REVISIONAL JURISDICTION 1. Heard Sri Mohan Singh, learned ... · Mohan Singh, 1978 ARC 496. This was a case under Order IX, Rule 13, of the Code of Civil Procedure. The next decision

2 All] Ram Suman Pandey & Ors. Vs. Smt. Guddi Devi & Anr. 631

REVISIONAL JURISDICTIONCIVIL SIDE

DATED: LUCKNOW 22.05.2015

BEFORETHE HON'BLE ANIL KUMAR, J.

Civil Revision No. 6 of 2006

Ram Suman Pandey & Ors. ...RevisionistsVersus

Smt. Guddi Devi & Anr. ...Opp. Parties

Counsel for the Revisionists:Mohan Singh

Counsel for the Opp. Parties:Arti Ganguly, Hemant Kumar Mishra

C.P.C. Section 115-Civil Revision-againstorder allowing application under orderIX rule 6-Trail Court found not onlysufficient but good cause-held-proper-noillegality or irregularity-shown-can notbe interfered.

Held: Para-18In the instant case when an application forrecall of the ex-parte order dated07.03.2005 has been moved to whichobjection has been filed by the revisionistafter taking into consideration the causewhich has been shown by the defendant-respondent, the trial court has come to theconclusion that there exists sufficientcause rather good reason has been shownby the defendant-respondent for hisprevious non-appearance in theproceeding of the suit, allowed by orderdated 23.12.2005, thus, I do not find anyillegality or infirmity in the same.

Case Law discussed:1993(11) LCD 1177; 2000 (18) LCD 757; 2012(12) SCC 693; 1955 AIR (SC) 425; 1985 (3)LCD 394; 1955 AIR (SC) 425; 1985 (3) LCD394; 2002 AIR (Ald) 360; 1993(11) LCD 1177;2000 (18) LCD 757; 1955 AIR (SC) 425; 2012(12) SCC 693.

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

1. Heard Sri Mohan Singh, learnedcounsel for revisionists, Sri HemantKumar Mishra, learned counsel forrespondents and perused the record.

2. Undisputed facts of the present caseare that the revisionists-plaintiffs filed a suitfor permanent injunction registered asRegular Suit No. 80 of 2003 in the Court ofCivil Judge (Sr. Div.), Lucknow, thereafteran application has been moved with a prayerto proceed ex-parte against the defendantunder Order VIII Rule 10 CPC, allowed byorder dated 07.03.2005.

3. On 10.11.2015, defendant-respondent moved an application on10.11.2005 for recall of the order dated07.03.2005 to which objection has beenfiled by the revisionists-plaintiffs, allowedby order dated 23.12.2005 with a cost ofRs. 50/- under challenge in the presentcivil revision.

4. Sri Mohan Singh, learned counselfor revisionists while challenging theimpugned order submits that no sufficientreason/good cause has been shown by thedefendant for his non-appearance in thematter in question, so, there is nojustification or reason on the part of courtbelow to pass the impugned order dated23.12.2005 recalling the order dated07.03.2005. In support of his argument hehas placed reliance on the followingjudgments :-

1. Punjab National Bank Vs. VijaiKumar Dhariwal and others, 1993(11)LCD 1177.

2. Prahlad Singh and another Vs.Niyaz Ahmad and others, 2000 (18)LCD 757.

3. B. Madhuri Goud Vs. B.Damodar Reddy, 2012 (12) SCC 693.

632 INDIAN LAW REPORTS ALLAHABAD SERIES

5. Accordingly, he submits that theimpugned order dated 23.12.2005 beingcontrary to law, liable to be set aside.

6. Sri Hemant Kumar Mishra, learnedcounsel for respondents-defendants whilesupporting the impugned order submits thatafter takint into consideration the cause shownby the defendant for non-appearing on thedate when the suit was fixed and order dated07.03.2005 has been passed to proceed ex-parte against him, the court below has allowedthe application for recall of the said order byan order dated 23.12.2005 with a cost of Rs.50/-, hence, there is no illegality or infirmity inthe impugned order, accordingly, presentrevision liable to be dismissed. In support ofhis argument he has placed reliance on thejudgment given by Hon'ble the Apex Court inthe case of Sangram Singh Vs. ElectionTribunal, Kotah, 1955 AIR (SC) 425, BajrangBahadur Tripathi Vs. Suraj Kumar and others,1985 (3) LCD 394, Lal Bahadur Vs. IIndAddl. Munsif, Fatehpur and others, 2002AIR(Ald) 360.

7. I have heard learned counsel forparties and gone through the record.

8. In order to decide the controversyinvolved in the present case, it will beappropriate to go through the relevantprovisions as provided under Order IXRule 6 CPC and Order IX Rule 7 CPC.

"Order IX Rule 6:-6. Procedure when only plaintiff

appears-- (1) Where the plaintiff appearsand the defendant does not appear whenthe suit is called on for hearing, then--(a) When summons duly served--if it isproved that the summons was dulyserved, the Court may

make an order that the suit shall beheard ex parte.

(b) When summons not duly served--if it is not proved that the summons wasduly serve, the Court shall direct a secondsummons to be issued and served on thedefendant;

(c) When summons served but not indue time--if it is proved that the summonswas served on the defendant, but not insufficient time to enable him to appearand answer on the day fixed in thesummons, the Court shall postpone thehearing of the suit to future day to befixed by the Court, and shall direct noticeof such day to be given to the defendant.

(2)Where it is owing to the plaintiffs'default that the summons was not dulyserved or was not served in sufficienttime, the Court shall order the plaintiff topay the costs occasioned by thepostponement. "

Order IX Rule 7:-

Procedure where defendant appearson day of adjourned hearing and assignsgood cause for previous non-appearance--Where the Court has adjourned thehearing of the suit ex-parte and thedefendant, at or before such hearing,appears and assigns good cause for hisprevious non-appearance, he may, uponsuch terms as the Court directs as to costsor otherwise, be heard in answer to thesuit as if he had appeared on the day,fixed for his appearance.

The application under Order IX Rule7 CPC as it is evident from the reading ofthe aforesaid Rule, can be filed at orbefore the next date fixed for hearing. Inthe instant case admittedly the applicationunder Order IX rule 7 CPC was filed bythe petitioners on 06.08.94. It was the dateafter the next date fixed under order IXrule-6 CPC.


9. While incorporating theprovisions of order IX Rule 7CPCHon'ble the Apex Court in the case ofSangram Singh Vs. Election Tribunal,Kotah, 1955 AIR (SC) 425, has held asunder:-

" We have seen that if the defendantdoes not appear at the first hearing, theCourt can proceed ex parte, which meansthat it can proceeded without a writtenstatement; and Order IX, rule 7 makes itclear that unless good cause is shown thedefendant cannot be related to the positionthat he would have occupied if he hadappeared. That means that he cannot putin a written statement unless he is allowedto do so, and if the case is one in whichthe Court considers a written statementshould have been put in, theconsequences, entailed by Order VIII,rule 10 must be suffered.

What those consequences, should bein a given case is for the Court, in theexercise of its judicial discretion, todetermine. No hard and fast rule can belaid down. In some cases an orderawarding costs to the plaintiff would meetthe ends of justice : an adjournment canbe granted or a written statement can beconsidered on the spot and issues framed.In other cases, the ends of justice may callfor more drastic action.

Now when we speak of the ends ofjustice, we mean justice not only to thedefendant and to the other side but also towitnesses and others who may beinconvenienced. It is an unfortunate factthat the convenience of the witness isordinarily lost sight of in this class of caseand yet he is the one that deserves thegreatest consideration. As a rule, he is notparticularly interested in the dispute buthe is vitally interested in his own affairswhich he is compelled to abandon

because a Court orders him to come to theassistance of one or other of the parties toa dispute. His own business has to suffer.He may have to leave has family and hisaffairs for days on end. He is usually outof pocket. Often he is a poor man living inan out of the way village and may have totrudge many weary miles on foot.

And when he gets there, there are noarrangements for him. He is not givenaccommodation; and when he reaches theCourt, in most places there is no room inwhich he can wait. He has to loiter about inthe verandahs or under the trees, shiveringin the cold of winter and exposed to the heatof summer, wet and miserable in the rains :and then, after wasting hours andsometimes days for his turn, he is brusquelytold that he must go back and come againstanother day. Justice strongly demands thatthis unfortunate section of the generalpublic compelled to discharge public duties,usually at loss and inconvenience tothemselves, should not be ignored in theoverall picture of what will best serve theends of justice and it may well be a soundexercise of discretion in a given case torefuse an adjournment and permit theplaintiff to examine the witnesses presentand not allow the defendant to crossexamine them, still less to adduce his ownevidence. It all depends on the particularcase.

