated 5 November 2014.

2. The respondent applied forappointment on the post of an AssistantClerk in pursuance of an advertisementwhich was issued by the State Bank ofIndia in August 2009. The respondent wasappointed on 3 December 2010 and joinedhis services as an Assistant Clerk at DohriGhat Branch of the Bank in district Mau.He was deputed for training and onsuccessful completion thereof, he wasplaced on probation by an order dated 13June 2011. The probationary period wasextended by three months since the work

of the respondent was not found to besatisfactory. The services of therespondent were terminated by an orderdated 27 August 2011 of the RegionalManager at Gorakhpur by cancelling hisappointment, treating it as void ab initio.

3. The ground on which the order ofappointment was cancelled was that at thewritten examination conducted by theBank on 8 November 2009 in pursuanceof the recruitment process, it was not therespondent who had appeared but,according to the Bank, some one else hadappeared against the candidature of therespondent impersonating him. The Banktreated this as a suppression of a materialfact that the respondent had not appearedat the written examination and hadallowed some one else to appear. Theappointment was treated as void ab initioparticularly, placing reliance on Clause 17(i) of the General Instructions, whichstipulated that if it was detected at anystage of the recruitment that a candidatedoes not fulfil the eligibility norms and/orthat the candidate had furnished anyincorrect or false information orsuppressed any material fact, thecandidature would stand cancelled and ifsuch shortcomings are detected even afterappointment, the services are liable to beterminated. Similarly, reliance was placedon a condition of the letter of appointmentunder which suppression of material factswould lead to the appointment beingregarded as void ab initio.

4. The Bank filed a counter affidavitin response to the petition filed by therespondent challenging the order oftermination. The case in the counteraffidavit was that a re-verification wasdone after the appointment was made,when the Bank had called upon the


respondent to submit his photographs andalso provide his signatures. In themeantime, the Gorakhpur Office of theBank received the file from the ZonalOffice, which had conducted theexamination, which contained thephotographs of the person who hadappeared at the written examination aswell as in the interview along with the callletter. According to the Bank, thephotographs submitted by the respondentdid not tally with those of the person whohad appeared at the written examinationgiving rise to an apprehension ofimpersonation. The Branch Manager ofthe Bank, by a letter dated 29 April 2011,informed the controlling authority to havethe matter investigated. Thereafter, thematter was referred to a hand-writing(forensic) expert for verification of thethumb impression and the signatures onthe call letter of the present incumbentwho was actually working in the Bank.The report of the forensic expert wasrelied upon by the Bank in support of itscontention that the respondent had beenguilty of impersonation. The report of theforensic expert dated 6 July 2011 wasannexed to the counter affidavit and,insofar as is material, reads as follows:

"On the basis of the abovedifferences in the pattern and the flow ofridges, the thumb impression of RightThumb of the person who appeared in theExamination marked as DTI-1 which ison the Call Letter taken at the time ofexamination is different with thespecimen thumb impression of RightThumb of Sri Rajesh Kumar marked asRTI-2."

5. On these facts, the learned SingleJudge came to the conclusion that thetermination of service of the respondent

was for an act of impersonation and fraud.Hence, the termination of the respondentwas not a termination simpliciter, but thefoundation and basis of the terminationwas a misconduct of impersonation in thewritten examination. The learned SingleJudge relied upon a letter of the Bankdated 13 September 2011, whichspecifically contained a statement that therespondent had been impersonated at thewritten examination. This, it was held,would amount to a stigma warranting aproper disciplinary enquiry beforetermination. The learned Single Judge hasdirected reinstatement with payment of50% back wages.

6. When this special appeal came upfor hearing on 27 November 2014, theCourt directed that another special appeal,being Special Appeal No.998 of 2014 bealso listed together with the presentspecial appeal since common issues havebeen raised.

7. During the course of the hearing,it is clear from the records that the basisand foundation of the order of terminationis an allegation that the respondent did notappear at the written examination whichwas conducted by the Bank on 8November 2009 and had beenimpersonated by some one else. Thefoundation and basis of the order oftermination is an act of misconduct by therespondent. The Bank has terminated theservices of the respondent on the basisthat it was not the respondent who hadappeared at the written examination butsome one else had appeared on his behalf,as a result of which, the employment wasprocured by an act of fraud and bysuppressing material facts. The order oftermination is not even facially an orderof termination simpliciter since the order

1 All]. Rakesh Yadav & Anr. Vs. State of U.P. 25

itself carries a stigma by referring to thefact that the respondent had beenimpersonated at the written examination.

8. In this view of the matter, the orderof the learned Single Judge insofar as itdirects reinstatement of the respondent andholds that the termination should have beenpreceded by a full fledged disciplinaryenquiry, cannot be faulted. As the recordbefore the Court would indicate, thetermination of service was preceded by areport of a forensic expert. The forensicexpert opined that the material producedbefore him establishes an act ofimpersonation. In a disciplinary enquiry, ifthis allegation is to be proved, the employee,who was a probationer, would have anopportunity of stating his defence andrebutting the case of the Bank. But moreimportantly, once it is evident from the orderof termination that the cancellation ofappointment was on account of a misconductallegedly committed by the respondent, adisciplinary enquiry ought to have been held.

9. However, on the issue of backwages and other consequential benefits, weare of the view that the learned SingleJudge, while exercising jurisdiction underArticle 226 of the Constitution, ought tohave taken due steps to structure the reliefso as to protect the public interest. We deemit appropriate and proper to grant liberty tothe State Bank of India to hold adisciplinary enquiry against the respondentin accordance with law. The competentauthority would consider whether, inaccordance with the applicable servicerules, the respondent should be placed undersuspension in contemplation of adisciplinary enquiry. We direct that theBank shall take a decision on whether itintends to commence a disciplinaryproceeding against the respondent within

a period of three months of the receipt ofa certified copy of this order. In the eventthat within the aforesaid period of threemonths, the Bank decides to hold adisciplinary enquiry against therespondent in terms as aforesaid, theimpugned direction of the learned SingleJudge for the payment of 50% back wagesand other consequential benefits, shallstand set aside and the ultimate decisionin regard to the payment of the backwages and other consequential benefitsshall abide by the result of thedisciplinary proceedings.

10. The special appeal is,accordingly, disposed of. There shall beno order as to costs.

--------ORIGINAL JURISDICTION

CRIMIINAL SIDEDATED: LUCKNOW 15.12.2014

BEFORETHE HON'BLE VISHNU CHANDRA GUPTA, J.

U/S 482/378/407 No. 1277 of 2007

Rakesh Yadav & Anr. ...ApplicantsVersus

State of U.P. Opp. Party

Counsel for the Applicants:Dr. Lalta Prasad Mishra, Sri Abhishek Ranjan

Counsel for the Respondents:Govt. Advocate

Cr.P.C. Section 482-Offence under section302/307 IPC-applicants seeking quashing oforder-rejecting application u/s 207 forinspection of Maruti Car by prosecution-before –committal of case-learnedMagistrate rightly taken view that car notwithing definition of 'document' underSection 3 of Evidence Act-held suchapplication nothing but to prolong theproceeding-misconceived-rejected-direction


to expedite disposal of case and to avoidunnecessary adjournments.

Held: Para-13In view of the above, this Court is of thefirm view that move of petitioners wasintended to prolong the proceedingsinitiated against them and they have uptosome extent succeeded therein. As suchthis application is misconceived one andthe same has rightly been rejected by thelearned Magistrate vide order impugned.

(Delivered by Hon'ble Vishnu ChandraGupta, J.)

1. By means of the present petitionunder section 482 Code of CriminalProcedure (for short Cr.P.C.), the petitionershave prayed for quashing of the orderimpugned dated 17.4.2007 passed by theChief Judicial Magistrate, Sitapur inCriminal Case No. 98 of 2008 arising out ofcase crime no. 537 of 2004 P.S. Khairabad,District Sitapur, whereby the applicationmoved under section 207 Cr.P.C. has beenrejected holding that before committal ofcase there is no provision for inspection byto accused of the car in question.

2. Petitioners are accused persons inCriminal Misc. Case No. 537 of 2004, underSections 302,307 I.P.C., P.S. Khairabad(State Vs. Udai Raj Singh and others). Theymoved application under section 207 Cr.P.C.before learned Chief Judicial Magistrate,Sitapur praying therein that they may beallowed to inspect the Maruti car which havemarks of firing and presently in supurdagi(interim Custody) of deceased's wife underthe order of the learned Magistrate dated24.3.2005 with conditions that as and whenthe car is required, the same shall beproduced in court by her on its ownexpenditure and during pendency of the caseshe shall neither sale out nor transfer the carto anyone nor change the shape of the car.

The possibility can not be ruled out that theremight be difference in between exactposition marks on the car and documentsfurnished in this regard. So, they may bepermitted to inspect the car in questionbefore committal of case.

3. The learned Magistrate afterhearing the submissions rejected theapplication moved under section 207Cr.P.C by impugned order holding thereinthat there is no provision under Section207 Cr.P.C. for inspection of car inquestion by the accused persons beforecommittal of case. It is a question ofevidence and if needed by the trial courtthe car may be produced by theprosecution.

4. Feeling aggrieved by theimpugned order, the petitioner challengedthe same in this petition under Section482 Cr.P.C. A co-ordinate bench of thisCourt vide order dated 25.05.2007 stayedthe further proceedings of the courtbelow. Since then the proceedings of thecase are held up.

5. Heard learned counsel for thepetitioner Dr. L. P. Mishra, SeniorAdvocated assisted by Shri Hari OmBajpai,and learned A.G.A.

6. It has been submitted by learnedcounsel for the petitioners that thepetitioners have right to get the inspectionof car before committal of case in view ofprovision of Section 207 Cr.P.C. Ifinspection is denied shall cause seriousprejudice to the accused and the same shalldefeat the object of fair trial guaranteedunder Article 21 of Constitution of India.

7. On the contrary learned A.G.A.submits that while interpreting the

1 All]. Rakesh Yadav & Anr. Vs. State of U.P. 27

provisions under statute nothing could beadded or subtracted from the statutoryprovision. The provisions of Section 207Cr.P.C. are simple, clear andunambiguous. Therefore, the requestmade by the accused-petitioners forinspect of the car is misconceived and bythis petition the petitioners succeed inachieving the goal of protracting the trialfor considerable long time. This Courtafter exercising jurisdiction conferredunder section 482/483 Cr.P.C. may notonly dismiss this petition but also directthat trial should be concluded within areasonable period as this court thinks fit.

8. Section 207 Cr.P.C. is extractedherein below:----

"207. Supply to the accused of copyof police report and other documents. Inany case where the proceeding has beeninstituted on a police report, theMagistrate shall without delay furnish tothe accused, free of cost, a copy of each ofthe following:-

(i) the police report;(ii) the first information report

recorded under section 154;(iii) the statements recorded under

sub- section (3) of section 161 of allpersons whom the prosecution proposesto examine as its witnesses, excludingtherefrom any part in regard to which arequest for such exclusion has been madeby the police officer under sub- section(6) of section 173;

(iv) the confessions and statements, ifany, recorded under section 164;

(v)any other document or relevantextract thereof forwarded to theMagistrate with the police report undersub- section (5) of section 173:

Provided that the Magistrate may,after perusing any such part of a

statement as is referred to in clause (iii)and considering the reasons given by thepolice officer for the request, direct that acopy of that part of the statement or ofsuch portion thereof as the Magistratethinks proper, shall be furnished to theaccused:

Provided further that if theMagistrate is satisfied that any documentreferred to in clause (v) is voluminous, heshall, instead of furnishing the accusedwith a copy thereof, direct that he willonly be allowed to inspect it eitherpersonally or through pleader in Court."

9. The perusal of Section 207Cr.P.C. makes it abundantly clear thatwhat should be supplied to the accusedbefore committal of case to the court ofSession in a case instituted on policereport. This section requires to furnish acopy of police report, first informationreport recorded under Section 154, thestatements recorded under Sub-section (3)of Section 161 Cr.P.C. of all personswhom the prosecution proposes toexamine as its witnesses, the confessionsand statements, if any, recorded underSection 164 and any other document orrelevant extract thereof forwarded to theMagistrate with the police report underSub-Section (5) of Section 173.

10. The provision of inspection isgiven in second proviso to section 207,which deals with power of Magistrate forallowing inspection. It categoricallyprovides that If the Magistrate is satisfiedthat any document referred to in clause(v) is voluminous, he shall allow theaccused or his pleader in court to inspectit. Therefore, Section 207 restricts theright of the accused to the extent offurnishing copies of documents andpapers contained in Section 207 and not


beyond that, the inspection of documentmay be permitted and not of materialwhich does not fall within the definitionof document.

11. Word "Document" has not beendefined under Code of CriminalProcedure. The definition of 'document' isgiven in Indian Evidence Act as well as inIndian Penal Code. The definition ofdocument given in section 3 Evidence Actis reproduced herein below:

"Section 3. Interpretation clause"Document" --"Document" means any

matter expressed or described upon anysubstance by means of letters, figures ormarks, or by more than one of those means,intended to be used, or which may be used,for the purpose of recording that matter."

The definition of document given insection section 29 in IPC is quoted hereinbelow;

Section 29. "Document"29. "Document".--The word

"document" denotes any matter expressed ordescribed upon any substance by means ofletters, figures or marks, or by more than oneof those means, intended to be used, or whichmay be used, as evidence of that matter.

Explanation 1.--It is immaterial bywhat means or upon what substance theletters, figures or marks are formed, orwhether the evidence is intended for, ormay be used in, a Court of Justice, or not.

IllustrationsA writing expressing the terms of a

contract, which may be used as evidenceof the contract, is a document.

A cheque upon a banker is adocument.

A power-of-attorney is a document.A map or plan which is intended to

be used or which may be used asevidence, is a document.

A writing containing directions orinstructions is a document.

Explanation 2.--Whatever isexpressed by means of letters, figures ormarks as explained by mercantile or otherusage, shall be deemed to be expressed bysuch letters, figures or marks within themeaning of this section, although thesame may not be actually expressed.

IllustrationA writes his name on the back of a

bill of exchange payable to his order. Themeaning of the endorsement, as explainedby mercantile usage, is that the bill is tobe paid to the holder. The endorsement isa document, and must be construed in thesame manner as if the words"pay to theholder" or words to that effect had beenwritten over the signature."

12. The definition in Evidence Act andin Penal Code makes it abundantly clear thatdocument means any matter expressed ordescribed upon any such substance by meansof letter and figure or marked or by more thanone of those means which intent to be used orwhich may be used for the purpose ofrecording that matter. Therefore the matterexpressed or described upon the substance maybe a document but not that substance overwhich the matter is expressed or described. It isnot denied that photographs of car were takenand supplied to the accused petitioners.

13. In view of the above, this Court isof the firm view that move of petitioners wasintended to prolong the proceedings initiatedagainst them and they have upto some extentsucceeded therein. As such this application ismisconceived one and the same has rightlybeen rejected by the learned Magistrate videorder impugned.

14. At this stage no interference iswarranted by this Court in the impugned

1 All]. Smt. Neelam & Ors. Vs. Nawab Ahamad & Ors. 29

order. The petition sans merits and isliable to be dismissed.

15. While dismissing this petitionthis Court with object to secure the endsof justice issue following directions:-

16. That if the case has not yet beencommitted to the court of Session be commitby the concerned learned Magistrate within aperiod of two weeks from the date ofcommunication of this order.

17. If the case has already beencommitted to the Court of Session, thelearned Sessions Judge or any other Courtwhere trial is pending, shall expedite thehearing of trial by strictly observing theprovisions contained in Section 309Cr.P.C. and to proceed with the case onday to day basis.

18. The trial Court shall make anendeavor to conclude the trial within aperiod of six months from the date ofcommunication of this order.

19. It is also made clear that learnedMagistrate or the trial court, as the case maybe, shall not grant any frivolous adjournmentsto the accused petitioners. If the accusedpersons try to prolong the proceedings byseeking unnecessary adjournments, thecoercive steps may be adopted against themincluding cancellation of bail, if required.

20. The Office shall ensure that thecopy of this order be communicated to thelearned Chief Judicial Magistrate Sitapurand Sessions Judge Sitapur positivelywithin a period of 10 days from today.The learned Magistrate and learnedSessions Judge as the case may be, shallcomply with the order in letter and spirit.

21. The Senior Registrar of the Courtshall ensure the compliance of this order.

22. In view of the above this petitionis dismissed with aforesaid directions.



BEFORETHE HON'BLE RAJIV SHARMA, J.THE HON'BLE DINESH GUPTA, J.

First Appeal From Order No. 3392 of 2014

Smt. Neelam & Ors. AppellantsVersus

Nawab Ahamad & Ors. ...Respondents

Counsel for the Appellants:Sri Ratnesh Kumar Pandey

Counsel for the Respondents:--

U.P. Motor Vehicle Act 1988-Section-221-readwith C.P.C. Order 47-Power ofreview by accident claim Tribunal-exceptthe provisions contained under Section221-no other provision of Civil codeapplicable-review being creature ofstatute-in absence of power to review-Tribunal rightly rejected-no interferencein appeal required.

Held: Para-9From the aforesaid, what emerges is that ifStatutory Authority/Quasi JudicialOfficer/Tribunal, does not have any expresspower of review under the Statutes, thesubsequent order passed by itrecalling/modifying or reversing its earlierorder is nullity, as such order is non est andvoid. Therefore, we are of the view thatthere is no illegality and infirmity in theimpugned award which is hereby confirmed.

Case Law discussed:(2011) 4 SCC 750


(Delivered by Hon'ble Rajiv Sharma, J.)

1. Heard learned counsel for theclaimants/appellants and perused therecord.

2. Claim Petition No. 23 of 2009was filed by the claimants/appellantsagainst Nawab Ahmad and others,claiming compensation for the death ofVijay Kumar Agarwal in a road accident.The Motor Accident Claims Tribunal,Bulandshahr, vide judgment and awarddated 14.9.2010, dismissed the claimpetition on the ground that the claimantshave failed to establish that accident hadoccurred due to carelessness of driver ofSantro Car No. H.R. 25A.J./8972.

3. Not being satisfied with thejudgment and award dated 14.9.2010,claimants/appellants have filed a ReviewPetition, bearing No. 18 of 2010, seekingreview of the judgment and award dated14.9.2010. The Tribunal, after hearing theparties and perusing the evidence onrecord, dismissed the review petition videjudgment and order dated 26.9.2014,which is impugned in the instant appeal,holding that the Motor Accident ClaimsTribunal has no power to review its awardand as such, review petition is notmaintainable.

4. Counsel for theclaimants/appellants has submitted thatthe Tribunal, while passing the judgmentand award dated 14.9.2010 in ClaimPetition No. 23 of 2009, had not takeninto consideration the entire facts andevidence on record and erred indismissing the Claim Petition. Therefore,claimants/appellants had filed reviewpetition. The Court below, withoutappreciating the evidence on record, erred

in dismissing the Review Petition by theimpugned order only on the ground thatthe Review Petition is not maintainable.

5. A specific query was put to thelearned Counsel for theclaimants/appellants as to whether there isany specific provision in the MotorVehicles Act to review the judgment andaward passed by the Motor AccidentClaims Tribunal, the answer was innegative.

6. At this juncture, we would like topoint out that Section 221 of the U.P.Motor Vehicles Rules, 1998 deals withthe applicability of certain provisions ofthe Code of Civil Procedure and it readsas under :

"221. Code of Civil Procedure toapply in certain cases. The followingprovisions of the First Schedule to theCode of Civil Procedure, 1908, shall, sofar as may be, apply to proceedingsbefore the Claims Tribunal, namely, rules9 to 13 and 15 to 30 of Order V; OrderIX; rules 3 to 10 of Order XIII; rules 2 to21 of Order XVI; Order XVII; and rules 1to 3 of Order XXIII."

7. Order XLVII of the Code of CivilProcedure deals with the power of reviewconferred to the Court. A perusal of theaforesaid Rule 221 would indicate thatOrder XLVII which deals with the powerof review cannot be applied by the MotorAccident Claims Tribunal. Only theprovisions/Orders mentioned in theaforesaid Rule 221 can be applied by theMotor Accident Claims Tribunal.

8. In New India Assurance Co. Ltd.v. Bimla Devi and others : 1999 1 TAC449 (Alld. DB), a Division Bench of this

1 All]. Radheyshyam Nishad Vs. State of U.P. & Ors. 31

Court has held that the Motor AccidentClaims Tribunal has no power to review.In CTO v. Makkad Plastic Agencies(2011) 4 SCC 750, the Apex Courtobserved as follows:

"Review is a creature of statute andsuch an order of review could be passedonly when an express power of review isprovided under statute. In the absence ofany statutory provision for review, exerciseof power of review under the garb ofclarification/ modification/correction is notpermissible."

9. From the aforesaid, what emerges isthat if Statutory Authority/Quasi JudicialOfficer/Tribunal, does not have any expresspower of review under the Statutes, thesubsequent order passed by itrecalling/modifying or reversing its earlierorder is nullity, as such order is non est andvoid. Therefore, we are of the view that thereis no illegality and infirmity in the impugnedaward which is hereby confirmed.

10. For the reasons aforesaid, theappeal is dismissed. Under the facts andcircumstances of the case, there is noorder as to costs.



BEFORETHE HON'BLE RAJES KUMAR, J.THE HON'BLE SHASHI KANT, J.

Civil Misc. Writ Petition No. 4649 of 2013

Radheyshyam Nishad ...PetitionerVersus


Counsel for the Petitioner:

Sri R.C. Yadav, Sri Mahtab Husain

Counsel for the Respondents:C.S.C., Sri Mahesh Narain Singh

Constitution of India Art.- 226-Cancellationof fair price shop license-in view of G.O.17.08.2002-petitioner being resident ofanother village-and the father's namedifferent than natural father-explanation-that petitioner was granted license onconsideration of fact that no any villager ofconcern village willing to get license-andbeing adopted son-difference of fathername justified-held-G. O. having noapplicability of retrospective effect-notapplicable-non consideration of fact ofadoption-no misrepresentation on part ofpetitioner found-cancellation-set-a-side.

Held: Para-7We are of the view that the GovernmentOrder dated 17th August 2002 cannot bemade applicable retrospectively, it onlyapplies prospectively and only applies ina case of settlement of fresh fair priceshop in a village. So far as the parentageof the petitioner is concerned, the nameof the real father of the petitioner wasSukhdev. The petitioner explained thathe has been adopted by Faujdar Nishadon 05.09.1974 and, therefore, he hasshown the name of his father as FaujdarNishad, which is not disputed by any ofthe authority and, therefore, we do notsee any misrepresentation relating to thedisclosure of the parentage on the partof the petitioner.

(Delivered by Hon'ble Rajes Kumar, J.)

1. Heard learned counsel for theparties and perused the record.

2. By means of present writ petition,the petitioner is challenging the order dated18th October 2012 passed by respondentno. 2- Sub Divisional Magistrate, Sadar,District Ghazipur by which fair price shoplicence has been cancelled on the ground


that the petitioner was a resident of villageChochakpur, Block Karanda, Tehsil Sadar,District Ghazipur and was not a resident ofvillage Narayanpur and therefore in view ofthe Government Order No. 2715 dated17.08.2002, the petitioner is not entitled torun the fair price shop and the petitioner hasshown his father's name as Faujdar Nishad,while correct name of his father is Sukhdev,which is shown in the Khatauni and in theParivar register.

3. The learned counsel for thepetitioner submitted that the petitioner hasbeen granted licence in the year 1993 onthe basis of the resolution dated 16thMarch 1993 on the ground that no one isready to take the shop of this village and,therefore, it has been decided on the basisof the then Government Order, dated 3rdJuly 1990, unanimously to select SriRadhey Shyam, son of Faujdar Nishad.Since then the petitioner was running thefair price shop. It is is true that on severaloccasions his licence has been suspendedbut on the explanation submitted by thepetitioner, the licence has been restoredby the competent authority.

4. It is further submitted that theGovernment Order No. 2715 dated17.08.2002 is not applicable to the petitioner,as the petitioner had been issued licence inthe year 1993 on the basis of the the existingGovernment Order. So far as the parentageof the petitioner is concerned, it wasexplained that the petitioner's real father wasSukhdev but he has been adopted by FaujdarNishad on 05.09.1974 and, therefore, hestarted writing his father's name as FaujdarNishad in place of Sukhdev, therefore, thelicence has not been rightly cancelled.

5. We have considered the rivalsubmissions and perused the record.

6. The petitioner has been grantedlicence of the Fair Price Shop at villageNarayanpur on the basis of the resolutionof Gram Sabha, Narayanpur dated16.03.1993, wherein it has been resolvedthat no person of the village is ready totake the shop and it was unanimouslyresolved to select Sri Radhey Shyamresident of Chochakpur, therefore, therewas no suppression of fact on the part ofthe petitioner. The petitioner has beenissued licence on the consideration thathe was not the resident of villageNarayanpur and was a resident ofChochakpur.

7. We are of the view that theGovernment Order dated 17th August2002 cannot be made applicableretrospectively, it only appliesprospectively and only applies in a case ofsettlement of fresh fair price shop in avillage. So far as the parentage of thepetitioner is concerned, the name of thereal father of the petitioner was Sukhdev.The petitioner explained that he has beenadopted by Faujdar Nishad on 05.09.1974and, therefore, he has shown the name ofhis father as Faujdar Nishad, which is notdisputed by any of the authority and,therefore, we do not see anymisrepresentation relating to the disclosureof the parentage on the part of the petitioner.

8. In view of the aforesaid facts andcircumstances of the case, we are of theview that the impugned order dated18.10.2012 is not sustainable and is liableto be set aside.

9. In the result, the writ petition isallowed and the impugned order dated18th October 2012 is set aside. Thelicence of the petitioner is restored.

--------

1 All]. Ram Sewak Gupta Vs. State of U.P. & Ors. 33

ORIGINAL JURISDICTIONCIVIL SIDE

DATED: LUCKNOW 01.12.2014

BEFORETHE HON'BLE DEVENDRA KUMAR

UPADHYAYA, J.

Service Single No. 4735 of 2013

Ram Sewak Gupta ...PetitionerVersus


Counsel for the Petitioner:Sri D.S. Yadav


Constitution of India, Art.-226-withholdinggratuity -admittedly neither anydepartmental enquiry either prior or afterretirement pending-recovery based uponaudit report not sustainable-quashed.

Held: Para-14 & 1714. As observed above, admittedly, inthe instant case, no departmental orjudicial proceeding or any such inquirywas pending, hence there cannot be anyjustification for withholding the gratuityof the petitioner.17. Merely on the basis of said auditreport without the charge of causing lossbeing established in a full-fledgeddepartmental inquiry, no recovery ofalleged loss caused to the StateExchequer can be made.

Case Law discussed:Special Appeal Defective No. 1278 of 2013;1993 (7) SLR 706; 2006 (110) FLR 101.

(Delivered by Hon'ble Devendra KumarUpadhyaya, J.)

1. Heard learned counsel for thepetitioner and learned Standing Counselappearing for the respondents.

2. The petitioner, who has retired on30.06.2012 from the post of MarketingInspector, has filed this petition with theprayer that the order dated 24.07.2013 passedby the Regional Food Controller, FaizabadRegion, Faizabad whereby part of thegratuity amount of Rs.2,62,271/- has beenwithheld for recovering the same on accountof the alleged loss caused to the StateExchequer by the petitioner, be quashed. Thepetitioner has also prayed that the pensionpayment order dated 04.01.2013 be alsoquashed to the extent it withholds the amountof leave encashement. Further prayer hasbeen made for commanding the oppositeparty no.4 to accord the benefit of IIIrdAssured Career Progression to the petitionerwith effect from 01.12.2008 in terms of theprevalent Government Order and further thatthe petitioner be permitted to withdraw theGPF amount.

3. So far as the prayer relating towithholding of the leave encashementamount is concerned, learned counsel forthe petitioner states that the said amounthas been released. Accordingly, theprayer made in this petition in respect ofthe same has been rendered infructuous.As regards the prayer relating to grant ofthe benefit of IIIrd Assured CareerProgression to the petitioner, it has beeninformed that the said benefit has alsobeen given to him which renders theprayer made in this regard infructuous.The petitioner, has, since been permittedto withdraw the amount of GPF, hence inthis view, the prayer made in this regardhas also become infructuous.

4. The sole issue which nowsurvives for consideration in this case isas to whether the part of the amount ofgratuity i.e. the sum of Rs.2,62,271/- haslegally been withheld by the Regional


Food Controller, Faizabad Division,Faizabad by passing the impugned order.

5. It has been submitted by the learnedcounsel for the petitioner that at the time ofretirement, the petitioner was not facing anydepartmental inquiry, neither anydepartmental proceedings were initiated afterhis retirement in terms of the provisioncontained in Regulation 351-A of the CivilService Regulations, hence there was nooccasion for the respondents to havewithheld the part of the amount of gratuity.

6. Per contra, learned counselappearing for the State has vehementlyargued that on the basis of special auditreport, it was determined that the petitionerhas caused loss of Rs.2,62,271/-, hence theloss caused to the State Exchequer has beensought to be recovered by withholding theamount equal to the loss, from the gratuity ofthe petitioner by the Regional FoodController, Faizabad Division, Faizabad bymeans of order dated 24.07.2013.

7. I have considered the argumentsadvanced by learned counsels appearingfor the parties.

8. Admittedly, no departmentalproceedings were instituted, neither thesame were pending against the petitioneron the date of retirement. It is also notdenied that no departmental proceedings,after seeking approval of the competentauthority under Regulation 351-A of theCivil Service Regulations, have beeninitiated against the petitioner.

9. In the counter affidavit, it hasbeen stated by the respondents that on thebasis of liability of a sum of Rs.2,62,271/-, which has been determined on the basisof audit report, the amount has been

ordered to be recovered from the gratuityamount of the petitioner. No other reasonhas been indicated by the respondents forwithholding the amount of gratuity forrecovery of the alleged loss caused to theState Exchequer.

10. The U.P. Recruitment BenefitRules 1961 provides that recovery from thegratuity of retired employee can be madeonly if the conditions of Regulation 351-A ofthe Civil Service Regulation are fulfilled. Asobserved above, in the instant case, there isno material which in any manner suggeststhat any departmental proceedings wereinitiated against the petitioner by takingrecourse to the provisions of Regulation 351-A of the Civil Service Regulations.

11. Learned Standing Counselappearing for the State has, however, soughtto defend the impugned order of recoveryfrom the gratuity amount on the basis ofdecision rendered by a Division Bench of thisCourt in the case of State of U.P. and others vsJai Prakash, decided on 17.12.2013 in SpecialAppeal Defective No.1278 of 2013. TheDivision Bench in the aforesaid case has heldthat Government has the power to withholdthe gratuity, however, the gratuity can bewithheld only until conclusion ofdepartmental or judicial proceedings or anyinquiry by administrative tribunal.

12. Referring to the provision containedin Regulation 351-AA, this Court in the saidcase of State of U.P and others vs Jai Prakash(supra) has held that death-cum-retirementgratuity may be withheld until the conclusionof departmental or judicial proceedings andthe issue of final orders thereon.

13. Thus, condition precedent forwithholding or making recovery from thegratuity is pendency of departmental or

1 All]. Kaleem Ullah Khan Vs. State of U.P. & Ors. 35

judicial proceedings or any inquiry by theadministrative tribunal and in absence ofthese inquiries or proceedings pending onthe date of retirement, gratuity of theretiring employee cannot be withheld.

14. As observed above, admittedly,in the instant case, no departmental orjudicial proceeding or any such inquirywas pending, hence there cannot be anyjustification for withholding the gratuityof the petitioner.

15. In fact, the impugned order doesnot withhold part of amount of gratuity;rather it seeks to recover the same citingthe cause that the petitioner has beenresponsible for causing loss to the StateExchequer to the extent of the amountmentioned in the impugned order.

16. The question, thus, is as towhether without holding any departmentalinquiry and without determining theresponsibility of the petitioner for thealleged loss, solely on the basis of auditreport, can any recovery from thepetitioner be made.

17. It is well established that auditreport cannot be used as substantive evidenceof the genuineness or bonafide nature of thetransactions referred to in the accounts. Ashas been held by this Court in the case ofDilip Singh Rana vs State of U.P. reported in1993 (7) SLR 706, audit is only officialexamination of the accounts in order to makesure that the accounts have been properlymaintained according to prescribed modeand further that audit report is a statement offacts pertaining to the maintenance ofaccounts coupled with the opinion of theauditor and thus it can only give rise toreasonable suspicion of commission of awrong. Merely on the basis of said audit

report without the charge of causing lossbeing established in a full-fledgeddepartmental inquiry, no recovery of allegedloss caused to the State Exchequer can bemade.

18. In similar circumstances,recovery sought to be made from thegratuity of a retired government employeeon the basis of some audit report was notapproved by a Division Bench of thisCourt in the case of Radhey Shyam Dixitvs State of U.P. and others, reported in2006 (110) FLR 101.

19. For the reasons disclosed above inthe instant case as well, the recovery of thepart of the amount of gratuity of the petitioner,which has been sought to be made by passingthe impugned order dated 24.07.2013, cannotbe permitted to be sustained.

20. In the result, the writ petition isallowed and the impugned order dated24.07.2013 passed by the Regional FoodController, Faizabad Region, Faizabad ascontained in annexure no.1 to the writpetition is hereby quashed. It is directedthat payment of entire gratuity amountshall be made to the petitioner within sixweeks from the date of production ofcertified copy of this order.

21. However, there will be no orderas to costs.



BEFORETHE HON'BLE MAHESH CHANDRA TRIPATHI, J.


Kaleem Ullah Khan ...Petitioner


VersusState of U.P. & Ors. ...Respondents

Counsel for the Petitioner:Sri Bal Krishna Pandey, Sri Amit SinghChauhan, Pooja Srivastava, Sri NeerajSrivastava, Sri Navin Kumar


Constitution of India, Art.-226-Cancellationof fair price shop license-without supplyingthe copy of complaint-charge sheet-withoutoral enquiry-without copy of enquiryreport-without following procedure ofenquiry contained in G.O. 29.07.04-held-order impugned not sustainable-quashed-with liberty to pass fresh order inaccordance with law.

Held: Para-13Applying the ratio of the law laid down in theaforesaid case, the court finds that the inquiryproceedings were conducted in flagrantdefiance of the Government Order dated29.7.2004 and the law laid down by this Courtand therefore, the case of the petitioner wasseverely prejudiced thereby making theimpugned orders dated 29.09.2012 and16.01.2013 unsustainable in law.

Case Law discussed:[2003] (21) LCD 610]; 2008 (3) ADJ 36 (DB);2010 (6) ADJ 339.

(Delivered by Hon'ble Mahesh ChandraTripathi, J.)

1. Heard learned counsel for thepetitioner and learned counsel for therespondents.

2. By means of the present writpetition, the petitioner has prayed forquashing the order dated 29.09.2012passed by respondent No. 3 by which thefair price shop of the petitioner had beencancelled.

3. Aggrieved with the saidcancellation order, the petitioner hadpreferred statutory appeal, which was alsorejected by the respondent No. 2 vide anorder dated 16.01.2013.

4. Brief facts giving rise to thepresent writ petition are that the petitioneris a fair price shop dealer in Mohalla GherHasan Khan, Rampur since the date of hisallotment and his work and conduct issatisfactory and no complaint has everbeen made against the petitionerregarding irregularities in distribution ofessential commodities by the valid rationcard holders till date.

5. It has been averred in the writpetition that the respondent No. 2suspended the fair price shop of thepetitioner on the basis of mala-fidecomplaint as well as on report beingsubmitted by the Supply Inspector anddirected the petitioner to submit his reply.Thereafter, in pursuance to the suspensionorder, the petitioner submitted hisexplanation before the respondent No. 2alongwith documents and affidavit ofvillagers denying the entire allegationlevelled against him. It has also beenaverred that the respondent No. 2, withoutconsidering the explanation given by thepetitioner and without perusing theevidence on record cancelled the licenceof fair price shop of the petitioner.