But broadly speaking after all thevarious factors have been take intoconsideration and carefully weighed, theendeavour should be to avoid snapdecisions and to afford litigants a realopportunity of fighting out their casesfairly and squarely. Costs will beadequate compensation in many cases andin others the Court has almost unlimiteddiscretion about the terms it can imposeprovided always the discretion isjudicially exercised and is not arbitrary. "


10. In the case of Bajrang BahadurTripathi Vs. Suraj Kumar and others,1985 (3) LCD 394, this Court afterplacing reliance on the judgment given byHon'ble the Apex Court in the case ofArjun Singh Vs. Mohindra kumar andothers, AIR 1964 SC 993, held as under:-

"Obviously this rule would applywhere the hearing of the suit ex parte hasbeen adjourned. Where the hearing hasnot been adjourned, this rule will not beattracted. Pronouncement of judgment isnot a part of the hearing of the suit. In thepresent case the entire hearing hadconcluded on 15-2-1985 and onlyjudgment remained to be pronounced. Assuch, the defendant's application underOrder IX, Rule 7 was misconceived andwas rightly rejected by the Court below.Once it is held that the application wasnot maintainable, the question of its beingliberally dealt with does not arise at all.However, the authorities relied upon bythe learned Counsel for submitting thatthe application should be liberally dealtwith and the direction should be exercisedin favour of hearing may be noticed. Thefirst authority relied upon in this behalf isRamji Das v. Mohan Singh, 1978 ARC496. This was a case under Order IX,Rule 13, of the Code of Civil Procedure.The next decision relied upon by thelearned Counsel is The Special LandAcquisition Officer, Bangalore v.Adinarayan Setty, AIR 1959 SC 429. Thelearned Counsel did not invite myattention to any particular portion of thisjudgment. This was a case under the LandAcquisition Act and the propositions laiddown by their Lordships primarilyconcerned the assessment ofcompensation. Arjun Singh v. MohindraSingh, AIR 1964 SC 993, is of noassistance to the applicant; rather it is

against him. It was held in this case by theirLordships that inherent power of the Courtcannot override the express provisions ofthe statute and that Order IX, Rule 13exhaust the whole gamut of situations thatmight arise owing to non-appearance ofdefendant during the course of trial. In thisvery case it is also laid down by theirLordships that where the hearing has beencompleted and the case has been fixed forpronouncement of judgment, Order IX,Rule 7 is not attracted. The applicant did notapply under Order IX, Rule 13 after the exparte decree had been passed. In thecircumstances, in view of the observationsmade by their Lordships the applicant hadno right to claim setting aside of ex parteorder. Smt. Maneka Gandhi v. Union ofIndia, (1978) 1 SCC 248 : AIR 1978 SC597, has no application to the facts of thepresent case. In this case Smt. ManekaGandhi's passport was impounded withoutgiving her opportunity of hearing. It washeld by their Lordships of the SupremeCourt that the proceeding for impounding,the passport was quasi-judicial in nature andbefore impounding the passport,opportunity of hearing was required to begiven. In case on hand the applicant wasserved with the summons and he had put inappearance. He had notice of the date fixedfor hearing and yet he failed to appearbefore the Court. It is not a case whereopportunity of hearing was not given to theapplicant. The opportunity of hearing wasgiven but he did not avail of the same. InSavitri Amma Seethamma v. Artha Karthy,(1983) 1 SCC 401 : AIR 1983 SC 318, itwas held that the non-appearance of acounsel at the time of hearing on account ofbeing busy elsewhere was a sufficient causeto entitle a party for restoration of theproceedings. This judgment has noapplication to the facts of the present case.In Shankar Baksh Singh v. Maheshwar


Dayal, AIR 1931 Oudh 159, a DivisionBench of the Oudh Chief Court held that thediscretion conferred under Order IX, Rule7, of the Code of Civil Procedure should beliberally exercised. However, this authoritycould be of assistance to the assistant only ifapplication under Order IX, Rule 7 wasmaintainable. As held herein above, theapplication of the applicant was notmaintainable. Accordingly, this authority isof no assistance to the applicant." (See alsoLal Bahadur Vs. IInd Addl. Munsif,Fatehpur and others, 2002 AIR(Ald) 360).

11. In the case of Punjab NationalBank Vs. Vijay Kumar Dhariwal, 1993(11) LCD 1177, this Court has held asunder:-

"Having gone through the judgmentof the Court below and heard the learnedCounsels for the parties I have not beenable to find that any finding has beenrecorded by the Court below on thequestion of good cause for previous non-appearance of the defendant. There beingno finding if good cause for previous non-appearance has been shown or establishedthe Court below could not proceed withthe passing of the order it had passed.When the law requires certain things to bedone and conferred a power to doing thatthings in certain specified manner then bynecessary implication what follows fromit is that act has got to be done or thatparticular powers have got to be exercisedin that manner alone and not otherwise,other modes of exercise of that power areclosed, See State of Uttar Pradesh v.Singham Singh , A.I.R. 1964 S.C. 358.

12. And in the case of Prahlad Singhand another Vs. Niyaz Ahmad and others,2000 (18) LCD 757, it has been held asunder:-

"Learned counsel for the petitioner insupport of his submission referred to andrelied upon the decision of the ApexCourt in Arjun Singh u. Mohindra Kumarand others. AIR 1964 SC 993, and thedecision of this Court in Bajrang BahadurTripathi v. Suraj Kumar, 1985 (3) LCD394. In Arjun Singh's case, thecontroversy Involved was as to whetheran order passed in exercise of powerunder Order IX, Rule 7. C.P.C. rejectingthe application to set aside the order toproceed ex parte would operate as resJudicata. In the present case, theapplication under Order IX, Rule 7,C.P.C. was dismissed. The order ofdismissing the said application hasbecome final; but the petitioner againfiled an application under Order IX, Rule7, C.P.C. The question was as to whetherthe subsequent application was hit byprinciple of res judicata, The Courtsbelow answered the said question inaffirmative. In Arjun Singh's case (supra),it was held that the order passed underOrder IX, Rule 7, C.P.C. will not operateas res Judicata while dealing with anapplication under Order IX, Rule 13,C.P.C. In the present case, so far, thedecree has not been passed ex parte. Incase the suit is decreed, it would be opento the petitioner to file an applicationunder Order IX, Rule 13. C.P.C. Thus thedecision in Arjun Singh's cose has got noapplication to the facts of this case.

13. In Bajrang Bahadur Tripathi'scase (supra) aforesaid decision of theSupreme Court came to be considered,after taking into consideration the saiddecision, it was ruled as under by thisCourt :

"The learned counsel for theplaintiff-opposite parties submitted thatafter ex parte evidence had already beenrecorded, the defend ant-applicant had no


right to make application under Order IX.Rule 7, and, therefore, the said applicationwas misconceived and had been rightlyrejected by the Court below. For makingthis submission that the application, at thestage at which it was moved, was notmaintainable, the learned counsel hasrelied upon Arjun Singh v. MohindraKumar and others, AIR 1964 SC 993. Inthis case, it was held by their Lordshipsthat if the entirety of the hearing had beencompleted and only judgment remained tobe pronounced. Order IX. Rule 7 was notapplicable".

"Arjun Singh v. Mohindra Stngh andothers, AIR 1964 SC 993, is of noassistance to the applicant ; rather it isagainst him. It was held in this case bytheir Lordships that Inherent power of theCourt cannot override the expressprovisions of the statute and that OrderIX, Rule 7 and Order IX, Rule 13 exhaustthe whole gamut of situations that mightarise owing to non-appearance ofdefendant during the course of trial. Inthis very case it is also laid down by theirLordships that where the hearing has beencompleted and the case has been fixed forpronouncement of Judgment, Order IX,Rule 7 is not attracted. The applicant didnot apply under Order IX, Rule 13 afterthe ex parte decree had been passed. Inthe circumstances. In view of theobservations made by their Lordships theapplicant had no right to claim settingaside of ex parte order".