6. Being aggrieved with thecancellation order, the petitioner hadpreferred an Appeal No. 31 of 2012-13(Kaleem Ullah Khan Vs. State of U.P. andothers) alongwith stay application beforethe respondent No. 2 under Section 28 (3)of U.P. Essential Commodities(Distribution) Order, 2008. Thereafter therespondent No. 2, without considering the


facts of the case and without perusing thematerial on record, had dismissed theappeal of the petitioner.

7. Learned counsel for the petitionersubmits that a Division Bench of thisCourt in Radhey Kant Khare Vs. U.P.Cooperative Sugar Factories Federationltd. [2003](21) LCD 610] held that after acharge-sheet is given to the employee anoral enquiry is a must, whether theemployee requests for it or not. He furthersubmits that no doubt, the aforesaidprinciples have been laid down by theDivision Bench in the service matter butthe same principle would also beapplicable while making an inquiry in thepresent matter. Hence a notice should beissued to him indicating him the date,time and place of the enquiry. On thatdate so fixed the oral and documentaryevidence against the employee shouldfirst be led in his presence. Thereafter theemployer must adduce his evidence first.The reason for this principle is that thecharge-sheeted employee should not onlyknow the charges against him but shouldalso know the evidence against him sothat he can properly reply to the same.The person who is required to answer thecharge must be given a fair chance to hearthe evidence in support of the charge andto put such relevant questions by way ofcross-examination, as he desires. Then hemust be given a chance to rebut theevidence led against him.

8. It is settled principle that if anymaterial is sought to be used in anenquiry, the copies of material must besupplied to the party against whom suchan enquiry is held. The DisciplinaryAuthority as well as Appellate Authoritydid not consider this aspect of the matterand expressed their concurrence to the

finding of the Inquiry Officer, withoutapplying their independent and free mind.The Appellate Authority whileconsidering the appeal of the petitionerfailed to appreciate the fact that theEnquiry Officer at the back of thepetitioner had proved charges withoutaffording reasonable opportunity tocontrovert the same. Therefore, the orderof Appellate Authority is bad in law andcannot be sustained.

9. Learned counsel for therespondents submits that the impugnedorders are sustainable and the same hadbeen passed strictly in accordance withlaw and as per record.

10. On the facts of the present case,the petitioner ought to have beenpermitted to participate in the aforesaidinquiry and the statements of thecomplainants should not have beenrecorded in the presence of the petitioner,and without furnishing the statement ofthe complainants to him and withoutgiving him an opportunity to cross-examine the complainants, who haddeposed against the petitioner, and thusany such action based on any such reportor evidence could not become afoundation for passing an order ofcancellation of fair price licence of thepetitioner as cancellation has civilconsequences.

11. Learned counsel for thepetitioner further submits that it wasincumbent upon the inquiry officer tofollow the procedure, which is prescribedin Government Order dated 29.07.2004,which provides the procedure forsuspension/cancellation of fair price shoplecence, so that the officers cannotproceed in illegal manner, and


unnecessary litigation may be avoided. Healso placed his reliance upon a DivisionBench judgment of this Court in CivilMisc. Writ Petition No. 58470 of 2005(Harpal Vs. State of U.P. and others),decided on 26.2.2008, reported in 2008(3)ADJ 36 (DB). For ready reference therelevant paras nos. 9 to 15 are reproducedhere in below:-

"9. From a reading of Clause 30 it isclear that the Uttar Pradesh ScheduledCommodities Order, 1990 wassuperseded and repealed. Clause 31 of2004 Order states that it will have effectirrespective on any thing contrary to itcontained in any earlier order issued bythe State Government. The 2004 Orderwas issued by the State Government formaintaining the supplies of food grainsand other essential commodities and forsecuring their equitable distribution andavailability at fair prices. Its Clause 21 isconcerned with monitoring of fair priceshops by the food officer and he was tomake regular inspections. Clause 22 ofthe Order gave power to the Food Officerand other officers the power of entry,search and seizure and Clause 23 gavepower to the State Government toauthorize any person to inspect the stocksof scheduled commodities other than theofficer mentioned in Clause 22. So far asthe maintenance of supply of food grainsand other essential commodities and theirdistribution and availability at fair priceshop was concerned the 2004 Orderprovided stringent methods to deal withthe erring licensees of fair price shops.But the 2004 Order did not provide anyprocedure for suspension/cancellation ofthe licences or agreement of fair priceshop licensees. The 2004 Order did notlay down any procedure as to how and inwhat manner the licence/agreement of a

fair price shop licensee/agent could besuspended or cancelled nor any timeframe had been provided. On the otherhand, the Government order dated29.7.2004 prescribes the procedure fortaking recourse tosuspension/cancellation by the officersand fixes a time frame for taking actionagainst the licensees. The Governmentorder dated 29.7.2004 does not containany provision which is contrary to 2004order. The 2004 Order has notsuperseded the Government order dated29.7.2004. The G. O. dated 29.7.2004 and2004 Order dated 20.12.2004 operate indifferent fields with the same object toensure equitable and fair distribution ofessential commodities to the people. Weare of the considered opinion that theG.O. dated 29.7.2004 and the 2004 Orderdated 20.12.2004 are valid and are still inforce and are applicable in the State ofUttar Pradesh.10. The next question is whether theimpugned suspension order has beenpassed in violation of principles ofnatural justice? From the perusal of thesuspension order it is clear that noopportunity of hearing was afforded to thepetitioner either at the time of enquiry orbefore passing of the order suspendingthe fair price shop licence/agreement ofthe petitioner. In the counter-affidavit ithad not been stated that opportunity ofhearing was given at any stage. Theenquiry was conducted behind the back ofthe petitioner. The entire proceedingswere in violation of the principles ofnatural justice. The argument of learnedAdditional Chief Standing Counsel thatprinciples of natural justice do not applyto the cases where fair price shop licencehad been granted in view of the decisionin Gopi's case, cannot be accepted. TheG.O. dated 29.7.2004 clearly mandates


and directs the authorities to comply withthe principles of natural justice beforesuspending/cancelling fair price shoplicences/agreements. It appears that thisG.O. dated 29.7.2004 was not placedbefore the Division Bench which decidedGop's case and in Ignorance of thisGovernment order the decision has beenrendered and the decision has beenpassed in sub-stlientio in view of the lawdeclared by the Apex Court in State ofU.P. and another v. Synthetics andChemicals and Anr.MANU/SC/0616/1991 : 1993(41)ECC326. Since the G.O. dated 29.7.2004 was notconsidered by this Court the decision inGopi's case cannot be said to be a goodlaw or a precedent.11. The next question is whether thepetitioner has to be relegated toalternative remedy of filing an appeal tochallenge the suspension order which hasbeen passed in violation of principles ofnatural justice? The learned AdditionalChief Standing Counsel has vehementlyurged that even if there was violation ofprinciples of natural justice the petitionerhad an alternative remedy to file anappeal before the Commissionerchallenging the suspension order. It istrue that the suspension or cancellation ofa fair price shop licence could bechallenged under Clause 28(3) of theUttar Pradesh Scheduled CommoditiesDistribution Order, 2004 before theconcerned Divisional Commissioner, butthe appeal under Clause 28(3) lies onlyagainst the suspension or cancellation ofagreement of the fair price shop. Butwhere an order is passedsuspending/cancelling the fair price shoplicence/agreement in violation ofprinciples of natural justice thealternative remedy would not be a barand a writ petition would be maintainable

under Article 226 of the Constitution ofIndia. It has been held by the Apex Courtin Whirlpool Corporation v. Registrar ofTrade Marks, Mumbai and Ors.MANU/SC/0664/1998 : AIR1999SC22that even if an alternative statutoryremedy is available it would not be a barin maintenance of a writ petition underArticle 226 of the Constitution in at leastthree contingencies, (i) where the writpetition seeks enforcement of any of thefundamental rights; (ii) where there isviolation of principles of natural justice;or (iii) where the order or theproceedings are wholly withoutjurisdiction or the vires of an Act ischallenged. We have already held that itwas mandatory for the authorities/officersto comply with the principles of naturaljustice before suspending/cancelling thefair price shop licences/agreements.Therefore, we are of the consideredopinion that the impugned suspensionorder has been passed in violation ofprinciples of natural justice, the writpetition filed by the petitioner withoutavailing the alternative remedy of appeal,is maintainable under Article 226 of theConstitution.12. The last question is whether on meritsthe suspension order is liable to be setaside? In view of the findings recorded byus that the suspension order was passedin violation of principles of naturaljustice, it is not necessary to examinewhether the order suspending the licenceof the petitioner was in 'accordance withGovernment orders, but since theAdditional Chief Standing Counsel hasvehemently attempted to defend the orderon merits, we consider it necessary toexamine the correctness of the suspensionorder in brief. The petitioner's fair priceshop licence/agreement has beensuspended. The suspension order does not


disclose that any opportunity of hearing wasgiven to the petitioner. It appears that Sub-Divisional Magistrate, Faridpur, Bareilly onthe basis of oral complaints of the villagersgot an enquiry conducted against thepetitioner on 27.5.2005 and in the enquiry itwas found that the shop was closed and rateboard was not put outside the shop. The fairprice shop licensee was charging Rs. 12 perlitre in excess of the scheduled price ofkerosene oil which was violation of conditionNo. 24 (Ga) of the licence/agreement. In theenquiry ration cards were also inspected andit was found that every month kerosene oilwas not properly distributed. Sugar was alsonot properly distributed to persons who werebelow the poverty line which was violation ofcondition No. 3 of the licence/agreement.The shop of the petitioner was suspendedand attached to another fair price licenseeDevendra Kumar Pathak. It is not mentionedin the suspension order that who conductedthe enquiry and when? It is also not clearthat if the shop was closed at the time ofenquiry then from where this fact wasrevealed that the petitioner was charging Rs.12 per litre in excess of scheduled price ofkerosene oil and from where the ration cardswere inspected by the enquiry officer. Theimpugned suspension order does not disclosethat any show-cause notice was issued to thepetitioner to submit his reply as to why thepetitioner's licence may not be cancelled.According to learned Counsel for thepetitioner on the basis of such vagueallegations licence/agreement of thepetitioner could not be suspended. He hasplaced reliance on the decisions of this Courtin Civil Misc. Writ Petition No. 60978 of2005, Smt. Alka Rani v. State of U.P. andOrs. decided on 14.9.2005. The order of theDivision Bench is extracted below:

"We have heard the learned Counselfor the petitioner and the learned standingcounsel. Petitioner's fair price shop

licence was suspended and by theimpugned order dated 22.8.2005 it hasbeen cancelled. The cancellation ordersays that despite opportunity thepetitioner did not submit any reply.

Normally, we would have directedthe petitioner to avail alternative remedyof appeal, but we find from the showcause notice (Annexure-4 to this writpetition) that almost all the charges areabsolutely vague without giving anyspecific instance and without mentioningany material on the basis of which each ofthe charges is proposed to be provedagainst the petitioner. For example whencharge No. 2 says that distributionaccording to entitlement of rationcardholders has not been made everymonth, the notice should also haveindicated when and to which card holdersdistribution was not made. Similarly,when charge No. 4 says that kerosene oilis being sold at the rate of Rs. 11 per litre,it should have been disclosed when andfrom which person such extra value wascharged.

Without specific instances of thiskind and without informing the materialwhich is sought to be read against thepetitioner in support of these charges, noproper effective defence or reply waspossible. The only thing, which thepetitioner could have done, was to makean equally vague denial that he was notguilty of these charges, which ultimatelywould lead nowhere. Levelling of chargeis easy, proving of charge is anothermatter. A person can be punished forproved charges and not for levelledcharges. The standard of proof may varybut nevertheless proof must be there. Ifevidence is there to prove charges, thisCourt will not go into sufficiency of theevidence. But a finding based on noevidence is not sustainable.

1 All]. Hari Nandan Vs. State of U.P. & Ors. 41

In the circumstances, we find that theimpugned order is based on no material. Thewrit petition is allowed. The impugned orderdated 22.8.2005 is quashed."

13. The decision in Smt. Alka Rani'scase applies to the facts of the case in hand,as in this case also allegations are vague andspecific instances and material sought to beread in support of the allegations against thepetitioner have not been mentioned. If nomaterial is mentioned in the suspensionorder then substituting the material in thecounter-affidavit would be of no help to therespondents. We further find that along withthe suspension order no show-cause noticehad been issued to the petitioner directinghim to show-cause as to whey his fair priceshop licences/agreement may not becancelled. The impugned suspension order isvitiated on this ground alone being inviolation of mandatory requirements of G.O.Dated 29.7.2004.

14. For the aforesaid reasons, we arein agreement with learned Counsel for thepetitioner that the impugned suspensionorder is vague and on the basis of whichpetitioner's fair price shop licence/agreementcould not be cancelled and the impugnedorder deserves to be quashed.

15. In the result, this writ petitionsucceeds and is allowed. The impugnedsuspension order dated 25.5.2005 passedby respondent No. 2, Annexure-1 to thewrit petition, is quashed"

12. In Abu Baker Vs. State of U.P.and others 2010 (6) ADJ 339, this courthad held as follows: -

"There is no material on recordindicating either the petitioner was givenany opportunity to cross-examine thewitness who had deposed against him orthe copies of the statements of witnessesso recorded were furnished to him. Thus

what follows from the above discussion is thatthe petitioner has been penalised on the basisof the statements of Antodaya and BPL cardholders recorded behind his back althoughneither the copies of the statements of theaforesaid witnesses were furnished to thepetitioner nor he was given any opportunity tocross-examine the witness so examined."

13. Applying the ratio of the lawlaid down in the aforesaid case, the courtfinds that the inquiry proceedings wereconducted in flagrant defiance of theGovernment Order dated 29.7.2004 andthe law laid down by this Court andtherefore, the case of the petitioner wasseverely prejudiced thereby making theimpugned orders dated 29.09.2012 and16.01.2013 unsustainable in law.

14. The writ petition succeeds and ishereby allowed. The orders impugneddated 29.09.2012 and 16.01.2013 arehereby quashed. However, it shall be openfor the respondents to pass fresh orders inthe light of the observations madehereinabove and in accordance with lawwithin a period of two months from thedate of the production of the certifiedcopy of this order. No order as to costs.





Criminal Misc. Writ Petition No. 22824 of 2014

Hari Nandan ...PetitionerVersus


Counsel for the Petitioner:Sri Moti Lal, Smt. Meera


Counsel for the Respondents:A.G.A., Sri Shivam Yadav

Constitution of India, Art. 226-QuashingFIR-offence under Section 138-B ofElectricity Act-on allegations even ondisconnection-petitioner found consumingelectricity power-on ground of provision ofSection 41-A of Cr.P.C.-punishment beinglesser that 7 years-arrest can not beaffected in routine manner as well as asper law laid down by Apex Court in ArneshKumar case-held-under Section 151-Apolice having power to investigate-havingspecial provision under Section 153 and154 of Electricity Act-from perusal of FIRcognizable offence made out-nointerference call far-the rulings relied bypetitioner-not applicable-petitiondismissed on ground of remedy toapproach before special Court constitutedunder special Act-petition dismissed.

Held: Para-22, 23 &2422. A perusal of the first informationreport has been lodged against thepetitioner shows that cognizable offenceis made out against the petitioner.Therefore, prayer (I) of the writ petitionseeking relief for quashing of the FIRcannot be granted and as a consequencethe petitioner is not entitled for reliefno.(II) for stay of arrest.

23. Even otherwise proceeding underSection 135 of the Act had been takenagainst the petitioner which relates totheft of electricity, second proviso toSection 135 (1)(A) provides further thatsuch officer of the licensee or supplier,as the case may be, shall lodge acomplaint in writing relating to thecommission of such offence in policestation having jurisdiction within twentyfour hour from the time of suchdisconnect:

24. In the circumstances, we are notinclined to interfere in the matter andthe petitioner has an efficacious remedyby moving the Special Court constitutedunder the Special Act which is the

Electricity Act and the matter is specifiedtherein.

Case Law discussed:2014 (8) SCC 273; Laws (All)-2011-9-22.

(Delivered by Hon'ble Rakesh Tiwari, J.)

1. Heard learned counsel for theparties and perused the record.

2. The petitioner has challenged thevalidity, propriety and legality of the firstinformation report in case crime No.225 of2014, under Section 138-B of ElectricityAct registered at P.S. Binawar, DistrictBudaun, whereas it has been alleged that ateam of Assistant Engineer along withothers visited the villages SadullahpurKitara, Chandaura, Bichharayya, etc. underthe Police Station Binawar on 19.6.2014.The enforcement party found that 14persons of aforesaid village had connectedtheir electricity connections after theelectricity department had earlierdisconnected their electricity connections.As regard the petitioner is concerned, it isstated in the first information report thus:

" blds ckn xzke fcNj;k igqWpsA v'kksd dqekj,l0@vks0 jkeiky cqd la0 1123@dus0 la0024282 cdk;k 51540 cdk;k gfjuUnu ,l0@vks0xaxk flg cad la0 1123@dus0 la0 050739 cdk;k47752 cdk;k ?kjsyw eksguyky ,0@vks0 [;kyh jkecqd la0 1120@dus0 la0 051942 cdk;k 36145cdk;k ij dVk dusD'ku pyrk gqvk ik;k x;kA "

3. The petitioner was proceededagainst under Section 148-B of theElectricity Act for the offence committedby him, which is punishable up to 3 years,is cognizable as non-bailable as providedunder the Electricity Act.

4. The contention of the learnedcounsel for the petitioner is that Section


151-A of the aforesaid Act, gives onlypower of investigation to the concernedpolice station but provisions of ChapterXII of Cr.P.C. does not provide for anypower of arrest yet the police of P.S.Binawar are making attempt to arrest thepetitioner, which is without jurisdiction.

5. It is further contended thatSection 41-A Cr.P.C provides that arrestof the accused person for offencepunishable with imprisonment of 7 yearsor less are not to be made in a routinemanner and arrest can be effected onlyafter issuance of notice and in default ofconditions mentioned therein. Thecontention of the learned counsel for thepetitioner is that no inspection, search andseizure of any domestic places ordomestic premises shall be carried outbetween sunset and sunrise except in thepresence of an adult male memberoccupying such premises.

6. In support of his contention,counsel for the petitioner has placedreliance upon the decision rendered inArnesh Kumar Vs. State of Bihar andanother, 2014 (8) SCC 273, wherein theApex Court has observed that directionsissued therein shall apply in all such caseswhere offence is punishable withimprisonment for a term which may beless than seven years or which mayextend to seven years whether with orwithout fine- Police officers shall notarrest the accused unnecessarily andMagistrate shall not authorise detentioncasually and mechanically- Failure tocomply with these directions, shall apartfrom rendering police officers concernedliable for departmental action, also makethem liable to be punished for contemptof court- Authorising detention withoutrecording reasons by Judicial Magistrate

concerned shall be liable for departmentalaction by appropriate High Court- Copyof judgment to be forwarded to ChiefSecretaries as also DGs of Police of allStates, Union Territories and RegistrarGeneral of all High Courts for ensuringcompliance therewith- Police- Arrest-Penal Code, 1860- S.498A- Constitutionof India, Arts.21 and 22(2).

7. The petitioner in this regard hasfurther placed reliance upon the decisionrendered in Shaukin Vs. State of UttarPradesh, Laws (All)-2011-9-22.

8. From the extract quoted by us in thebody of judgment, it is clear that electricitydues were not paid by Ashok Kumar S/oRam Pal, Harinandan S/o Ganga Singh,Gharelu Mohanlal S/o Khyali Ram and theirenergy supply line was earlier disconnectedbut at the rime of raid their electricityconnection found to be re-connected whileamounted to theft of electricity.

9. As regard the judgment cited by thelearned counsel for the petitioner in ArneshKumar (supra) is concerned that judgmenthas overlooked the context in which has beenrendered. In that case Arnesh Kumar was theApex Court was considering the power topolice, to arrest an accused, without warrant,under Section 498-A read with Section 4 ofDowry Prohibition Act, 1961. Therefore theCourt in the facts and circumstances of thecase held that due to the rampant misuse ofthese provisions, it would be prudent andwise for a police officer not to make anyarrest without some investigation forrecovery to a reasonable satisfaction, as togenuineness of the allegations.

10. As stated earlier, this is not acase under the Dowry Prohibition Act orSection 498-A of the Act. It rather is a


case under the Electricity Act, 2003,where the checking party under theAssistant Engineer of the department hadvisited the village at the spot and foundtheft of electricity being committed byreconnecting the power supply by theconsumers without payment of dues.

11. Shri Shubham Yadav, learnedcounsel for the respondents submits thatcompounding for offence under section 152(1) is permitted under Section 152(4) of theElectricity Act. It only once to a person orconsumer. He further states that petitioner hadalso availed this opportunity, and therefore, hecannot now claim compounding again for asecond time under the provisions of the Act.

12. After hearing counsel for theparties it appears that admittedly, theelectricity supply of the petitioner hadbeen disconnected earlier and oninspection by the it team was found to bere-connected illegally by the petitionerand the impugned FIR against him waslodged. The petitioner has prayed for thefollowing reliefs;

I)issue an order, direction or writ inthe nature of certiorari, call for record andquash the FIR at case crime no.225/2014u/s 138-B Electricity Act, P.S. Binawar,Budaun dated 19.6.2014 (Annexure '1').

II) issue an order, direction or writ inthe nature of mandamus and direct therespondents not to arrest the petitioner inF.I.R at case crime no.225/2014 u/s 138-BElectricity Act, P.S. Binawar, Budaundated 19.6.2014 (Annexure '1').

III) issue any other writ, order,direction, which this Hon'ble Court maydeem just and expedient in the interest ofjustice.

IV) award cost of this petition infavour of the petitioner.

13. From the F.I.R, it is apparentthat search/inspection operation wasinitiated at 11.05 A.M on 19.6.2014 andafter search and investigation about 18connections in three villages as mentionedin the FIR, was lodged at 5 p.m. The firstinformation report has been lodged in themid of June, 2014. Therefore, search wasnot carried out after sunset or beforesunrise.

14. On examining of Section 138 ofthe Electricity Act, it is apparent that theappellant had violated the provision of theaforesaid Act read with the firstinformation report. Under Section 147 ofthe Electricity Act, 2003, the penaltiesimposed under this Act, shall be inaddition to, and not in derogation of, anyliability in respect of payment ofcompensation or, in the case of a licence,the revocation of his licence which theoffender may have incurred. He may alsonote that violation of provision underSection 151 is cognizable offence.

15. The police under Section 151Ahas power to investigate. An offencepunishable under the Act and is vested allthe power under Chapter XII of the Codeof Criminal Procedure, 1973.

16. Further more Section 151-B notprovides this:

"151-B. Certain offences cognizableand non-bailable- Notwithstanding anythingcontained in the Code of CriminalProcedure, 1973, an offence punishableunder sections 135 to 140 or section 150shall be cognizable and non-bailable."

17. Compounding of offences whichis provided under Section 152(4) whichread thus:


"152. Compounding of offences.-(4) The compounding of an offence

under sub-section (1) shall be allowedonly once for any person or consumer."

18. In so far as the two judgmentscited by the learned counsel for thepetitioner that the Electricity Act and itsprovision will prevail Special Law exceptthey are not in derogation to the provisionof Criminal Procedure. We may also notethat Sections 153 and 154 the ElectricityAct, which provides Special Courts whichread thus:

"153. Constitution of SpecialCourts.- (1) The State Government may,for the purposes of providing speedy trialof offences referred to in [ sections 135 to140] and section 150], by notification inthe Official Gazette, constitute as manySpecial Courts as may be necessary forsuch area or areas, as may be specified inthe notification.

(2) A Special Court shall consist of asingle Judge who shall be appointed bythe State Government with theconcurrence of the High Court.

(3) A person shall not be qualifiedfor appointment as a Judge of a SpecialCourt unless he was, immediately beforesuch appointment, an Additional Districtand Sessions Judge.

(4) Where the office of the Judge of aSpecial Court is vacant or such Judge isabsent from the ordinary place of sittingof such Special Court, or he isincapacitated by illness or otherwise forthe performance of his duties, any urgentbusiness in the Special Court shall bedisposed of-

(a) by a Judge, if any, exercisingjurisdiction in the Special Court;

(b) where there is no such otherJudge available, in accordance with the

direction of District and Sessions Judgehaving jurisdiction over the ordinaryplace of sitting of Special Court, asnotified under sub-section (1).

154. Procedure and power of SpecialCourt.- (1) Notwithstanding anythingcontained in the Code of CriminalProcedure, 1973 (2 of 1974), everyoffence punishable under ( sections 135 to140 and section 150] shall be triable onlyby the Special Court within whosejurisdiction such offence has beencommitted.

(2) Where it appears to any court inthe course of any inquiry or trial that anoffence punishable under (section 135 to140 and section 150) in respect of anyoffence that the case is one which istriable by a Special Court constitutedunder this Act for the area in which suchcase has arisen, it shall transfer such caseto such Special Court, and thereupon suchcase shall be tried and disposed of by suchSpecial Court in accordance with theprovisions of this Act:

Provided that it shall be lawful forsuch Special Court to act on the evidence,if any, recorded by any court in the caseof presence of the accused before thetransfer of the case to any Special Court:

Provided further that if such SpecialCourt is of opinion that furtherexamination, cross-examination and re-examination of any of the witnesseswhose evidence has already beenrecorded, is required in the interest ofjustice, it may re-summon any suchwitness and after such furtherexamination, cross-examination or re-examination, if any, as it may permit, thewitness shall be discharged.

(3) The Special Court may,notwithstanding anything contained insub-section (1) of section 260 or section262 of the Code of Criminal Procedure,


1973 (2 of 1974), try the offence referredto in [ sections 135 to 140 and section150] in a summary way in accordancewith the procedure prescribed in the saidCode and the provisions of section 263 to265 of the said Code shall, so far as maybe, apply to such trial:

Provided that where in the course ofa summary trial under this sub-section, itappears to the Special Court that thenature of the case is such that it isundesirable to try such case in summaryway, the Special Court shall recall anywitness who may have been examinedand proceed to re-hear the case in themanner provided by the provisions of thesaid Code for the trial of such offence:

Provided further that in the case ofany conviction in a summary trial underthis section, it shall be lawful for aSpecial Court to pass a sentence ofimprisonment for a term not exceedingfive years.

(4)A Special Court may, with a viewto obtaining the evidence of any personsupposed to have been directly orindirectly concerned in or privy to, anyoffence tender pardon to such person oncondition of his making a full and truedisclosure of the circumstances within hisknowledge relating to the offence and toevery other person concerned whether asprincipal or abettor in the commissionthereof, and any pardon so tendered shall,for the purposes of section 308 of theCode of Criminal Procedure, 1973(2 of1974), be deemed to have been tenderedunder Section 307 thereof.

(5)The [ Special Court shall]determine the civil liability against aconsumer or a person in terms of moneyfor theft of energy which shall not be lessthan an amount equivalent to two times ofthe tariff rate applicable for a period oftwelve months proceeding the date of

detection of theft of energy or the exactperiod of theft if determined whichever isless and the amount of civil liability sodetermined shall be recovered as if it werea decree of civil court.

(6)In case the civil liability sodetermined finally by the Special Court isless than the amount deposited by theconsumer or the person, the excessamount so deposited by the consumer orthe person, to the Board or licence or theconcerned person, as the case may be,shall be refunded by the Board or licenseeor theconcerned person, as the case may be,within a fortnight from the date ofcommunication of the order of the SpecialCourt together with interest at theprevailing Reserve Bank of India primelending rate for the period from the dateof such deposit till the date of payment.

Explanation.- For the purposes ofthis section, "civil liability" means loss ordamage incurred by the Board or licenseeor the concerned person, as the case maybe, due to the commission of an offencereferred to in [ section 135 to 140 andsection 150]"

19. With a notification constitutedSpecial Court was notified by the UttarPradesh Shashan No.1232/VII-NYAYA-2- 204-206/81 Dated: Lucknow datedAugust 31,2004, which read thus:

" In exercise of the powers undersection 153 of the Electricity Act, 2003(Act no.36 of 2003) the Governor ispleased to constitute all the Fourth Seniormost courts of Additional District andSessions Judge of the district and wherethere is no such court, the court of theSenior most Additional District &Sessions Judges of the district, as theSpecial Courts under sub-section (1) of


the said section and to appoint with theconcurrence of the Chief Justice of theHigh Court of Judicature at Allahabad, allthe presiding officers of the said courts asthe Judges thereof for the purposes ofproviding speedy trial of offence referredto under section 135 to 141 of the saidAct within their respective jurisdictions."

20. The Registrar General, HighCourt of Judicature at Allahabad hadcirculated notification vide C.L. No.29/Main-B/Admin.(A-3) dated 21.9.2004 hadconferred the powers of Special Courts toone of the existing Sessions Courts to trycases falling under the Electricity Act,2003. The letter read thus:

" From,O.N. Khandelwal, H.J.S.,Registrar General,High Court of Judicature at

Allahabad.To,All the District & Sessions Judges,Subordinate to the High Court of

Judicature at Allahabad.C.L. No. 29/ Main-B/Admin.(A-3)

Dated: Alld: 21.9.2004.Subject:- Conferment of powers of

Special Courts to one of the existingSessions Courts to try cases falling underthe Electricity Act-2003.

Sir,On the above subject, I am sending

herewith a copy of GovernmentNotification No.1232/VII-Nyaya-2-2004-206/81, dated August 31, 2004, regardingconstitution of IV Seniormost court ofAdditional District & Sessions Judge ineach district as Special Court undersection 153 of the U.P. Electricity Act-2003 and where such Additional Districtand Sessions Judge is not available, the

Seniormost Additional District &Sessions Judge of the district as SpecialCourt under the aforesaid Act.

I am, therefore, to request you kindlyto ensure compliance of the aforesaidGovernment Notification.

Enclosure:-Yours faithfully,As above.Registrar General"

21. From the above, it is crystalclear that Special Courts have also beenconstituted and have been conferredpower to try such cases as the instant casefalling under the Electricity Act, 2003,which are functioning.

22. A perusal of the first informationreport has been lodged against thepetitioner shows that cognizable offenceis made out against the petitioner.Therefore, prayer (I) of the writ petitionseeking relief for quashing of the FIRcannot be granted and as a consequencethe petitioner is not entitled for reliefno.(II) for stay of arrest.

23. Even otherwise proceedingunder Section 135 of the Act had beentaken against the petitioner which relatesto theft of electricity, second proviso toSection 135 (1)(A) provides further thatsuch officer of the licensee or supplier, asthe case may be, shall lodge a complaintin writing relating to the commission ofsuch offence in police station havingjurisdiction within twenty four hour fromthe time of such disconnect:

24. In the circumstances, we are notinclined to interfere in the matter and thepetitioner has an efficacious remedy bymoving the Special Court constitutedunder the Special Act which is the


Electricity Act and the matter is specifiedtherein.

25. For the aforesaid reason, petitionis dismissed.



BEFORETHE HON'BLE MRS. SUNITA AGARWAL, J.


Munna Lal Sharma ...PetitionerVersus


Counsel for the Petitioner:Sri Pulak Ganguly, Sri Arun Kumar Singh-I

Counsel for the Respondents:C.S.C., Sri A.K. Lal, Sri Sujeet Kumar Rai

Persons with disabilities(Equalopportunities, Protection of Rights and fullparticipation) Act 1995-Section-47-petitioner working as cadre secretary-dueto loss of vision of both eyes (opticatrophy) proceeded on medical leave-of 18months, duly sanctioned-denial of salary inspite of direction of Court-rejecting theclaim-decided to compulsory retire-heldamount to termination-just contrary, tomandate of overriding provisions of Act1995-direction issued to pay entire arrearsof salary with all service benefits to pay9% interest thereon till actual paymentmade.

Held: Para-15In view of this submission, while settingaside the order dated 8.11.2012 retiringthe petitioner from service, therespondents are directed to pay thepetitioner entire arrears of salary till8.11.2012 along with all services benefitadmissible to the petitioner with interest@ 9% till the date of actual payment. It

is directed that computation be done andpayment shall be made to the petitionerwithin a period of two months from thedate a certified copy of this order isproduced.

Case Law discussed:(2003) 4 SCC 524; 2010 (8) ADJ 280; (2004) 6SCC 708.

(Delivered by Hon'ble Mrs. Sunita Agarwal, J.)

1. Heard Shri Arun Kumar Singh,learned counsel for the petitioner, learnedStanding Counsel for respondent Nos. 1to 3,Shri Sujeet Kumar Rai, learnedcounsel respondent No.4 and Shri A.K.Lal learned counsel for respondent No.5.

2. While working as Secretary of theCooperative Society Bijnor, namely,Kisan Sewa Sahkari Samiti, Saidpur,District Bijnor, petitioner has sufferedvisual impairment and lost his eyesightresultantly he has acquired completevisual disability i.e. blindness. Thepetitioner started losing his eyesight in themonth of September, 2006 and hadbecome 100% visually disabled inFebruary, 2009. He has applied formedical leave which was sanctioned forthe period from 15.1.2007 to 16.1.2008and 16.1.2008 to 30.6.2008 by theSecretary/General Manager, DistrictCooperative bank, Bijnor. His salary hasnot been paid, therefore, he hasapproached this Court by filing writpetition No. 49740 of 2010 which wasdisposed on 19.8.2010. The order passedby this Court is as under:-

"Learned Standing Counselrepresents respondent Nos.1 to 4.

Issue notice to respondent No.5.The petitioner was serving as Cadre

Secretary, Shadipur Kisan Sewa

1 All]. Munna Lal Sharma Vs. State of U.P. & Ors. 49

Cooperative Society Ltd. For the reasons,which could not be ascertained by the eyespecialists, he started losing his eye sight.The petitioner could not recover evenafter treatment and has been certified tobe 100% disabled on account of loss ofvision in both the eyes [optic Atrophyboth eye; visual disability 100%(hundred)] certified by the Chief MedicalOfficer, Udham Singh Nagar on16.2.2009.

He had proceeded on leave and wassanctioned 18 months' medical leave(from 15.1.2007 to 16.1.2008 andthereafter from 16.1.2008 to 30.6.2008)by the Secretary/General Manager,District Cooperative Bank, Bijnor.

It is stated that inspite of sanction ofleave and the protection given to himunder Section 47 of the Persons withDisabilities (Equal Opportunities,Protection of Rights and FullParticipation) Act, 1995,(In short PWDAct, 1995) the society has not paid salaryand has not provided a shelteredappointment to the petitioner. Thepetitioner has approached the Asstt.Registrar under Section 71 of the U.P.Cooperative Societies Act with anapplication dated 8.6.2010 for orders andrecovery of arrears of salary from thesociety.

All the respondents are allowed threeweeks' time to file counter affidavit. Thepetitioner will have one week, thereafter,to file rejoinder affidavit.

List on 27th September, 2010.In the meantime, we direct the Asstt.

Registrar, Cooperative Society, U.P.Distt. Bijnor to conclude the proceedingsunder Section 71 of the U.P. CooperativeSocieties Act within a month; he willensure the payment of atleast half of thesalary to the petitioner for the period forwhich the leave was sanctioned from

15.1.2007 to 16.1.2008 and thereafterfrom 16.1.2008 to 30.6.2008, to becredited to the bank account of thepetitioner positively within one month."

3. Pursuant to the order of this Courtdated 19.8.2010 petitioner's representationdated 8.6.2010 was considered andrejected vide order dated 12.9.2011passed by the District Assistant Registrar,Cooperative Societies, Bijnor. Rejectingthe claim of the petitioner for payment ofsalary the ground taken is that thepetitioner was absent with effect from1.7.2006 and decision has been taken bythe Society to retire the petitioner onaccount of its bad financial condition. On29.11.2011 District AdministrativeCommittee has taken a decision to retirethe petitioner from service. Consequentlyorder dated 8.12.2011 was passed retiringthe petitioner from service.

4. The present writ petition isdirected against the order dated 12.9.2011passed by the District Assistant Registrarand the order dated 8.12.2011 passed bythe Member Secretary, DistrictAdministrative Committee/ GeneralManager, District Cooperative Bank.