14. In this case, as stated above, thetrial court directed to proceed ex parte on19.5.1994 and fixed for 15.7.1994 forhearing. On 15.7.1994 the plaintiff-respondent produced his evidence as exparte. Thereafter the application underOrder IX. Rule 7. C.P.C. was filed on6.8.1994 which was apparently notmaintainable. The subsequent application

filed by the petitioner again under OrderIX, Rule 7. C.P.C. on 11.8.1994 for thesame relief i.e. for setting aside the orderdated 15.7.1994, the said application wasclearly barred by Section 11, C.P.C."

13. Thus, the settled provisions oflaw in regard to provisions of Order IXRule 7 CPC is to the affect that whendefendant appears and assigns good causefor his previous non-appearance he may,upon such terms as the Court directs as tocosts or otherwise, be allowed to be heardand answer to the suit as if he hadappeared on the day, fixed for hisappearance.

14. So far as the good cause andsufficient cause for non-appearance isconcerned, the said words has beeninterpreted by the Hon'ble the SupermeCourt in the case of Sangram Singh Vs.Election Tribunal, Kotah, 1955 AIR (SC)425, as under:-

"Next, there must be ever present tothe mind the fact that our laws ofprocedure are grounded on a principle ofnatural justice which requires that menshould not be condemned unheard, thatdecisions should not be reached behindtheir backs, that proceedings that affecttheir lives and property should notcontinue in their absence and that theyshould not be precluded fromparticipating in them. Of course, theremust be exceptions and where they areclearly defined they must be given effectto. But taken by and large, and subject tothat proviso, our laws of procedure shouldbe construed, wherever that is reasonablypossible, in the light of that principle.

The existence of such a principle hasbeen doubted, and in any event wascondemned as unworkable and


impractical by O'Sullivan, J. in Hariram v.Pribhdas(1). He regarded it as anindeterminate term "liable to causemisconception" and his views were sharedby Wanchoo, C. J. and Bapna, J. inRajasthan: Sewa Ram v. Misrimal(1). Butthat a law of natural justice exists in thesense that a party must be heard in aCourt of law, or at any rate be afforded anopportunity to appear and defend himself,unless there is express provision to thecontrary, is, we think, beyond dispute. Seethe observations of the Privy Council inBalakrighna Udayar v. VasudevaAyyar(3), and especially in T. M. Barretv. African Products Ltd.(1) where LordBuckmaaster said "Do forms or procedureshould ever be permitted to exclude thepresentation of a litigant's defence". AlsoHari Vishnu's case which we have justquoted.

In our opinion, Wallace, J. was right inVenkataSubbiah v. Lakshminarassimham(5)in holding that "One cardinal principle to beobserved in trials by a Court obviously is thata party has a right to (1) A.I.R 1945 Sind98,102 (2) A.I.R. 1952 Raj. 12,14.

(3) A.I.R. 40 Mad. 793, 800 (4)A.I.R. 1928 P.C. 261, 262.

(5) A.I.R. 1925 Mad. 1274.

appear and plead his cause on alloccasions when that cause comes on forhearing", and that "It follows that a partyshould not be deprived of that right and infact the Court has no option to refuse thatright, unless the Code of Civil Proceduredeprives him of it".

Let us now examine that Code; andfirst, we will turn to the body of the Code.Section 27 provides that "Where a suit hasbeen duly instituted, a summons may beissued to the defendant to appear andanswer the claim".

15. And in the case of B. MadhuriGoud Vs. B. Damodar Reddy, 2012 (12)SCC 693, after placing reliance on itsearlier judgment in the case of MonibenDevraj Shah Vs. Municipal Corpn., 2012(5) SCC 157, held as under:-

"23. What needs to be emphasised isthat even though a liberal and justice-oriented approach is required to beadopted in the exercise of power underSection 5 of the Limitation Act and othersimilar statutes, the courts can neitherbecome oblivious of the fact that thesuccessful litigant has acquired certainrights on the basis of the judgment underchallenge and a lot of time is consumed atvarious stages of litigation apart from thecost.

24. What colour the expression'sufficient cause' would get in the factualmatrix of a given case would largelydepend on bona fide nature of theexplanation. If the court finds that therehas been no negligence on the part of theapplicant and the cause shown for thedelay does not lack bona fides, then itmay condone the delay. If, on the otherhand, the explanation given by theapplicant is found to be concocted or he isthoroughly negligent in prosecuting hiscause, then it would be a legitimateexercise of discretion not to condone thedelay."

16. Further, Order IX Rule 6 coversthe case of a defendant who did notappear at all on the first hearing date andsuit was adjourned after declaring hm exparte, as also a defendant who absentedafter filing written statement. In bothcases the ex - parte order only covered theperiod during which the defendant wasactually absent and it did not act as a barto his resuming appearance in the suit at


the stage in which it then was if heappeared subsequently and wanted to putforward his evidence. The rule isapplicable if the defendant wants the courtto retrace its steps and to be allowed tofile written statement. But if the defendantwants to proceed from the stage alreadyreached, he will have an absolute rightwithout obtaining the court's permissionto take part in the proceeding.

17. Accordingly, Order IX Rule 7cannot be read to mean that defendantcannot be allowed to appear at all if hedoes not show good cause. All it means isthat he cannot be relegated to the positionhe would have occupied if he hadappeared. He cannot be stopped fromparticipating in the proceeding simplybecause he did not appear in the first orsome other hearing. He will have to showgood cause for his previous absence, onlyif he desires to be relegated back to theposition in which he would have been putif he had appeared at the previoushearings, so that the proceedings in hisabsence could be reopened.

18. In the instant case when anapplication for recall of the ex-parte orderdated 07.03.2005 has been moved towhich objection has been filed by therevisionist after taking into considerationthe cause which has been shown by thedefendant-respondent, the trial court hascome to the conclusion that there existssufficient cause rather good reason hasbeen shown by the defendant-respondentfor his previous non-appearance in theproceeding of the suit, allowed by orderdated 23.12.2005, thus, I do not find anyillegality or infirmity in the same.

19. For the foregoing reason, therevision lacks merit and is dismissed.

20. Office is directed to send thelower court record to the court concerned.

--------ORIGINAL JURISDICTION

CIVIL SIDEDATED: LUCKNOW 08.05.2015

BEFORETHE HON'BLE ADITYA NATH MITTAL, J.

Rent Control No. 59 of 2011

Km. Damyanti Manoocha ...PetitionerVersus

A.D.J. Faizabad & Ors. ...Respondents

Counsel for the Petitioner:Mohd. Aslam Khan, M.A. Khan

Counsel for the Respondents:Manish Kumar, I.D. Shukla, S.K. Mehrotra

(A)Small Causes Court Act, Section 25-Power of Revisional Court-very limited-whether of a tenant is chief tenant orsubtenant-being question of fact-can notbe touched by revisional court.

Held: Para-39In the present case, learned RevisionalCourt has exceeded in his jurisdiction inview of the law settled regarding Section25 of the Provincial Small Causes CourtsAct by reappreciating the evidence denovo and coming to a differentconclusion. If the Revisional Court wasof the view that the findings of the trialcourt suffer from any infirmity, legalweakness or otherwise erroneous, it haspower to remand the case to the trialcourt for recording a fresh finding afterlaying down appropriate guidelines. Butit was not within the competence of theRevisional Court to reassess theevidence himself and record his ownfindings of fact in place of one recordedby the trial court which was based onappreciation of evidence.

(B)U.P. Act No. 13 of 1972-Section-2(1)(g)-applicability-where tenancy

2 All] Km. Damyanti Manoocha Vs. A.D.J. Faizabad & Ors. 639

being quite old-running since 1946-rateof rent can be enhanced-while passingejectment-provisions of Section 2(1)(g)not applicable-except other provisions ofthe Act.

Held: Para-51Considering the law laid down by Hon'blethe Apex Court in Lachoo Mal vs. RadheyShyam (1971) 3 SCR 693, it is clarified thatthis direction of enhancement of the rate ofrent/ damages is made in spite of the factthat by virtue of Section 2 (1) (g) of ActNo.13 of 1972, the applicability of Section 2(1) (g) is waived. Meaning thereby thateither of the party shall not be entitled totake the benefit of Section 2 (1) (g) of ActNo.13 o f 1972 and other provisions of ActNo.13 of 1972 shall continue to apply.

Case Law discussed:2000(2) ARC 344; 2000(2) ARC 739; 1990 (1)ARC 517; [2010 (1) ARC 473]; AIR 1966 (Alld)280; [1966 AWR 274]; AIR 1973 (Alld.) 217;(2004) 4 Supreme Court Cases 794; (2007) 4Supreme Court Cases 306; (2008) 7 SupemeCourt Cases 722; Civil Appeal No. 2147 of1980; 1984 (2) LCD 189; [2008 (1) ARC 70];AIR 1965 SC 1585; AIR 1969 SC 1344; 1995Supp (4) SCC 675; JT 1998 (8) 157; JT 1999(10) SC 51:2000 SCFBRC 27; 1965 ALJ 989(DB); 1998 (2) ARC 575; 2004 (2) ARC 64;2004 (2) ARC 652; ADJ 2004 (2) ARC 652; AIR2011 SC 1940.

(Delivered by Hon'ble Aditya Nath Mittal, J.)

1. Heard learned counsel for thepetitioner, learned counsel appearing forthe opposite party no.14 and perused therecord.

2. This writ petition has been filedwith the prayer to issue a writ of certiorarifor quashing the judgment and order dated31.01.2011, passed by the opposite partyno.1.

3. The brief facts of the case are thatthe petitioner (landlady) had filed the suitfor ejectment, arrears of rent and damages

against the opposite party no.14 andothers on the ground that the said shopwas taken on rent by Gauri Shanker in thename & Style of firm Gauri ShankerShyam Behari. The opposite party no.14being daughter's son was not entitled toinherit the tenancy rights but since he wasalleging to be a partner of the firm GauriShanker Roop Narain, therefore, he hasbeen arrayed as a party. It was allegedthat the shop in dispute was not in thetenancy of any firm rather it was in atenancy of Gauri Shanker in his individualcapacity. The landlady was not residing atFaizabad as she was Lecturer in Jaipur.When she came to Faizabad, she came toknow that the shop in dispute waspartitioned, which has changed its natureand diminished its utility. The firmShyam Behari Shiv Das and the firm M/sGauri Shanker Roop Narain are sub-tenants, therefore, no notice was requiredto be served upon them. As per the rentdeed dated 13.03.1946, the tenant was notgiven the right to sub-let the shop. Thetenancy was terminated by notice dated31.01.1981.

4. The suit was contested by theopposite party no.14 and admitted thepetitioner to be the landlady and the rateof rent. It was alleged that Gauri Shankerand Shyam Behari were real brothers andGauri Shanker was the Karta of jointHindu family, and Shyam Behari was themember. On the death of Gauri Shanker,his three daughters and Roop Narain inwhose favour Smt. Rampati executed awill on 09.01.2009 became tenants. GauriShanker was carrying business in the firmname and style Shyam Behari Shiv Dasand they are carrying on their respectivebusiness since April, 1972. The suit wasalso contested by the defendant nos.1, 6, 7and 9, who also admitted the petitioner to


be landlady but they denied the fact ofsub-letting. All the defendants have takenthe plea that the shop was taken on rentby the firm Gauri Shanker Shyam Behariand Shiv Das was the partner. It was alsoalleged that the rent was paid by the firm.

5. After appreciating the evidenceon record, the Judge, Small Cause Courtscame to the conclusion that the originaltenant had sub-let the said shop and therewas no illegality in the notice and therebythe application was allowed by thejudgment and order dated 01.10.2008.

6. The said judgment waschallenged in Civil Revision No.144 of2008 whereby the learned RevisionalCourt had found that the shop was givenon rent to both Gauri Shanker and ShyamBehari, therefore, there was no sub-letting. Learned Revisional Court alsocame to the conclusion that Shiv Das wasalso partner in the said firm, but theoriginal tenancy remained in the name ofGauri Shanker Shyam Behari. LearnedRevisional Court also came to theconclusion that there was no violation ofterms and conditions of the rentagreement and there was no sub-letting.Accordingly, the learned Revisional Courtallowed the revision and set aside thejudgment and order dated 01.10.2008 bythe judgment and order dated 31.01.2011.

7. At the very outset, learnedcounsel for the petitioner has requested totreat this writ petition under Article 227 inplace of Article 226 of the Constitution ofIndia.

8. Learned counsel for the petitionerhas submitted that the learned RevisionalCourt exceeded in his powers as providedunder Section 25 of the Small Cause

Courts Act and the Revisional Courtcannot reappraise the evidence. It has alsobeen submitted that Section 3 (e) and 7 (f)of the Old Act also do not permit forinducting the partner and under new actalso and in view of the provisions ofSections 11 and 16, the sub-letting isprohibited. It has also been submitted thatthe rent deed was executed only by GauriShanker and not by Shyam Behari.Therefore Shyam Behari was not thetenant, but learned Revisional Court hasmisread the evidence on record and thefindings are perverse.

9. In support of his submission,learned counsel for the petitioner hasrelied upon the case Vijay Kumar Guptavs. Smt. Savitri Devi and another reportedin 2000 (2) ARC 344, in which Hon'bleSingle Judge of this Court has held that ifoccupation of the petitioner is in violationof provisions of Sections 11 and 13 of theAct, he is liable to be evicted.

10. Learned counsel for the petitionerhas also relied upon the case Om Prakashand others vs. IInd Additional District Judge,Saharanpur and others reported in 2000 (2)ARC 739, in which Hon'ble Single Judge ofthis Court has held that in the revisionaljurisdiction under Section 25 of the SmallCause Courts Act, the Revisional Court isbound by findings of fact reached by the trialcourt and it has no power to examine denovo findings of fact. It has further been heldthat Revisional Court has no jurisdiction toreassess or reappraise the evidence in orderto determine the issues of fact. It has furtherbeen held that if the Revisional Court defers,it should remand the case for redecision.

11. Reliance has also been placed inthe case of Jagjit Singh vs. District Judge,Dehradun and others reported in 1990 (1)


ARC 517, in which the Hon'ble SingleJudge of this Court has held that even theconsent of landlord in accepting the rentcannot defeat the provisions of Sections,11, 13, 15 and 31 of the Act No.13 of1972.

12. Reliance has also been placed inthe case of Bhagwan Swarup (Dead)through LRs. vs. Smt. Hamida Khatoon(Dead) and others reported in [2010 (1)ARC 473], in which, in interpreting theprovisions of Section 25 of the SmallCause Courts Act, the Hon'ble SingleJudge of this Court has held that powersof Revisional Court under Section 25 ofSmall Cause Courts Act is limited and itis not open to the Revisional Court toreverse the findings of fact and to come toits own conclusion.

13. Learned counsel for thepetitioner has also relied upon the caseMohd. Ishaq vs. State of U.P. & othersreported in AIR 1966 (Alld) 280, in whichthe Full Bench of this Court has held thatwhen a tenant-in-chief vacates theaccommodation by sub-letting it toanother person, then the DistrictMagistrate is required to pass an orderunder Section 7 to the owner to let it toanother person. This law is regarding U.P.(Temporary) Control of Rent & EvictionAct, 1947. The similar view has also beentaken in the case of Sardar Harbans SinghSethi vs. Rent Control and EvictionOfficer, Nainital and others reported in[1966 AWR 274].

14. Reliance has also been placedupon the case Kunj Behari Lal Gupta vs.Shri Shivji Maharaj, Birajman Mandir andanother reported in AIR 1973 (Alld.) 217,in which Hon'ble the Single Judge of thisCourt has held that the term 'tenant' in

Section 2 (g) does not include personsenjoying benefit of contract of lease asassignees.

15. On the other hand, learnedcounsel for the opposite party no.14(tenant) has submitted that the RevisionalCourt has ample jurisdiction in case itfinds that the evidence on record has notbeen considered. It has also beenconsidered that the firm is in existencesince long and all the receipts of rent havebeen issued in the joint name. It has alsobeen submitted that there is no sub-tenancy and the learned Judge, SmallCauses Court had not appreciated theevidence on record in right perspective.Therefore, learned Revisional Court hadinterfered with the findings. It has alsobeen submitted that the Revisional Courtcan consider the evidence, which has notbeen considered by the trial court, andthereby no illegality or error of law hasbeen committed by the Revisional Court.