5. Assailing the orders impugned,learned counsel for the petitioner submitsthat admittedly the petitioner has acquiredvisual disability while in service andhence the petitioner is protected underSection 47 of the PWD Act, 1995 whichprovides that an employee who is alreadyin service and acquires a disability duringhis service should be provided suitablepost, if it is available. In case, It is notpossible to adjust the employee againstany post, supernumerary post is to becreated, he shall be allowed to continuetill the date of superannuation. Service


benefit cannot be denied to the employeeon account of disability acquired while inservice.

6. Learned counsel for the petitionerhas placed reliance upon the judgment ofApex Court in Bhagwan Das and anotherVs. Punjab State Electricity Board, 2008AIR SCW 534, wherein similar situationcame up for consideration before theApex Court. It was held in paragraphs 13and 14, which are as follows:-

"13.Appellant No.1 was a Class IVemployee, a Lineman. He completely losthis vision. He was not aware of anyprotection that the law afforded him andapparently believed that the blindnesswould cause him to lose his job, thesource of livelihood of his family. Theenormous mental pressure under which hewould have been at that time is notdifficult to imagine. In thosecircumstances it was the duty of theSuperior Officers to explain to him thecorrect legal position and to tell him abouthis legal rights. Instead of doing that theythrew him out of service by picking up asentence from his letter, completely out ofcontext. The action of the concernedofficers of the Board, to our mind, wasdeprecatable."

14.We understand that the concernedofficers were acting in what they believedto be the best interests of the Board. Stillunder the old mind-set it would appear tothem just not right that the Board shouldspend good money on someone who wasno longer of any use. But they were quitewrong, seen from any angle. From thenarrow point of view the officers wereduty bound to follow the law and it wasnot open to them to allow their bias todefeat the lawful rights of the disabledemployee. From the larger point of view

the officers failed to realise that thedisabled too are equal citizens of thecountry and have as much share in itsresources as any other citizen. The denialof their rights would not only be unjustand unfair to them and their families butwould create larger and graver problemsfor the society at large. What the lawpermits to them is no charity or largessbut their right as equal citizens of thecountry."

7. In Bhagwan Dass (Supra)observations made in Kunal Singh Vs.Union of India, (2003) 4 SCC 524 hasbeen relied upon. While interpretingimport of section 47 of PWD Act, 1995 itwas held that there cannot be anydiscrimination in Governmentemployments and no establishment shalldispense with or reduce in rank, anemployee who acquires a disability duringhis service. Sub-Section (2) of Section 47of PWD Act, 1995, further provides thatno promotion shall be denied to a personmerely on the ground of his disability.

In paragraph 9 of the KunalSingh(Supra) it was held as follows:-

"Chapter VI of the Act deals withemployment relating to persons withdisabilities, who are yet to secureemployment. Section 47, which falls inChapter VIII, deals with an employee,who is already in service and acquires adisability during his service. It must beborne in mind that Section 2 of the Acthas given distinct and different definitionsof "disability" and "person withdisability". It is well settled that in thesame enactment if two distinct definitionsare given defining a word/expression,they must be understood accordingly interms of the definition. It must be


remembered that person does not acquireor suffer disability by choice. Anemployee, who acquires disability duringhis service, is sought to be protectedunder Section 47 of the Act specifically.Such employee, acquiring disability, ifnot protected, would not only sufferhimself, but possibly all those whodepend on him would also suffer. Thevery frame and contents of Section 47clearly indicate its mandatory nature. Thevery opening part of Section reads "noestablishment shall dispense with, orreduce in rank, an employee who acquiresa disability during his service". TheSection further provides that if anemployee after acquiring disability is notsuitable for the post he was holding, couldbe shifted to some other post with thesame pay scale and service benefits; if itis not possible to adjust the employeeagainst any post he will be kept on asupernumerary post until a suitable post isavailable or he attains the age ofsuperannuation, whichever is earlier.Added to this no promotion shall bedenied to a person merely on the groundof his disability as is evident from sub-section (2) of Section 47. Section 47contains a clear directive that theemployer shall not dispense with orreduce in rank an employee who acquiresa disability during the service. Inconstruing a provision of social beneficialenactment that too dealing with disabledpersons intended to give them equalopportunities, protection of rights and fullparticipation, the view that advances theobject of the Act and serves its purposemust be preferred to the one whichobstructs the object and paralyses thepurpose of the Act. Language of Section47 is plain and certain casting statutoryobligation on the employer to protect anemployee acquiring disability during

service. " Further reliance has been placedupon the judgment of Union of India andothers vs. State of U.P. and another2010(8) ADJ 280, wherein it wasobserved that the PWD Act 1995guaranteed to a person, who developsdisability as defined in the Act from beingput off the employment. He has to beoffered an alternate/sheltered job. Theright of the disabled person to receivesympathetic consideration to continue inemployment on acquiring disabilityduring course of his tenure has beenreplaced by a statutory right by PWD Act,1995 .This statutory right is not subject toany discretion and cannot be defeated onthe prejudice of the employer unless theestablishment has exempted any particularcategory of work and valuable right of anemployee, who has acquired disabilityduring the course of employment isguaranteed under section 47 of the PWDAct, 1995. It was held that services of thepetitioner therein who has acquireddisability during the course of tenure inservice could not be terminated . Reliancehas been placed in Kunal Singh(supra)and Union of India Vs. Sanjay KumarJain (2004), 6, SCC 708.

8. Keeping in view of the abovelegal position, present case is to beexamined. Admittedly in the instant case,the petitioner has acquired visualdisability during service. He submittedleave application and leave for certainperiod was granted to the petitioner.However, salary was not paid as such hehad to rush to this Court. Pursuant to theorder of this Court dated 19.8.2010 anamount of Rs. 58,000/- was paid to thepetitioner towards half salary for theperiod from 15.1.2007 to 30.6.2008.However remaining amount of Rs.58,600/- has been refused by order dated


12.9.2011 on the ground that decision hasbeen taken by the Committee to retire thepetitioner on account of bad financialcondition of the Society. It is furtherapparent from the order passed by theAssistant Registrar, decision takenwhatsoever to retire the petitioner fromthe service was not served upon thepetitioner. However, payment of salaryfor the rest of the period and half salaryfrom 15.1.2007 to 30.6.2008 has beendenied on the ground that the petitionerwas absent without leave with effect from1.7.2006.

9. It is apparent from the order dated20.5.2009 passed by Member Secretary,District Administrative Committee thatleave for the period from 16.1.2007 to15.1.2008 was accorded on full salary,whereas leave from 16.1.2008 to30.6.2008 was sanctioned on half salary.As leave of the petitioner was sanctioned,there was no question of withholding thesalary for the period of leave. Admittedlyonly half salary has been paid for theperiod from 15.1.2007 to 30.6.2008,however, the petitioner is found entitledfor the payment of full salary for theperiod of leave i.e. 15.1.2007 to30.6.2008. The sanctioned leave on halfsalary from 16.1.2008 to 30.6.2008 is notjustifiable for the reason that thepetitioner has submitted medical papersfor sanction of medical leave and the factthat he has acquired complete visualimpairment thereafter. It is apparent fromthe record that since after 30.6.2008,petitioner has approached the respondentson various occasions. He has prayed forpayment of salary for the period of leaveand further to allow him to continue.Respondent did not allow the petitioner tocontinue and did not offer analternate/sheltered job. The denial of

salary to the petitioner on the ground thathe has remained absent from 1.7.2006 isnothing but an act of termination of theservices of the petitioner, which is clearlyprohibited under section 47 of the PWDAct 1995 . Further the petitioner wasmade to retire by order dated 8.12.2011pursuant to the decision taken by theDistrict Administrative Committee on29.11.2011 but admittedly salary for thesaid period has not been paid to thepetitioner. It appears that certaindisciplinary inquiry was also initiatedagainst the petitioner at some point oftime for his absence but was notcontinued thereafter. It does appear fromthe record that the petitioner hasapproached the respondents continuouslybut he was not offered an alternative job.In Kunal Singh(Supra) the Apex Courthas observed that Section 8 of the PWDAct 1995 provides that it was the duty ofthe Superior Officer to explain to theemployee, who has suffered disability, thecorrect legal position and informed of hislegal rights. Petitioner was approachingthe authorities but his legal rights havenot been taken care of. Instead adisciplinary proceeding was initiatedagainst him, the salary for the period ofhis sanctioned medical leave has not beenpaid till date. These facts indicate that theauthorities were not fully conscious oftheir statutory obligations.

10. There is nothing on record toindicate that an effort was made to findout alternative job for the petitioner asmandated under PWD Act 1995. Even incase, no such job was available, thepetitioner was required to be kept on asupernumerary post until suitableemployment could be found for him. Onthe other hand taking recourse ofprovision of Rule 27(ss) of Regulations


1978 for appointment of CadreSecretary,the Petitioner was made to retireon 8.12.2011.This litigation in this Courtis for payment of salary for the period ofmedical leave and, thereafter, against theorder of retiring the petitioner fromservice on the ground of medicalincapacitation being in violation ofsection 47 of PWD Act 1995.

11. The order of retirement isnothing but termination of services of thepetitioner on the ground of permanentdisability suffered by him. Admittedlydisability occurred during the course ofemployment and,therefore, the provisionof section 47 of PWD Act 1995 would beattracted. It is held in Kunal Singh(Supra)that PWD Act 1995 is specific legislationdealing with persons' disabilities toprovide equal opportunities, protection ofrights and full participation to them. Itbeing a special enactment, doctrine ofgeneralia specialibus non deorogantwould apply. It was held that the decisionto grant invalidity pension to the appellanttherein under Rule 38 of CCS (Pension)Rules, 1972, was no ground to deny theprotection mandatorily made available tothe appellant under Section 47 of thePWD Act 1995. Rule 38 of Central CivilServices (Pension) Rules cannot overrideSection 47 of the PWD Act1995.Reference was also taken to Section72 PWD Act 1995 which provides thatthe PWD Act 1995 override any otherenactment or any instructions enacted orissued for the benefit of person withdisability. It was directed that as appellanttherein has acquired disability during hisservice he could be shifted to some otherpost with the same payscale and allservice benefits; if it was not possible toadjust him against any post, he could bekept on a supernumerary post until a

suitable post was available or he attainsthe age of superannuation, whichever isearlier. Paragraphs 11 and 12 of KunalSingh(Supra) are relevant and reproducedas under:-

11.We have to notice one moreaspect in relation to the appellant gettinginvalidity pension as per Rule 38 of theCCS Pensions Rules. The Act is a specialLegislation dealing with persons withdisabilities to provide equal opportunities,protection of rights and full participationto them. It being a special enactment,doctrine of generalia specialibus nonderogant would apply. Hence Rule 38 ofthe Central Civil Services (Pension) Rulescannot override Section 47 of the Act.

Further Section 72 of the Act alsosupports the case of the appellant, whichreads: - "72. Act to be in addition to andnot in derogation of any other law. - Theprovisions of this Act, or the rules madethereunder shall be in addition to, and notin derogation of any other law for the timebeing in force or any rules, order or anyinstructions issued thereunder, enacted orissued for the benefits of persons withdisabilities."

12.Merely because under Rule 38 ofCCS Pension Rules, 1972, the appellantgot invalidity pension is no ground todeny the protection, mandatorily madeavailable to the appellant under Section47 of the Act. Once it is held that theappellant has acquired disability duringhis service and if found not suitable forthe post he was holding, he could beshifted to some other post with same pay-scale and service benefits; if it was notpossible to adjust him against any post, hecould be kept on a supernumerary postuntil a suitable post was available or heattains the age of superannuation,whichever is earlier. It appears no such


efforts were made by therespondents.They have proceeded to holdthat he was permanently incapacitated tocontinue in service without consideringthe effect of other provisions of Section47 of the Act. "

12. In the instant case recourse hasbeen taken to Rule 27(c) of ServiceRegulation 1978 pertaining toappointment of Cadre Secretary whichprovides that on account of long medicalincapacitation of an employee a decisioncan be taken to retire him from service.

13. Present is not a case of medicalincapacitation of an employee rather it iscase where the petitioner has acquireddisability during his service. The word"disability" has been defined in section2(i) of PWD Act 1995.Section 47 of theAct clearly provides that the services ofemployee could not be dispensed with ifhe has acquired disability during hisservice. The recourse of Rule 27(s) ofRegulations of Rules pertaining to CadreSecretary could not be taken and thepetitioner could not have been retiredfrom 8.12.2011.Petitioner has a statutoryright to continue in service till the age ofsuperannuation. He is entitled to continuein service or another suitablepost/sheltered job which should beoffered to the petitioner till age ofretirement on the same payscale andservice benefit.

14. The respondents have proceededto hold that the petitioner waspermanently medically incapacitated tocontinue in service and had retired himwithout considering the effect of PWDAct 1995. The order dated 8.12.2011passed by respondent no.4 DistrictAdministrative Committee retiring the

petitioner from the service is,therefore,illegal and is hereby set aside. However,at this stage the submission of the learnedcounsel for the petitioner needsconsideration that the petitioner does notwant to continue in service and has hadsuffered a lot on account of repeatedlitigations and enormously suffered as aresult of his disability and inhumaneapproach adopted by the respondents. Hehas,therefore, decided not to challenge theorder of retirement but the petitioner ispressing his entitlement for full paymentand all service benefits till date of hisretirement i.e. till 8.12.2011.

15. In view of this submission, whilesetting aside the order dated 8.11.2012retiring the petitioner from service,therespondents are directed to pay thepetitioner entire arrears of salary till8.11.2012 along with all services benefitadmissible to the petitioner with interest@ 9% till the date of actual payment. It isdirected that computation be done andpayment shall be made to the petitionerwithin a period of two months from thedate a certified copy of this order isproduced.

16. In view of the aboveobservation, the order passed by theAssistant Registrar dated 12.9.2011denying salary to the petitioner onaccount of his absence during the periodof medical leave with effect from1.7.2006 is unsustainable and is herebyset aside.

17. With the above direction,the writpetition is allowed.



1 All]. Daswant Ram Vs. Consolidation Commissioner U.P. & Ors. 55

BEFORETHE HON'BLE ANJANI KUMAR MISHRA, J.

Civil Misc. Writ Petition No. 28049 of 2014connected with

WRIT - B No. 35709 of 2014, WRIT - B No. - 61754 of2014, WRIT - B No. - 62775 of 2014, WRIT - B No. -45974 of 2011, WRIT - B No. - 42349 of 2014, WRIT - BNo. - 48014 of 2014, WRIT - B No. - 15297 of 2014,WRIT B No. - 11369 of 2014, WRIT- B No. - 51548 of2014, WRIT - B No. - 50816 of 2014, WRIT - B No. -34567 of 2014, WRIT - B No. - 27643 of 2014, WRIT - BNo. - 24386 of 2014, WRIT - B No. - 26995 of 2014,WRIT - B No. - 28050 of 2014, WRIT - B No. - 28842 of2014, WRIT - B No. - 40719 of 2014, WRIT - B No. -41037 of 2014, WRIT - B No. - 27137 of 2010, WRIT - BNo. - 67061 of 2014 and WRIT - B No. - 6121 of 1979

Daswant Ram ...PetitionerVersus

Consolidation Commissioner U.P. & Ors....Respondents

Counsel for the Petitioner:Sri Nand Lal Yadav, Sri Prem Chandra

Counsel for the Respondents:C.S.C., Sri R.C. Upadhyay

U.P. Consolidation of Holdings Act-Section-6(1) read with ConsolidationRules-17-Cancellation of consolidationoperation challenged on allegations ofnon compliance of Rule 17-held-provision of Rule 17 are illustrative andnot exhaustive as per law of D.B. so fornon assignment of any reason isconcern-also misconceived as per lawIndustrial Syndicate Bank case-powerdelegated to director of consolidation bynotification 1956-without challenges-nofinding required.

Held: Para-10Besides, this submission has alreadybeen considered and decided by thejudgement passed by me in a bunch ofcases, while sitting in Lucknow Bench,wherein the leading case was Writ(Consolidation) No. 535 of 2013: decidedon 13.3.2014. By this judgement, relyingupon a Division Bench decision reportedin 1976 RD 35: Industrial Syndicate Ltd.

Versus State of U.P. it has been held thatthe notifications issued under section 6(1)of the Act are conditional legislation and,therefore, can be challenged only on thegrounds available for challenging any pieceof legislation. No such ground has beenraised in any of these writ petitions, and,therefore, they are liable to be dismissed inview of the earlier decision noted above.

(B)U.P. Consolidation of Holdings Act, -Section 6(1)-writ of mandamus-seekingenforcement of direction as the localconsolidation authorities-not proceededfor cancellation of consolidate operation-held-provision of section 6(1) of Actbeing part of conditional legislation-inabsence of competence or being ultravirus-no direction can be issued-petitionmisconceived-dismissed.

Held: Para-16As already noticed above, the notificationunder section 6(1) of the Act is a piece ofconditional legislation. It is within thecompetence of the legislature to legislate inthe manner it thinks appropriate. In myopinion, such conditional legislation can bechallenged either on the ground of lack oflegislative competence or on the groundthat it is ultra vires. No such plea has beenraised in the writ petition and, therefore, itis liable to be dismissed. For the samereason, this Court is not competent to issuea mandamus directing the StateGovernment to cancel the notificationsissued under section 6(1) of the Act, nordirections can be issued to the StateGovernment to issue a notification undersection 6(1) and cancel the consolidationoperations. Therefore, the relief formandamus is misconceived and no suchmandamus can be issued by this Court.

Case Law discussed:1976 RD 35;

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

1. This bunch of writ petitionsinvolve similar controversy and can bebroadly categorized into following groups.


2. In the first group of cases, thenotifications issued under section 6(1) ofthe U..P. Consolidation of Holdings Act(for short, the Act), cancelling theconsolidation operations in the unit areunder challenge. This group includes thefollowing writ petitions: WRIT - B Nos. -11369, 24386, 27643, 28050, 28842,40719, 41037, 45974, 50816, 51548,61754 and 67061, all of the year 2014.

3. In the second group of cases, amandamus has been sought, commandingthe respondents to take an appropriatedecision on the representations made by thepetitioners therein, seeking cancellation ofthe consolidation operations. In this groupare WRIT -B NOS. 27237, 35709, and62775, all of 2014.

4. The third group consists of caseswhere the representations made by the villagersfor canceling the consolidation operations havebeen rejected. In this group are WRIT -B NOS27137 of 2010 and 28049 of 2014.

5. The fourth group consists of caseswhere recommendations have been madeby the consolidation authorities forissuance of notifications under section6(1) of the Act. These are WP Nos. 42349and 34567, both of 2014. In these twocases, a writ of mandamus has beensought for enforcing the recommendationsmade.

6. In WP No. 26995 of 2014, therecommendation made for issuance ofnotification under section 6(1) of the Act hasbeen challenged.

7. Under the circumstances, it wouldbe appropriate to consider theaforementioned categories of casesseparately.

8. In the first group of cases, theargument is that the notifications undersection 6(1) are not in consonance withRule 17 of the Rules framed under theAct. The second contention raised is thatthe consolidation operations have beenlargely completed and, therefore, thesame should not be canceled. It has alsobeen argued that the notifications,canceling the consolidation operations,can be issued only when the conditionsspecified in Rule 17 are made.

9. As far as the argument regardingnon-compliance of the conditionsenumerated in Rule 17 of the Rules isconcerned, it would suffice to state thatthe conditions enumerated in Rule 17 areonly illustrative and not exhaustive as isclear from a bare reading of the rule itself,which provides that "the notificationmade under Section 4 of the Act, mayamong other reasons, be cancelled inrespect of whole or any part of the area onone or more of the following grounds, ...".

10. Besides, this submission hasalready been considered and decided bythe judgement passed by me in a bunch ofcases, while sitting in Lucknow Bench,wherein the leading case was Writ(Consolidation) No. 535 of 2013: decidedon 13.3.2014. By this judgement, relyingupon a Division Bench decision reportedin 1976 RD 35: Industrial Syndicate Ltd.Versus State of U.P. it has been held thatthe notifications issued under section 6(1)of the Act are conditional legislation and,therefore, can be challenged only on thegrounds available for challenging anypiece of legislation. No such ground hasbeen raised in any of these writ petitions,and, therefore, they are liable to bedismissed in view of the earlier decisionnoted above.

1 All]. Daswant Ram Vs. Consolidation Commissioner U.P. & Ors. 57

11. One of the additionalsubmissions made in the Writ Petition No.28842 of 2014 is that the notificationunder section 6(1) of the CH Act iscryptic and does not assign any reason;therefore, such an action is not justified ina welfare State and also because the UPConsolidation of Holdings Act is awelfare legislation, enacted to consolidatefragmented holdings of tenure-holders soas to enhance agricultural productivityand to make the agricultural operationsmore convenient and simpler. In myconsidered opinion, this ground, thoughprima facie attractive, cannot be acceptedin view of the ratio in the case ofIndustrial Syndicate Ltd. Vs. State ofU.P., reported in 1976 RD 35 wherein ithas been held that no reasons are requiredto be assigned while issuing a notificationunder section 6(1) of the Act.

12. The second ground taken is thatthe notification has been issued by theDirector of Consolidation, whose powersare defined under section 3(4) of the Act.The power to issue a notification undersection 6(1) is with the State Government.There is no provision under the Actwhereby the State Government isauthorized to delegate its powers to theDirector of Consolidation and, therefore,the impugned notification is withoutjurisdiction.

13. A perusal of the impugnednotification shows that the powers undersection 6(1) of the Act have beendelegated by means of a notificationissued in the year 1956. This notification,delegating the power to the Director ofConsolidation, has been specificallymentioned in the impugned notification,but has not been challenged in the writpetition and, therefore, there is no

justification to consider this argumentraised on behalf of the petitioner.

14. In the second category of cases,recommendations for cancelling thenotifications under section 4 have beenmade by the consolidation authorities andsuch recommendations are sought to beenforced by issuance of a writ ofmandamus. The Division Bench decisionin the case of Industrial Syndicate Ltd.(supra), has held that notifications undersection, especially under sections 4 and6(1) of the U.P. Consolidation ofHoldings Act are conditional legislation,and any direction by a writ court in thisregard would amount to directing thelegislature to legislate in a particularmanner, which is not permissible. For thisreason alone, no mandamus can be issuedby this Court. Therefore, the writ petitionswherein mandamus has been prayed forare liable to be dismissed.

15. In the Writ Petition No. 61754 of2014, the grievance of the petitionertherein is that the consolidationauthorities had recommended that theconsolidation operations be not cancelled,yet the notification under section 6(1) ofthe Act was issued. Since the notificationhas been issued contrary to therecommendation of the localconsolidation authorities, the same isliable to be quashed.

16. As already noticed above, thenotification under section 6(1) of the Actis a piece of conditional legislation. It iswithin the competence of the legislatureto legislate in the manner it thinksappropriate. In my opinion, suchconditional legislation can be challengedeither on the ground of lack of legislativecompetence or on the ground that it is


ultra vires. No such plea has been raisedin the writ petition and, therefore, it isliable to be dismissed. For the samereason, this Court is not competent toissue a mandamus directing the StateGovernment to cancel the notificationsissued under section 6(1) of the Act, nordirections can be issued to the StateGovernment to issue a notification undersection 6(1) and cancel the consolidationoperations. Therefore, the relief formandamus is misconceived and no suchmandamus can be issued by this Court.

17. In the last group of cases, therecommendations made by theconsolidation authorities have beenchallenged. A recommendation, in anycase, is a mere recommendation and it isfor the authorities concerned to either actin accordance with the recommendationsor to take a decision contrary to what hasbeen recommended. The recommendationis, at best, an opinion of the authorityconcerned keeping in mind the facts andcircumstances prevalent in the unit. It ismade only to aid the State Government intaking an appropriate decision in thematter and, therefore, in my consideredopinion, the same is not open to judicialreview. Moreover, in case such arecommendation is interfered with, itwould again amount to issuing directionsto the State Government to issue aconditional legislation in a particularmanner, which, as already observed, theCourt is not competent to do.

18. It would be appropriate to noticethe facts and arguments in WP No. 67061of 2014. In the instant case, it has beenargued that the consolidation operationswere cancelled on the ground that a partof the land of the unit was covered by anotification under section 3 of the

Municipalities Act. It is for this reasonthat the consolidation operations werecancelled as the same land cannot besubject-matter of notifications both undersection 3 of the Municipalities Act andsection 4 of the UP CH Act.

19. Learned counsel for the petitionersdoes not dispute this position. Hissubmission is that the notification undersection 3 of the Municipalities Act pertainedto only a part of the land of the unit, and didnot pertain to the entire unit. He has,therefore, submitted that the consolidationoperations should have been cancelled onlywith regard to area covered under section 3of the Municipalities Act and that there is nojustification for cancelling the consolidationoperations as regards the remaining area.Relying upon Rule 17, learned counsel forthe petitioner has submitted that the StateGovernment is empowered to cancel anotification under section 4 of the CH Acteither as a whole or as regards a part or partsof the area under such notification.

20. Sri Sanjai Goswami, learnedAddl. Chief Standing Counsel, has, on thecontrary, submitted that the notificationunder section 4 has been cancelled also onaccount of the fact that a highway dividesthe village in two parts. As a resultthereof, and on account of this highwaybeing an important one, which is a bye-pass known as the Sultanpur-Banaura-Mau-Gorakhpur Bye-pass, the value ofthe land in the unit has increasedconsiderably and in case the consolidationoperations are conducted, it would resultin compulsory five percent reduction inthe area of each tenureholder, as ismandatory under the Act. This, in turn,will result in a huge financial loss to thetenureholders. He, therefore, submits thatthe notifications have been issued for

1 All]. Manish Kumar Dixit & Ors. Vs. The State of U.P. & Ors. 59

cogent reasons and, therefore, should notbe interfered with. He has, lastly,submitted that in in any case the StateGovernment is not required to assign anyreason for issuing the notifications inview of the law laid down by the DivisionBench in the case of the IndustrialSyndicate Ltd. (supra).

21. In rebuttal, learned counsel for thepetitioner has submitted that the petitioner isaggrieved because he apprehends that theproceedings that have attained finality duringthe consolidation operations would also beset at naught by the cancellation of theconsolidation operations by the notificationunder Section 6(1) of the Act.

22. It, therefore, emerges from thesubmissions made that the petitioner isaggrieved by the impugned notification onlybecause certain benefits, which have accrued tohim during the currency of the consolidationoperations and which are alleged to haveattained finality, will stand reversed. Thisapprehension of the petitioner is entirelymisconceived because all disputes that haveattained finality prior to the cancellation of theconsolidation operations stand protected bysub-section (2) of section 6. This writ petitionhas, therefore, been filed on a misconception oflaw and on mere apprehension. It, therefore,deserves to be dismissed.

23. In so far as the Writ Petition No.27137 of 2010 is concerned, a writ ofcertiorari has been sought for quashingthe order dated 15.1.2010 passed by theConsolidation Commissioner, as also forquashing the consolidation proceedings.

24. A perusal of the order impugned inthis petition indicates that a representationmade by the petitioner has been rejected onthe ground that the petitioner is seeking

cancellation of the consolidation operationswhich have been closed long back byissuance of notification under section 52(1)of the Act.

25. Learned counsel for the petitionerhas not been able to point out anything fromthe record which would show that thisreasoning is in any way vitiated, or isfactually incorrect. This Court is, therefore,constrained to hold that this writ petition isentirely misconceived and merits dismissal.

26. Accordingly, and for the reasonsgiven above, as also the reasons given inthe judgement passed in Writ Petition(Consolidation) No. 535 of 2013, decidedby me at Lucknow Bench, on 31.3.2014,all the writ petition in this bunch aredismissed.

27. Two writ petitions, namely, Writ -B No. 15297 of 2014 and Writ-B No. 48014of 2014, have wrongly been shown asconnected with this bunch of cases and,therefore, they are being de-tagged from thisbunch. They will be decided along with thebunch of cases to which they relate.



BEFORETHE HON'BLE MANOJ KUMAR GUPTA, J.

Writ -A No. 34228 of 2014Alongwith W.P. No. 34310 of 2014, W.P.

No. 34325 of 2014, W.P. No. 34837 of 2014and other connected cases.

Manish Kumar Dixit & Ors. ...PetitionerSVersus

The State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:Sri Vijay Gautam



Constitution of India, Art.-226-Servicelaw-transfer of non gazetted officers inpolice force-on ground of mala fidechallenging validity of G.O. 07.06.2014 bywhich earlier-G. O. 11.06.86 providingposting just adjacent to their native placewithdrawn-under political revenge-facingdefeat in Lok Sabha election-held-G. O.issued keeping in view of recommendationof D.G.P.-to maintain discipline-considering the fact most of police menduring night hours-instead of duty place-used to take sound sleep in their home-assuch decision of government can not bearbitrary or devoid of reasons-no laxity inmaintenance of law and orderbe tolerated.

Held: Para-23Indisputably, the Director General of Policeis the head of the police force in the State.The recommendations contained in hisletter dated 28.5.2014 discloses validreasons for making suggestion to the StateGovernment to withdraw the relaxationgranted by Government Order dated20.3.2012. The State Government, whileissuing the impugned Government Orderdated 7.6.2014, had rightly acted on therecommendations made by the DirectorGeneral of Police. The action of the StateGovernment taken in this regard, cannotbe said to be illegal or arbitrary or devoidof reasons. Rather, the Court is of theopinion that the State Government wasfully justified in acting on suchrecommendations, as maintenance of lawand order should be its prime concern. Nolaxity, in this regard, has to be given.Consequently, the contention of thepetitioners that the impugned GovernmentOrder has been issued for no justifiablereason or that it is a result of illegal andarbitrary exercise of power, cannot beaccepted.

(B)Police Act, 1861-Section-2-read withPolice regulation-Regulation 525-whether members of Armed police bekept exempt from bar imposed by G.O. I

held-armed police being integral part ofpolice force to tackle special situationduring emergent situation-entire policeforce deemed to be one and same policeforce-can not claim exemption from bar-contained in G.O.-petition dismissed.

Held: Para-33Thus, Armed Police is integral part of thepolice force and provides it with musclepower to tackle special situation. Themembers of the Armed Police, thus, haveto perform important role in case ofemergencies. The conclusions whichimpelled the Government to bring aboutthe impugned Government Order, asdiscussed in previous paragraphs of thisjudgment, applies with much greaterforce to members of the Armed PoliceForce and they cannot claim anyimmunity from the ban imposed thereby.

(C)Constitution of India, Art.-226-Transferpolicy-validity challenged by Inspectors andS.I.-bar on posting adjacent district ofnative place-about constable and Headconstables relaxed by G.O. 20.03.2012 butso for inspectors and sub inspectorsconcern-never given such relaxation henceviolation of Art. 14 of Constitution-heldmisconceived-individual hardship-can notbe considered by Writ Court-but the Boardis competent to take appropriate decision-petition dismissed.

Held: Para-42So far as other non-gazetted officers of thepolice force are concerned, i.e. Inspectorsand Sub Inspectors, similar restrictions ontheir posting in bordering districts is inplace, vide paragraph 1 of the GovernmentOrder dated 11.7.1986. In case ofconstables and head constables, suchrestriction was relaxed by GovernmentOrder dated 20.3.2012, but it was neverrelaxed in case of Inspectors and SubInspectors. They were never permitted tobe posted in districts bordering their homedistrict. Thus, plea of discrimination andviolation of Article 14 is also not tenable.

Case Law discussed:


2006 (8) SCC 1; 2010(7) ADJ 315; 2011 (2)ADJ 177; 2011; (2012) 6 SCC 502; (2008) 2SCC 672; 2008 (2) ADJ 484; (2011) 5 SCC435; (2001) 4 SCC 309; (1979) 2 SCC 150;1991 Supp (2) SCC 659; (2005) 7 SCC 227;(2010) 13 SCC 306; AIR 1968 SC 81; (2010) 7SCC 643.

(Delivered by Hon'ble Manoj Kumar Gupta, J.)

1. The head constables andconstables are the lowest in the hierarchyof non gazetted officers of the PoliceForce. They play a vital role inmaintaining law and order, preventing anddetecting crime and in helping courts oflaw punish the guilty. This bunch ofpetitions is by such officers of the PoliceForce, aggrieved by Government Orderdated 7.6.2014 imposing ban on theirposting in districts adjoining their homedistrict. The consequential transfer ordersare also under challenge. As commonquestions of law and fact are involved inthese cases, same are being decided bythis common judgment.

2. Learned counsel appearing onbehalf of the petitioners contended thatthe Government Order dated 7.6.2014 iswholly illegal and arbitrary, inasmuch asit does not contain any reason forcancellation of the previous GovernmentOrder dated 20.3.2012, whereby,relaxation was granted in posting ofconstables and head constables in districtsbordering their home district, byamending Government Order dated11.6.1986. It was further contended thatthe Government Order in question is aresult of political vendetta, as theGovernment feels that its defeat in theLok Sabha election is on account of non-extension of co-operation by thepetitioners. In other words, the impugnedGovernment Order has been issued to

teach lesson to the petitioners. It wasfurther submitted that the transfer policyis contained in the Police Regulations,which has statutory force and theGovernment Order in question being notreferable to any of the provisionscontained under Paragraph 520-526thereof, is thus, contrary to the statutoryprovisions. The impugned transfer ordershave not been issued on administrativegrounds or in exigencies of service, thus,cannot be sustained in law. The personalhardship of the petitioners has not beenconsidered. In various cases, transferorders have been passed in mid session,entailing great hardship to the petitionersand members of their family. It wasfurther urged that in any case, theimpugned Government Order can only beapplied prospectively and there is nomandate for transferring the incumbentsposted in bordering districts forthwith. Insome of the writ petitions, particularly inWrit Petition No.39723 of 2014, Sri B.C.Rai Advocate, appearing on behalf of thepetitioners contended that the petitioners,therein, are members of Armed Police,who are not concerned with day-to-daymaintenance of law and order in the State.Consequently, they cannot be broughtwithin the purview of the impugnedGovernment Order. It is further contendedthat the Government Order in question isnot referable to Section 46 of the U.P.Police Act, 1861, which confers power inthe State to make rules and thus, theimpugned Government Order is whollycontrary to the provisions of Section 46.The impugned transfers have been madewith the approval of the Regional PoliceEstablishment Boards, the constitution ofwhich is contrary to the directionscontained in the judgment of the ApexCourt in the case of Prakash Singh Vs.Union of India 2006 (8) SCC 1 and thus,


the transfers made on its recommendation,are wholly illegal.

3. On the other hand, learnedstanding counsel placing reliance on theletter dated 28.5.2014 written by DirectorGeneral of Police to the PrincipalSecretary, Home, U.P. Government,Lucknow contended that past experiencehad shown that constables and headconstables posted in districts borderingtheir home district were found missingfrom their place of posting during nights.They go to their home, being nearby theirplace of posting. They were thus notavailable in emergency, adverselyaffecting law and order. It was furtherfound that on account of their posting inbordering districts, they were interferingin trivial matters, being connected withone party or the other. This impacts theirimpartiality and the image of the PoliceForce. Consequently, the Government, inorder to improve law and order situationin the State and efficiency of the policeforce, issued the impugned GovernmentOrder dated 7.6.2014. The allegation ofpolitical vendetta in issuing the impugnedGovernment Order is specifically denied.It was contended that the decision hasbeen taken in public interest. It wasfurther submitted that the police force isquite different and distinguishable fromother State services. This is borne outfrom the fact that there is a separate entryrelating to 'police' being Entry No.2 in theSeventh Schedule of the Constitution ofIndia. The police force is regulated by thePolice Act, 1861, the Rules framedthereunder, the Police Regulations and theexecutive instructions in the nature ofGovernment Orders. It is contended thatthe impugned Government Order onlysupplements the existing provisions underthe Police Regulations and is, in no

manner, contrary to it. It was furthersubmitted that the constitution of PoliceEstablishment Board, without DirectorGeneral of Police as its Chairman, hasbeen found to be valid and legal by theFull Bench of this Court in the case ofVinod Kumar and another Vs. State ofU.P. and others 2010 (7) ADJ 315 and theDivision Bench in the case of State ofU.P. and others Vs. C.P. Ravindra Singhand others 2011 (2) ADJ 177. It wasfurther submitted that under Section 2 ofthe Police Act, the entire policeestablishment is deemed to be one PoliceForce, as such, the members of the ArmedPolice Force cannot be treated differently,as compared to those working under CivilPolice, as contended by the petitionersposted in the Armed Police.