16. In support of his submission,learned counsel for the opposite partyno.14 has relied upon the case ParvinderSingh vs. Renu Gautam and othersreported in (2004) 4 Supreme Court Cases794, in which the Hon'ble Supreme Courthas held as under:-

"The rent control legislations whichextend many a protection to the tenant,also provide for grounds of eviction. Onesuch ground, most common in all thelegislations, is subletting or parting withpossession of the tenancy premises by thetenant. Rent control laws usually protectthe tenant so long as he may himself usethe premises but not his transfereeinducted into possession of the premises,in breach of the contract or the law,which act is often done with the object of


illegitimate profiteering or rack renting.To defeat the provisions of law, a device isat times adopted by unscrupulous tenantsand sub-tenants of bringing into existence adeed of partnership which gives therelationship of tenant and sub-tenant anoutward appearance of partnership while ineffect what has come into existence is a sub-tenancy or parting with possessioncamouflaged under the cloak ofpartnership. Merely because a tenant hasentered into a partnership he cannotnecessarily be held to have sublet thepremises or parted with possession thereofin favour of his partners. If the tenant isactively associated with the partnershipbusiness and retains the use and controlover the tenancy premises with him, may bealong with the partners, the tenant may notbe said to have parted with possession.However, if the user and control of thetenancy premises has been parted with anddeed of partnership has been drawn up asan indirect method of collecting theconsideration for creation of sub-tenancy orfor providing a cloak or cover to concealthe transaction not permitted by law, theCourt is not estopped from tearing the veilof partnership and finding out the realnature of transaction entered into betweenthe tenant and the alleged sub-tenant".

17. Reliance has also been placed uponthe case Amar Nath Agarwalla vs. DhillonTransport Agency reported in (2007) 4Supreme Court Cases 306, in which Hon'blethe Supreme Court has held as under:-

"The question is whether carrying onbusiness by one of the partners of the firmwhich was originally the tenant amountsto sub-letting of the premises by theoriginal tenant.

In Murli Dhar v. Chuni Lal and Ors.,(1969) RCR 563 this Court had repelled

the contention that the old firm and thenew firm being two different legal entities,the occupation of the shop by the new firmwas occupation by the legal entity otherthan the original tenant and suchoccupation proved sub-letting. Repellingthe contention this Court held:-

"This contention is entirely withoutsubstance. A firm, unless expresslyprovided for the purpose of any statutewhich is not the case here, is not a legalentity. The firm name is only acompendious way of describing thepartners of the firm. Therefore,occupation by a firm is only occupationby its partners. Here the firms have acommon partner. Hence the occupationhas been by one of the original tenants."

In Mohammedkasam HajiGulambhai v. Bakerali Fatehali (Dead)by LRs., Reported in [1998] 7 SCC 608this Court observed:

"There is absolute prohibition on thetenant from sub-letting, assigning ortransferring in any other manner hisinterest in the tenanted premises. Thereappears to be no way around this subject ofcourse if there is any contract to thecontrary between the landlord and thetenant. In a partnership where the tenant isa partner, he retains legal possession of thepremises as a partnership is a compendiumof the names of all the partners. In apartnership, the tenant does not divesthimself of his right in the premises. On thequestion of sub-letting etc. the law is nowvery explicit. There is prohibition inabsolute terms on the tenant from sub-letting, assignment or disposition of hisinterest in the tenanted premises."

The same principle was reiterated bythis Court in Mahendra Saree Emporium(II) v. G.V. Srinivasa Murthy, reported in[2005] 1 SCC 481 wherein this Courtheld:


"The mere fact that another person isallowed to use the premises while thelesses retains the legal possession is notenough to create a sub lease. Thus, thethrust is, as laid down by this Court, onfinding out who is in legal possession ofthe premises. So long as the legalpossession remains with the tenant themere factum of the tenant having enteredinto partnership for the purpose ofcarrying on the business in the tenancypremises would not amount to sub-letting.In Parvinder Singh vs. Renu Gautam(2004) 4 SCC 794, a three-Judge Benchof this Court devised the test in theseterms: (SCC P. 799, Para 8) "If the tenantis actively associated with the partnershipbusiness and retains the use and controlover the tenancy premises with him, maybe along with the partners, the tenant maynot be said to have parted withpossession. However, if the user andcontrol of the tenancy premises has beenparted with and deed of partnership hasbeen drawn up as an indirect method ofcollecting the consideration for creationof sub-tenancy or for providing a cloak orcover to conceal a transaction notpermitted by law, the Court is notestopped from tearing the veil ofpartnership and finding out the realnature of transaction entered intobetween the tenant and the alleged sub-tenant."

Applying these principle to theinstant case, it is patent that one of thepartners of the firm which was theoriginal tenant has continued in legalpossession of the premises as a partner ofanother firm constituted after dissolutionof the original firm. Thus the legalpossession is retained by a partner whowas one of the original tenants. In thesecircumstances, we find no fault with the

finding of the High Court there was nosub-letting of the premises and hence thesuit for eviction deserved to bedismissed."

18. Learned counsel for the oppositeparty no.14 has also relied upon the caseNirmal Kanta (Dead) through Lrs vs.Ashok Kumar and another reported in(2008) 7 Supreme Court Cases 722, inwhich the Hon'ble Supreme Court in para-16 has held as under:-

"16. What constitutes sub-letting hasrepeatedly fallen for the consideration ofthis Court in various cases and it is nowwell-established that a sub-tenancy or asub-letting comes into existence when thetenant inducts a third party/stranger tothe landlord into the tenantedaccommodation and parts with possessionthereof wholly or in part in favour of suchthird party and puts him in exclusivepossession thereof. The lessor and/or alandlord seeking eviction of a lessee ortenant alleging creation of a sub-tenancyhas to prove such allegation by producingproper evidence to that effect. Once it isproved that the lessee and/or tenant hasparted with exclusive possession of thedemised premises for a monetaryconsideration, the creation of a sub-tenancy and/or the allegation of sub-letting stands established."

19. Reliance has also been placed uponthe judgment of Hon'ble Supreme Courtdelivered in the case Civil Appeal No.2147of 1980; Jagdish Prasad vs. Smt. AngooriDevi decided on March 15, 1984 reported in1984 (2) LCD 189, in which Hon'ble theSupreme Court has held as under:-

"The legal position having beentotally misconceived by the trial court and


there being an assumption of the positionwhich the landlord was required to proveby evidence, the revisional authorityentitled to Point out the legal error andrectify the defect. This is all that had beendone by the Additional District Judge.

In the case of Syed Yakoob v. K.S.Radhakrishna & Ors.,(1964) SCR64, aConstitution Bench of this Court indicatedthe scope of interference in a certiorariproceeding by saying that a writ ofcertiorari is issued for correcting theerrors of jurisdiction committed by thecourts or tribunals in cases where theyexceed their jurisdiction or fail to exerciseit or exercise it illegally or improperly.i.e. where an order is passed withouthearing the party sought to be affected byit or where the procedure adopted isopposed to principles of natural justice. Acaution was indicated by saying that thejurisdiction to issue a writ of certiorari isa supervisory one and in exercising it, thecourt is not entitled to act as a court ofappeal. That necessarily means that thefindings of fact arrived at by the inferiorcourt or tribunal are binding. An error oflaw apparent on the face of the recordcould be corrected by a writ of certiorari,but not an error of fact, however, grave itmay appear to be."

20. Learned counsel for the oppositeparty no.14 has also placed reliance uponthe judgment of this Court delivered inWrit Petition No.14768 of 1990; AbdulHamid vs. IXth ADJ, Bulandshahr andother, decided on May 11, 2007 reportedin [2008 (1) ARC 70], in which Hon'bleSingle Judge of this Court in paras-9, 11and 14 has held as under:-

"9. In Hari Shanker and other v.Girdharilal, AIR 1963 SC 698, theSupreme Court held that a decision given

according to law would not be set asideexcept on certain errors of law. A divisionbench of this Court in Laxmi Kishore andanother v Har Prasad Shukla, AIR 1979AWC 746 held that the Court exercisingrevision power under Section 25 does notpossess jurisdiction to determine issues offact itself by entering into the evidenceand assessing it. The revisional Court hadno jurisdiction to reassess or reappraisethe evidence the evidence or determine anissue of fact but, the revisional Courtwould be justified to interfere in a findingof fact where it finds that the trial courthad based its finding on no evidence orthat the findings was perverse or that ithad ignored a vital piece of materialevidence."

The Division Bench held-"As already seen, a Court acting

under Section 25 of the provincial SmallCause Courts Act has no such power. Thepower to determine question of fact hasbeen expressly taken away."

And further held-"The Court deciding a revision under

Section 25 of the Provincipal Small CauseCourts Act has to satisfy itself that thetrial Courts' decree or order is accordingto law. Of course, the Revisional Courtshould keep in mind the Supreme Court'sdictum in Naicker' case that a wrongdecision on fact is also a decisionaccording to law."

And further held-"If it finds that there is no evidence

to sustain a finding on a particular issueof fact, it can ignore that finding. Samewill be the case where that findings isbased only on inadmissible evidence. Insuch cases, the Court will be justified indeciding the question of fact itself,because the evidence is all one way. Noassessment is needed. The Court can alsodecide the revision only a question of law


or some preliminary point of law, viz,validity of notice, is sufficient or itsdecision.

But, if it finds that a particular findingof fact is vitiated by an error of law, it haspower to pass such order as the justice of thecase requires, but it has no jurisdiction toreassess or reappraise the evidence in orderto determine an issue of fact for itself. If itcannot dispose of the case adequatelywithout a finding on a articular issue of fact,it should send the case back after layingdown proper guidelines. It cannot enter intothe evidence, assess it and determine anissue of fact."

"11. In the light of the aforesaidjudgments, the revisional Court can ignore afinding on a particular issue of fact, if it findsthat there was no evidence to sustain such afinding on that particular issue. Therevisional Court could also ignore a findingwhere it was based on inadmissible evidence.The revisional Court, if it finds that aparticular finding of fact was vitiated by anerror of law, it had power to pass such orderas the justice of the case may require".

"14. In the light of the aforesaid, thisCourt holds that the revisional Courtrightly ignored the findings given by thetrial court and correctly assessed theevidence in coming to the conclusion thatthe petitioner had constructed additionalrooms. The revisional Court was withinits power and was competent to assess theevidence which was in consonance of thepowers provided under Section 25 of theProvincial Small Cause Courts Act. It wasnot necessary for the revisional Court toremit the matter back to the trial Courtfor reconsideration".

21. In view of the above, thefollowing points need to be adjudicated.

(i) What are the power of RevisionalCourt under Section 25 of Small Causes

Courts Act and whether it can re-appreciate the evidence on record or not ?

(ii) Whether the shop in question wassub-letted or not ?

22. In the present case, learned trialcourt after appreciating the evidence ofboth the parties has come to theconclusion that the basis of tenancy wasof the agreement dated 13.03.1946. It hasalso been come to the conclusion that inbreach of conditions of agreement dated13.03.1946, there was sub-letting of theshop in question, therefore, the tenant wasliable to be evicted.

23. Learned Revisional Court hasdrawn the conclusion that Shiv Das was abusiness partner but he was not sub-tenant. Learned Revisional Court has alsocome to the conclusion that GauriShanker and Shyam Behari both werejoint tenants. Therefore the findings oflearned court below are wrong andaccordingly the revision was allowed andthe judgment and decree dated 01.10.2008was set aside.

24. From the pleadings and evidenceof both the parties, it is not disputed that thebasis of tenancy was the rent deed dated13.03.1946. Both the courts below haveinterpreted this rent deed in their own way.The main consideration before the trial courtwas (i) whether the shop in question was inthe sole tenancy of Gauri Shanker, or (ii)whether the shop in question was in jointtenancy of Gauri Shanker and Shyam Beharior (iii) whether the tenancy was in the nameof partnership firm M/s Gauri ShankerShyam Behari.

25. Learned trial court has come tothe conclusion that it was in the soletenancy of Gauri Shanker while learned


Revisional Court has come to theconclusion that it was in the joint tenancyof Gauri Shanker and Shyam Behari. Theplea was also raised before the RevisionalCourt that because the said shop was inthe tenancy of firm Gauri Shanker ShyamBehari, therefore Shiv Das could not beinducted as partner in the firm without theconsent of the landlady. This contentionwas not accepted by the Revisional Court.

26. As far as powers of RevisionalCourt under Section 25 of ProvincialSmall Causes Courts Act are concerned,Section 25 reads as under:-

"25. Revision of decrees and ordersof Courts of Small Causes.-The DistrictJudge, for the purpose of satisfyinghimself that a decree or order made inany case decided by a Court of SmallCauses was according to law, may of hisown motion, or on the application on anaggrieved party made within thirty daysfrom the date of such decree or order, callfor the case and pass such order withrespect thereto as he thinks fit :

Provided that in relation to any casedecided by a District Judge or AdditionalDistrict Judge exercising the jurisdictionof a Judge of Small Causes, the power ofrevision under this section shall vest inthe High Court."

27. Section 25 of the. Small CausesCourts Act came to be interpreted beforethe Apex Court and this Court in numberof cases. By the Apex Court and thisCourt, it has consistently been held thatthe District Judge or the High Court, inexercise of powers under Section 25 ofthe Small Cause Courts Act, has gotlimited jurisdiction. In the revision underthe aforesaid Section, the Court could seethat the decree or order in any case

decided by the Court of Judge SmallCauses was according to law or not.

28. In the State of Kerala v. K.M.C.Abdula and Company, AIR 1965 SC1585, while considering the provisions ofSection 12 of Madras General Sales TaxAct, which was analogous to theprovisions of Section 25 of the aforesaidAct, the Apex Court has held as under :

"There is an essential distinctionbetween an appeal and revision. Thedistinction is based on difference implicitin the said two expressions. An appeal isa continuation of the proceeding; in factthe entire proceedings are before theappellate court and it has power toscrutinize the evidence subject to thestatutory limitation prescribed. But in thecase of a revision whatever powers therevisional authority may or may not, doesnot have power to review the evidenceunless statute specifically conferred on itthat power."

29. In Malini Ayappa Naicker v.Seth Manghraj Udhaudas, AIR 1969 SC1344, it was ruled by the Supreme Courtthat while exercising the power underSection 75 (1) of Provincial InsolvencyAct, which is analogous to the provisionsof Section 25 of the Small Cause CourtsAct, the High Court is by and large boundby the findings of fact reached by theDistrict Court. It was also observed that awrong decision on facts by a competentauthority is also a decision according tolaw and the Revisional Court has nopower to review the findings of factreached by the trial court.

30. In Dr. D. Sankaranarayanan v.Punjab National Bank, 1995 Supp (4)SCC 675, it was held as under :


"We are of the view that the learnedcounsel for the appellant is right when hecontends that the revision petition wastreated by the High Court as if it were asecond appeal and upon a reassessmentof the evidence, the findings of facts of thefirst appellate court were reversed."

"Thus, in our view, the revisionalpower of High Court under Section 25 ofthe Act not being an appellate power. It isimpermissible for the High Court toreassess the evidence in a revisionpetition filed under Section 25 of the Act."

31. In Rafat Ali v. Sugni Bai andothers, JT 1998 (8) SC 157, the ApexCourt taking into consideration thedecision in Sri Raj Laxmi Dyeing Worksv. Rangaswami, JT 1998 (4) SC 46, aswell as in Sarla Ahuja v. United IndiaInsurance Company Ltd., JT 1998 (7) SC297, ruled that the High Court should notinterfere with the findings of fact merelybecause it does not agree with thefindings of the subordinate authority andthat it was not open to the High Court tosubstitute the findings of the LowerCourts with its own findings in exerciseof its limited supervisory jurisdiction.

32. Similar view has been taken bythe Supreme Court in Ramdoss v. K.Thangavelu, JT 1999 (10) SC 51: 2000SCFBRC 27, wherein while consideringthe scope of Section 25 of the T. N.Buildings (Lease and Rent Control) Act,1960 which is analogous to the provisionsof the Act, it was ruled as under :

"The High Court, under Section 25 ofthe Act, can call for and examine the recordof the appellate authority in order to satisfyitself as to regularity of such proceedings orthe correctness, legality or propriety of anydecision or orders passed therein."