Validity of Regional PoliceEstablishment Boards:-

4. The first question, therefore, forconsideration is whether the constitutionof Police Establishment Boards videGovernment Order dated 8.4.2010 ofwhich the Director General of Police isnot the Chairman, is contrary to thedictum of the Apex Court in the case ofPrakash Singh (supra). For the saidpurpose, the background in which theApex Court directed for constitution ofthe Police Establishment Board in thecase of Prakash Singh (supra), is to benoticed. The Apex Court issued variousdirections to the Central Government,State Governments and Union Territoriesto establish Police Establishment Boardswith the object of insulating the policefrom political pressures and otherextraneous considerations in the matter oftheir transfers, postings, promotions andother service related matters. Directionscontained in this regard, in paragraph 31


of the judgment, relating to establishmentto Police Establishment Board are asunder:-

"Police Establishment Board(5). There shall be a Police

Establishment Board in each State whichshall decide all transfers, postings,promotions and other service relatedmatters of officers of and below the rankof Deputy Superintendent of Police. TheEstablishment Board shall be adepartmental body comprising theDirector General of Police and four othersenior officers of the Department. TheState Government may interfere with thedecision of the Board in exceptional casesonly after recording its reasons for doingso. The Board shall also be authorized tomake appropriate recommendations to theState Government regarding the postingsand transfers of officers of and above therank of Superintendent of Police, and theGovernment is expected to give dueweight to these recommendations andshall normally accept it. It shall alsofunction as a forum of appeal fordisposing of representations from officersof the rank of Superintendent of Policeand above regarding theirpromotions/transfers/disciplinaryproceedings or their being subjected toillegal or irregular orders and generallyreviewing the functioning of the police inthe State."

(Emphasis Supplied)

5. In order to implement thedirections given in the case of PrakashSingh (supra), the State Governmentissued Government Order dated 12.3.2008for constitution of four different PoliceEstablishment Boards for regulating thetransfers and postings and others servicematters of different ranks of the police

force. The Police Establishment Board forSub Inspectors and officials below suchrank comprises of the Inspector Generalof Police (Establishment) as its Chairmaninstead of Director General of Police, asprovided under the judgment of the ApexCourt. The constitution of the PoliceEstablishment Board as provided underGovernment Order dated 12.3.2008became subject matter of consideration bya Full Bench of this Court in the case ofVinod Kumar (supra). The Full Bench,after noticing the conflict between theDivision Bench Judgments of this Court,held as under:-

"19. It is true that there may be nostrict compliance in terms of thedirections issued by the Supreme Court inPrakash Singh (supra) insofar as one ofthe Boards is concerned. The Governmenthas attempted to contend that thenotification has to be read with theexercise of power under Section 2 of thePolice Act. There is a power in the StateGovernment under Section 2 to haveissued notification constituting theBoards. The section does not provide forthe publication or laying of the Rules orRegulations made thereunder before theLegislature. In other words, the powerconferred on the Government, as adelegate, to make Rules is not subject toany control by the Legislature. Rules asheld by the judgment of the SupremeCourt can be made under Section 2 of thePolice Act. The Government, in theabsence of legislation, in exercise of itspower under Article 309 of theConstitution should have made rulesgoverning the conditions of service. In theinstant case, there is legislation governingtransfers, but there is no provision forconstitution of Boards. The Boards havebeen constituted by the State in exercise


of its executive powers. It is now wellsettled that in an area, where rule orexisting law is silent in the matter ofconditions of service, administrativeinstructions can be issued to fill in thevoid or gap, which the State has done.However, we have held that thenotification for reasons given cannot beheld to be an exercise of power underSection 2 of the Police Act.

20. In our opinion, therefore,considering the fact that the Rule 26 ofthe Rules, 2008 makes applicable therules pertaining to the governmentservants, i.e. persons appointed to publicservices and posts in connection with theaffairs of the State, and as Regulation 520deals with the transfers of the policepersonnel, who are also a part of thepublic services of the State, therefore,insofar as the police are concerned, theRegulation pertaining to transfer wouldcontinue to apply to them. Therefore,though one of the Boards constituted isnot strictly in terms of the directionsissued by the Supreme Court in PrakashSingh (supra), nonetheless consideringthe exercise that has to be done and theprovisions for transfer, as contained inthe Police Regulations, there has beensufficient compliance.

21. In these circumstances, we areclearly of the opinion that, though wehave found that the notificationconstituting the Board is not traceable toSection 2 of the Police Act, the same atthe highest, amounts to an irregularityand not illegality and would not vitiatethe transfers, if they have been done interms of the Regulations and after theapproval of the Board. (EmphasisSupplied)

6. Later came another judgment byDivision Bench of this Court in the case

of State of U.P. and others Vs. C.P.Ravindra Singh and others 2011 (2) ADJ177, wherein, similar plea was raisedregarding invalidity in the constitution ofthe Police Establishment Board. However,the argument was repelled by holding asunder:-

"According to us, pluralistic view inthe place and instead of singular view isone of the devices to maintaintransparency. It avoids possibilities ofmotivated action, biasness or influence inthe cases of transfer. To that extent, thereis no conflict between Prakash Singh(supra) and the steps taken by the State.The only issue is whether the State hasstrictly complied with or sufficientlycomplied with the direction of theSupreme Court in Prakash Singh (supra).According to the Full Bench of this HighCourt in Vinod Kumar (supra), directionhas been sufficiently complied with.Learned Chief Standing Counsel hasgiven an explanation by saying that theposition of the State of Uttar Pradesh asregards its vastness and population maynot be similar with various other States.Therefore, if the Board is constitutedstrictly in compliance with the direction ofthe Supreme Court then the State will notget full time engagement of such officersto maintain the law and order situation ofthe State. To that, it is desirable that theState should explain such position beforethe Supreme Court. It is expected that bynow it has been done by the State. But sofar as the existing position is concerned,this Division Bench will be governed byboth, Prakash Singh (supra) and VinodKumar (supra) and a conjoint reading ofboth the judgements speaks that a modeor mechanism of plurality has beenadopted by the State, in spite of theexisting law. Therefore, this Court does


not find any reason to negate the ordersof transfer, as were impugned in the writpetition."

(Emphasis Supplied)

7. However, Sri Vijai Guatam,learned counsel appearing in some of thewrit petitions tried to distinguish theaforesaid judgments by contending that theFull Bench in the case of Vinod Kumar(supra) and the Division Bench in the caseof Ravindra Singh (supra) were consideringthe constitution of the Police EstablishmentBoard under Government Order dated12.3.2008, while the Regional PoliceEstablishment Boards on whoserecommendations, impugned transfers havebeen made, are constituted underGovernment Order dated 8.4.2010. It issubmitted that the constitution of RegionalPolice Establishment Boards, in none ofwhich, the Director General of Police is theChairman, is contrary to the directives givenby the Apex Court in the case of PrakashSingh (supra) and thus, the impugnedtransfers effected on basis of suchrecommendations, are not legally valid.

8. On the other hand, learned standingcounsel contended that the GovernmentOrder dated 8.4.2010 was issued as a singlePolice Establishment Board constitutedunder the Government Order dated12.3.2008 for police officials upto the rank ofSub Inspector, was creating administrativedifficulties on account of large number ofsuch officials in the police force of the State.It is submitted that care has been taken toensure independence of the Regional PoliceEstablishment Board, as per the objectivelaid down by the Apex Court in the case ofPrakash Singh (supra).

9. The preface to the GovernmentOrder dated 8.4.2010 mentions that Police

Establishment Board constituted underGovernment Order dated 12.3.2008 and27.11.2008 for police officials upto therank of Inspector resulted inadministrative and practical problems inview of large number of police officials ofsuch rank in the police force of the State.Consequently, for regulating the transfersand postings of police officials upto therank of Inspector within the region,Regional Police Establishment Boardshave been constituted as under:-

"(a) Regional Inspector General ofPolice/Regional Deputy InspectorGeneral of Police as its Chairman, apartfrom two senior most officers."

10. Thus, for effecting transfers atthe regional level, Police EstablishmentBoards at regional level were establishedwith highest police officer at the regionallevel viz. Inspector General ofPolice/Regional Deputy Inspector Generalof Police as its Chairman. The other twosenior most officers of the region are itsmembers. The Full Bench in the case ofVinod Kumar (supra) and Division Benchin the case of Ravindra Singh (supra)have held that constitution of PoliceEstablishment Board without DirectorGeneral of Police as its chairman, can atbest be an irregularity and not illegality,till its independence is ensured and themechanism of plurality is maintained. Itwas concluded that constitution of PoliceEstablishment Board for police officersbelow the rank of Inspectors, withoutDirector General of Police as itsChairman, is substantially in keeping withthe spirit of the directions issued by theApex Court in the case of Prakash Singh(supra) and recommendations made bysuch Board, cannot vitiate the transfers.Applying these principles, I find that


Regional Police Establishment Boardsconstituted under Government Orderdated 8.4.2010 for effecting transfer at theregional level fulfills both the criteria.These are headed by the highest policeofficials of the region and at the sametime, retains the character of pluralism,being a multi member body. Thus,transfers and postings of members of thePolice Force within the region remainsunder the control of an independent bodycomprising of highest police officials ofthe region, thereby achieving the principalobject of insulating transfers and postingsfrom political interference. Consequently,the transfers made on itsrecommendations cannot be held to beillegal as to warrant interference by thisCourt.

Whether Government Order dated7.6.2014 is illegal and arbitrary:-

11. This takes the Court to the nextquestion as to whether the impugnedGovernment Order dated 7.6.2014 isillegal, irrational, arbitrary for non-disclosure of reasons for issuance thereofor is contrary to the Act, the Rules and thePolice Regulations.

12. According to the Staterespondents, the impugned GovernmentOrder has been issued with the object ofstrengthening the law and order situationin the State. It has been issued in largerpublic interest. It is contended thatquestion as to how law and order can beimproved in the State, is in the exclusivedomain of the executive and theadministrative power of the State. Thepolicy decision of the State, taken in thisregard, cannot be subjected to judicialreview. The impugned Government Orderis neither illegal nor arbitrary nor contrary

to the provisions of the Act, Rules or thePolice Regulations.

13. The power of the ExecutiveGovernment to frame policies to run day-to-day administration and to maintain law andorder, cannot be doubted. Nay, it is the dutyof the State to regulate its policies forcommon good of its people. Normally,Courts do not interfere in the framing ofpolicies and their implementation but can itbe said that policies framed by the StateGovernment are beyond judicial review, ifnot, what is the scope of interference byCourts of law. There are line of decisions onthe subject, some of which requires to benoted in brief, to test the argument made bythe parties.

14. The Apex Court in the case ofBrij Mohan Lal Vs. Union of India (2012)6 SCC 502 was judging the challenge laidto the decisions of the Government todiscontinue Fast Track Courts. Afteranalysing several decisions on the subject,their Lordships of the Supreme Courtsummarised the test for judicial review ofpolicy decisions as under:-

"100. Certain tests, whether thisCourt should or not interfere in the policydecisions of the State, as stated in otherjudgments, can be summed up as:

(I) If the policy fails to satisfy the testof reasonableness, it would beunconstitutional.

(II) The change in policy must bemade fairly and should not give theimpression that it was so done arbitrarilyon any ulterior intention.

(III) The policy can be faulted ongrounds of mala fides, unreasonableness,arbitrariness or unfairness, etc.

(IV) If the policy is found to beagainst any statute or the Constitution or


runs counter to the philosophy behindthese provisions.

(V) It is dehors the provisions of theAct or legislations.

(VI) If the delegate has acted beyondits power of delegation."

15. It was ultimately concluded byholding that no hard and fast rule can belaid down in absolute terms and it alldepends on facts and circumstances ofeach case. Somewhat similar view wastaken by the Apex Court in the case ofDelhi Development Authority and anotherVs. Joint Action Committee, Allottee ofSFS Flats and others (2008) 2 SCC 672by laying down as under:-

"65. Broadly, a policy decision issubject to judicial review on the followinggrounds:

(a) if it is unconstitutional;(b) if it is dehors the provisions of

the Act and the regulations;(c) if the delegatee has acted beyond

its power of delegation;(d) if the executive policy is contrary

to the statutory or a larger policy."

16. Applying these broad principles,I proceed to test the argument of thepetitioners laying challenge to theGovernment Order in question.

17. For appreciating the issue,certain statutory provisions may be noted.Section 2 of the Police Act, 1861 providesfor the constitution of the police force inthe State and it reads as under:-

"2. Constitution of the force:- Theentire police-establishment under a [StateGovernment] shall, for the purposes ofthis Act, be deemed to be one police-forceand shall be formally enrolled; and shall

consist of such number of officers andmen, and shall be constituted in suchmanner, as shall from time to time beordered by the State Government.[Subject to the provisions of this Act, thepay and all other conditions of service ofmembers of the subordinate ranks of anypolice-force shall be such as may bedetermined by the [State Government]]."

18. Section 46 of the Police Act,1861 confers power in the State to makerules consistent with the Act. The StateGovernment, in exercise of such power,had framed U.P. Police Constables andHead Constables Service Rules, 2008 andRule 26 thereof provides as under:-

"26. Regulation of other matters.- Inregard to the matters not specificallycovered by these rules or special orderspersons appointed to the service shall begoverned by the rules, regulations andorders applicable generally toGovernment Servants serving inconnection with the affairs of the State."

19. Paragraphs 520 to 525 of thePolice Regulations framed under the Actlay down broad principles regardingtransfer of the officials of the PoliceForce. Paragraph 520, which is relevantfor the present controversy, is reproducedbelow:-

"520. Transfer of Gazetted Officersare made by the Governor in Council.

The Inspector General may transferPolice Officers not above the rank ofinspector throughout the province.

The Deputy Inspector General ofPolice of the range may transferinspectors, sub-inspectors, headconstables and constables, within hisrange; provided that the postings and


transfers of inspectors and reserve sub-inspectors in hill stations will be decidedby the Deputy Inspector General ofPolice, Headquarters.

Transfers which result in officersbeing stationed far from their homesshould be avoided as much as possible.Officers above the rank of constableshould ordinarily not be allowed to servein districts in which they reside or havelanded property. In the case of constablesthe numbers must be restricted as far aspossible.

Sub-inspectors and head constablesshould not be allowed to stay in aparticular district for more than six yearsand ten years respectively and in aparticular police station not more thanthree years and five years respectively. Inthe Tarai area (including the Tarai andBhabar Estates) the period of sub-inspectors, head constables andconstables should not exceed five years."

20. It is contended by the petitionersthat paragraph 520 of the PoliceRegulations does not place any restrictionin the posting of constables and headconstables in districts bordering theirhome district. Thus, the impugnedGovernment Order is contrary toparagraph 520 of the Police Regulations.It is further contended that there is norational for placing such restriction, thattoo by means of executive fiat in theshape of a Government order, when thereis no such restriction under the Act, theRules or the Police Regulations.

21. The Government Order dated11.7.1986 was issued in supersession ofearlier Government Order dated27.6.1983. Clause (1) thereof placesrestriction on postings of Inspectors andSub Inspectors in their home districts or

districts bordering their home district.Clause (5) of the said Government Orderplaces similar restrictions qua theconstables and head constables. ByGovernment Order dated 20.3.2012,restriction regarding posting of constablesand head constables in districts borderingtheir home districts was done away with,as a result thereof, the petitioners hereincame to be posted in various districtsbordering their home district. Now, byimpugned Government Order dated7.6.2014, relaxation granted in thisregard, has been withdrawn. In otherwords, the restriction placed in theposting of the constables and headconstables vide paragraph 5 of theGovernment Order dated 11.7.1986 indistricts bordering their home districtsnow stands revived.

22. In the counter affidavit filed onbehalf of the State respondents, it is statedthat the impugned Government Order hasbeen issued on the basis of therecommendations made by the DirectorGeneral of Police, Uttar Pradesh vide itsletter dated 28.5.2014. A copy of the saidletter has been brought on record asAnnexure CA-3 to the counter affidavitfiled in the writ petition No.34228 of2014 Manish Kumar Dixit and others Vs.State of U.P. and others. The letter dated28.5.2014 by Director General of Police,U.P. Lucknow is addressed to PrincipalSecretary, Home, U.P. AdministrationLucknow. The subject matter of the letteris transfers and postings of constables andhead constables in the State. It has beenobserved that after issuance ofGovernment Order dated 20.3.2012, thereis no restriction on posting of constablesand head constables in districts borderingtheir home district. It has been noted thatthe past experience and information


received so far reveals that posting ofconstables and head constables in districtsbordering their home district is resultingin serious practical difficulties. Theconstables and head constables leave theirplaces of posting during night, as they goto their home in the adjoining district, andare thus not available in case ofemergency. This is adversely impactingthe law and order in the State. It has beenfurther noted that because of their postingin districts bordering their home district,the members of the police force generallyhave their relations in the same district,impacting their impartiality. They arefound interfering in trivial matters,adversely affecting the image of thepolice department. It was concluded thatthe present policy of transfer and postingis thus having adverse effect onmaintenance of the law and order in theState and curbing the activities of thecriminals. It was suggested that therelaxation granted by Government Orderdated 20.3.2012 be reviewed. The StateGovernment accepted therecommendations made by the DirectorGeneral of Police vide its letter dated28.5.2014 by issuing Government Orderdated 7.6.2014, re-imposing ban onpostings of constables and headconstables in districts bordering theirhome district. Thus, clause (5) of theGovernment Order dated 11.6.1986 standsrevived and now, constables and headconstables cannot be posted in their homedistricts, in districts adjoining their homedistricts and in districts where they holdimmovable properties.

23. Indisputably, the DirectorGeneral of Police is the head of the policeforce in the State. The recommendationscontained in his letter dated 28.5.2014discloses valid reasons for making

suggestion to the State Government towithdraw the relaxation granted byGovernment Order dated 20.3.2012. TheState Government, while issuing theimpugned Government Order dated7.6.2014, had rightly acted on therecommendations made by the DirectorGeneral of Police. The action of the StateGovernment taken in this regard, cannotbe said to be illegal or arbitrary or devoidof reasons. Rather, the Court is of theopinion that the State Government wasfully justified in acting on suchrecommendations, as maintenance of lawand order should be its prime concern. Nolaxity, in this regard, has to be given.Consequently, the contention of thepetitioners that the impugned GovernmentOrder has been issued for no justifiablereason or that it is a result of illegal andarbitrary exercise of power, cannot beaccepted.

Whether State competent to issueimpugned Government Order:-

24. Undoubtedly, 'Police' is a Statesubject as it appears at Item No.2 of list IIof Seventh Schedule, which reads as'Police (including railway and villagepolice) subject to provisions of Entry 2-Aof List 1'. Thus, it is abundantly clear thatState Government is competent tolegislate and amend the existingprovisions regulating service conditionsof the Police Force. Under Article 162 ofthe Constitution, the executive power ofthe State extends to matters with regard towhich it has power to legislate. Thus, theState is also competent to issue executiveorders. In the instant case, the Statehaving chosen to exercise its executivepower under Article 162 by issuing theimpugned Government Order, hadcommitted no illegality. The judgment


cited by Sri B.C. Rai in the case ofJasveer Singh Vs. State of U.P. 2008 (2)ADJ 484 is distinguishable. There, theaction of State in transferring policeconstables of more than 10 years serviceto Armed Police was held contrary toparagraph 525 of Police Regulations andwas thus struck down. The power of Stateto issue executive orders under Article162 of the Constitution was not at allunder consideration, and would thus be ofno help to the petitioners herein.

Whether impugned GovernmentOrder is contrary to Statutory Provisionsparticularly paragraph 520 of PoliceRegulations:-

25. Now, I proceed to examine theother limb of the argument of thepetitioners as to whether the Governmentcould have provided for such restrictionby issuing impugned Government Order,though there is no such embargo underthe Act, the Rules and the PoliceRegulations.

26. Paragraph 520 of the PoliceRegulations places restriction on postingof police officers above the rank ofconstables in their home district anddistricts in which they own immovableproperty. In case of constables, theirnumber is to be restricted as far aspossible. The aforesaid restriction wasplaced for obvious reason. A member ofPolice Force, being custodian of law andorder, are ordained with several suchpowers, which have the potentiality ofimpinging upon the freedom and libertyof the citizens. Such powers are ordinarilynot possessed by other Governmentservants. In order to prevent misuse ofsuch power, restrictions, as mentionedabove, were placed by the Police

Regulations, which are an exercise insubordinate legislation.

27. It may be noted that Police Act,1861 and the regulations framedthereunder, are pre-independencelegislations. With the country attainingfreedom, having its own Constitution andwith the development of infrastructure inthe country including better transportfacilities, it become easier to commutebetween adjoining districts within shorttime. As per the respondents, theexperience in the recent past showed thatwith the withdrawal of restriction ofposting of head constables and constablesin district bordering their home district,they were often found missing duringnight, as they go to their home. In order todo away with this malady which washaving adverse impact on law and ordersituation in the State, it was felt necessaryto place certain additional restrictions, inthe nature of ban on posting of constablesand head constables in districts borderingtheir home district.

28. This additional restrictioninitially placed by Government Orderdated 11.6.1986 and revived by theimpugned Government Order does not, inany manner, run contrary to therestrictions placed by Police Regulations,particularly paragraph 520 thereof. It onlysupplements the provisions under theexisting legislation, which is permissiblein law (Vide Joint Action Committee ofAir Lines Pilots' Association of India Vs.D.G. of Civil Aviation, (2011) 5 SCC435; Union of India Vs. Rakesh Kumar,(2001) 4 SCC 309; District Registrar Vs.M.B. Kayakutty, (1979) 2 SCC 150).Thus, neither the exercise of power inissuing the impugned Government Order,nor the manner or the reason for which it


has been exercised, can be said to beillegal, to justify interference by thisCourt.

Whether impugned GovernmentOrder has been issued on extraneousconsiderations:-

29. As regards the contention of thepetitioners that the impugned GovernmentOrder has been issued as the State feelsthat it lost the general Lok Sabhaelections held in the year 2014 because ofnon co-operation by the members of thepolice force and is thus, a result ofpolitical vendetta, the same cannot beaccepted, as there is no material on recordto support such plea. The imputation ofmotive in issuance of the impugnedGovernment Order has been categoricallydenied by the State. The State hadsucceeded in defending its position inissuing the impugned Government Orderby placing reliance on therecommendations made by the DirectorGeneral of Police vide its letter dated28.5.2014. There is no challenge in any ofthe writ petition to the facts stated in thesaid letter. Thus, it cannot be said that theimpugned Government Order has itsgenesis in any extraneous consideration.

Effect of non-consideration ofGovernment Order dated 25.3.1995, whileissuing impugned Government Order:-

30. It is next contended thatrestriction on posting of police officials indistricts bordering their home districtplaced by Government Order dated11.6.1986, was partially withdrawn byGovernment Order dated 25.3.1995. Acopy thereof has been filed as Annexure-4to Writ Petition No.34228 of 2014. Itrelaxes restriction on posting of

constables and head constables in districtsbordering their home district by providingthat the same will remain confined topolice stations of the bordering areas andshall not apply to all police stations. It issubmitted that vide letter of DirectorGeneral of Police dated 27.5.2009 and3.10.2009, directions were issued tostrictly enforce the Government Orderdated 25.3.1996. It is contended thatwhile issuing impugned GovernmentOrder dated 7.6.2014, the GovernmentOrder dated 25.3.1995 has been ignored.This reflects non application of mind bythe Government.

31. There is a serious challenge bythe State to the authenticity of theGovernment Order dated 25.3.1995. It iscontended that similar plea was subjectmatter of consideration before this Courtin the case of Jagannath Prasad Gaur(supra) and it was repelled by observingas under:-

"14. It is seen that the GovernmentOrder dated 11th July, 1986 was issuedregarding appointments and transfers ofConstables, Head Constables, Sub-Inspectors and Inspectors of Police.Paragraph-5 of the said GovernmentOrder provides that Head Constables andConstables shall not be posted in theirhome district or in districts nadjoiningtheir home district. The GovernmentOrder dated 25th March, 1995, on whichreliance has been placed by learnedcounsel for the petitioners, amendsparagraph-5 of the Government Orderdated 11th July, 1986 to the extent thatthe Constables and the Head Constablesshall not be posted in their home districtor in police stations adjoining their homedistrict. The genuineness of the saidGovernment Order dated 25th March,


1995 was doubted in the subsequentGovernment Order dated 28th October,2009 and so an inquiry was set up. It wasalso noticed that a proposal for notposting the Head Constables/Constablesin police stations adjoining the homedistrict was submitted in 1992 but theState Government did not accept thisproposal and this decision was intimatedto the Inspector General of Police,Allahabad on 27th June, 1992. TheGovernment Order dated 28th October,2009 thereafter mentions that theGovernment Order dated 11th July, 1986shall continue to operate. In suchcircumstances, when a decision had beentaken for implementation of theGovernment Order dated 11th July, 1986without the amendment said to have beenmade by the Government Order dated25th March, 1995, it cannot be said thatthe decision taken by the PoliceEstablishment Board for transfer of theConstables/Head Constables on the basisof the Government Order dated 11th July,1986 is bad in law. This apart, no factualfoundation has been laid in the writpetition as to whether the petitioners wereposted in police stations adjoining thehome districts or not. Thus, for thisreason also, the contention of learnedcounsel for the petitioner cannot beaccepted." (Emphasis supplied)

32. In view of what has been held inthe case of Jagannath Prasad Gaur(supra), I am of the opinion that noreliance can be placed on the allegedGovernment Order dated 25.3.1995.Further, the Government itself vide letterdated 28.10.2009, apart from expressingdoubt about authenticity of GovernmentOrder dated 25.3.1995, clarified that therestriction placed by Government Orderdated 11.7.1986, shall apply without any

exception. For the aforesaid reasons, itwas not necessary for the Government torefer to the Government Order dated25.3.1995, while issuing the impugnedGovernment Order dated 7.6.2014.

Whether members of the ArmedPolice should be kept exempt from the barimposed by impugned GovernmentOrder:-

33. The question which remains tobe answered is whether Government wasjustified in applying the restrictionsplaced by the impugned GovernmentOrders to the members of the ArmedPolice, who are not concerned with day-to-day maintenance of law and order. It isto be noted that under Section 2 of thePolice Act, 1861, the entire police force isdeemed to be one police force. To thesame effect is paragraph 396 of the PoliceRegulations. The members of ArmedPolice Force can be sent to other branchesof the police force and vice-versa asprovided under paragraph 525 of thePolice Regulations. The Armed Police ismeant for dealing with serious law andorder situation requiring a higher level ofarmed expertise. Paragraph 65 of thePolice Regulations delineate the duty ofthe members of the Armed Police Forceas protection of treasuries, tahsils andlock-ups, for the escort of treasure,prisoners and Government property, forservice on magazine and quarter guards,for the suppression and prevention ofdisorder and crimes of violence, and forthe pursuit and apprehension of dangerouscriminals. Apart from normal duties asdescribed above, they are employedduring public events like processions andreligious ceremonies (Paragraph 69 of thePolice Regulations) and civil unrest(Paragraph 68 of the Police Regulations).


Under Paragraph 71 of the PoliceRegulations, Armed Police can be pressedto service where civil police is unable tocope with a situation. This is in view oftheir specialized training in use of arms.Thus, Armed Police is integral part of thepolice force and provides it with musclepower to tackle special situation. Themembers of the Armed Police, thus, have toperform important role in case ofemergencies. The conclusions whichimpelled the Government to bring about theimpugned Government Order, as discussedin previous paragraphs of this judgment,applies with much greater force to membersof the Armed Police Force and they cannotclaim any immunity from the ban imposedthereby.

Whether transfers made on basis ofimpugned Government Order wouldamount to applying the GovernmentOrder retrospectively:-

34. It is to be noted that impugnedGovernment Order was issued by way ofa corrective step in the existing policy,which past experience demonstrated, wasseriously flawed. Thus, it was to beimplemented forthwith to achieve the objectviz. strengthen the law and order situation inthe State. It brook of no delay. Transferringthe petitioners, who come within the ambitof the impugned Government Order, doesnot mean that it is being appliedretrospectively. Merely because thepetitioners have not completed a fixedduration at a particular place, as providedunder certain Circulars/executiveinstructions, will not render the impugnedtransfers invalid. It cannot be gainsaid thatmembers of the police force holdtransferable post and they do not have anyindefeasible right to be posted at a particularplace for any particular duration.

Provisions, in this regard, whethercontained in executive instructions orCirculars, are only by way of broadguidelines, but departure therefrom willnot confer any right in favour of theincumbents to get the same enforcedthrough a court of law. If situationwarrants, transfer can be made even if theperiod prescribed for posting at aparticular place has not been completed,nor can such transfer amount to applyingthe impugned Government Orderretrospectively. In this regard, referencemay be made to the judgment of the ApexCourt in the case of Mrs. Shilpi Bose andothers vs State of Bihar and others 1991Supp (2) SCC 659, wherein, it is held asunder:-

"In our opinion, the Courts shouldnot interfere with a transfer Order whichare made in public interest and foradministrative reasons unless the transferOrders are made in violation of anymandatory statutory Rule or on theground of malafide. A Governmentservant holding a transferable post has novested right to remain posted at one placeor the other, he is liable to be transferredfrom one place to the other. TransferOrders issued by the competent authority donot violate any of his legal rights. Even if atransfer Order is passed in violation ofexecutive instructions or Orders, the Courtsordinarily should not interfere with theOrder instead affected party shouldapproach the higher authorities in theDepartment. If the Courts continue tointerfere with day-to-day transfer Ordersissued by the Government and itssubordinate authorities, there will becomplete chaos in the Administration whichwould not be conducive to public interest.The High Court over looked these aspectsin interfering with the transfer Orders."


35. The Apex Court in the case ofMajor General, J.K. Bansal Vs. Union ofIndia (2005) 7 SCC 227 has cautioned thecourts in interfering with transfer ordersin case of members of the Armed Force. Ithas been held that the scope for judicialreview is far more limited and narrow ascompared to the civilian employees. Amember of police force though not amember of Armed Force, but can also notbe equated with other Governmentservants, as he holds a special position inthe law enforcement machinery of theState. The authorities charged with dutyto maintain law and order, have to begiven much greater elbow space to framepolices and take decisions regardingtransfers and postings of members of thepolice force. In State of Haryana Vs.Kashmir Singh (2010) 13 SCC 306, theApex Court in reference to transfer ofpolice officers observed as under:-

"12.Transfer ordinarily is anincidence of service, and the Courtsshould be very reluctant to interfere intransfer orders as long as they are notclearly illegal. In particular, we are of theopinion that transfer and postings ofpolicemen must be left in the discretion ofthe concerned State authorities which arein the best position to assess thenecessities of the administrativerequirements of the situation. Theconcerned administrative authorities maybe of the opinion that more policemen arerequired in any particular district and/oranother range than in another, dependingupon their assessment of the law andorder situation and/or otherconsiderations. These are purelyadministrative matters, and it is well-settled that Courts must not ordinarilyinterfere in administrative matters andshould maintain judicial restraint vide

Tata Cellular vs. Union of India - AIR1996 SC 11.

14. In our opinion, the High Courthas taken a totally impractical view of thematter. If the view of the High Court is toprevail, great difficulties will be createdfor the State administration since it willnot be able to transfer/deploy its policeforce from one place where there may berelative peace to another district orregion/range in the State where there maybe disturbed law and order situation andhence requirement of more police. Courtsshould not, in our opinion, interfere withpurely administrative matters exceptwhere absolutely necessary on account ofviolation of any fundamental or otherlegal right of the citizen. After all, theState administration cannot function withits hands tied by judiciary behind its back.As Justice Holmes of the US SupremeCourt pointed out, there must be somefree-play of the joints provided to theexecutive authorities."

36. Thus, challenge laid on thesegrounds also fails.

Whether impugned GovernmentOrder is hit by Article 14 of theConstitution:-

37. It is contended that restrictionsplaced by impugned Government Orderare discriminatory, as such restrictionshave not been made applicable to SubInspectors, Inspectors, DeputySuperintendent of Police andSuperintendent of Police.

38. It is noticeable that Inspectorsand Sub Inspectors are non gazettedofficers of the police force like constablesand head constables, while officers aboveInspectors are gazetted officers governed


by different set of service rules. In thecounter affidavit, the specific case is thatDeputy Superintendent of Police andAdditional Superintendent of Police aregoverned by the Uttar Pradesh ServiceRules, 1942 made under Section 241 andSection 275 of the Government of IndiaAct, 1935 and their appointments aremade through Public ServiceCommission. The transfer and posting ofI.P.S. officers are governed by differentRules. Group A officer viz.Superintendent of Police and AdditionalSuperintendent of Police are not to beposted in their home range, whereasGroup B officers are not to be posted intheir home districts. The service conditionof I.P.S. category, P.P.S. category andnon-gazetted category are different toeach other, thus, no claim for parity canbe made under Article 14 of theConstitution.

39. It is now well settled that equalsshould be treated alike, while unequalsshould not be treated alike. While Article14 forbids class legislation, it does notforbid classification. A three JudgesBench of the Apex Court in the case ofUnikat Sankunni Menon vs. State ofRajasthan AIR 1968 SC 81, whilerepelling the claim of higher pay to themembers of Rajasthan SecretariatServices in comparison to theircounterparts in Rajasthan AdministrativeServices held as under :-

"6. The methods of recruitment,qualifications, etc., of the two Servicesare not identical. In their ordinary time-scale, the two Services do not carry thesame grades. Even the posts, for whichrecruitment in the two Services is made,are, to a major extent, different. Themembers of the R.S.S. are meant to be

employed in the Secretariat only, whilemembers of the R.A.S. are mostly meantfor posts which are outside the Secretariatthough some posts in the Secretariat canbe filled by members of the R.A.S. In sucha case, where appointment is made to theposts of Deputy Secretaries of governmentservants belonging to two different andseparate Services, there can arise noquestion of a claim that all of them, whenworking as Deputy Secretaries, mustreceive identical salaries, or mustnecessarily both be given special pay. It isentirely wrong to think that every one,appointed to the same post, is entitled toclaim that he must be paid identicalemoluments as any other personappointed to the same post, disregardingthe method of recruitment, or the sourcefrom which the Officer is drawn forappointment to that post. No such equalityis required either by Art. 14 or Art. 16 ofthe Constitution."

40. In a more recent judgement incase of Nagaland Senior GovernmentEmployees Welfare Association vs. Stateof Nagaland and others (2010) 7 SCC643, the Apex Court turned downchallenge to constitutional validity of theNagaland Recruitment from PublicEmployees (Second Amendment) Act,2009, in so far as it provided forretirement from public service oncompletion of 35 years of service or onattaining 60 years, which ever was earlier,by holding that it is not violative ofArticle 14 qua similar provisions in otherStates, where the employees are to besuperannuated only on attaining the age of60 years. It was held as under :-

"57. Merely because some employeeshad to retire from public employment oncompletion of 35 years of service


although they have not completed 55years of age does not lead to anyconclusion that the impugned enactmentis arbitrary, irrational, unfair andunconstitutional. The fact that the provisionsuch as the impugned provision that allowsthe retirement from public employment atthe age of 35 years' service is not to befound in other States is of no relevance. Asa matter of fact, retirement policyconcerning public employment differs fromState to State. Kerala retires employeesfrom the public employment at the age of 55years. In any case there is nothing wrong ifthe legislation provides for retirement of thegovernment employees based on maximumlength of service or on attaining aparticular age, wherever is earlier, if theprescribed length of service or age is notirrational."

41. Thus, the petitioners cannot setup plea of discrimination qua the gazettedofficers of the police force.

42. So far as other non-gazettedofficers of the police force are concerned,i.e. Inspectors and Sub Inspectors, similarrestrictions on their posting in borderingdistricts is in place, vide paragraph 1 of theGovernment Order dated 11.7.1986. In caseof constables and head constables, suchrestriction was relaxed by GovernmentOrder dated 20.3.2012, but it was neverrelaxed in case of Inspectors and SubInspectors. They were never permitted to beposted in districts bordering their homedistrict. Thus, plea of discrimination andviolation of Article 14 is also not tenable.

Individual Hardship:-

43. As regards individual hardshipto the petitioners and members of theirfamilies, it is now well settled that remedy

for the same is to represent to theauthorities. However, that cannot be aground for the writ-court to interfere.Accordingly, in cases of hardship to theincumbent or members of his family, itshall be open to him to makerepresentation to the Regional PoliceEstablishment Board, on whoserecommendations, transfer has beenmade. In the event, any suchrepresentation is made, the Board shallexamine the same with all sympathy, as itis also its duty to mitigate the hardship ofthe members of the police force, which isnecessary to strike a balance betweenpublic duty and personal interest. Suchexercise shall be carried out within onemonth from the date representation ismade. In case of demonstrated unduehardship, it shall be open to the Board toamend/modify the transfer order or passsuch order which, it deems appropriate.

44. Subject to above liberty, writpetitions stand dismissed.




CHANDRACHUD, C J.THE HON'BLE PRADEEP KUMAR SINGH

BAGHEL, J.

Civil Misc. (PIL) Writ Petition No. 43710 of2014

Nanhey Singh & Ors. ...PetitionersVersus


Counsel for the Petitioners:Sri Sunil Kumar

Counsel for the Respondents:

1 All]. Nanhey Singh & Ors. Vs. State of U.P. & Ors. 77

C.S.C., Sri Nisheeth Yadav, Sri Yatindra,Sri Amit Shukla

Constitution of India, Art.-226-PublicInterest Litigation-challenging thevalidity of impugned sanction-granted bygovernment for consideration of shops forcommercial purposes-land where primaryschool running since 1907 under control ofBasic Education Department-under Section9-A (b)-such school stood transferredvested either with Gram Panchayat or withMunicipality-even in accordance withsection 13-A of municipalities Act 1916-such school, the board deemed to vestedwith such local bodies-such land owned byBasic Education can not be converted forcommercial purpose-Right to primaryeducation being fundamental right-enacted by Parliament Right to educationchildren to free and compulsory educationAct 2009-can not be underscored grantingpermission by the authority with collusionof upar Mukhya Adhikari of Zila Panchayatthe G.O. Relied-ex facie no application-impugned order quashed-DistrictMagistrate to ensure restoration of itsoriginal position-petition disposed of.

Held: Para-16, 17, 1816. The manner in which permission wassought of the State Government and, forthat matter, the manner in which theState Government has granted itspermission shows that all the authoritieshave acted in a callous manner, obliviousof the impact which such a decisionwould have on the need to preserve landwhich was acquired for the purposes ofbasic education and for primary schools.The State Government has relied on aGovernment Order which ex facie has noapplication. We may note that thepetitioners have made certainallegations against the ninth respondentwho is the Apar Mukhya Adhikari of theZila Panchayat. It has been alleged thatthe Central Bureau of Investigation isconducting an investigation. For thepurposes of these proceedings, weclarify that it has not been necessary forthe Court to enter upon this area since

on a plain application of the legalstandards to which we have referred inthe earlier part of this judgment, theimpugned decision is patently contraryto law and would have to be quashedand set aside.

17. We, accordingly, allow the petitionand set aside the permission granted on27 January 2014 by the SpecialSecretary to the State Government forthe construction of shops on the land ofthe school.

18. We direct in consequence theDistrict Magistrate, Bulandshahar to takeall necessary administrative steps toensure that following the setting asidethe permission of the State Governmentby this Court, the land shall be restoredto its original position.


1. These proceedings have beeninstituted in the public interest by threeresidents of Jhangirabad in the district ofBulandshahar. There is a land bearingKhasra Nos. 2427, 2430 and 2432,admeasuring 32 Bighas. The land wasacquired in 1907 for the purposes of aschool. The property register card(annexed at Annexure CA-2 of theCounter filed by the Zila Panchayat,Bulandshahar) clearly reflects that theland was acquired on 17 January 1907against the payment of compensation "forschool purposes". A primary school hasbeen constructed and is in existence onthe land for well over a hundred years.Initially, an advertisement was publishedon 25 January 2013 by the Zila Panchayatfor auctioning the standing trees situatedinside the school campus. The headmasterof the school filed an objection followingwhich a report was called from theEducation department. The Block


Education Officer, Jhangirabad in hisreport dated 9 February 2013 stated thatthe land of the school was not vested inthe Zila Panchayat. The cause of actionwhich led to the filing of the writ petitionwas that the Zila Panchayat, Bulandshaharmoved the State Government andobtained its permission on 27 January2014 for the construction of thirty shopson the land. The permission of the Statewas granted on the basis of a GovernmentOrder dated 27 December 1997. In theseproceedings which have been instituted inthe form of a PIL, the petitioners havecalled into question the legality of thepermission granted on 27 January 2014 bythe Special Secretary to the StateGovernment and have soughtconsequential directions for immediateaction to protect the land where the schoolis situated.

2. Having due regard to theimportance of the issue which has beenraised in these proceedings, this Court hadfurnished an opportunity to therespondents to file their counter affidavits.For the purposes of these proceedings andhaving due regard to the parameters of thejurisdiction under Article 226 of theConstitution, it would not be appropriatefor this Court to enter upon any disputedquestion of fact or title and we shallproceed on the basis of the admitted factsas they stand, and determine whether thepermission which has been granted islawful.

3. The U.P. Basic Education Act1972 was enacted to provide forestablishment of a Board for BasicEducation and for matters connectedtherewith. The Statement of objects andreasons indicate that the responsibility forprimary education had thus far rested with

the Zila Parishads in rural areas and withMunicipal Boards and Mahapalikas inurban areas. The administration ofeducation at the basic level by localbodies was not satisfactory, and wasdeteriorating. Hence, the legislation wasenacted to reorganize, reform and expandelementary education. Consequently, theState Government decided to transfer thecontrol of primary education from localbodies to the Board of Basic Educationand it is in furtherance of that object thatthe legislation was enacted.

4. Section 9-A which was insertedby U.P. Act No. 18 of 2000 with effectfrom 21 June 1999 deals with control ofteachers and properties of basic schools.Sub-section (1) of Section 9-A providesthat notwithstanding anything containedto the contrary in any other provisions ofthis Act, on and from the date ofcommencement of the Uttar PradeshBasic Education (Amendment) Act,2000,--

"(a) every teacher of the basic schoolserving under the Board immediatelybefore such commencement shall beunder the administrative control of theGram Panchayat or the Municipality, asthe case may be, within whose territoriallimits the basic school, is situated;

(b) all buildings, properties andassets of the Board in respect of a basicschool shall stand transferred to, and vestin, the Gram Panchayat or theMunicipality, as the case may be, withinwhose territorial limits the basic school issituated.

(c) where any building or part thereof isoccupied by a tenant by the Board for thepurpose of a basic school immediately beforesuch commencement, the tenancy in respectof such building or part thereof shall,


notwithstanding anything contained in anycontract, lease or other instrument, standtransferred in favour of the Gram Panchayat,or the Municipality, as the case may be;

(d) the Board shall cease to be thelicensee in respect of the building or partthereof referred to in sub-section (2) ofSection 18-A and the Gram Panchayat or theMunicipality, as the case may be, withinwhose territorial limits such building issituated shall, if it is not already ownerthereof, be deemed to have become licenseein respect of such building or part thereof onsuch terms and conditions as may bedetermined by the State Government"

Sub-section (2) of Section 9-A thenprovides as follows:

"(2) No Gram Panchayat orMunicipality shall have the power totransfer by sale, gift, exchange, mortgage,lease or otherwise any building, propertyor assets transferred to, and vested in,such Gram Panchayat or Municipality, asthe case may be, under sub-section (1)."

Section 10 defines the functions ofZila Panchayats in the following terms:

"Functions of Zila Panchayats.--Withoutprejudice to the powers and functions of ZilaPanchayats under the Uttar Pradesh KshettraPanchayats and Zila Panchayats Adhiniyam,1961, every Zila Panchayat shall, subject tosuperintendence and directions of the Boardor the State Government perform all or any ofthe following functions, namely:

(a) to prepare schemes for thedevelopment, expansion and improvementof basic schools in the rural areas of thedistrict;

(b) to supervise generally in suchmanner as may be prescribed the activitiesof Gram Panchayats in the district withregard to basic education;

(c) to perform such other functionspertaining to basic education as may beentrusted to it by the State Government."

5. Under Section 10-A, a specificprovision is made in regard to thefunctions of Municipalities for theestablishment, administration, control andmanagement of basic schools inmunicipal areas.

6. Section 10-A is to the followingeffect:

"Functions of Municipalities.--Without prejudice to the powers andfunctions of Municipalities under theUttar Pradesh Municipal CorporationsAct, 1959 or the Uttar PradeshMunicipalities Act, 1916, as the case maybe, every Municipality shall, subject tosuperintendence and control of the Boardor the State Government, perform all orany of the following functions, namely:

(a) to establish, administer, controland manage basic schools in theMunicipal area;

(b) to take all such necessary steps asmay be considered necessary to ensurepunctuality and attendance of teachersand other employees of basic schools;

(c) to prepare schemes for thedevelopment, expansion and improvementof such basic schools;

(d) to promote and develop basiceducation, non-formal education and adulteducation in the Municipal area;

(e) to make recommendation forminor punishment in such manner as maybe prescribed on a teacher or otheremployee of a basic school situate withinthe limits of the municipal area."

7. Section 13-A gives an overridingeffect to the provisions of the Actnotwithstanding anything contained in theUnited Provinces Panchayat Raj Act,1947, the Uttar Pradesh MunicipalitiesAct, 1916 and the Uttar PradeshMunicipal Corporation Act 1959.


8. Under sub-section (2) of Section18-A where any building or part thereofbelonging to a local body was on theappointed day occupied by it for thepurposes of any basic school, the Boardshall, with effect from the said day, bedeemed to have become a licensee onbehalf of the local body in respect of suchbuilding or part on such terms andconditions as the State Government mayby general or special order determine.

9. These statutory provisions containa comprehensive legislative scheme forthe regulation and control of basiceducation. Section 10 confers upon theZila Panchayat, subject to thesuperintendence and directions of theBoard or the State Government severalstatutory functions. These include thepreparation of schemes for development,expansion and improvement of basiceducation schools in rural areas of thedistrict, supervision over the activities ofGram Panchayats in the district in respectof basic education and performance ofother functions as may be entrusted by theState Government pertaining to basiceducation. Similar provisions are made inSection 10-A in regard to the functions ofthe Municipalities within municipal areas.Under Section 10, the Zila Panchayats areduty bound to act subject tosuperintendence and directions of theBoard or the State Government and infurtherance of the basic objects, which arethe development, expansion andimprovement of basic schools in ruralareas.

10. Valuable properties across theState have been acquired, as the presentcase indicates well over a century ago, tosubserve the cause of basic education.Many of these properties may be a source

of commercial exploitation and gain.Human avarice and greed unfortunatelyknow of no limits. These properties havebecome a source of coveted gain forcommercial exploitation to unscrupulouspersons, often enough to public officials.But, if the rampant conversion ofproperties which have been acquired forthe purposes of basic education ispermitted to take place on the altar ofcommercial expediency that would defeatthe object and purpose underlying theenactment of the legislation. With theright to primary education being afundamental right and the enactment byParliament of the Right to Children toFree and Compulsory Education Act,2009, the importance of primaryeducation cannot adequately beunderscored.

11. The State Government in thesubmission which has been urged beforethe Court by the learned AdditionalAdvocate General has essentially reliedupon the provisions contained in Section103 and Section 107 of the Uttar PradeshKshettra Panchayat and Zila PanchayatAdhiniyam, 1961.

12. Section 103 provides for thevesting of property in Zila Panchayat inthe following terms:

"Property vested in Zila Panchayat.--Subject to any reservation made by theState Government, all property of thenature specified in this section andsituated within the district, shall vest inand belong to the Zila Panchayat and shallwith all other property which may becomevested in the Zila Panchayat, be under itsdirection, management and control andshall be held and applied for the purposeof this Act, that is to say--


(a) all public buildings of everydescription which have been constructedor are maintained out of the Zila Nidhi;

(b) all public roads, which have beenconstructed or are maintained out of theZila Nidhi and the stones and othermaterials thereof and also all trees,erections, materials, implements andthings provided for such roads; and

(c) all land and other propertytransferred to the Zila Panchayat byGovernment, or by gift, sale or otherwise,for local public purposes."

Section 107 provides as follows:"Power to transfer property.--(1)

Subject to any restriction imposed by orunder this Act, a Zila Panchayat or aKshettra Panchayat may transfer by sale,mortgage, lease, gift, exchange orotherwise any property vested in it, notbeing property held by it in trust, theterms of which are inconsistent with theright so to transfer.

(2) Notwithstanding anythingcontained in sub-section (1), a ZilaPanchayat or a Kshettra Panchayat may,with the sanction of the StateGovernment, transfer to Government anyproperty vested in it, but not so as toaffect any trust or public rights to whichthe property is subject:

Provided that every transfer undersub-section (1), other than a lease for aterm not exceeding one year, shall bemade by instrument in writing sealed withthe common seal of the Zila Panchayat orthe Kshettra Panchayat, as the case maybe, and otherwise complying with allconditions in respect of contracts imposedby or under this Act."

13. In granting permission orsanction for the construction of shops inthe present case on the land which wasacquired for the purposes of the school,

the State Government has relied upon aGovernment Order dated 27 December1997.

14. The Government Order dated 27December 1997 merits a close scrutiny.The Government Order dated 27December 1997 on its plain terms appliesto those lands of the Zila Panchayatswhich were of the ownership of the ZilaPanchayats and which are of acommercial nature. Ex facie, the land inthe present case, does not meet thedescription of what is stated in theGovernment Order dated 27 December1997. The land which has been acquiredin 1907 for the purposes of a schoolcannot by any stretch of imagination beregarded as a land of commercial nature.The mere fact that an officer of the ZilaPanchayat has cast an evil eye on the landin order to tap its commercial value wouldnot lead to the land which is acquired forthe purposes of a school being convertedinto or treated in law as being land of acommercial nature. The land which hasbeen so acquired must continue to beimpressed with the character for which itwas acquired. Any attempt, as in thepresent case, to deal with the land forcommercial purposes by allowing theconstruction of shops must be invalidated.Any such dealings would befundamentally contrary to the underlyingscheme, object and provisions of theBasic Education Act, 1972.

15. The provisions of Section 107(1) of the U.P. Kshettra Panchayat andZila Panchayat Adhinium, 1961 cannot beread in a manner that would negate thebasic purpose underlying the vesting ofsuch land. Even Section 10 of the U.P.Basic Education Act, 1972 makes the ZilaPanchayats subject to the superintendence


and directions of the Board of BasicEducation. Under Section 10, the ZilaPanchayat is vested with the function interalia to prepare schemes for thedevelopment, expansion and improvementof basic schools in the rural areas of thedistrict, to supervise the activities ofGram Panchayats in the district withregard to basic education and to performsuch other functions pertaining to basiceducation as may be entrusted to it by theState Government. This power cannot bemisused to cut at the very foundation ofbasic education by authorizing theconstruction of commercial shops on landwhich was acquired for the purpose of aschool.

16. The manner in which permissionwas sought of the State Government and,for that matter, the manner in which theState Government has granted itspermission shows that all the authoritieshave acted in a callous manner, obliviousof the impact which such a decisionwould have on the need to preserve landwhich was acquired for the purposes ofbasic education and for primary schools.The State Government has relied on aGovernment Order which ex facie has noapplication. We may note that thepetitioners have made certain allegationsagainst the ninth respondent who is theApar Mukhya Adhikari of the ZilaPanchayat. It has been alleged that theCentral Bureau of Investigation isconducting an investigation. For thepurposes of these proceedings, we clarifythat it has not been necessary for theCourt to enter upon this area since on aplain application of the legal standards towhich we have referred in the earlier partof this judgment, the impugned decisionis patently contrary to law and wouldhave to be quashed and set aside.

17. We, accordingly, allow thepetition and set aside the permissiongranted on 27 January 2014 by theSpecial Secretary to the State Governmentfor the construction of shops on the landof the school.

18. We direct in consequence theDistrict Magistrate, Bulandshahar to takeall necessary administrative steps toensure that following the setting aside thepermission of the State Government bythis Court, the land shall be restored to itsoriginal position.

19. The petition is, accordingly,disposed of. There shall be no order as tocosts.



BEFORETHE HON'BLE ATTAU RAHMAN MASOODI, J.


Sri Girraj Sewak Samiti, Bara throughMantri & Anr. ...Petitioners

VersusSri Girraj Sewak Samiti, Bara throughSecretary & Ors. ...Respondents

Counsel for the Petitioner:Sri Vashistha Tiwari, Sri Shashi Nandan,Sri Shivam Yadav

Counsel for the Respondents:Sri H.N. Pandey, Sri Ashok KumarDwivedi, Sri M.D. Singh 'Shekhar', SriAshok Kumar Dwivedi, Sri P.N. Saxena,Sri H.N. Pandey

C.P.C. Order XXII Rule-10-Applicationbeing summery in nature-exercise ofrecording oral evidence and criticalanalysis of documentary evidence-not

1 All] Sri Girraj Sewak Samiti, Bara through Mantri & Anr. Vs. Sri Girraj Sewak Samiti, Bara through Secretary & Ors. 83

required-Trail Court rightly allowed theapplication to brought assignee onrecord-Revisional Court exceeded itsjurisdiction by interfering with order byTrail Court-petition allowed.

Held: Para-17Now coming to the scope of writ petitionunder Art.226 of the Constitution ofIndia as directed against the orderpassed by the revisional court, I am ofthe considered opinion that therevisional court ought not to haveinterfered with the matter on the mereground that the trial court did notundertake an exercise of recording oralevidence or did not enter into a criticalanalysis of the documentary evidence.The proceedings in respect of applicationunder Order 22 Rule 10 CPC aresummary in nature and the trial courtwhile adjudicating upon the same hasclearly recorded that no other personexcept respondent no.1 has raised anydispute before the trial court and thatfinding of the trial court has not beenfound faulty on the strength of anymaterial whatsoever by the revisionalcourt, therefore, the revisional courtwhile passing the impugned order hasclearly exceeded the jurisdictionconferred under Section 115 of the Codeof Civil Procedure.

Case Law discussed:AIR 1987 Bombay 276; 1976 (2) ALR 758;AIR1979 SC 14(para 29 & 30); 2008 (2) SC 585(para 14 & 15)=(2008) 4 SCC 530; JT 2012(10) SC 503.

(Delivered by Hon'ble Attau RahmanMasoodi, J.)

1. Heard Shri Shashi Nandan,learned Senior Counsel assisted by ShriVashistha Tiwari and Shri Shivam Yadav,learned counsel for the petitioners; ShriM.D. Singh Sekhar, learned SeniorCounsel assisted by Shri Ashok KumarDwivedi for respondent no.1 and ShriP.N. Saxena, learned Senior Counsel

assisted by Shri H.N. Pandey, learnedcounsel for respondent no.2. Noneappears for respondent nos.3 to 7.

2. As the issue involved in thepresent writ petition is a matter of contestbetween the petitioners and respondentno.1, therefore, non-appearance of otherrespondents although one of themrespondent no.2 is represented is notlegally significant, as such notices toother respondents are hereby dispensedwith.

3. This writ petition involves animportant question of law as to the extentof enquiry in a matter involving the scopeof Order 22 Rule 10 CPC and for thispurpose arguments were heard at lengthso as to thrash out the issue and incidentalissues, which relate to the management ofa religious charitable society registeredunder the Societies Registration Act,1860.

4. The factual matrix of the case inshort is that a suit for permanentinjunction was filed by the society knownas Sri Girraj Sewak Samiti, Bara BazarGoverdhan, Tehsil and District Mathurathrough its Mantri/ Pradhan MantriGovind Prasad Purohit in the year 1999against the respondent nos.2 to 7. Duringthe pendency of civil suit, the originalrepresentative of the society viz. GovindPrasad Purohit died on 28.11.2006 andthereafter an application under Order 22Rule 10 CPC was filed by one ShriJitendra Prasad Purohit, which wasallowed by the trial court on 31.5.2007 onthe premise that Shri Jitendra PrasadPurohit on the basis of resolution dated29.12.2006 was elected as Mantri/Pradhan Mantri of Sri Girraj SewakSamiti, Bara Bazar Goverdhan, Tehsil,


District Mathura. The suit continued to bepursued on behalf of the Samiti byJitendra Prasad Purohit until the month ofNovember, 2009, when anotherapplication under Order 22 Rule 10 CPCcame to be filed by one Rama KantKaushik, who claimed to have beenelected as Mantri/ Pradhan Mantri of thesociety on the basis of resolution dated4.10.2009 replacing the outgoingSecretary Jitendra Prasad Purohit. Thecopy of the application is placed onrecord as Annexure No.4 to the writpetition.

5. The plain averments made in theapplication are to the effect that thepetitioner's predecessor Shri JitendraPrasad Purohit, who on being elected on29.12.2006 as Mantri/ Pradhan Mantricame to represent the suit proceedings onthe basis of an order passed by the trialcourt on 31st May, 2007. It was furtherstated in the application that the petitionerwas elected as Mantri/ Pradhan Mantri on4.10.2009 in the resolution passed by theExecutive Body of the Samiti, as such, thepetitioner had a legal right to represent onbehalf of the society in the ongoing suitproceedings.

6. The application filed by thepetitioner (Rama Kant Kaushik) wasopposed by the respondent no.1-ShriJitendra Purohit, the outgoing Mantri/Pradhan Mantri. The copy of objectionsfiled by respondent no.1 is also placed onrecord as Annexure No.6 to the writpetition. From the perusal of theobjections it is gathered that two mainobjections were raised by respondentno.1. Firstly the convening of meeting on4.10.2009 was disputed on the ground thatthe said meeting was not at all held on thesaid date and secondly the petitioner

(Rama Kant Kaushik) was alleged to havebeen ousted from the Executive Body ofthe Samiti on 15.2.2009 and thereafternew elections were said to have takenplace on 25th February, 2009, wherein themembers of the Executive Body wereelected, who subsequently constituted theManagement Committee on 31st March,2009. Both the person on the basis ofbeing elected as Secretary claimeddevolution of interest upon themexclusive of each other.

7. The trial court went into thecontentions of rival parties and hasrecorded detailed findings not only on thepassing of resolution dated 4.10.2009 buthas also recorded findings as to thecorrectness of defence putforth byrespondent no.1 regarding the ouster ofpetitioner (Rama Kant Kaushik) from themembership of the Executive Body of theSamiti. The trial court in its judgmentfound that the petitioner on the basis ofresolution dated 4.10.2009 had a legalright to represent the Samiti, therefore, theapplication filed by the petitioner wasallowed by means of order dated4.3.2010. The opposite party no.1 onfeeling aggrieved against the order passedby the trial court filed Civil RevisionNo.40 of 2010 assailing the findings andthe judgment passed by the trial court asmentioned above. The judgment passedby the trial court was assailed underSection 115 of the Code of CivilProcedure and the revision on beingallowed by means of the impugned orderhas given rise to the present writ petition.Section 115 CPC is reproduced below:-

"115. Revision.- (1) The High Courtmay call for the record of any case whichhas been decide by any court subordinateto such High Court and in which no


appeal lies thereto, and if suchsubordinate court appears--

(a) to have exercised a jurisdictionnot vested in it by law, or

(b) to have failed to exercise ajurisdiction so vested, or

(c) to have acted in the exercise of itsjurisdiction illegally or with materialirregularity, the High Court may makesuch order in the case as it thinks fit:--

Provided that the High Court shallnot, under this section, vary or reverseany order made, or any order deciding anissue, in the course of a suit or otherproceeding, except where the order, if ithad been made in favour of the partyapplying for revision, would have finallydisposed of the suit or other proceedings.

(2) The High Court shall not, underthis section vary or reverse any decree ororder against which an appeal lies eitherto the High Court or to any courtsubordinate thereto.

(3) A revision shall not operate as astay of suitor other proceeding before theCourt except where such suit or otherproceeding is stayed by the High Court.

Explanation .- In this section, theexpression "any case which has beendecided" includes any order made, or anyorder deciding an issue, in the course of aSuit or other proceeding."

8. In view of Section 115 of theCode of Civil Procedure, learned counselfor the petitioner while assailing theimpugned judgment passed by therevisional court argued that the judgmentpassed by the trial court was fully inconsonance with law and ought not tohave been interfered with by therevisional court. The revisional courtjudgment is attacked primarily on theground that the court below has notappreciated the findings recorded by the

trial court and none of the findingsrecorded by the trial court on being foundfaulty have been set aside and that beingthe position, the revisional court wasclearly in error to have remanded thematter back to the trial court for freshenquiry on the issue within the scope ofOrder 22 Rule 10 CPC, which by its verynature is a summary proceeding. Order 22Rule 10 CPC for ready reference isreproduced hereunder:-

"10. Procedure in case of assignmentbefore final order in suit.- (1) In othercases of an assignment, creation ordevolution of any interest during thependency of a Suit, the suit may, by leaveof the court, be continued by or againstthe person to or upon whom such interesthas come or devolved.

(2) The attachment of a decreepending an appeal there from shall bedeemed to be an interest entitling theperson who procured such attachment tothe benefit of sub-rule (1)."

9. In the light of provisions of Order22 Rule 10 CPC, learned counsel for thepetitioner has laid emphasis on the trialcourt judgment to show that the trial courtwhile allowing the application has dulyconsidered the material placed on recordi.e. agenda, list of members, whoparticipated to elect Rama Kant Kaushikas Mantri/ Pradhan Mantri of the Samitiand the resolution dated 4.10.2009 on thispremise according to the learned counselstands in consonance with law. Learnedcounsel further submits that theconvening of meeting on 4.10.2009 wassought to be disbelieved merely on theground that the petitioner (Rama KantKaushik) was ousted from themembership of executive body of theSamiti but there was no evidence placed


on record to the effect that he was oustedfrom the membership of the executivebody. The trial court has also recordedthat no other member of the society hascome forward to file any affidavit orevidence on the basis of which theconvening of meeting on 4.10.2009 maybe disbelieved. The trial court in absenceof any dispute to the documents placed onrecord allowed the application.

10. Whether the trial court forallowing the application under Order 22Rule 10 CPC was duty bound to recordevidence on the issue of devolution ininterest or it was enough for the Court tofollow a summary procedure whiledeciding the application is the questionthat calls for an answer in theseproceedings?

11. In support of his contentions,learned counsel for the petitioners hascited the decision of Bombay High Courtin Jawahar Lal v. Smt. SaraswatibaiBabulal Joshi & Ors., AIR 1987 Bombay276 as well as the decision passed by thisCourt in Ram Kumar & Anr. v. Union ofIndia, 1976 (2) ALR 758. While invitingattention of the Court to Paragraph 5 and6 of Bombay High Court judgment,learned counsel for the petitioner statesthat Order 22 Rule 10 CPC is differentfrom the category of cases, which fallunder Order 22 Rule 1 to 9 CPC.Paragraph 12 of the judgment reported inAIR 1987 Bombay 276 is reproducedbelow:-

"12. Having regard to the provisionsof O.22, R.10, Civil P.C. and theauthorities to which I have referred, it isapparent that no detailed enquiry at thestage of granting leave is contemplated.The Court has only to be prima facie

satisfied for exercising its discretion ingranting leave for continuing the suit byor against the person on whom the interesthas devolved by assignment or devolutionand the question about the existence andvalidity of the assignment or devolutioncan be considered at the trial of the suit onmerits. this being the legal position theorder passed by the learned trial Judgewas correct and no interference with thediscretion exercised by him is called for."

12. The same position of law isreiterated in the judgment passed by thisCourt reported in 1976 (2) ALR 758.

13. On the other hand learnedcounsel for respondent no.1 argued thatthe manner in which the trial court formedits opinion was faulty as the originalrecord was not placed before the trialcourt and the proceedings were alsoconducted in a hasty manner.

14. The revisional court whiledeciding the revision according to learnedcounsel appearing for respondent no.1 hasproceeded on the premise that the learnedtrial court had not only committedmaterial irregularity as to the enquiry,which was necessary for deciding theapplication but had exceeded in itsjurisdiction by rerecording the findings onthe basis of documents of which theoriginal copies were not placed on record.

15. In support of his contentionlearned counsel for respondent no.1 hasreferred to the judgments in State (DelhiAdministration) v. Pali Ram, AIR 1979SC 14 (para 29 & 30); Thiruvengada Pillav. Navaneethammal & Anr., JT 2008 (2)SC 585 (para 14 & 15)=(2008) 4 SCC 530and Ajay Kumar Parmar v. State ofRajasthan, JT 2012 (10) SC 503.


16. On the strength of aforesaidjudgments it is canvassed by learnedcounsel that the signatures ofdocumentary evidence placed on recordcould not be compared without seekingexpert opinion and Section 73 of theEvidence Act did not enable the trial courtto record a finding on the basis of merecomparison of the signatures on thedocuments, originals whereof were notproduced before the court below. This,according to learned counsel forrespondent no.1, is a material irregularity,which the trial court has committed whileallowing the application. Learned counselfor respondent no.1 has also argued thatdespite there being an application filed bythe respondent no.1 to call for oralevidence, the trial court proceeded in ahasty manner and decided the applicationon the same date, when the application fortransfer was rejected by the learnedDistrict Judge. Rendering a detailedjudgment on the same very day accordingto learned counsel shows that the trialcourt had predetermined the issue, whichclearly amounts to a material irregularityin the process of adjudication.

17. Now coming to the scope of writpetition under Art.226 of the Constitutionof India as directed against the orderpassed by the revisional court, I am of theconsidered opinion that the revisionalcourt ought not to have interfered with thematter on the mere ground that the trialcourt did not undertake an exercise ofrecording oral evidence or did not enterinto a critical analysis of the documentaryevidence. The proceedings in respect ofapplication under Order 22 Rule 10 CPCare summary in nature and the trial courtwhile adjudicating upon the same hasclearly recorded that no other personexcept respondent no.1 has raised any

dispute before the trial court and thatfinding of the trial court has not been foundfaulty on the strength of any materialwhatsoever by the revisional court,therefore, the revisional court while passingthe impugned order has clearly exceededthe jurisdiction conferred under Section 115of the Code of Civil Procedure.

18. The other grounds raised bylearned counsel for respondent no.1before the revisional court to the effectthat the trial court proceeded in a hastymanner and did not dispose of theapplication for allowing evidences to beled is also devoid of merit inasmuch as nosuch evidence was actually led before thetrial court or is required to be examinedafter recording of oral evidence etc.

19. This Court is of the opinion that thetrial court order allowing the application ofRama Kant Kaushik not being a conclusivejudgment as to the rights of parties would notpreclude respondent no.1 to participate insuit proceedings, once such a right isdeclared or based on the requirements underSection 25 of the Societies Registration Act,1860 is laid as per the procedure prescribedunder law. The trial court while adjudicatingupon the issue of rival succession/devolutionin interest, being bound to frame an inclusiveissue is at liberty to transpose any of thecontesting parties to be the plaintiff, but sucha right of succession/devolution in interest,needless to say, is bound to be declared inaccordance with the provisions of SocietiesRegistration Act, 1860 and the byelaws ofthe society, which regulate the term ofmanagement and conduct of other affairs ofthe society and to which a registered societyowes its existence as a juristic person.

20. The writ petition filed by thepetitioner against the revisional court


order dated 14.08.2014 is hereby allowedand the impugned order is set aside.

21. No order as to costs.--------

ORIGINAL JURISDICTIONCRIMINAL SIDE

DATED: ALLAHABAD 19.12.2014

BEFORETHE HON'BLE SATYENDRA SINGH

CHAUHAN, J.

Criminal Misc. Application No. 50248 of 2014(u/s 482 Cr.P.C.)

Mohit Kumar Kankar & Anr. ...ApplicantsVersus

State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicants:Sri Vikas Sharma, Sri Sanjay Singh

Counsel for the Opp. Parties:A.G.A.

Cr.P.C. -Section-482-Chargesheetchallenged-on ground-without followingprocedure contained u/s Section 244(1)-without opportunity of cross-examination tothe accused applicant-order impugnedframing charges-held-not sustainable-various reasons discussed.

Held: Para-12 & 1912. The Apex Court further proceeded tohold that the evidence under ChapterXIX (B) has to be recorded in thepresence of the accused and if a right ofcross-examination was not given to him,then he would be no more than an idlespectator in the entire process. Theobject of the whole process is to ensurethat not only does the accused have theopportunity to hear the evidenceadduced against him, but also to defendhimself by cross-examining thewitnesses with a view to showing thatthe witness is either unreliable or that astatement made by him does not have

any evidentiary value or that it does notincriminate him.

19. On a consideration of the above caselaws and the principles laid down therein,the order impugned does not appear to becorrect order and the trial court hasproceeded to commit illegality in framingthe charge without recording evidenceunder Section 244 (1) Cr.P.C. The orderframing charge, therefore, cannot besustained in law.

Case Law discussed:(2013) 9 SCC 209; (2009) 14 SCC 115; (2010)11 SCC 520

(Delivered by Hon'ble Satyendra SinghChauhan, J.)

1. Through this petition, thepetitioners have challenged the order offraming of charge dated 11.11.2014 passedby the Addl. Chief Judicial Magistrate,Court No.4, Aligarh in Case No.579 of2012 (Yatindra Kumar Vs. Mohit KumarKankar and another) under Section 246 ofthe Code of Criminal Procedure (for short"Cr.P.C.") in a warrant case instituted otherthan police report.

2. The fact in short giving rise to thepresent dispute are that an application underSection 156 (3) Cr.P.C. was moved byopposite party no.2 on 30.11.2012, whichwas treated as complaint by the trial courtvide order dated 19.12.2012. In the saidcomplaint, opposite party no.2 alleged thathe and petitioner no.1 were the friends andone and a half years ago, petitioner no.1borrowed Rupees one lakh from him andagain after six months, he (petitioner no.1)borrowed Rupees one lakh from him(opposite party no.2), but when petitionerno.1 failed to return the money in cash, hegave a cheque of Rupees two lakh dated8.11.2012 but the cheque was dishonoured as

1 All] Mohit Kumar Kankar & Anr. Vs. State of U.P. & Anr. 89

the account was closed. On 25.11.2012, it isalleged that the petitioners came to the shopof the informant and they used abusivelanguage and threatened him to kill. Theapplication moved by opposite party no.2under Section 156 (3) Cr.P.C. was treated ascomplaint and opposite party no.2 wasexamined under Section 200 Cr.P.C beforethe trial court and one Vishal Kumar wasexamined as witness under Section 202Cr.P.C. Learned Addl. Chief JudicialMagistrate, Aligarh proceeded to summonthe petitioners vide order dated 4.6.2013 onthe basis of the aforesaid evidence. On11.11.2014, the trial court proceeded toframe charge against the petitioners underSections 323, 504, 506 & 379 IPC. It is thisorder, which is under challenge in thispetition.

3. Submission of learned counsel forthe petitioners is that without recordingevidence as contemplated under Section244 Cr.P.C., learned Magistrate hasproceeded to frame the charge. Submissionis that the charge could not have beenframed without giving opportunity of cross-examination in respect of the evidenceadduced under Section 244 (1) Cr.P.C.Learned counsel submits that non-examination of witnesses in the presence ofthe accused persons and further denyingthem right to cross-examine the witnesseswill prejudice their case and the veracity ofthe allegations will not be established in acorrect manner. Submission is that charge,which has been framed without recordingevidence under Section 244 Cr.P.C. iswholly illegal and phrase occurring inSection 246 Cr.P.C. "or at any previousstage of the case" does not mean that anyevidence which has been recorded at thetime of summoning could be used for thepurpose of framing of charge. Learnedcounsel submits that the evidence as

required under Section 3 and Section 138of the Indian Evidence Act is the properevidence to be considered and a right tocross-examine cannot be foreclosedbefore framing the charge. If such right isforeclosed, then authenticity of theevidence cannot be judged by the trialcourt and the truth will not come to light.He has placed reliance upon the judgmentrendered by the Apex Court in the case ofSunil Mehta and Anr. v. State of Gujaratand Anr., (2013) 9 SCC 209.