33. Beginning with Ram Narain v. K.L. S. Vishwakarma, 1965 ALJ 989 (DB) andanother Division Bench's decision in LaxmiKishore and another v. Har Prasad Shukla,1981 ARC 545, this Court has consistentlytaken the view that in exercise of powersunder Section 25 of the Provincial SmallCause Courts Act, the Revisional Court hasgot no jurisdiction to re-appraise theevidence and to substitute its own findingson the questions of fact in place of findingsrecorded by the trial court. A reference in thisregard may be made to the decisions inPrayag Narain Gaur v. Muneshwar Das andanothe,. 1979 ARC 341; Gopal KrishnaAndley u. Vth Additional District Judge,Kanpur and others, 1982 (1) ARC 45 ; FakirChand v. IInd Additional District Judge,Aligharh and others, 1984 (1) ARC 68;Jagdish Prasad v. Angoori Devi, 1984 (1)ARC 679; Manmohan Dixit v. AdditionalDistrict Judge/Special Judge (E. C. Act),Jalaun at Orai and others, 1996 (2) ARC 561; Smt. Fatima Begum and others v. IVthAdditional District Judge, Jhansi and others,1997(2) ARC 107 and Durga Prasad andothers v. VIIth Additional District Judge,Kanpur Nagar and others, 1998 (1) ARC470.

34. In view of the above, the law issettled that the Revisional Court could ignorethe finding of fact recorded by the trial courtand could record its own finding where thefinding of the trial court is based on noevidence or there is absolutely no evidenceon record to sustain a particular finding offact, or it is based on inadmissible evidenceor the same is perverse in the sense that noreasonable man could have ever reached tothe conclusion arrived at by the Court below.

35. In 1998 (2) ARC 575, Murti ShriLaxman Ji Maharaj v. Panna Lal Sahu andanother, it was ruled as under:-


"If the Revision Court was of theview that the finding of the trial courtsuffered from any infirmity, legalweakness or otherwise was erroneous, ithad the power to remand the case to thetrial court for recording a fresh findingafter laying down appropriate guidelinesbut it was not within the competence ofthe Revisional Judge to assess theevidence himself and record his ownfinding of fact in place of the onerecorded by the trial court which wasbased on appreciation of evidence."

36. The law relied upon by learnedcounsel for the opposite parties in LaxmiKishore and another vs. Har PrasadShukla, AIR 1979 AWC 746 also saysthat the Revisional Court would bejustified to interfere in a finding of factwhere it finds that the trial court hadbased its finding on no evidence or thatthe findings were perverse or that it hadignored a vital piece of material evidence.The reliance has also been placed uponthe case Mool Narain Mehrotra vs. Smt.Gulab Devi and others, 1987 (2) ARC411, in which it has been held that theRevisional Court could also ignore afinding where it was based oninadmissible evidence. The RevisionalCourt, if it finds that a particular findingof fact was vitiated by an error of law, ithad power to pass such order as thejustice of the case may require.

37. Considering all the aforesaid lawregarding powers of the Revisional Court,and applying the principles laid down inthe aforesaid law in the context of thepleadings, documentary evidence and thefindings, it cannot be said that the trialcourt has based its finding on noevidence. It can also not be said that thefindings of trial court had ignored any

vital piece of material evidence. It canalso not be said that the findings werebased on inadmissible evidence. It cannotbe disputed that in the present caselearned Revisional Court has reassessedthe evidence on record de novo and hasdrawn a different conclusion reversing thefindings of fact arrived by the trial court.It is undisputedly a finding of fact thatwho was the tenant i.e. Gauri Shanker in asole capacity or Gauri Shanker andShyam Behari in the joint capacity or thefirm Gauri Shanker Shyam Behari. Theimpact of decision of all these threeaspects of tenant shall be far reaching. IfGauri Shanker is found to be sole tenantthen the position shall be different and thequestion of sub-tenancy may arise. But ifGauri Shanker and Shyam Behari werethe joint tenants then the heirs of ShyamBehari may also be treated to be thetenant after the death of Shyam Behari.But if the firm Gauri Shanker ShyamBehari is treated to be tenant then ShivDas cannot be said to be sub-tenantbecause the apex court in Parvinder Singhvs. Renu Gautam and others (supra) hasheld as under:-

"The rent control legislations whichextend many a protection to the tenant,also provide for grounds of eviction. Onesuch ground, most common in all thelegislations, is subletting or parting withpossession of the tenancy premises by thetenant. Rent control laws usually protectthe tenant so long as he may himself usethe premises but not his transfereeinducted into possession of the premises,in breach of the contract or the law,which act is often done with the object ofillegitimate profiteering or rack renting.To defeat the provisions of law, a deviceis at times adopted by unscrupuloustenants and sub-tenants of bringing into


existence a deed of partnership whichgives the relationship of tenant and sub-tenant an outward appearance ofpartnership while in effect what has comeinto existence is a sub-tenancy or partingwith possession camouflaged under thecloak of partnership. Merely because atenant has entered into a partnership hecannot necessarily be held to have subletthe premises or parted with possessionthereof in favour of his partners. If thetenant is actively associated with thepartnership business and retains the useand control over the tenancy premises withhim, may be along with the partners, thetenant may not be said to have parted withpossession. However, if the user and controlof the tenancy premises has been partedwith and deed of partnership has beendrawn up as an indirect method ofcollecting the consideration for creation ofsub-tenancy or for providing a cloak orcover to conceal the transaction notpermitted by law, the Court is not estoppedfrom tearing the veil of partnership andfinding out the real nature of transactionentered into between the tenant and thealleged sub-tenant".

38. In Amar Nath Agarwalla vs.Dhillon Transport Agency (supra) theHon'ble Apex Court has further held thatone of the partners of the firm which wasthe original tenant has continued in legalpossession of the premises as a partner ofanother firm constituted after dissolutionof the original firm, the legal possession isretained by a partner who was one of theoriginal tenants and it cannot be said to besub-letting of the premises.

39. As held above, it is question offact that whether Gauri Shanker was soletenant or Gauri Shanker and ShyamBehari were joint tenant or M/s Gauri

Shanker Shyam Behari were tenant is aquestion of fact. The findings of both thecourts below are in conflict with eachother. In the present case, learnedRevisional Court has exceeded in hisjurisdiction in view of the law settledregarding Section 25 of the ProvincialSmall Causes Courts Act byreappreciating the evidence de novo andcoming to a different conclusion. If theRevisional Court was of the view that thefindings of the trial court suffer from anyinfirmity, legal weakness or otherwiseerroneous, it has power to remand thecase to the trial court for recording a freshfinding after laying down appropriateguidelines. But it was not within thecompetence of the Revisional Court toreassess the evidence himself and recordhis own findings of fact in place of onerecorded by the trial court which wasbased on appreciation of evidence.

40. In these circumstances, there iserror of jurisdiction committed by theRevisional Court and I am of the viewthat the learned Revisional Court hasexceeded his jurisdiction.

41. In view of the above legalposition, the writ petition deserves to beallowed and the judgment and order dated31.01.2011 passed by the learnedAdditional District Judge, Court No.9,Faizabad is liable to be set aside.

42. In Khursheeda v. ADJ, 2004 (2)ARC 64 and H.M. Kichlu v. ADJ 2004(2) ARC 652, it has been held that whilegranting relief against eviction to thetenant in respect of building covered byRent Control Act or while maintaining thesaid relief already granted by the courtsbelow, writ court is empowered toenhance the rent to a reasonable extent.


43. In the aforesaid authority ofKhursheeda (supra), reliance was placedupon the Supreme Court authority ofM.V. Acharya v. State of Maharashtra,AIR 1998 SC 602 : 1998 SCFBRC 75,where it was held that it was essential toprovide for periodical enhancement ofrent under the Rent Control Acts. TheSupreme Court has further held thatfrozen rents are giving rise to lawlessnessand landlords out of frustration areapproaching muscle man to get thepremises vacated and courts of law arebecoming redundant in this sphere. Thisauthority has been followed by theSupreme Court in Satyawati Sharma(dead) by L.Rs. v. Union of India andanother, (2008) 5 SCC 287: 2008 (71)AlR 499 : 2008 (3) ARC 1.