4. Learned AGA, on the other hand,has drawn the attention of the Courttowards the phrase "or at any previousstage of the case" and has tried to justifythe order of framing of charge on thereasoning that the evidence which hasbeen recorded at the time of summoningcan be used as evidence for framing of thecharge and he has also submitted that asand when the charge is framed and theaccused person adduces his evidence, hewill have a right for cross-examination.

5. I have heard learned counsel forthe parties and perused the record.

6. The question involved in thepresent petition is as to whether the chargecan be framed without recording evidenceunder Section 244 (1) Cr.P.C. is not resintegra and stands decided by the ApexCourt in the case of Sunil Mehta (supra).

7. Learned Magistrate has notrecorded any evidence as contemplatedunder Section 244 (1) Cr.P.C. and hasproceeded to frame the charge ascontemplated under Section 246 (1) Cr.P.C.

8. The question is as to when theaccused persons will get opportunity tocross-examine the witness if they put their


appearance under Section 246 Cr.P.C.without recording any evidence ascontemplated under Section 244 (1)Cr.P.C. In this regard, the Apex Courtwhile considering the similar questionheld as under:-

"7. It is difficult to appreciate thelogic underlying the above observations.It appears that the High Court consideredthe deposition of this complainant and hiswitnesses recorded before the appearanceof the accused Under Section 202 of theCode of Criminal Procedure to be'evidence' for purposes of framing ofcharges against the Appellants. Not onlythat, the High Court by some involvedprocess of reasoning held that the accusedpersons had an opportunity tocrossexamine the witnesses when the saiddepositions were recorded. The HighCourt was, in our opinion, in error on bothcounts. We say so for reasons that are notfar to seek. Chapter XV of the Code ofCriminal Procedure, 1973 deals withcomplaints made to Magistrates. Section200 which appears in the said Chapterinter alia provides that the Magistratetaking cognizance of an offence on acomplaint shall examine upon oath thecomplainant and the witnesses present, ifany, and the substance of suchexamination shall be reduced to writingand signed by the complainant and thewitnesses, as also the Magistrate. Anexception to that general rule is, however,made in terms of the proviso to Section200 in cases where the complaint is madeby a public servant acting or purporting toact in the discharge of his official duties,or where a Court has made the complaint,or the Magistrate makes over the case forenquiry or trial by another MagistrateUnder Section 192 of the Code ofCriminal Procedure."

9. In paragraph-7 of the case ofSunil Mehta (supra), the Apex Courtwhile elaborating the difference betweenthe evidence recorded at the summoningstage under Section 200 Cr.P.C. and theevidence to be recorded after the accusedhas put in appearance by the prosecutionhas further considered in paragraphs-11 &12.

10. The nature of evidence to beadduced by the prosecution has beenfound to be the evidence which isacceptable under Section 3 of the IndianEvidence Act and under Section 138 ofthe Evidence Act. Section 138 of theEvidence Act refers to cross-examinationwhereas Section 3 of the Indian EvidenceAct refers to the evidence recorded beforethe court. Section 138 of the Evidence Actcasts duty upon the court to allow theadverse party to cross-examine if he sodesires. Examination and cross-examination have to be held in thepresence of the parties.

11. In paragraphs 11 and 12 of thecase of Sunil Mehta (supra), it was held asunder:-

"11. A simple reading of the abovewould show that the Magistrate isrequired to frame in writing a chargeagainst the accused "when such evidencehas been taken" and there is ground forpresuming that the accused has committedan offence triable under this Chapterwhich such Magistrate is competent to tryand adequately punish.

12. Sections 244 to 246 leave nomanner of doubt that once the accusedappears or is brought before theMagistrate the prosecution has to be heardand all such evidence as is brought insupport of its case recorded. The power to


discharge is also Under Section 245exercisable only upon taking all of theevidence that is referred to in Section 244,so also the power to frame charges interms of Section 246 has to be exercisedon the basis of the evidence recordedUnder Section 244. The expression "whensuch evidence has been taken" appearingin Section 246 is significant and refers tothe evidence that the prosecution isrequired to produce in terms of Section244(1) of the Code. There is nothingeither in the provisions of Sections 244,245 and 246 or any other provision of theCode for that matter to even remotelysuggest that evidence which theMagistrate may have recorded at the stageof taking of cognizance and issuing ofprocess against the accused under ChapterXV tantamounts to evidence that can beused by the Magistrate for purposes offraming of charges against the accusedpersons Under Section 246 thereofwithout the same being produced UnderSection 244 of the Code. The scheme ofthe two Chapters is totally different.While Chapter XV deals with the filing ofcomplaints, examination of thecomplainant and the witnesses and takingof cognizance on the basis thereof with orwithout investigation and inquiry, ChapterXIX Part B deals with trial of warrantcases instituted otherwise than on a policereport. The trial of an accused underChapter XIX and the evidence relevant tothe same has no nexus proximate orotherwise with the evidence adduced atthe initial stage where the Magistraterecords depositions and examines theevidence for purposes of decidingwhether a case for proceeding further hasbeen made out. All that may be said isthat evidence that was adduced before aMagistrate at the stage of takingcognizance and summoning of the

accused may often be the same as isadduced before the Court once theaccused appears pursuant to the summons.There is, however, a qualitative differencebetween the approach that the Courtadopts and the evidence adduced at thestage of taking cognizance andsummoning the accused and that recordedat the trial. The difference lies in the factthat while the former is a process that isconducted in the absence of the accused,the latter is undertaken in his presencewith an opportunity to him to cross-examine the witnesses produced by theprosecution."

12. The Apex Court furtherproceeded to hold that the evidence underChapter XIX (B) has to be recorded in thepresence of the accused and if a right ofcross-examination was not given to him,then he would be no more than an idlespectator in the entire process. The objectof the whole process is to ensure that notonly does the accused have theopportunity to hear the evidence adducedagainst him, but also to defend himself bycross-examining the witnesses with aview to showing that the witness is eitherunreliable or that a statement made byhim does not have any evidentiary valueor that it does not incriminate him.

13. In paragraph-17 of the case ofSunil Mehta (supra), it was held asunder:-

"17. Secondly, because evidenceunder Chapter XIX (B) has to be recordedin the presence of the accused and if aright of cross-examination was notavailable to him, he would be no morethan an idle spectator in the entireprocess. The whole object underlyingrecording of evidence Under Section 244


after the accused has appeared is to ensurethat not only does the accused have theopportunity to hear the evidence adducedagainst him, but also to defend himself bycrossexamining the witnesses with a viewto showing that the witness is eitherunreliable or that a statement made byhim does not have any evidentiary valueor that it does not incriminate him. Section245 of the Code, as noticed earlier,empowers the Magistrate to discharge theaccused if, upon taking of all the evidencereferred to in Section 244, he considers thatno case against the accused has been madeout which may warrant his conviction.Whether or not a case is made out againsthim, can be decided only when the accusedis allowed to cross-examine the witnessesfor otherwise he may not be in a position todemonstrate that no case is made out againsthim and thereby claim a discharge UnderSection 245 of the Code. It is elementarythat the ultimate quest in any judicialdetermination is to arrive at the truth, whichis not possible unless the deposition ofwitnesses goes through the fire of cross-examination. In a criminal case, using astatement of a witness at the trial, withoutaffording to the accused an opportunity tocross-examine, is tantamount tocondemning him unheard. Life and libertyof an individual recognised as the mostvaluable rights cannot be jeopardised leavealone taken away without conceding to theaccused the right to question those deposingagainst him from the witness box."

14. The Apex Court proceeded to relyupon the case of Ajoy Kumar Ghose v.State of Jharkhand and Anr., (2009) 14 SCC115 and also placed reliance upon ajudgment rendered in the case ofHarinarayan G. Bajaj v. State ofMaharashtra and Ors., (2010) 11 SCC 520,wherein the similar view was expressed.

15. In the case of Ajoy KumarGhose (supra), it was held as under:-

"The language of the Section clearlysuggests that it is on the basis of theevidence offered by the complainant at thestage of Section 244(1) Code of CriminalProcedure, that the charge is to be framed, ifthe Magistrate is of the opinion that there isany ground for presuming that the accusedhas committed an offence triable under thisChapter. Therefore, ordinarily, when theevidence is offered Under Section 244 Codeof Criminal Procedure by the prosecution,the Magistrate has to consider the same, andif he is convinced, the Magistrate can framethe charge."

16. The Apex Court in the case ofSunil Mehta (supra) has further held asunder:-

"20. This Court further clarified thatthe expression "or at any previous stage ofthe case" appearing in Section 246(1) didnot imply that a Magistrate can framecharges against an accused even before anyevidence was led Under Section 24. ThisCourt approved the decision of the HighCourt of Bombay in Sambhaji Nagu Koli v.State of Maharashtra,MANU/MH/0185/1978 : 1979 Cri. LJ 390(Bom), where the High Court has explainedthe purport of the expression "at anyprevious stage of the case". The saidexpression, declared this Court, only meantthat the Magistrate could frame a chargeagainst the accused even before all theevidence which the prosecution proposed toadduce Under Section 244(1) was recordedand nothing more. This Court observed:

44. In Section 246 Code of CriminalProcedure also, the phraseology is "if,when such evidence has been taken",


meaning thereby, a clear reference ismade to Section 244 Code of CriminalProcedure. The Bombay High Court cameto the conclusion that the phraseologywould, at the most, mean that theMagistrate may prefer to frame a charge,even before all the evidence is completed.The Bombay High Court, afterconsidering the phraseology, came to theconclusion that the typical clause did notpermit the Magistrate to frame a charge,unless there was some evidence onrecord. For this, the Learned Single Judgein that matter relied on the ruling in AbdulNabi v. Gulam Murthuza KhanMANU/AP/0074/1968: 1968 Cri LJ 303(AP)."

17. In the case of Harinarayan G.Bajaj (supra), the principles laid down inthe case of Ajoy Kumar Ghose (supra)were held to be the correct principles andit was laid down that an accused has rightto cross-examine the witness produced bythe prosecution before framing of chargeagainst him and has a valuable right.

18. Paragraph-22 of the case ofSunil Mehta (supra) is as follows:-

"22. In Harinarayan G. Bajaj v. Stateof Maharashtra and Ors.MANU/SC/0006/2010 : (2010) 11 SCC520, this Court reiterated the legalposition stated in Ajoy Kumar Ghose(supra) and held that the right of anaccused to cross-examine witnessesproduced by the prosecution beforeframing of a charge against him was avaluable right. It was only through cross-examination that the accused could showto the Court that there was no need for atrial against him and that the denial of theright of cross-examination Under Section244 would amount to denial of an

opportunity to the accused to show to theMagistrate that the allegations madeagainst him were groundless and thatthere was no reason for framing a chargeagainst him. The following passages arein this regard apposite:

18. This Court has already held thatright to cross-examine the witnesses whoare examined before framing of thecharge is a very precious right because itis only by cross-examination that theaccused can show to the Court that thereis no need of a trial against him. It is to beseen that before framing of the chargeUnder Section 246, the Magistrate has toform an opinion about there being groundfor presuming that the accused hadcommitted offence triable under theChapter. If it is held that there is no rightof cross-examination Under Section 244,then the accused would have noopportunity to show to the Magistrate thatthe allegations are groundless and thatthere is no scope for framing a chargeagainst him.

xx xx xx20. Therefore, the situation is clear

that Under Section 244, Code of CriminalProcedure the accused has a right tocross-examine the witnesses and in thematter of Section 319, Code of CriminalProcedure when a new accused issummoned, he would have similar right tocross-examine the witness examinedduring the inquiry afresh. Again, thewitnesses would have to be reheard andthen there would be such a right. Merelypresenting such witnesses for cross-examination would be of no consequence.

23. In the light of what we have saidabove, we have no hesitation in holdingthat the High Court fell in palpable errorin interfering with the order passed by theRevisional Court of Sessions Judge,Gandhi Nagar. The High Court was


particularly in error in holding that theAppellant had an opportunity to cross-examine the witnesses or that he had notavailed of the said opportunity when thewitnesses were examined at the stage ofproceedings under Chapter XV of theCode. The High Court, it is obvious, hasfailed to approach the issue from thecorrect perspective while passing theimpugned order.

24. In the result we allow this appealwith costs Assessed at Rs.50,000/-, setaside the order passed by the High Courtand restore that passed by the SessionsJudge. The costs shall be deposited byRespondent No. 2-company in the SCBALawyers' Welfare Fund within two weeksof the pronouncement of this order."

19. On a consideration of the abovecase laws and the principles laid downtherein, the order impugned does notappear to be correct order and the trialcourt has proceeded to commit illegalityin framing the charge without recordingevidence under Section 244 (1) Cr.P.C.The order framing charge, therefore,cannot be sustained in law.

20. The petition is accordinglyallowed. The order dated 11.11.2014 ishereby set aside and the matter is remittedto the trial court to proceed consideringthe principles laid down hereinabove.


CRIMINAL SIDEDATED: ALLAHABAD 09.12.2014

BEFORETHE HON'BLE HARSH KUMAR, J.

Criminal Misc. Application No. 50297 of2014

(U/s 482 CR.P.C.)Raj Kumar ...Applicant

VersusState of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:Sri Rajeev Trivedi

Counsel for the Respondents:A.G.A.

Cr.P.C.-Section 482-Chargesheetchallenged -on ground of process of court-as the applicant again married withprosecutist on achieving age of majority-admittedly when occurrence took place-she was only 15 ½ years old girl-subsequent marriage will not undue theoffence-already committed-petitionerhimself guilty for abusing the process ofCourt-application rejected.

Held: Para-12In view of the discussions made above, Ifind that the applicant himself iscommitting abuse of process of Court andhas failed to show that any abuse ofprocess of Court has been caused bysubmission of charge sheet. There is nosufficient ground requiring exercise ofinherent power by this Court under section482 Cr.P.C. for quashing the charge sheetin order to prevent abuse of process of anyCourt or otherwise to secure the ends ofjustice. The application is devoid of meritsand is liable to be dismissed.

Case Law discussed:JT 2010 (6) SC 588:(2010) 6 SCALE 767:2010Cr.L.J. 3844; (2008) 1 SCC 474; (2008) 8 SCC781.

(Delivered by Hon'ble Harsh Kumar, J.)

1. Heard Sri Rajeev Trivedi, learnedcounsel for the applicant and learnedAGA for the State.

2. The application has been movedunder section 482 Cr.P.C. for quashingthe charge sheet in case crime no.193 of2012, under sections 363, 366, 376, 120-B

1 All] Raj Kumar Vs. State of & Anr. 95

IPC on the basis of which, S.T. No.167 of2013 is pending before AdditionalSessions Judge, Court No.5, KanpurNagar.

3. Learned counsel for the applicantcontended that the incident is alleged tobe dated 28.7.2011 of which F.I.R. hasbeen lodged with inordinate delay on13.6.2012 and charge sheet has been filed,upon which the case has been committedto sessions and S.T. No.167 of 2013 ispending against the applicant and otherco-accused; that the prosecutrix/victimhad gone with the applicant with her ownsweet will and made marriage with him;that subsequently on attaining majority on1.2.2014 the victim has again mademarriage with the applicant; that theapplicant has been granted bail and in thecircumstances, the charge sheet is liableto be quashed, as no fruitful purpose islikely to be achieved by prosecuting thecase when the victim/prosecutrix hasmade marriage with the applicant.

4. Learned AGA opposed andcontended that undisputedly theprosecutrix was minor at the time ofincident and the alleged marriage withminor is nullity and may not beconsidered to be a marriage in the eye oflaw; that applicant is guilty forcommitting rape with minor girl of 15years; that the date of birth of prosecutrixis 1.2.1996 as stated by her and alsomentioned in her High School Certificate;that by obtaining marriage certificatesubsequent to 1.2.2014, (after attainingmajority by the prosecutrix) the crimecommitted during her minority undersection 376 IPC may not be undone; thatthe charge sheet was submitted long backupon which the cognizance was taken on1.12.2012 and there is no justification for

moving this application for quashing ofcharge sheet after a span of around twoyears; that delay in lodging of F.I.R. maynot be material in cases under section 376IPC; that the applicant accused is aninfluential person and F.I.R. could belodged only through order of Magistrateupon application under section 156 (3)Cr.P.C.; that there is no deliberate delayin lodging F.I.R.;that the applicant andco-accused are habitual of moving onewrit after dismissal of another and afterrefusal by this Court to quash the F.I.R.,in Writ Petition No.9606 of 2012 filed byapplicant, the applicant has moved thisapplication for quashing the charge sheetand is committing abuse of process ofCourt; that the applicant has not comewith clean hands and has moved thisapplication with mala fide intention andfalse allegations; that there is no sufficientground for quashing of charge sheet andexercising of inherent powers by thisCourt to prevent any abuse of process ofcourt or to secure the ends of justice.

5. Upon hearing the learned counselfor the parties and perusal of record, I findthat undisputedly the occurrence tookplace on 28.7.2011 when the prosecutrixwas allegedly kidnapped by applicant andhis associates. Undisputedly the date ofbirth of prosecutrix is 1.2.1996 as perHigh School Certificate annexed asannexure no.10 and so she was aged about15 years at the time of incident. Theapplicant claimed to have obtainedagreement from the minor prosecutrix on1.9.2011 (Annexure No.2) mentioningtherein of living as husband and wifesince last one year and mentioning the ageof prosecutrix as 19 years. The applicanthas also filed copy of marriage certificateof Arya Samaj Chowk, Prayag dated13.2.2014 between applicant and


prosecutrix while the marriage certificateissued by the Office of the Registrar ofHindu Marriage Chail, DistrictKaushambi (Annexure No.10) containsthat marriage has been solemnized on7.2.2014 and having been registered on21.2.2014 which facts are selfcontradictory.Undisputedly, theprosecutrix attained the age of majorityi.e. 18 years on 1.2.2014 and bysolemnization marriage after attainingmajority, the offence committed earliermay not be undone. The applicant hasfailed to disclose as to what abuse ofprocess is likely to be caused bysubmission of charge sheet upon whichcognizance has been taken and case hasbeen committed to sessions about twoyears back.

6. Undisputedly the prayer made byapplicant thourgh Writ Petition No.9606of 2012 for quashing the F.I.R. of thiscase, has been turned down by DivisionBench of this Court vide order dated14.8.2012. Hence, present applicationwith prayer for quashing the charge sheetis nothing but abuse of process of Courtby the applicant as the applicant isobstructing the prosecution to proceedand committing abuse of process ofCourt.

7. It is settled principle of law thatinherent powers under section 482 Cr.P.C.should be exercised very sparingly andcarefully only to prevent commission ofany abuse of Court.

8. In this respect following case lawsare necessary to be referred:-

9. In the case of State of AndhraPradesh V. Gourishetty Mahesh, JT 2010(6) SC 588: (2010) 6 SCALE 767:2010

Cr.LJ 3844, the Hon'ble Apex Court hasheld that "while exercising jurisdictionunder section 482 of the Code, the HighCourt would not ordinarily embark uponan enquiry whether the evidence inquestion is reliable or not or whether on areasonable apprehension of it accusationwould not be sustained. That is thefunction of the trial Judge/Court".

10. In the case of Hamida V. Rashid,(2008) 1 SCC 474, the Hon'ble ApexCourt has held that "ends of justice wouldbe better served if valuable time of theCourt is spent in hearing those appealsrather than entertaining petitions undersection 482 at an interlocutory stagewhich are often filed with some obliquemotive in order to circumvent theprescribed procedure, or to delay the trialwhich enable to win over the witness ormay disinterested in giving evidence,ultimately resulting in miscarriage ofJustice."

11. In the case of Monica Kumar V.State of Uttar Pradesh, (2008) 8 SCC 781,the Hon'ble Apex Court has held that "inherent jurisdiction under section 482has to be exercised sparingly, carefullyand with caution and only when suchexercise is justified by the testsspecifically laid down in the sectionitself."

12. In view of the discussions madeabove, I find that the applicant himself iscommitting abuse of process of Court andhas failed to show that any abuse ofprocess of Court has been caused bysubmission of charge sheet. There is nosufficient ground requiring exercise ofinherent power by this Court undersection 482 Cr.P.C. for quashing thecharge sheet in order to prevent abuse of

1 All] Soniya Vs. State of & Ors. 97

process of any Court or otherwise tosecure the ends of justice. The applicationis devoid of merits and is liable to bedismissed.

13. The application is dismissed,accordingly.



BEFORETHE HON'BLE MRS. SUNITA AGARWAL, J.


Soniya ...PetitionerVersus


Counsel for the Petitioner:Sri Kamlesh Shukla, Sri Prashant Shukla


Constitution of India, Art.-226-Compassionate Appointment-claim bymarried daughter of deceased employee-on allegations since 2002 she along withher husband residing with deceasedemployee-who had lost his job due tofire-without any supporting documents-husband being hale and hearty-petitioner can not be treated dependentof her deceased-certainly dependentsmarried daughter can not be excluded-but every pleadings must be supportedby documents-in absence thereof-appointment can not be claimed as amatter of right.

Held: Para-18 & 1918. Thus, from the careful reading ofthese reports, it is found that thedirection was given therein in thepeculiar facts and circumstances of thosecases and the Court was of the opinionthat the dependent daughters cannot be

excluded merely because of their maritalstatus.

19. As has been discussed above, onedependent family member of thedeceased employee is entitled forcompassionate appointment. Thepetitioner has failed to establish that shewas dependent upon the deceasedemployee, as admittedly her husband isalive and he is a hail and hearty person,it cannot be accepted that the petitionerwas fully dependent upon the deceasedemployee at the time of his death.

Case Law discussed:AIR 1979 SC 1868; LAWS(BOM)-2014-8-68;ILR 1992 KARNATAKA 3416; 2005 (104) FLR271.

(Delivered by Hon'ble Mrs. Sunita Agarwal, J.)

1. Heard Sri Kamlesh Shukla,learned counsel for the petitioner andlearned Standing Counsel.

2. Short controversy raised in thepresent writ petition is as to whether thepetitioner being a married daughter of thedeceased employee has a right forconsideration for appointment oncompassionate ground. The petitioner isonly daughter of her parents and her caseis that she is unemployed and was fullydependent upon her father at the time ofhis death. Her mother i.e. wife of thedeceased employee moved an applicationon 22.2.2012 before the Principal/ChiefSuperintendent, S.N. Medical College andHospital, Agra for providing employmentto her daughter i.e. petitioner. Reminderswere sent by the petitioner and her motherbut no decision has been taken and hencethis writ petition.

3. In the supplementary affidavitfiled on 17.10.2014, the petitioner soughtto submit that she alongwith her husband


Bhupendra Sharma is residing at herparental residence and is looking afterwife of the deceased(mother of thepetitioner) and the entire family.

4. It is also indicated therein that thepetitioner's husband was earlier workingin a shoe factory at Agra but on accountof fire in the factory in the year 2002, helost his job and since thereafter her entirefamily including her husband were fullydependent upon the deceased employee.

5. Submission of learned counsel forthe petitioner is that the petitioner beingmarried daughter though is not includedin the definition of "Family" under Dying-in-Harness Rules, is entitled forconsideration for compassionateappointment as she was fully dependentupon her father. Merely because thepetitioner is a married daughter, shecannot be refused appointment as it wouldbe violative of Article 15 and 16 of theConstitution of India.

6. For awarding compassionateappointment, the 'dependency' should be theyardstick and not the marriage of familymembers of the deceased. Supreme Courthas recognized right to employment in caseof a married woman as early as in the year1979 in the case of C.B. Muthamma vs.Union of India and others AIR 1979 SC1868. In support of his submissions, learnedcounsel for the petitioner has relied uponthe judgment of Bombay High Court inRanjana Murlidhar Anerao vs. The State ofMaharashtra LAWS(BOM)-2014-8-68 andKarnataka High Court in R. Jayamma vs.Karnataka Electricity Board and anotherILR 1992 KARNATAKA 3416 andManjula vs. State of Karnataka, by itsSecretary, Department of Co-operation andAnother 2005(104) FLR 271.

7. Learned Standing Counsel, on theother hand, submits that the petitioner hasno right for consideration for appointmenton compassionate ground as she is noteligible for such appointment being not adependent family member of the deceasedemployee. A married daughter is notincluded in the expression "Family" of thedeceased employee and hence there is nomerit in the writ petition and the samedeserves to be dismissed.

8. The dependent petitioner is thesole heir of the deceased employee. Thereare two family members of the deceasedemployee namely, the petitioner and hermother. Indisputably, the petitioner wasmarried prior to death of her father in theyear 2011. It is also apparent from the factsindicated in the writ petition that she wasliving with her husband till the year 2000who was working in a shoe factory. Thecontention is that after the shoe factory wasgutted in fire and closed, the entire family ofthe petitioner namely her husband and twochildren started living with the deceasedemployee and were financially dependentupon him. Thus, an effort has been made tocarve out an exception to Rule 5 of the 1974Rules to submit that the petitioner was adependent daughter of the deceasedemployee and as she was financiallydependent upon her father at the time of hisdeath, she has a claim for consideration forcompassionate appointment.

9. It is well settled that thecompassionate appointment is granted toa dependent family member of thedeceased employee. Even a son of thedeceased employee is not eligible forcompassionate appointment, if he is notdependent upon the employee at the timeof his death. The offer of compassionateappointment is to be given to one of the

1 All] Soniya Vs. State of & Ors. 99

dependent family members of thedeceased employee so as to help thefamily mitigate the financial crisis facedby it. It is not a source of employment andis in the nature of an exception to theGeneral Rule that everyone is to come ina public employment solely on merits.

10. Thus, the "dependency" wouldbe the first eligibility criteria forconsideration of claim of a familymember of the deceased employee forcompassionate appointment. In case, thistest is passed, only then the applicationfor compassionate appointment is to beconsidered on other aspects.

11. So far as the present case isconcerned, it appears that the petitionerhas not disclosed the correct facts.Though it is stated in the supplementaryaffidavit that the petitioner and her familywas living and dependent upon thedeceased, however, there is no documentto support the said submission. Moreover,no such statement has been made by themother of the petitioner in the year 2012when she has moved an application toconsider the claim of the petitioner. Aperusal of the application dated 22.2.2012moved by the petitioner's mother indicatesthat only submission therein was that thepetitioner was unemployed. Thesubmission of the petitioner that herhusband is unemployed and was fullydependent upon her father from the year2002 till his death is not worthy ofacceptance for absence of material onrecord. Vague assertions in the affidavitare not sufficient to prove the dependencyof the petitioner on the deceasedemployee.

12. So far as another aspect of thematter i.e. exclusion of a married daughter

in the expression "Family" is concerned, itappears that exclusion of a married daughterfrom the expression "Family" is based onlogic that soon after the marriage, daughtersleave the house of their parents and arefinancially dependent upon their husbands.Though it cannot be said that they cannot betreated as part of the family yet it is true thatthey are not financially dependent upontheir parents, after marriage.

13. The cases relied upon by thelearned counsel for the petitioner to submitthat the petitioner was dependent upon herfather at the time of his death and hence theclaim for consideration of compassionateappointment, are distinguishable in the factsand circumstances of the present case.

14. In Ranjana MurlidharAnerao(supra), the question was as towhether the exclusion of the marrieddaughter from the expression "Family" forbeing entitled to be considered for grantof retail kerosene licence was legal andvalid. It was held that exclusion ofmarried daughter from the expression"Family" is not only violative of Article15 of the Constitution of India but thesame also infringes the right guaranteedby Article 19(1)(g) of the Constitution ofIndia. So far as grant of licence fordistribution of Kerosene oil is concerned,the legal heirs of the deceased retaillicence holder are entitled to seek transferof licence in their names after the death ofthe licensee. It was found that marriage ofa daughter who is otherwise a legalrepresentative of a licence holder cannotbe held to her disadvantage in the matterof seeking transfer of licence in her nameon the death of the licence holder.

15. Merely because a daughter islooking after her parents is not a criteria for


grant of compassionate appointment. Theobject with which a married daughter hasbeen excluded from the expression"Family" is based on an intelligibledifferentia and the dependency should be ayardstick for consideration ofcompassionate appointment and iscommensurate with the sole object of grantof compassionate appointment. It is in thesecircumstances, the married daughter has notbeen included in the expression "Family"under Dying-in-Harness Rules, 1974.

16. However for transfer of retaillicence, the criteria is "inheritance" whereasin the matter of grant of compassionateappointment, it is "dependency" and henceratio of judgment of Bombay HighCourt(supra) applies in the facts andcircumstances of that particular case and isnot applicable in the facts of the present case.

17. So far as the judgments in R.Jayamma(supra) and Manjula (supra) areconcerned, it is found that in both thecases, the Karnataka High Court foundthat the married daughter was financiallydependent upon her parents for the reasonthat in R. Jayamma(supra) the husband ofthe petitioner (who was a marrieddaughter) has become mentally deranged.In Manjula(supra) the petitioner hasbecome widow after filing of the petition.In paragraph 10 of the judgment inManjula(supra) it was observed that nomarried daughter can be denied of anentry into the service on compassionateemployment just because she is married.There may be cases whether the marriedwoman may be living with her parentsnotwithstanding her marriage for variousreasons and there may be cases wheremarried women would be dependent ontheir parents on account of their individualcircumstances. Thus, the Court in those

cases, may read down the rule ofdependency in the facts and circumstancesof the case and issue a direction to provideemployment to dependent marrieddaughters subject to satisfaction of theirdependency in the given circumstances.

18. Thus, from the careful reading ofthese reports, it is found that the directionwas given therein in the peculiar facts andcircumstances of those cases and theCourt was of the opinion that thedependent daughters cannot be excludedmerely because of their marital status.

19. As has been discussed above,one dependent family member of thedeceased employee is entitled forcompassionate appointment. Thepetitioner has failed to establish that shewas dependent upon the deceasedemployee, as admittedly her husband isalive and he is a hail and hearty person, itcannot be accepted that the petitioner wasfully dependent upon the deceasedemployee at the time of his death.

20. In view of above discussion, thepetitioner is not entitled for any relief inthe present writ petition. The writ petitionis accordingly dismissed.



BEFORETHE HON'BLE ANJANI KUMAR MISHRA, J.


Bhagwat Prasad ...PetitionerVersus


Counsel for the Petitioner:

1 All] Bhagwat Prasad Vs. State of & Ors. 101

Sri D.P. Singh, Sri S.S. Shukla

Counsel for the Respondents:C.S.C., Sri A.P. Paul, Sri B.B. Paul

U.P. Consolidation of Holdings Act-Section 42-A-correction of map afternotification under section 52-whetherafter final publication of consolidationoperation such application maintainable?-held defence of Section 52(2)presumptions of pendency-not available-in view of Section 27 of Land RevenueAct-Correction application notmaintainable-petition dismissed.

Held: Para-13Upon consideration of the submissionsmade by learned counsel for the partiesand the judgments cited by them, I amconstrained to hold that the DivisionBench judgment relied upon by learnedcounsel for the petitioner has noapplication in the facts and circumstancesof the instant case. In the case cited, itappears that the final orders passed by theconsolidation authorities had not beenimplemented. This is not the situation inthe case at hand. Here the orders wereduly implemented and the case of thepetitioner is only that the incorporationwas not correct and required correction.In view of sub section 3 of section 27, anyincorrect incorporation has to be correctedunder the provisions of the U.P. LandRevenue Act, if the consolidationoperations have come to a close.

Case Law discussed:1993 RD 457; 2003(94) RD 90; 1979 RD 76;1981 RD 77; 1989 RD 201; 1995 RD 264.

(Delivered by Hon'ble Anjani KumarMishra, J.)

1. Heard Sri D.P. Singh, learnedSenior Advocate assisted by Sri S.S.

Shukla for the petitioner and Sri A.P. Paulfor the contesting respondents.

2. The petition has been filedchallenging the orders passed by theConsolidation Officer and the AdditionalDistrict Magistrate (Kanoon Vyavastha),Mathura.

3. It has been submitted by learnedcounsel for the petitioner that inproceedings for allotment of chaks, threechaks were allotted to the petitioner. Acorresponding map was also prepared. Inthis final consolidation map, the area of thepetitioner's chak was shown to be less thanthe actual area.

4. Aggrieved by such reduction inarea of this chak in the final consolidationmap, the petitioner filed an application forcorrection of the same under section 42A ofthe U.P. Consolidation of Holdings Act.

5. An objection was filed by therespondent no. 3 alleging therein that theapplication under section 42A was notmaintainable and that an applicationunder section 28 of the U.P. LandRevenue Act had already been filed bythe petitioner for the same relief.

6. Thereafter, the report was calledfor and was submitted by the AssistantConsolidation Officer stating therein thatthe shape of Plot No. 1826 was liable tobe corrected.

7. The Consolidation Officerrejected the application of the petitionerby his order dated 20.12.2013. The orderof the Consolidation Officer has beenaffirmed in revision vide order dated9.9.2014. Hence this writ petition


challenging the orders dated 20.12.2013and 9.9.2014.

8. At the stage, it would be relevantto note that although the order dated9.9.2014 passed by the Additional DistrictMagistrate (Kanoon Vyavastha), Mathurais under challenge, the said authority hasnot been impleaded as a respondent in thewrit petition.

9. The only issue for considerationin the writ petition is as to whether theapplication filed by the petitioner undersection 42A for correction of the finalconsolidation map after issuance ofnotification under section 52(1) of theU.P. Consolidation of Holdings Act, wasmaintainable or not.

10. Learned counsel for thepetitioner has submitted that such anapplication was maintainable and he hasplaced reliance on the decision reported in1993 RD 457, Mukhtar Vs. DDC,Azamgarh and others, more specificallyparagraphs 11 and 12 of the saidjudgment. This judgment, after noticingthe scheme of the U.P. Consolidation ofHoldings Act and the Rules framedthereunder has held that the duty ofrevising the revenue records is cast on theconsolidation authorities and it is for suchauthorities to implement the orders passedunder the Act. It has further been held thatthere is no requirement in this scheme ofthe Act for a party to apply for executionwithin a specified period of limitation, asis the position under the Civil ProcedureCode. It has therefore been held that tillthe order passed by the consolidationauthorities are not implemented, ascontemplated under the Act and theRules, the proceedings under the Actwould deemed to be pending. On the

aforesaid reasoning, it has been held thatsuch proceedings would be deemed to bepending on the date of denotification ofthe village and, therefore, the orderspassed during consolidation operationscan be implemented in view of section 52(2) of the Act.

11. Learned counsel for therespondents on the other hand has reliedupon the judgement reported in 2003 (94)RD 90, Ghamari Vs. D.D.C. Ballia.

12. Apart from the judgments citedby the parties, there are several DivisionBench decisions reported in 1979 RD 76,Ghafoor Vs. Addl. Commissioner Lucknowand others, 1981 RD 77, Ali Khan Vs. RamPrasad and others, and decisions by theSingle Judge reported in 1989 RD 201,Ram Niwas and others Vs. ConsolidationOfficer and others, 1995 RD 264, NanhkiVs. Deputy Director of Consolidation andothers, which hold that the provisions ofsection 42A of the U.P. Consolidation ofHoldings Act cannot be invoked once theconsolidation operations in the village havecome to a close by a notification undersection 52 (1) of the Act.

13. Upon consideration of thesubmissions made by learned counsel forthe parties and the judgments cited bythem, I am constrained to hold that theDivision Bench judgment relied upon bylearned counsel for the petitioner has noapplication in the facts and circumstancesof the instant case. In the case cited, itappears that the final orders passed by theconsolidation authorities had not beenimplemented. This is not the situation inthe case at hand. Here the orders wereduly implemented and the case of thepetitioner is only that the incorporationwas not correct and required correction.

1 All] A. Pavitra Vs. Union of India & Ors. 103

In view of sub section 3 of section 27, anyincorrect incorporation has to be correctedunder the provisions of the U.P. LandRevenue Act, if the consolidationoperations have come to a close.

14. Accordingly and for the reasonsgiven above, I find no illegality in theimpugned orders.

15. The writ petition is devoid ofmerits and is accordingly dismissed.



BEFORETHE HON'BLE ASHWANI KUMAR MISHRA, J.

Civil Misc. Writ Petition No. 60338 of 2014alongwith W.P. NO. 60738 of 2014

A. Pavitra ...PetitionerVersus

Union of India & Ors. ...Respondents

Counsel for the Petitioner:Mrs. Swati Agarwal

Counsel for the Respondents:A.S.G.I., Sri Pratik J. Nagar

Right to Information Act-2005-Section-21(h)-Public authority-whether the councilfor Indian School certificate examination ispublic authority to provide informationunder R.T.I?-held-'No'.

Held: Para-17 & 2517. In view of the aforesaid observations,this Court finds that the Board is not coveredwithin the definition clause 2(h), andconsequently, it is not under any obligationto provide the information, as sought by thepetitioners, under the RTI Act.

25. Thus, in view of the discussionsaforesaid, I am of the considered opinion

that the respondent Board is under noobligation to provide the answer scriptsto the petitioners, in respect of theexamination conducted by the Board,and the relief prayed for is not liable tobe granted to them. Consequently, thewrit petition fails and is dismissed.

Case Law discussed:[(2011) 8 SCC 497]; [1989 (2) SCC 691];[2002 5 SCC 111]; [2013 (136) FLR 86]; [2013(1) SCC 745]; [(2012) 13 SCC 61]; [(1984) 4SCC 27]; 2008 (72) AIC 555.

(Delivered by Hon'ble Ashwani KumarMishra, J.)

1. The question requiringconsideration of this Court, in the presentwrit petition, is as to whether "TheCouncil for Indian School CertificateExaminations", (hereinafter referred to asthe 'Board') is a public authority, in termsof Section 2(h) of the Right toInformation Act, 2005, (hereinafterreferred to as the 'Act') ?, and whether it isobliged, in law, to provide the informationsought by the students, who haveappeared in the examination conducted bythe Board ?

2. The petitioners are students, whoare dissatisfied with the marks awarded tothem by the Board, in the examinationsconducted by the said Board. Applicationswere, accordingly, moved under the Rightto Information Act with the prayer thatpetitioners be supplied copies of theanswer scripts, which was not bestowedany consideration, and consequently, thepresent writ petition has been filed for adirection upon the Board, to provide theinformation sought under the RTI Act.

3. I have heard Mrs. Swati Agrawaland Sri Atul Kumar Tiwari, learned counselfor the petitioners; Sri J. Nagar, learned


Senior Counsel, assisted by Sri Pratik J.Nagar, learned counsel for the respondentnos.2 and 3, and have also gone through thematerials brought on record.

4. Learned counsel for the Board, atthe very outset, raised an objection that theBoard is not a 'public authority', in view ofSection 2(h) of the Act, and consequently, itis not required to provide the informationsought by the petitioners, under the Act.Substantiating the objection, Sri Nagarsubmits that the Board is a society registeredunder the provisions of the SocietiesRegistration Act, 1860, and is not receivingany financial grant or aid from the Central orthe State Government. He further submitsthat Board is not a creation of any Act ofLegislature, and therefore, necessaryingredients to hold the Board as a 'publicauthority', under Section 2(h) of the Act, arelacking, and consequently, the prayer madein the writ petition is not liable to be granted.

5. Petitioners have come up with threefold submissions to counter the objection ofthe Board. Firstly, it is contended that theParliament has enacted the Delhi SchoolEducation Board Act, 1973, (hereinafterreferred to as the 'Act of 1973'), which refersto the Board as one of the bodies recognizedfor holding public examination, and therefore,the Board is covered under Section 2(h) of theAct. Secondly, it is urged that the Board sinceis conducting public examination, therefore, itis enjoined to provide information sought byvirtue of the orders passed by the Apex Courtin Central Board of Secondary Education andAnother Vs. Aditya Bandopadhyay and others[(2011) 8 SCC 497]. Lastly, it is contendedthat the Board, otherwise, consists of a bodyof men performing public duty, and therefore,in view of the law laid down by the SupremeCourt in Anandi Mukta Sadguru ShreeMuktajee Vandas Swami Suvarna Jayanti

Mahotsav Smarak Trust & Ors Vs. V.R.Rudani [1989 (2) SCC 691], as reiterated inPradeep Biswas Vs. Institute of ChemicalBiology [2002 5 SCC 111], and in RameshAhluwalia Vs. State of Punjab & Ors. [2013(136) FLR 86], the Board is an authoritywithin the meaning of Article 226 of theConstitution of India, and therefore, thedirections sought can be issued against it.

6. The claim of the petitioners,raised herein, is for a direction upon therespondent Board to provide answerscripts of the Board examination to thepetitioners under the RTI Act. Adirection, as prayed for by the petitioners,can be issued only if the Board qualifiesto be a public authority, in terms ofSection 2(h) of the Act. Section 2(h) ofthe Right to Information Act, 2005, isreproduced:-

"2.(h) "public authority" means anyauthority or body or institution of self-government established or constituted,--

(a) by or under the Constitution;(b) by any other law made by

Parliament;(c) by any other law made by State

Legislature;(d) by notification issued or order

made by the appropriate Government,and includes any--

(i) body owned, controlled orsubstantially financed;

ii) non-Government Organisationsubstantially financed, directly orindirectly by funds provided by theappropriate Government;"

7. The purpose of the Act of 2005 wasthe subject matter of consideration by theApex Court in Namit Sharma Vs. Union ofIndia [2013 (1) SCC 745], wherein in Para 29,Apex Court was pleased to observe as under:-


"29. In terms of the Statement of Objectsand Reasons of the Act of 2002, it was statedthat this law was enacted in order to make theGovernment more transparent andaccountable to the public. It was felt that inthe present democratic framework, free flowof information for citizens and non-government institutions suffers from severalbottlenecks including the existing legalframework, lack of infrastructure at the grass-root level and an attitude of secrecy within thecivil services as a result of the old frameworkof rules. The Act was to deal with all suchaspects. The purpose and object was to makethe Government more transparent andaccountable to the public and to provide,

"freedom to every citizen to secureaccess to information under the control ofpublic authorities, consistent with publicinterest, in order to promote openness,transparency and accountability inadministration and in relation to mattersconnected therewith or incidental thereto"."

(emphasis supplied)

8. Scheme of the Act, as well as thedefinition of 'public authority' was againexamined by the Apex Court in Bihar PublicService Commission Vs. Saiyed HussainAbbas Rizwi and another [(2012) 13 SCC61]. Paras 12 to 15 of the judgment arerelevant and, thus, are reproduced:-

"12. Right to information is a basicand celebrated fundamental/basic rightbut is not uncontrolled. It has itslimitations. The right is subject to a dualcheck. Firstly, this right is subject to therestrictions inbuilt within the Act, andsecondly, the constitutional limitationsemerging from Article 21 of theConstitution. Thus, wherever in responseto an application for disclosure ofinformation, the public authority takesshelter under the provisions relating to

exemption, non-applicability orinfringement of Article 21 of theConstitution, the State InformationCommission has to apply its mind andform an opinion objectively if theexemption claimed for was sustainable onfacts of the case.

13. Now, we have to examine whetherthe Commission is a public authority withinthe meaning of the Act. The expression"public authority" has been given anexhaustive definition under Section 2(h) ofthe Act as the legislature has used the word"means" which is an expression of wideconnotation. Thus, "public authority" isdefined as any authority or body orinstitution of the Government, established orconstituted by the Government which falls inany of the stated categories under Section2(h) of the Act. In terms of Section 2(h)(a), abody or an institution which is established orconstituted by or under the Constitutionwould be a public authority. Public ServiceCommission is established under Article 315of the Constitution of India and as such therecannot be any escape from the conclusionthat the Commission shall be a publicauthority within the scope of this section.14. Section 2(f) again is exhaustive in nature.The legislature has given meaning to theexpression "information" and has stated that itshall mean any material in any form includingpapers, samples, data material held inelectronic form, etc. Right to information underSection 2(j) means the "right to information"accessible under this Act which is held by orunder the control of any public authority andincludes the right to inspection of work,documents, records, taking notes, extracts,taking certified sample of materials, obtaininginformation in the form of diskettes, floppiesand video cassettes, etc. The right sought to beexercised and information asked for should fallwithin the scope of "information" and "right toinformation" as defined under the Act.


15. Thus, what has to be seen is whetherthe information sought for in exercise of theright to information is one that is permissiblewithin the framework of law as prescribedunder the Act. If the information called forfalls in any of the categories specified underSection 8 or relates to the organisations towhich the Act itself does not apply in terms ofSection 24 of the Act, the public authority cantake such stand before the Commission anddecline to furnish such information. Anotheraspect of exercise of this right is that wherethe information asked for relates to third-party information, the Commission is requiredto follow the procedure prescribed underSection 11 of the Act."

9. A public authority has been definedin the Act to mean any authority or body orinstitution of self-government, established orconstituted,- (i) by or under the constitution;(ii) by any other law made by Parliament;(iii) by any other law made by StateLegislature; (iv) by notification issued ororder made by appropriate Government, andincludes a body owned, controlled orsubstantially financed and also a non-government organization, substantiallyfinanced, directly or indirectly by the fundsprovided by the appropriate Government.

10. This Court, thus, is required todetermine as to whether the Board is coveredunder the definition of 'public authority',aforesaid. From the materials brought onrecord before this Court, it is apparent thatthe respondent Board does not fall in any ofthe first three contingencies, inasmuch as ithas not been established or constituted by orunder the constitution, by any other lawmade by Parliament, or by any other lawmade by State Legislature. There is furtherno notification or order of the appropriateGovernment, brought on record before thisCourt, bringing the Board under the Right to

Information Act. The respondent Board hascategorically stated that it receives nofinancial support, directly or indirectly, byCentral or the State Government, andtherefore, it is not financed by the appropriateGovernment, which fact has not beeneffectively denied. It is undisputed that therespondent Board is a society registeredunder the provisions of the SocietiesRegistration Act, 1860, and its bye-lawsprovides that it functions as an independent,autonomous, juristic person.

11. The name of the society hasbeen specified in Clause 1 of theMemorandum and Articles of Associationof the Board, which reads as under:-

"1. The name of the Society is:COUNCIL FOR THE INDIAN SCHOOLCERTIFICATE EXAMINATIONS(hereinafter called the "Society")."

12. The society has its registeredoffice at Pragati House, 3rd Floor, 47-48Nehru Place, New Delhi-110019. Themembers of the society have also beenspecified in Clause 5 of the Memorandumand Articles of Association of the Board,which reads as under:-

"5. (i) The members of the Societyshall be as follows:-

(a) The Chairman who shall beappointed by the Society.

(b) Two members nominated by theGovernment or two Assessors (observers)of the Government of India, whichever ispreferred by that Government.

(c) The Director of Education/PublicInstruction (or his deputy) of the States inwhich there are schools affiliated for theexaminations conducted by the Society.

(d) One representative of theAssociation of Indian Universities.


(e) Not more than six persons to be co-opted by the Executive Committee of theCouncil.

(f) Two representatives of the Inter-State Board for Anglo-Indian Education.

(g) Fourteen Principals of affiliatedschools who shall be selected as follows:-

(i)Six, of whom two shall be ladies,elected by the Association of Heads ofAnglo-Indian Schools in India.

(ii)Two, elected by the Indian PublicSchools' Conference.

(iii)Six, elected by the Association ofSchools for the Indian School CertificateExamination.

Provided that the maximum numberof representatives of any one of the threeorganisations mentioned in (g) (i), (ii)and (iii) above shall not exceed six:

Provided further that if one or more ofthe categories mentioned in (i) (b) to (g)above are not represented on the Councilthis shall not prevent the Council fromfunctioning.

5. (ii) The term of office of membersspecified under Clauses 5(i) (a), (d), (e),(f) and (g) sub clause (i) (ii) and (iii) shallbe for three years:

Provided that when a member is appointedin place of another before expiry of the term ofmembership of the latter he shall hold office forthe residue of the term of the original member,

Provided further that memberswhose term has expired shall be eligiblefor re-nomination/re-cooption.

5. (iii) A member shall cease to be amember of the Society:

(a) on his resignation to be signifiedin writing to the Secretary;

(b) on the passing of a resolution by themajority of the members of the Society at aGeneral meeting present in person or byproxy, that he should cease to be a member;

(c) on a notification from theGovernment/organisation which has

nominated/elected the member that themember has ceased to represent thatGovernment/organisation.

(iv) Disqualified members shall notbe entitled to vote.

(v) Persons, institutions andorganisations in known sympathy with theobjects of the Society may be admitted asAssociate members with the approval ofthe Society on such terms as the Societymay determine. As Associate membersthey shall have no right to vote at aGeneral Body Meeting."

13. Sri Nagar submits that only twoobservers have been appointed by theGovernment of India. Director of Education(or his deputy), of the States, in which thereare schools affiliated, for the examinationsconducted by the society, is merely amember. The association of governmentalauthorities does not change the nature ofsociety itself, which remains a private juristicperson. The society functions independentlyin accordance with its bye-laws. The natureof the Board, which is a society, therefore,does not change on account of the aforesaidconstitution, and such association would notbring the Board within the definition ofClause 2(h), if it otherwise is not covered.

14. Learned counsel for the petitionerscontend that Board qualifies to be a 'publicauthority, as it finds specific mention in theDelhi School Education Board Act, 1973,enacted by the Parliament. The definition ofClause 2(s) of the Act of 1973, defines publicexamination in the following words:-

"2.(s) "public examination" means anexamination conducted by the CentralBoard of Secondary Education, Councilfor Indian School CertificateExaminations or any other Board whichmay hereafter be established for thepurpose, and recognised by the


Administrator or any other officerauthorised by him in this behalf;"

15. Apart from the definition clause,attention of the Court has not been invited toany other provision of the Act of 1973,which may support the petitioners'contention. The fact that the examinationconducted by the Board is recognized as apublic examination, would not be adetermining factor. Mere recognition of theexamination conducted by the Board, as apublic examination, would not mean thatBoard becomes a 'public authority' within themeaning of Section 2(h) of the Act. It is justthat the examination conducted by the Boardis recognized by the Act of 1973, andnothing further can be added to it. Therefore,this Court is of the opinion that definitioncontained in Clause 2(g) of the Act of 1973,would not bring the 'Board' within thedefinition of Clause 2(h) of the Act.

16. The constitution of the Boardhas also been specified in the bye-laws,which have been brought on record. SriNagar has also placed reliance upon aDivision Bench judgment of the DelhiHigh Court in LPA No. 617 of 2011,dated 24th July, 2012. Paras 2 and 3 ofthe said judgment is reproduced:-

"2. Upon going through theimpugned decision we find that thelearned Single Judge has been persuadedto hold that the Council was a publicauthority merely on the basis of theconstitution of the membership of theCouncil. It is an admitted position that theCouncil is a registered society under theSocieties Registration Act, 1860. There isalso a letter on record issued on24.03.2006 by the Ministry of HumanResource Development L.P.A. 617/2011Page 2 of 4 which indicates clearly that

the Council is not owned or controlled bythe Ministry of Human ResourceDevelopment. Therefore, according to thelearned counsel for the petitioner sincethe Council is neither owned nor it issubstantially financed and, because of theclear statement made in the saidcommunication dated 24.03.2006, nor is itcontrolled by Central Government, thequestion of the Council being regarded aspublic authority does not arise at all.

3. There is yet another aspect of thematter. The definition clause contained inSection 2 (h) of the said Act has referenceto 'appropriate government'. AppropriateGovernment could either mean theCentral Government or the StateGovernment. Clearly the CentralGovernment has indicated that it does notcontrol the Council. Insofar as StateGovernments are concerned, only oneperson, namely, the Director of Educationof that particular State would be aMember of the Society. Therefore, noparticular State would have control overthe Council. Consequently, there is primafacie some merit in what the learnedcounsel for the petitioner has contendedwith regard to the Council not fallingwithin the definition of public authorityunder Section 2 (h) of the said Act. "

Although, the Division Benchjudgment of the Delhi High Court doesnot answer the question as to whether theBoard is a 'public authority' or not, underthe Act of 2005, yet the facts throw lightupon the nature of the constitution of theSociety itself. In view of the discussionsmade above, I am of the consideredopinion that the Board does not qualify tobe a 'public authority', in view of Section2(h) of the Act, on account of itsrecognition under Section 2 (g) of theDelhi School Education Board Act, 1973,


or on account of the nature of constitutionof the Board itself.

17. In view of the aforesaidobservations, this Court finds that theBoard is not covered within the definitionclause 2(h), and consequently, it is notunder any obligation to provide theinformation, as sought by the petitioners,under the RTI Act.

18. Coming to the second limb ofpetitioners' submission that they areentitled to the relief prayed for, onaccount of the judgment in Central Boardof Secondary Education and Another(supra), it is to be seen that the ApexCourt had the occasion to examine theright of a student to obtaininformation/answer scripts, under the act,in the context of public examinationconducted by the Central Board ofSecondary Education, New Delhi. TheApex Court considered the definition of"information" in Section 2(f) of the RTIAct. The question raised therein wasregarding the scope of Section 8 of theAct and protection claimed by the CBSEthereunder. Having considered the saidaspect, Apex Court held as under in Paras26 and 27 of the said judgment:-

" 26. The examining bodies(universities, Examination Boards, CBSE,etc.) are neither intelligence nor securityorganisations and therefore the exemptionunder Section 24 will not apply to them.The disclosure of information withreference to answer books does not alsoinvolve infringement of any copyright andtherefore Section 9 will not apply.Resultantly, unless the examining bodiesare able to demonstrate that the evaluatedanswer books fall under any of thecategories of exempted "information"

enumerated in clauses (a) to (j) of sub-section (1) of Section 8, they will bebound to provide access to theinformation and any applicant can eitherinspect the document/record, take notes,extracts or obtain certified copies thereof.

27. The examining bodies contendthat the evaluated answer books areexempted from disclosure under Section8(1)(e) of the RTI Act, as they are"information" held in its fiduciaryrelationship. They fairly conceded thatevaluated answer books will not fallunder any other exemptions in sub-section(1) of Section 8. Every examinee will havethe right to access his evaluated answerbooks, by either inspecting them or takecertified copies thereof, unless theevaluated answer books are found to beexempted under Section 8(1)(e) of the RTIAct."

(emphasis supplied)

19. Hon'ble Apex Court also heldthat the examining bodies do not hold theevaluated answer books in a fiduciaryrelationship, and therefore, the exemptionclaimed under Section 8(1)(e) of the Actis not available to the examining body,with reference to the evaluated answerbooks. Apex Court, however, held that thedisclosure with regard to details of theexaminer etc. is exempted from thedisclosure under Section 8(1)(g) of theAct. Paras 52 to 55 of the judgment inCentral Board of Secondary Educationand Another (supra) are reproduced:-

" 52. When an examining bodyengages the services of an examiner toevaluate the answer books, the examiningbody expects the examiner not to disclosethe information regarding evaluation toanyone other than the examining body.Similarly the examiner also expects that


his name and particulars would not bedisclosed to the candidates whose answerbooks are evaluated by him. In the eventof such information being made known, adisgruntled examinee who is not satisfiedwith the evaluation of the answer books,may act to the prejudice of the examinerby attempting to endanger his physicalsafety. Further, any apprehension on thepart of the examiner that there may bedanger to his physical safety, if hisidentity becomes known to the examinees,may come in the way of effectivedischarge of his duties. The above appliesnot only to the examiner, but also to thescrutiniser, co-ordinator and headexaminer who deal with the answer book.

53. The answer book usuallycontains not only the signature and codenumber of the examiner, but also thesignatures and code number of thescrutiniser/co-ordinator/head examiner.The information as to the names orparticulars of the examiners/co-ordinators/scrutinisers/head examinersare therefore exempted from disclosureunder Section 8(1)(g) of the RTI Act, onthe ground that if such information isdisclosed, it may endanger their physicalsafety. Therefore, if the examinees are tobe given access to evaluated answerbooks either by permitting inspection orby granting certified copies, such accesswill have to be given only to that part ofthe answer book which does not containany information or signature of theexaminers/co-ordinators/scrutinisers/head examiners, exemptedfrom disclosure under Section 8(1)(g) ofthe RTI Act. Those portions of the answerbooks which contain informationregarding the examiners/co-ordinators/scrutinisers/head examiners orwhich may disclose their identity withreference to signature or initials, shall

have to be removed, covered, or otherwisesevered from the non-exempted part of theanswer books, under Section 10 of the RTIAct.

54. The right to access informationdoes not extend beyond the period duringwhich the examining body is expected toretain the answer books. In the case ofCBSE, the answer books are required tobe maintained for a period of threemonths and thereafter they are liable tobe disposed of/destroyed. Some otherexamining bodies are required to keep theanswer books for a period of six months.The fact that right to information isavailable in regard to answer books doesnot mean that answer books will have tobe maintained for any longer period thanrequired under the rules and regulationsof the public authority. The obligationunder the RTI Act is to make available orgive access to existing information orinformation which is expected to bepreserved or maintained.

55. If the rules and regulationsgoverning the functioning of therespective public authority requirepreservation of the information for only alimited period, the applicant forinformation will be entitled to suchinformation only if he seeks theinformation when it is available with thepublic authority. For example, withreference to answer books, if an examineemakes an application to CBSE forinspection or grant of certified copiesbeyond three months (or six months orsuch other period prescribed forpreservation of the records in regard toother examining bodies) from the date ofdeclaration of results, the applicationcould be rejected on the ground that suchinformation is not available. The power ofthe Information Commission underSection 19(8) of the RTI Act to require a


public authority to take any such steps asmay be necessary to secure compliancewith the provision of the Act, does notinclude a power to direct the publicauthority to preserve the information, forany period larger than what is providedunder the rules and regulations of thepublic authority."

(emphasis supplied)

20. In the judgment aforesaid of theApex Court, the constitution of CBSEBoard as being covered by under Section2(h) of the Act was not in issue. SinceCBSE Board functions under the controlof the Ministry of Human ResourceDevelopment, therefore, on account of itsconstitution and functioning, itundisputedly was covered by thedefinition of 'public authority', underSection 2(h), and no occasion arose toconsider as to whether the RTI Act itselfis applicable upon the CBSE Board or not? However, a word of caution wasmentioned in Para 68 of the aforesaidjudgment of the Apex Court to thefollowing effect:-

"68. In view of the foregoing, theorder of the High Court directing theexamining bodies to permit examinees tohave inspection of their answer books isaffirmed, subject to the clarificationsregarding the scope of the RTI Act andthe safeguards and conditions subject towhich "information" should be furnished.The appeals are disposed of accordingly."

(emphasis supplied)

21. Therefore, the question involvedin the present case as to whether theBoard herein is a public authority, underSection 2(h) of the Act, did not arise forconsideration in the aforesaid judgment ofthe Apex Court and the petitioners,

consequently, cannot derive any strengthfrom the observations made therein.

22. Coming to the last submission ofthe petitioners that the Board is a body ofmen performing public duty, would berelevant, only when it is to be examinedas to whether the Board is an authority,and is amenable to exercise of writjurisdiction, under Article 226 of theConstitution of India. The considerationsfor an authority to be included in thedefinition of 'other authority', for thepurposes of invoking jurisdiction underArticle 226 of the Constitution of India, isentirely distinct, and has no relevance forthe question, which has come up forconsideration in the instant case. Thepetitioners herein are seeking relief underthe Act, and therefore, what is relevant tobe determined is as to whether the Boardis included within the definition of the'public authority' or not. Therefore, thisCourt is not required to answer thequestion as to whether the Board wouldqualify to be an authority within themeaning of Article 12 of the Constitutionof India or to examine as to whether it is abody of men performing public duty, soas to make it subservient to the exercise ofjurisdiction under Article 226 of theConstitution of India.

23. Even if the Board is amenable toexercise of writ jurisdiction under Article226 of the Constitution of India, eventhen, a direction to produce the answerbooks or to re-evaluate it, cannot beissued, in view of law settled by the ApexCourt in Maharashtra State Board ofSecondary and Higher SecondaryEducation Vs. Paritosh Bhupesh KumarSheth etc. [(1984) 4 SCC 27]. There is noprovision or rules and regulations of theBoard, which permits the petitioners to


secure the information from it, andtherefore, in absence of the applicabilityof the RTI Act, the judgment aforesaid ofthe Apex Court would be attracted. Thesaid decision was extensively referred toby the Apex Court in Central Board ofSecondary Education and Another Vs.Aditya Bandopadhyay and others (supra)in Paras 28 to 34, which is reproduced:-

"28. In Maharashtra State Board1, thisCourt was considering whether denial of re-evaluation of answer books or denial ofdisclosure by way of inspection of answerbooks, to an examinee, under Rules 104(1)and (3) of the Maharashtra Secondary andHigher Secondary Board Rules, 1977 wasviolative of the principles of natural justiceand violative of Articles 14 and 19 of theConstitution of India. Rule 104(1) providedthat no re-evaluation of the answer booksshall be done and on an application of anycandidate verification will be restricted tochecking whether all the answers have beenexamined and that there is no mistake in thetotalling of marks for each question in thatsubject and transferring marks correctly onthe first cover page of the answer book. Rule104(3) provided that no candidate shall claimor be entitled to re-evaluation of his answerbooks or inspection of answer books as theywere treated as confidential.

29. This Court while upholding thevalidity of Rule 104(3) held as under:(Maharashtra State Board case1, SCC pp.38-39 & 42, paras 12, 14, 16 & 15)

"12. ... the ''process of evaluation ofanswer papers or of subsequentverification of marks' under clause (3) ofRegulation 104 does not attract theprinciples of natural justice since nodecision-making process which bringsabout adverse civil consequences to theexaminees is involved. The principles ofnatural justice cannot be extended beyond

reasonable and rational limits and cannot becarried to such absurd lengths as to make itnecessary that candidates who have taken apublic examination should be allowed toparticipate in the process of evaluation oftheir performances or to verify the correctnessof the evaluation made by the examiners bythemselves conducting an inspection of theanswer books and determining whether therehas been a proper and fair valuation of theanswers by the examiners. ...

* * *14. ... So long as the body entrusted

with the task of framing the rules orregulations acts within the scope of theauthority conferred on it, in the sense thatthe rules or regulations made by it have arational nexus with the object andpurpose of the statute, the court shouldnot concern itself with the wisdom orefficaciousness of such rules orregulations....

* * *16. ... The legislature and its

delegate are the sole repositories of thepower to decide what policy should bepursued in relation to matters covered bythe Act and there is no scope forinterference by the court unless theparticular provision impugned before itcan be said to suffer from any legalinfirmity, in the sense of its being whollybeyond the scope of the regulation-making power or its being inconsistentwith any of the provisions of the parentenactment or in violation of any of thelimitations imposed by the Constitution."

* * *"15. ... it was perfectly within the

competence of the Board, rather it was itsplain duty, to apply its mind and decide asa matter of policy relating to the conductof the examination as to whetherdisclosure and inspection of the answerbooks should be allowed to the


candidates, whether and to what extentverification of the result should bepermitted after the results have alreadybeen announced and whether any right toclaim revaluation of the answer booksshould be recognised or provided for. Allthese are undoubtedly matters which havean intimate nexus with the objects andpurposes of the enactment and are,therefore, within the ambit of the generalpower to make regulations...."(Maharashtra State Board case1, SCC p.41, para 15)

30. This Court in Maharashtra StateBoard1 held that Regulation 104(3) cannot beheld to be unreasonable merely because incertain stray instances, errors or irregularitieshad gone unnoticed even after verification ofthe answer books concerned according to theexisting procedure and it was only afterfurther scrutiny made either on orders of thecourt or in the wake of contentions raised inthe petitions filed before a court, that sucherrors or irregularities were ultimatelydiscovered. This Court reiterated the view that"the test of reasonableness is not applied invacuum but in the context of life's realities"and concluded that realistically andpractically, providing all the candidatesinspection of their answer books or re-evaluation of the answer books in thepresence of the candidates would not befeasible.

31. Dealing with the contention thatevery student is entitled to fair play inexamination and receive marks matching hisperformance, this Court held: (MaharashtraState Board case1, SCC p. 31)

"What constitutes fair play depends uponthe facts and circumstances relating to eachparticular given situation. If it is found thatevery possible precaution has been taken andall necessary safeguards provided to ensurethat the answer books inclusive ofsupplements are kept in safe custody so as to

eliminate the danger of their being tamperedwith, [and] that the evaluation is done by theexaminers applying uniform standards withchecks and cross-checks at different stagesand that measures for detection ofmalpractice, etc. have also been effectivelyadopted, in such cases it will not be correct onthe part of the courts to strike down theprovision prohibiting revaluation on theground that it violates the rules of fair play. Itappears that the procedure evolved by theBoard for ensuring fairness and accuracy inevaluation of the answer books has made thesystem as foolproof as can be possible and isentirely satisfactory. The Board is a veryresponsible body. The candidates have takenthe examination with full awareness of theprovisions contained in the regulations and inthe declaration made in the form ofapplication for admission to the examinationthey have solemnly stated that they fully agreeto abide by the regulations issued by theBoard. In the circumstances, when [we findthat] all safeguards against errors andmalpractices have been provided for, therecannot be [said to be] any denial of fair playto the examinees by reason of the prohibitionagainst asking for revaluation."

32. This Court in Maharashtra StateBoard1 concluded that if inspection andverification in the presence of thecandidates, or revaluation, have to beallowed as of right, it may lead to grossand indefinite uncertainty, particularly inregard to the relative ranking, etc. of thecandidate, besides leading to utterconfusion on account of the enormity ofthe labour and time involved in theprocess. This Court concluded:(Maharashtra State Board case1, SCC pp.56-57, para 29)

"29. ... the court should be extremelyreluctant to substitute its own views as towhat is wise, prudent and proper in relation toacademic matters in preference to those


formulated by professional men possessingtechnical expertise and rich experience ofactual day-to-day working of educationalinstitutions and the departments controllingthem. It will be wholly wrong for the court tomake a pedantic and purely idealisticapproach to the problems of this nature,isolated from the actual realities and grass-root problems involved in the working of thesystem and unmindful of the consequenceswhich would emanate if a purely idealisticview as opposed to a pragmatic one were tobe propounded."

33. The above principles laid down inMaharashtra State Board1 have beenfollowed and reiterated in several decisions ofthis Court, some of which are referred to inpara 9 above. But the principles laid down inthe decisions such as Maharashtra StateBoard1 depend upon the provisions of therules and regulations of the examining body.If the rules and regulations of the examiningbody provide for re-evaluation, inspection ordisclosure of the answer books, then none ofthe principles in Maharashtra State Board1or other decisions following it, will apply orbe relevant. There has been a gradual changein trend with several examining bodiespermitting inspection and disclosure of theanswer books.

34. It is thus now well settled that aprovision barring inspection or disclosure ofthe answer books or re-evaluation of theanswer books and restricting the remedy ofthe candidates only to re-totalling is valid andbinding on the examinee. In the case of CBSE,the provisions barring re-evaluation andinspection contained in Bye-law 61, are akinto Rule 104 considered in Maharashtra StateBoard1. As a consequence if an examinationis governed only by the rules and regulationsof the examining body which bar inspection,disclosure or re-evaluation, the examinee willbe entitled only for re-totalling by checking

whether all the answers have been evaluatedand further checking whether there is nomistake in the totalling of marks for eachquestion and marks have been transferredcorrectly to the title (abstract) page. Theposition may however be different, if there is asuperior statutory right entitling the examinee,as a citizen to seek access to the answerbooks, as information."

(emphasis supplied)

24. Learned counsel for the respondenthas also placed reliance upon a judgment ofthe Division Bench of this Court reported in2008(72) AIC 555 (Committee ofManagement, Ismail Girls National InterCollege, Meerut through its Manager Vs.State of U.P. And others), which dealt withthe definition of public authority in the contextof institution receiving aid from the State, andtherefore, the institution was held to be apublic authority. In the facts of the presentcase, since the institution is not receiving aidfrom the Government, therefore, the judgmentrelied upon will have no applicability.

25. Thus, in view of the discussionsaforesaid, I am of the considered opinionthat the respondent Board is under noobligation to provide the answer scripts tothe petitioners, in respect of theexamination conducted by the Board, andthe relief prayed for is not liable to begranted to them. Consequently, the writpetition fails and is dismissed.

26. No order, however, is passed asto costs.



BEFORETHE HON'BLE ARUN TANDON, J.

THE HON'BLE VIVEK KUMAR BIRLA, J.

1 All] Tajpur Krishi Utpad Vipran Sahkari Samiti Ltd. Moradabad Vs. State of U.P. & Ors. 115


Tajpur Krishi Utpad Vipran SahkariSamiti Ltd., Moradabad ...Petitioner

VersusState of U.P. & Ors. ...Respondents

Counsel for the Petitioner:Sri H.R. Mishra, Sri Neeraj Pandey


Constitution of India, Art.-226-WritJurisdiction-alternative remedy-bycomposite order winding up of cooperativesociety as well as cancellation of registrationpassed-certainly against cancellation-nostatutory appeal provided hence except writpetition-no other remedy-but cancellation ofregistration based upon winding up-subjectto appeal under section 98 (1)(i) of the Act1965-petitioner to file appeal- the same bedecided within 3 months-the cancellation besubject to outcome of appeal-petitiondisposed of.

Held: Para-13In our opinion, if the order is composite andsince no statutory appeal is provided foragainst the order of cancellation of theregistration of a society under Section 76 ofAct, 1965, writ is a remedy available to thecooperative society. However, we are alsoconscious of the fact that cancellation ofregistration of a society is a consequentialaction taken with reference to the ordermade under Section 72 of Act, 1965. Unlessan order of winding up of the cooperativesociety stands on record, there cannot beany order of cancellation of the registrationof cooperative society. Therefore, the orderof cancellation of registration of thecooperative society is squarely dependentupon the fate of the order made underSection 72 of Act, 1965. In both thecircumstances, contemplated by Section 76of Act, 1965. Having arrived at the saidconclusion, we are of the consideredopinion that the petitioner may be asked tofile an appeal against the order impugned,as there are reasons and facts recorded for

coming to the conclusion that thecooperative society was liable to be woundup. However, specific orders for winding upmay not have been recorded and only theconsequential order has been made.

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

1. Heard Sri H.R. Mishra, learnedSenior Advocate assisted by Sri NeerajPandey, learned counsel for the petitionerand Sri Chandra Shekhar Singh, learnedAdditional Chief Standing Counsel for theState-respondents.

2. Petitioner-Tajpur Krishi UtpadVirpan Sahkari Samiti Ltd., Tajpur Mafi,Vikash Khand and District Moradabad(hereinafter referred to as the petitioner'ssociety) has filed this writ petition against theorder of the Deputy Registrar, CooperativeSocieties, U.P. Moradabad Division,Moradabad dated 31st October, 2014, where-under the registration of the petitioner'ssociety has been cancelled in exercise ofpowers under Section 76 of the U.P.Cooperative Societies Act, 1965 (hereinafterreferred as the "Act, 1965"). The order ischallenged on the ground that the same wasnot preceded by any order under Section72/73 of Act, 1965 for winding up of thecooperative society and therefore, in view ofthe judgement of this Court in the case ofKrishi Upaj Evam Vipdan Samiti Ltd. vs.State of U.P. & Another (Civil Misc. Writ CNo. 59668 of 2012) decided on 7thNovember, 2013, no order under Section 76of Act, 1965 should have been made.

3. Sri Chandra Shekhar Singh,learned Additional Chief StandingCounsel for the State-respondents submitsthat it is not necessary, than an orderunder Section 72 of Act, 1965 for windingup of the cooperative society, to proceedfor cancellation of registration of the


society under Section 76 of Act, 1965. Heexplains that both the orders can besimultaneous and can be part of onecommon order. He further submits thatagainst the order of winding up of thecooperative society made under Section72, an appeal under Section 98 (1) (i) ofAct, 1965 has been provided for.Therefore, this Court may insist upon thepetitioner to avail the statutory alternativeremedy in the facts of the case.

4. Sri H.R. Mishra, learned SeniorAdvocate on behalf of the petitioner submitsthat against the order of winding up of asociety made in exercise of powers underSection 72 of Act, 1965, an appeal isprovided for under Section 98 of Act, 1965but no appeal is provided against the order ofcancellation of the registration of a societyunder Section 76 of Act, 1965. He refers toSection 73 (3) Act, 1965 for the purpose thatonce an appeal is filed under Section 98 ofAct, 1965, against an order of winding upmade in exercise of powers under Section 72of Act, 1965, further proceedings of windingup of a society are stayed automatically. Hesubmits that in the facts of the case sincethere is no order in so many words directingwinding up of the society under Section 72of Act, 1965, and there are only passingreferences for the society being wound up, inthe order of cancellation of registration of thesociety under Section 76 of Act, 1965, noalternative remedy is available to thepetitioner in the facts of the case.

5. We have considered thesubmissions made by the learned counselfor the parties and have examined therecords of the present writ petition.

6. It is settled law that right of anappeal is an statutory right and if theappeal against a particular order has not

been provided for under the Statute, theHigh Court in exercise of powers underArticle 226 of the Constitution of Indiacannot create a forum of appeal.

7. From reading of Section 76 ofAct, 1965, it is apparent that itcontemplates cancellation of registrationof a cooperative society in twocircumstances, (a) when an order ofwinding up has been made under Section72 of Act, 1965, and the Deputy Registraris of the opinion that it is not necessary toappoint a liquidator, (b) when the affairsof cooperative society in respect of whichthe liquidator has been appointed underSection 73 have been wound up, theDeputy Registrar may direct cancellationof the registration of the society.

8. For ready reference Section 76 ofAct, 1965 is being quoted herein below:

"76. Cancellation of registration of aco-operative society.- Where in respect of aco-operative society which has been orderedto be wound up under Section 72, theRegistrar is of opinion that it is not necessaryto appoint a liquidator, or where the affairsof a co-operative society in respect of whicha liquidator has been appointed underSection 73, have been wound up, theRegistrar shall make an order cancelling theregistration of the society and the societyshall be deemed to be dissolved and shallcease to exist as a corporate body from thedate of such order of cancellation."

9. From simple reading of aforesaidprovision, it is apparent that Registrar candirect cancellation of registration of asociety while making an order underSection 72 of Act, 1965 for winding up ofthe society after being satisfied that noliquidator is to be appointed in the facts of

1 All] Tajpur Krishi Utpad Vipran Sahkari Samiti Ltd. Moradabad Vs. State of U.P. & Ors. 117

the case. In other case where winding uporder has been made and liquidator hasbeen appointed, such cancellation of theregistration can be directed after thewinding up proceedings are over.

10. Appeal against the order ofregistration is provided under Section 98of Act, 1965. Section 98 (1) (i) of Act,1965 reads as follows:

"98. Appeal against the awards,orders and decisions.---(1) An appealagainst---------

........(i)an order made by the Registrar

under Section 72 directing the winding upof a co-operative society ; .........."

11. From simple reading of Section 98(1) (i) of Act, 1965, an appeal has beenprovided for against the order made underSection 72 of Act, 1965 i.e. winding up of acooperative society only. No appeal has beenprovided against an order of cancellation ofthe registration of the cooperative society. Anorder under Section 72 of Act, 1965 and anorder under Section 76 lead to differenceconsequences and in the case of cancellationof registration of the society, the cooperativesociety ceases to exist in the eyes of law.

12. It is no doubt true that fromreading of Section 76 of 1965, it can besaid that an order under Sections 72 and76 of Act, 1965 for winding up and forcancellation of the registration of asociety under Section 76 of Act, 1965 canbe made simultaneously in a given set offacts but the moot question is as to whathappens to right of appeal and whathappens to the statutory provisionscontained under Section 73 (3) of Act,1965 in such a situation. Section 73 (3) ofAct, 1965 reads as follows:

"73. Liquidator. ---(1) ........(3) Where an appeal is preferred under

Section 98 against an order of winding up of aco-operative society passed under Section 72,the further winding up proceedings shall bestayed by the liquidator until the order isconfirmed in appeal. :

Provided that the liquidator shallcontinue to have custody or control of theproperty, effects and actionable claimsmentioned in sub-section (2) and haveauthority to take the steps referred to in thatsub-section."

13. In our opinion, if the order iscomposite and since no statutory appeal isprovided for against the order of cancellationof the registration of a society under Section76 of Act, 1965, writ is a remedy available tothe cooperative society. However, we are alsoconscious of the fact that cancellation ofregistration of a society is a consequentialaction taken with reference to the order madeunder Section 72 of Act, 1965. Unless anorder of winding up of the cooperative societystands on record, there cannot be any order ofcancellation of the registration of cooperativesociety. Therefore, the order of cancellation ofregistration of the cooperative society issquarely dependent upon the fate of the ordermade under Section 72 of Act, 1965. In boththe circumstances, contemplated by Section76 of Act, 1965. Having arrived at the saidconclusion, we are of the considered opinionthat the petitioner may be asked to file anappeal against the order impugned, as thereare reasons and facts recorded for coming tothe conclusion that the cooperative societywas liable to be wound up. However, specificorders for winding up may not have beenrecorded and only the consequential order hasbeen made.

14. Sri C.S. Singh, learnedAdditional Chief Standing Counsel has


admitted that if the winding up order is setaside in an appeal, order of cancellation ofthe registration of the cooperative societywould fall automatically and in thatcircumstance, registration of cooperativesociety shall stands restored.

15. For the aforesaid reasons, we feelthat interest of substantial justice would beserved in the facts of the case by providingthat the petitioner may file an appeal underSection 98 (1) (i) of Act, 1965 against theorder impugned in the present writ petition,insofar as it directs winding up of thecooperative society within four weeks fromtoday, along with a certified copy of thisorder.

16. The Tribunal under the Act, 1965may consider and decide the appeal filed by thepetitioner within eight weeks from the date theappeal is so filed after affording opportunity ofhearing to the parties concerned. Fate of theorder of cancellation of the registration ofpetitioner's society shall be dependent upon theorders to be passed on the appeal. If the appealis allowed, the order of the cancellation ofregistration of the society shall fallautomatically. It is ordered accordingly.

17. With the aforesaiddirections/observations, the present writpetition is disposed of.



BEFORETHE HON'BLE SURYA PRAKASH

KESARWANI, J.


Smt. Isharat & Anr. ...PetitionersVersus


Counsel for the Petitioners:Sri M.P. Tiwari

Counsel for the Respondents:C.S.C., Sri S.K. Pundir

Constitution of India, Art.-226-Protectionof persons and property-marriage tookplace in accordance with Muslim rites onimpleadment application of legally weddedwife having pries issued under bed lock ofpetitioner no. 2-the petitioner being minorgirl, in presence of parents of bothpetitioners-marriage not proved-petitionerguilty of fraud-with forged ID-source ofincome only agricultural land also foundfalse-as per provision of Ayat 3 of Sura 4 ofHoly Quran-bigamy not sanctified unlesscan do justice with orphans-secondmarriage can not be performed-religiousmandate-binding upon all Muslims men-petition dismissed with cost of Rs.50,000/- payable to respondent-5.

Held: Para-11 & 1911. Thus, it is apparent on record thatthe present writ petition supported by anaffidavit of petitioner no. 2 has beenfiled concealing material facts of thecase and making false averments. Fakepapers have also been filed along withthe writ petitions. Thus, the petitionershave approached this Court with uncleanhands, unclean mind and unclean heart.They deserve no sympathy or leniency.

19. In view of mandate in the Holy Quran itis amply clear that bigamy is not sanctifiedunless a man can do justice to orphans, whoin the present set of facts are the respondentnos. 5 to 8. As per mandate of the HolyQuran as noted above all Muslims men haveto deal justly with the orphans. A marriedMuslim man having his wife alive cannotmarry with another muslim women, if hecannot deal justly with the orphan. Amandate has been given that in suchcircumstances a Muslim man has to preventhimself to perform second marriage, if he isnot capable of fostering his wife and

1 All] Smt. Isharat & Anr. Vs. State of U.P. & Ors. 119

children. The religious mandate of Sura 4Ayat 3 is binding on all muslim men whichspecifically mandates all Mulim men to dealjustly with orphans and then they can marrywomen of their choice two or three or fourbut if a Muslim man fears he will not be ableto deal justly with them then only one. If amuslim man is not capable of fostering hiswife and children then as per above mandateof Holy Quran, he cannot marry the otherwoman.

Case Law discussed:JT 2000 (3) SC 151; 2004 (6) SCC 325; 2003(8) SCC 319; AIR 1994 SC 853; 2012 (8) SCC748; 2010 (69) ACC 997.

(Delivered by Hon'ble Surya PrakashKesarwani, J.)

Heard Sri M.P. Tiwari, learned counselfor the petitioners, Sri S.S. Srinet, learnedStanding Counsel for the respondent nos. 1,2 and 3 and Sri S.K. Pundir, learned counselfor the respondent nos. 5,6,7 and 8.

2. It is stated in paragraph no. 3 and 4that both the petitioners are major. It is statedin paragraph 6 that petitioners havesolemnized their marriage on 2nd October,2014 as per Muslim rites and customs. Insupport a copy of alleged ''Nikahnama' dated2nd October, 2014 has been filed.

3. An application for impleadmenthas been filed by the respondent nos. 5 to8, which has been allowed today.

4. In paragraph 2 of the affidavit tothe impleadment application it is statedthat the respondent no. 5 was marriedwith the petitioner no. 2 on 9th October,2003 and out of their wedlock there aretwo sons and one daughter namelyrespondent no. 6 to 8, who all are minor.It is also stated that the respondent no. 5 ispregnant. A copy of the said ''Nikahnama'

dated 9th October, 2003 has been filed asannexure no. 1 of the affidavit. It is stated inparagraph no. 3 of the affidavit that thepetitioner no. 1 is a minor girl. It is stated inparagraph no. 4 of the affidavit that the alleged''Nikahnama' dated 2nd October, 2014 of thepetitioner is a manufactured one and nomarriage was solemnized. In support, anaffidavit of the alleged signatory (Vakeel) ofthe alleged ''Nikahnama' dated 2nd October,2014 has been filed as annexure no. 2. It isstated in paragraph no. 7 that the petitioner no.2 has filed a fake Voter I.D. Card bearing No.HTB 2085504. From internet enquiry the saidvoter ID card has been found to be issued inthe name of one Sri Pahal Singh, S/O KaramSingh, R/o Village Bandukhedi, Pargana &Tehsil Nakur, District-Saharanpur. In support,copy of the internet enquiry report of theaforesaid Voter I.D. card has been filed asannexure -3 to the affidavit. A copy of familyregister and some photographs have also beenfiled along with the affidavit to demonstratethat the respondent no. 5 is a legally weddedwife of the petitioner no. 2 and she stillcontinues to be his wife.

5. Respondent no 5. along with herchildren i.e. respondent nos. 6, 7 and 8 andSri Riaz Ahmad, who is father-in-law ofrespondent no. 5 and father of the petitionerno. 2 are present. Sri Riaz Ahmad, father ofthe petitioner no. 2 states that respondent no.5 is legally wedded wife of petitioner no. 2and she has three minor children and she haspregnancy of about 8 months. He states thatby no means he can justify the action ofpetitioner no. 2, who allegedly solemnized''Nikah' with a minor girl i.e. petitioner no. 1.He states that as per Holy '' Quran' he cannotperform second marriage with the petitionerno. 1 which would result in injustice to hisfirst wife and three minor children. Sri RiazAhmad states that he owns about 5-6bighahas agricultural land which is the only


source of livelihood of the family whichconsist of him, his wife and respondent nos.5 to 8. He states that he and his wife shalltake full care of respondent nos. 5 to 8. Hestates that he has serious threat to his life andproperty from the family of petitioner no. 1and as such in case of any inconvenience thepolice of the concerned police station may bedirected to give protection.

6. Learned counsel for thepetitioners does not dispute the factsstated in the impleadment application ofrespondent nos. 5 to 8 and also the factsstated by the father of the petitioner no. 2before this Court, as briefly noted above.

7. Learned counsel for therespondent nos. 5 to 8 submits that thewrit petition has been filed concealingmaterial facts of the case, making falseaverments and annexing fake papers andas such the writ petition deserves to bedismissed with heavy cost, which may bepaid by the petitioner no. 2 to therespondent no. 5.

8. Learned Standing Counsel submitsthat it is wholly undisputed that the writpetition has been filed concealing materialfacts and making false averments and as suchit deserves to be dismissed with cost.

9. I have carefully considered thesubmissions of counsel for the parties.

10. It is not disputed that this writpetition has been filed by the petitioner no. 2concealing material facts of the case namely ;that the petitioner no. 2 is already marriedwith the respondent no. 5 and respondentnos. 6, 7 and 8 are their sons and daughter. Ithas also been concealed by the petitioner no.2 that the respondent no. 5 is his legallywedded wife and she has pregnancy of about

8 months. A false averment has been madeby the petitioner no. 2 in paragraph no. 7 thathis father has 20 bighas of land in which heis working as farmer and earns about 2 lakhsin a year. Father of the petitioner no. 2 hasstated before this Court that he owns merely5-6 bighas agricultural land, which is theonly source of livelihood for himself, hiswife and also for respondent nos. 5 to 8. Acopy of fake Voter I.D. has been filed by thepetitioner no. 2 along with writ petition. Thealleged ''Nikahnama' of the petitioners filedby the petitioner no.2 as annexure no. 3 tothe writ petition also appears to be notgenuine in view of the notary affidavit of SriMohamad Kazim, S/o Sri Kasmi, R/o DhobiVala , District- Saharanpur filed along withaffidavit to the impleadment application inwhich he denied the 'Nikah' of the petitionersand stated to be forged. The facts so statedare not disputed by the petitioners.

11. Thus, it is apparent on recordthat the present writ petition supported byan affidavit of petitioner no. 2 has beenfiled concealing material facts of the caseand making false averments. Fake papershave also been filed along with the writpetitions. Thus, the petitioners haveapproached this Court with uncleanhands, unclean mind and unclean heart.They deserve no sympathy or leniency.

12. In the case of United IndiaInsurance Company Ltd. Vs. B. RajendraSingh and others, JT 2000 (3) SC 151,considering the fact of fraud, Hon'bleSupreme Court held in paragraph 3 as under:

"Fraud and justice never dwelltogether." (Frans et jus nunquamcohabitant) is a pristine maxim which hasnever lost its temper overall thesecenturies. Lord Denning observed in alanguage without equivocation that" no


judgement of a Court, no order of aMinister can be allowed to stand if it hasbeen obrtained by fraud, for fraudunravels everythin " (Lazarus Estate Ltd.V. Beasley 1956 (1) QB 702).

13. In the case of Vice Chairman,Kendriya Vidyalaya Sangathan and AnotherVs. Girdhari Lal Yadav, 2004 (6) SCC 325,Hon'ble Supreme Court considered theapplicability of principles of natural justice incases involving fraud and held in paragraph12 as under :

"12. Furthermore, the respondentherein has been found guilty of an act offraud. In opinion, no further opportunityof hearing is necessary to be afforded tohim. It is not necessary to dwell into thematter any further as recently in the caseof Ram chandra Singh v. Savitri devi thisCourt has noticed :

"15. Commission of fraud on courtand suppression of material facts are thecore issues involved in these matters.Fraud as is well-known vitiates everysolemn act. Fraud and justice neverdwells together.

16.Fraud is a conduct either by letteror words, which induces the other person,or authority to take a definitedeterminative stand as a response to theconduct of former either by word or letter.

It is also well settled thatmisrepresentation itself amounts to fraud.Indeed, innocent misrepresentation mayalso give reason to claim relief againstfraud.

18.A fraudulent misrepresentation iscalled deceit and consists in leading aman into damage by willfully or recklesslycausing him to believe and act onfalsehood. It is a fraud in law if a partymakes representations which he knows tobe false, and injury ensues therefrom

although the motive from which therepresentations proceeded may not havebeen bad."

19. In Derry V. Peek (1889) 14 AC337 it was held: "In an action of deceitthe plaintiff must prove actual fraud.Fraud is proved when it is shown that afalse representation has been madeknowingly, or without belief in its truth,or recklessly, without caring whether it betrue or false.

A false statement, made throughcarelessness and without reasonableground for believing it to be true, may beevidence of fraud but does not necessarilyamount to fraud. Such a statement, ifmade in the honest belief that it is true, isnot fraudulent and does not render theperson make it liable to an action ofdeceit."

14. In the case of Ram ChandraSingh Vs. Savitri Devi and others,2003(8) SCC 319, Hon'ble Supreme Courtheld in paragraphs 15, 16, 17, 18, 25 and37 as under :

"15. Commission of fraud on courtand suppression of material facts are thecore issues involved in these matters.Fraud as is well-known vitiates everysolemn act. Fraud and justice neverdwells together.

16. Fraud is a conduct either byletter or words, which induces the otherperson, or authority to take a definitedeterminative stand as a response to theconduct of former either by word or letter.

17. It is also well settled thatmisrepresentation itself amounts to fraud.Indeed, innocent misrepresentation mayalso give reason to claim relief againstfraud.

18.A fraudulent misrepresentation iscalled deceit and consists in leading a


man into damage by willfully or recklesslycausing him to believe and act onfalsehood. It is a fraud in law if a partymakes representations which he knows tobe false, and injury ensues therefromalthough the motive from which therepresentations proceeded may not havebeen bad.

25. Although in a given case adeception may not amount to fraud, fraudis anathema to all equitable principlesand any affair tainted with fraud cannotbe perpetuated or saved by theapplication of any equitable doctrineincluding res-judicata.

37. It will bear repetition to statethat any order obtained by practisingfraud on court is also non-est in the eyesof law."

15. In the case of S.P.ChengalVaraya Naidu (dead) by L.Rs Vs.Jagannath (dead) by L.Rs and others, AIR1994 SC 853, the Hon'ble Supreme Courtheld in para 7 as under :

"7. The High Court, in our view, fellinto patent error. The short questionbefore the High Court was whether in thefacts and circumstances of this case,Jagannath obtained the preliminarydecree by playing fraud on the court. TheHigh Court, however, went haywire andmade observations which are whollyperverse. We do not agree with the HighCourt that "there is no legal duty castupon the plaintiff to come to court with atrue case and prove it by true evidence".The principle of "finality of litigation"cannot be pressed to the extent of such anabsurdity that it becomes an engine offraud in the hands of dishonest litigants.The courts of law are meant for impartingjustice between the parties. One whocomes to the court, must come with clean

hands. We are constrained to say thatmore often than not, process of the courtis being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and otherunscrupulous persons from all walks oflife find the court-process a convenientlever to retain the illegal-gainsindefinitely. We have no hesitation to saythat a person, who's case is based onfalsehood, has no right to approach thecourt. He can be summarily thrown out atany stage of the litigation."

16. In the case of Jainendra SinghVs. State of U.P., 2012 (8) SCC 748,Hon'ble Supreme Court considered thefact of appointment obtained by fraud andheld in para 29.1 to 29.10 as under :

"29.1 Fraudulently obtained ordersof appointment could be legitimatelytreated as voidable at the option of theemployer or could be recalled by theemployer and in such cases merelybecause the respondent employee hascontinued in service for a number ofyears, on the basis of such fraudulentlyobtained employment, cannot get anyequity in his favour or any estoppelagainst the employer.

29.2 Verification of the characterand antecedents is one of the importantcriteria to test whether the selectedcandidate is suitable to the post under theState and on account of his antecedentsthe appointing authority if find notdesirable to appoint a person to adisciplined force can it be said to beunwarranted.

29.3 When appointment wasprocured by a person on the basis offorged documents, it would amount tomisrepresentation and fraud on theemployer and, therefore, it would createno equity in his favour or any estoppel


against the employer while resorting totermination without holding any inquiry.

29.4 A candidate having suppressedmaterial information and/or giving falseinformation cannot claim right tocontinue in service and the employer,having regard to the nature ofemployment as well as other aspects, hasthe discretion to terminate his services.

29.5 Purpose of calling forinformation regarding involvement in anycriminal case or detention or conviction isfor the purpose of verification of thecharacter/antecedents at the time ofrecruitment and suppression of suchmaterial information will have clearbearing on the character and antecedentsof the candidate in relation to hiscontinuity in service.

29.6 The person who suppressed thematerial information and/or gives falseinformation cannot claim any right forappointment or continuity in service.

29.7 The standard expected of aperson intended to serve in uniformedservice is quite distinct from otherservices and, therefore, any deliberatestatement or omission regarding a vitalinformation can be seriously viewed andthe ultimate decision of the appointingauthority cannot be faulted.

29.8 An employee on probation canbe discharged from service or may berefused employment on the ground ofsuppression of material information ormaking false statement relating to hisinvolvement in the criminal case,conviction or detention, even if ultimatelyhe was acquitted of the said case,inasmuch as such a situation would makea person undesirable or unsuitable for thepost.

29.9 An employee in the uniformedservice pre-supposes a higher level ofintegrity as such a person is expected to

uphold the law and on the contrary such aservice born in deceit and subterfugecannot be tolerated.

29.10The authorities entrusted withthe responsibility of appointingConstables, are under duty to verify theantecedents of a candidate to find outwhether he is suitable for the post of aConstable and so long as the candidatehas not been acquitted in the criminalcase, he cannot be held to be suitable forappointment to the post of Constable."

17. Lastly learned counsel for thepetitioners submits that as per MuslimLaw the petitioner no. 1 can have fourwives and since the respondent no. 5 isstated to be first and the only wife and assuch there is nothing wrong to marry withthe petitioner no. 1, who shall be hissecond wife. Submission is whollymisconceived. The only source oflivelihood disclosed by the petitioner no.2 in paragraph 7 of the petition is the 5-6Bighas agricultural land of his father. Thepetitioner no. 2 has legally weddedsurviving wife i.e. respondent no. 5 andfrom their wedlock they have threechildren namely respondent nos. 6, 7 and8. The respondent no. 5 is said to havepregnancy of about 8 months. On thesefacts the alleged second Nikah bypetitioner no. 2 with the petitioner no. 1would cause injustice to the respondentnos. 5 to 8 and the child in womb of therespondent no. 5.

18. Under the circumstances thealleged action of the petitioner no. 2 isagainst the verses of Holy "Quran" i.e.Sura 4 Ayat 3 english translation of whichis reproduced below:-

"If ye fear that ye shall notBe able to deal justly


With the orphans,Marry women of your choice,Two, or three, or four;But if ye fear that ye shall notBe able to do justly (with them),Then only one, or (a captive)That your right hands posses.That will be more suitable,To prevent youFrom doing injustice."

19. In view of mandate in the HolyQuran it is amply clear that bigamy is notsanctified unless a man can do justice toorphans, who in the present set of factsare the respondent nos. 5 to 8. As permandate of the Holy Quran as notedabove all Muslims men have to deal justlywith the orphans. A married Muslim manhaving his wife alive cannot marry withanother muslim women, if he cannot dealjustly with the orphan. A mandate hasbeen given that in such circumstances aMuslim man has to prevent himself toperform second marriage, if he is notcapable of fostering his wife and children.The religious mandate of Sura 4 Ayat 3 isbinding on all muslim men whichspecifically mandates all Mulim men todeal justly with orphans and then they canmarry women of their choice two or threeor four but if a Muslim man fears he willnot be able to deal justly with them thenonly one. If a muslim man is not capableof fostering his wife and children then asper above mandate of Holy Quran, hecannot marry the other woman.

20. In case of Dilbar Habib SiddiquiVs. State of U.P. and Others 2010 (69)ACC 997 a Division Bench of this Courtheld in paragraph 8 as under:

" Thus for a valid muslim marriageboth the spouses have to be muslim. In the

present writ petition this condition is notsatisfied as the writ petition lacks credibleand accountable material in this respecton which reliance can be placed.

Coming to another limb of argumentraised by counsel for the petitioner that amuslim man is entitled to marry four time,we once again revert back to recognisedtreatises. We find that Sura 4 Ayat 3 ofThe Holy Quran provides for giving duecare and provisions for a Muslim women.The said Ayat, as is referred to in thetreatise by I.Mulla, is referred to below:-

"(vi) Number of wives- If ye fear that yeshall not be able to deal justly with theorphans ( orphan wives and their property);marry woman of your choice, two or three orfour; But if you fear that ye shall not be ableto deal justly (with them), then onlyone...........that would be more suitable toprevent you from doing injustice."

From the perusal of above Ayats it isabundantly clear that bigamy is notsanctified unless a man can do justice toorphans. The said Ayat mandates allMuslims men to 'deal justly with orphansand then they can marry women of theirchoice two or three or four but if they fearthat they will not be able to deal justlywith them then only one. We are of theview, that such a religious mandate hasbeen given to all the Muslims for agreater social purpose. If a Muslim manis not capable of fostering his wife andchildren then he cannot be allowed theliberty to marry other women as that willbe against the said Sura 4 -Ayat-3.Thisaspect of the matter should not vex ourmind further as the same came up beforethe apex court as well in Javed AndOthers versus State of Haryana: AIR 2003SC 3057 and therefore we conclude thisaspect of the submission by referring tothe words of the apex court in thatdecision, which are as follows:-

1 All] Lal Ji Saroj Vs. State of U.P. & Ors. 125

"The Muslim Law permits marryingfour women. The personal law nowheremandates or dictates it as a duty toperform four marriages. No religiousscripture or authority provides thatmarrying less than four women orabstaining from procreating a child fromeach and every wife in case of permittedbigamy or polygamy would be irreligiousor offensive to the dictates of the religion.The question of the impugned provision ofHaryana Act being violative of Art. 25does not arise."

21. The law laid down by theDivision Bench of this Court in case ofDilbar Habad Siddiqui's Case (Supra) isclearly attracted on the facts andcircumstances of the present case. In thepresent set of facts the first wife ofpetitioner no. 2 is surviving and from theirwedlock there are three children namelyrespondent nos. 6, 7 and 8 and the wife(respondent no. 5) is said to havepregnancy of about 8 months.

22. Apart from this the writ petitionis based on concealment of facts and falseaverments. Fake paper have also beenfiled with the writ petition.

23. Under the circumstances andfacts of the case this writ petition deservesto be dismissed with heavy costs.

24. In result, the writ petition failsand is, hereby, dismissed with costs or Rs.50,000/- on the petitioner no. 2, whichshall be paid by him to the respondent no.5 within two months.

25. The father of the petitioner no. 2i.e. Riaz Ahmad is the person, who alongwith his wife is presently looking after thewell being of the respondent nos. 5 to 8.

He expressed serious apprehension ofthreat to his life and property by thepetitioner no. 1 and respondent no. 4.Under the circumstances it is providedthat if Sri Riaz Ahmad (father of thepetitioner no. 2) or respondent no. 5approaches to the respondent no. 2 orrespondent no 3 in case of any threat totheir life or property then they shall takeeffective steps in accordance with law.

26. The writ petition is dismissedwith costs of Rs. 50,000/- asaforementioned.



BEFORETHE HON'BLE RAJES KUMAR, J.THE HON'BLE SHASHI KANT, J.


Lal Ji Saroj ...PetitionerVersus


Counsel for the Petitioner:Sri Vijay Kumar Sharma, Sri Ram SheelSharma

Counsel for the Respondents:C.S.C., Sri Manoj Kumar Yadav

Constitution of India, Art.-226-Settlement of license to run the fair priceshop-denial by mis-interpreting G.O.Dated 10.07.14-held-misconceived- G.O.Relied in impugned order applicablewhere Appeal pending-not where appealalready dismissed-pendency of writpetition without interim order -not beground for refusal-petition dismissed.

Held: Para-7We find that the Government Orderdated 10.07.2014 was only applicable in


a case where the appeal was pending. Inthe present case, the appeal has alreadybeen decided and, therefore, thisGovernment Order is not applicable in thepresent case. Further the Division Bench ofthis Court, in the case of Vinod Kumar Vs.State of U.P. and others (Supra), has heldthat it is open to the State, pending disposalof an appeal, to make suitable alternatearrangements, either by attaching the cardholders to an existing fair price shop or byallotting the fair price shop to a newlicencee, subject to the result of the appeal.Therefore, there is no impediment now insettling the fair price shop in favour of thepetitioner in pursuance of the resolutionpassed by the Gram Panchayat on07.08.2013.

Case Law discussed:2014 (8) ADJ, 1.

(Delivered by Hon'ble Rajes Kumar, J.)1. Heard Sri Ram Sheel Sharma,

learned counsel for the petitioner, learnedStanding Counsel appearing on behalf ofthe respondent nos.1 to 3 and Sri ManojKumar Yadav, learned counsel appearingon behalf of the respondent no.4.

2. By means of the present writpetition, the petitioner is challenging theorder dated 29.10.2014 passed by therespondent no.3, Sub Divisional Magistrate,Tehsil Machhali Shahar, district Jaunpur,whereby the claim of the petitioner for thesettlement of the fair price shop, in hisfavour, has been declined.

3. It appears that for the Gram SabhaKharuawan, one Sri Vimal Kumar wasthe licencee of fair price shop. His licencehas been cancelled, against which appealhas been filed, which has been dismissed.Against the appellate order, Vimal Kumarfiled Writ Petition No.43701 of 2014,Vimal Kumar Vs. State of U.P., whichhas been entertained and the respondents

were directed to file counter affidavit. Nointerim order has been passed. When, inpursuance of the resolution, no step hasbeen taken by the respondent no.3 tosettle the fair price shop in his favour, thepetitioner filed Writ Petition No.46772 of2014, which has been disposed of on03.09.2014 with the observation that inview of the aforesaid development thathas taken place, it shall be open to thepetitioner to approach the Sub DivisionalMagistrate for disposal of the approval,which is pending but any orders passed bythe Sub Divisional Magistrate shall besubject to the orders under GovernmentOrder dated 10.07.2014 or further orderbeing passed by this Court in theaforesaid writ petition. After the order ofthis Court, the petitioner approached SubDivisional Magistrate, Tehsil MachhaliShahar, district Jaunpur for considerationof his claim for the settlement of fair priceshop. By the impugned order, the claim ofthe petitioner has been rejected by therespondent no.3 relying upon theGovernment Order dated 10.07.2014 withthe observation that during the pendencyof the appeal, to avoid multiplicity of thedisputes, new fair price shop could not besettled and, therefore, it would not beappropriate to settle the fair price shop infavour of the petitioner in pursuance ofthe resolution dated 07.08.2013.

4. Learned counsel for the petitionersubmitted that the Government Orderdated 10.07.2014 is applicable only tillthe disposal of the appeal before theDivisional Commissioner. It is notapplicable after the disposal of the appeal.In the present case, the appeal of VimalKumar has been dismissed. Therefore, theaforesaid Government Order is notapplicable in the present case. He furthersubmitted that recently a Government

1 All] Ali Shad Usmani & Ors. Vs. Ali Isteba & Ors. 127

Order has been issued by the PrincipalSecretary on 18.11.2014 asking theDivisional Commissioners to settle thevacant shop as early as possible. Hefurther submitted that Division Bench ofthis Court in the case of Vinod Kumar Vs.State of U.P. and others, reported in 2014(8) ADJ, 1 has observed that it is open tothe State, pending disposal of an appeal,to make suitable alternate arrangementseither by attaching the card holders to anexisting fair price shop or by allotting thefair price shop to a new licencee subjectto the result of the appeal. Therefore, inview of the aforesaid decision of theDivision Bench of this Court, the order ofSub Divisional Magistrate is notsustainable and is liable to be set aside.

5. Learned Standing Counselsubmitted that let the respondent no.3, SubDivisional Magistrate, Tehsil MachhaliShahar, district Jaunpur be directed to pass afresh order in the light of the GovernmentOrder dated 18.11.2014 and the DivisionBench decision of this Court in the case ofVinod Kumar Vs. State of U.P. and others(Supra).

6. We have considered thesubmissions and perused the record.

7. We find that the GovernmentOrder dated 10.07.2014 was onlyapplicable in a case where the appeal waspending. In the present case, the appealhas already been decided and, therefore,this Government Order is not applicablein the present case. Further the DivisionBench of this Court, in the case of VinodKumar Vs. State of U.P. and others(Supra), has held that it is open to theState, pending disposal of an appeal, tomake suitable alternate arrangements,either by attaching the card holders to an

existing fair price shop or by allotting thefair price shop to a new licencee, subjectto the result of the appeal. Therefore,there is no impediment now in settling thefair price shop in favour of the petitionerin pursuance of the resolution passed bythe Gram Panchayat on 07.08.2013.

8. In view of the above, the writpetition is allowed. Order dated29.10.2014 passed by the respondentno.3, Sub Divisional Magistrate, TehsilMachhali Shahar, district Jaunpur is setaside and the matter is relegated to therespondent no.3 to consider the claim ofthe petitioner, expeditiously, preferablywithin a period of two weeks from thedate of presentation of the certified copyof this order, in the light of theobservation and direction given above, inaccordance to law.




CHANDRACHUD, C.J.THE HON'BLE PRADEEP KUMAR SINGH

BAGHEL, J.


Ali Shad Usmani & Ors. ...PetitionersVersus

Ali Isteba & Ors. ...Respondents

Counsel for the Petitioner:Sri Jamil Ahmad Azmi

Counsel for the Respondents:---

Constitution of India, Art.-226/227-Direction for expeditious disposal of suit-should be issued with very care andcircumspection-other wise Civil Court will


be over burdened -with such cases-exception for Senior Citizen-peoplesuffering from particular disability-suchconsideration should be left to the concernCourt itself-petition dismissed.

Held: Para-3Ultimately, it must be left to thejudicious exercise of discretion of theconcerned Court to determine whether aground for urgency has been made out.We emphasize that there may be othercases such as involving senior citizens,those who are differently abled or peoplesuffering from a particular disabliltysocio-economic or otherwise which mayprime cause of urgent disposal. It is forthe learned Trial Judge in each case toapply his or her mind and decidewhether the hearing of the suit to beexpedited.


1. The only relief which is sought inthis proceeding is in the following terms:

"i) a writ, order or direction in thenature of mandamus directing therespondent no.6 to expedite the hearing ofthe Suit No. 271 of 2005 Ali Shad andothers Vs. Ali Isteba and others.

ii) a writ, order or direction in thenature of mandamus commanding therespondent no.6 to decide the suit withinthe stipulated period granted by thisHon'ble Court."

2. We are not inclined to issue adirection for the expeditious hearing of aCivil Suit which is pending before theCivil Judge (Junior Division), District-Azamgarh. It would be most inappropriateto Court to entertain a writ petition underArticle 226 and/or under Article 227 ofthe Constitution simply for the purpose of

expediting the hearing of a suit. Suchorders, if granted, place a class oflitigants, who move the court in a separateand preferential category whereas othercases which may be of similar or greaterantiquity and urgency are left to bedecided in the normal channel. Hence,any such direction may be issued with thegreatest care and circumspection by theHigh Court otherwise the Civil Courtswill be overburdened only with requestsfor expeditious disposal of suits, whichhave been expedited by the High Court.Most of the litigants cannot afford theexpense of moving the High court andwould not, therefore, be in a position tohave the benefit of such an order.

3. Ultimately, it must be left to thejudicious exercise of discretion of theconcerned Court to determine whether aground for urgency has been made out.We emphasize that there may be othercases such as involving senior citizens,those who are differently abled or peoplesuffering from a particular disabliltysocio-economic or otherwise which mayprime cause of urgent disposal. It is forthe learned Trial Judge in each case toapply his or her mind and decide whetherthe hearing of the suit to be expedited.

4. For these reasons, we are notinclined to entertain the petition. Thepetition is, accordingly, dismissed. Thereshall be no order as to cost.

--------

1 All]. Shiv Shankar Mishra Vs. State of U.P. & Ors. 1 All]. Shiv Shankar Mishra Vs. State of U.P. &...

Documents

Transcript of 1 All]. Shiv Shankar Mishra Vs. State of U.P. & Ors. 1 All]. Shiv Shankar Mishra Vs. State of U.P. &...