44. Under U.P. Rent Control Act,there is no provision of enhancement ofrent after October, 1972 (Except wherelandlord is public charitable or publicreligious institution (Section 9-A) orGovernment is tenant (Section 21 (8). Inthe aforesaid authority of Khursheeda theauthority of Supreme Court AIR 1996 SC2410 : 1996 SCFBRC 471, ShangrilaFood Products Ltd. v. Life InsuranceCorporation of India is placed inparagraph 11 of which is quoted below:-

"It is well settled that the High Courtin exercise of its jurisdiction under Article226 of the Constitution can take cognizanceof the entire facts and circumstances of thecase and pass appropriate orders to givethe parties complete and substantial justice.Thus jurisdiction of the High Court, beingextraordinary, is normally exercisablekeeping in mind the principles of equity.One of the ends of the equity is to promotehonesty and fair play. If there be any unfairadvantage gained by a party priorily, before

invoking the jurisdiction of the High court,the Court can take into account the unfairadvantage gained and can require the partyto shed the unfair gain before grantingrelief."

45. Thereafter in para-8 of theaforesaid authority of Khursheeda, it washeld as under :-

"Rent Control Act confers a reasonableadvantage upon the tenant of protectionagainst arbitrary eviction. Tenant under theRent Control Act cannot be evicted except onspecific grounds like bona fide need of thelandlord, arrears of rent, subletting andmaterial alternation etc. This advantage isalso coupled with the advantage of immunityfrom enhancement of rent. The latteradvantage cannot be said to be eitherreasonable or equitable. The Supreme Courtin the aforesaid authority of S.F.P. v. L.I.C.,AIR 1996 SC 2410, has laid down that whilegranting relief to a party the writ court canvery well ask the said party to shed the unfairadvantage which it gained under theimpugned order. By slightly extending thesaid doctrine it may safely be held that whilegranting the reasonable advantage to thetenant conferred upon him by the RentControl Act the tenant may be asked to shedthe unreasonable arbitrary advantageconferred upon him by the said Rent ControlAct. The writ court therefore while grantingor maintaining the relief against arbitraryejectment ot the tenant can very well ask thetenant to shed the un-reasonable benefit ofthe Rent Control Act granted to him in theform of immunity against enhancement ofrent, however inadequate the rent might be.Tenant will have to shed the undueadvantage of immunity from enhancement ofrent under the Rent Control Act to barter hisprotection from arbitrary eviction providedfor by the said Act."


46. Thereafter in H.M. Kitchlu v.ADJ, 2004 (2) ARC 652, it has been heldthat the same principle of enhancement ofrent to a reasonable extent may be madeapplicable while dismissing the writpetition of the landlord for the reason thatby doing so writ court approves theprotection of Rent Control Act granted tothe tenant by the courts below.

47. Further in Mohd. Ahmad vs.Atma Ram Chauhan AIR 2011 SC 1940(arising out of proceedings under Section21 of U.P. Rent Control Act), it has beenheld as under:-

"According to our considered viewmajority of these cases are filed becauselandlords do not get reasonable rent akinto market rate."

48. The present tenancy is quite oldsince 1946, and since then the value ofrupee has gone down by more than 100times. It is the right of every landlord toget proper return of his property. Theprices of land and building have alsotouched a new heights.

49. The trial court has enhanced therate of rent from 01.02.1981 to18.08.2000 at the rate of Rs.100/- permonth and from 18.08.2000 to the date ofactual possession the rent/ damages hasbeen fixed Rs.1000/- per month. Thelitigation between the parties is still goingon since 1981 for which about 34 yearshave passed and it is not sure that whenthis litigation will come to an end.

50. Certainly, the tenant must be in againing position from the said shop.Therefore, considering all facts andcircumstances of the case and consideringthe Apex Court judgments and thejudgments of this Court referred above,

the rent/ damages is enhanced toRs.2000/- per month with effect from01.10.2008 for a period of five years i.e.upto 30.09.2013 and Rs.3000/- per monthfrom 01.10.2013 for a further period offive years.

51. Considering the law laid downby Hon'ble the Apex Court in Lachoo Malvs. Radhey Shyam (1971) 3 SCR 693, it isclarified that this direction ofenhancement of the rate of rent/ damagesis made in spite of the fact that by virtueof Section 2 (1) (g) of Act No.13 of 1972,the applicability of Section 2 (1) (g) iswaived. Meaning thereby that either ofthe party shall not be entitled to take thebenefit of Section 2 (1) (g) of Act No.13 of 1972 and other provisions of Act No.13of 1972 shall continue to apply.

52. Accordingly, the writ petition isallowed. The judgment and order dated31.01.2011 passed by the learnedAdditional District Judge, Court No.9,Faizabad is set aside and the matter isremanded to the District Judge, Faizabadwho shall either himself or by transferringit to any Additional District Judge, shalldecide the revision afresh in view of theaforesaid legal position after affordingopportunity of hearing to both the parties.Every endeavour shall be done to decidethe revision expeditiously and, if possible,within six months.

53. The parties are directed toappear before the District Judge, Faizabadon 28.05.2015 for further hearing.

54. Let arrears of rent/damages bepaid within three months from today asdirected above, failing which, it shall berecoverable with the assistance of theCourt.


55. Office is directed to send thecertified copy of this order to the courtconcerned for compliance.



BEFORETHE HON'BLE SHRI NARAYAN SHUKLA, J.

THE HON'BLE RAJAN ROY, J.

W.P. No. 644 (SB) of 2015

Chandrapal Singh ...PetitionerVersus

Chairman-cum-Managing Director,Allahabad Bank & Anr. ...Respondents

Counsel for the Petitioner:Vijai Prakash Tiwari and Mohd. Naeem

Counsel for the Respondents:Vinay Shanker

Constitution of India, Art.-226-Dismissalof Branch Manager-on conviction onoffence under Prevention of CorruptionAct-prior infliction of punishment as perprovision of Allahabad Bank Officer(Employees Discipline and Appeal Rules-notice issued-considering reply andconduct of petitioner-dismissal orderpassed-unless acquitted in appeal-cannot be interfered by Writ Court-petitiondismissed.

Held: Para-7We have also perused the relevant ruleswhich permit dismissal from service insuch circumstances and we do not findany violation of the rules or the law inthe present case. In these circumstanceswe do not find it a fit case forinterference under Article 226 of theConstitution of India.

Case Law discussed:(2010) 8 SCC 537; 1985 (51) FLR 362 (SC);1995 SCC (L & S) 686; (2009) 9 SCC 24; W.P.

No. 459 (SB) of 2015; Spl. Appl. (D) No. 219of 2015; (2014) 7 SCALE 434.

(Delivered by Hon'ble Rajan Roy, J.)

1. Heard Mr. Vijai Prakash Tiwari,learned counsel for the petitioner as wellas Mr. Gopal Kumar Srivastava, learnedcounsel for opposite parties.

2. By means of this writ petition thepetitioner has challenged the order dated19.06.2013 passed by the disciplinaryauthority dismissing the petitioner fromservice, as also the appellate order dated20.12.2014 rejecting his appeal againstthe said order.

3. The facts of the case, in brief, arethat the petitioner who is the erstwhileManager, Naka Branch of AllahabadBank, was convicted by the Special Judge(CBI) Court No.1, Lucknow videjudgment dated 14.08.2012. in CriminalCase No.4/2004, under Section 7 of thePrevention of Corruption Act, 1988 andwas awarded a sentence of rigorousimprisonment for four years with fine ofRs.10,000/- and in default of payment offine simple imprisonment for 6 months asalso rigorous imprisonment for five yearswith a fine of Rs.15000/- in default simpleimprisonment for one year under Section13(2) read with 13(1)(d) of the Preventionof Corruption Act, 1988. Both thesentences were to run concurrently. Basedon the aforesaid conviction thedisciplinary authority issued an officememorandum dated 14.02.2013 to thepetitioner under Regulation 11 of theAllahabad Bank Officers Employees(Discipline and Appeal) Regulations,1976 read with Section 10(1) (b) (i) of theBanking Regulations Act, 1949, read withRegulation 4 (j) of the Regulations, 1976,

2 All] Chandrapal Singh Vs. Chairman-cum-Managing Director, Allahabad Bank & Anr. 653

calling upon him to submit hisrepresentation on the proposed penaltywithin 10 days to which the petitionersubmitted his reply. After analyzing thereply of the petitioner the impugned orderdated 19.06.2013 was passed by thedisciplinary authority dismissing thepetitioner from service. Thereafter anappeal was preferred by the petitionerwhich has also been rejected by theappellate authority by order dated20.12.2014 giving cogent reasons basedon the provisions of the Rules 1976,Banking Regulation Act, 1949, certaindecisions of the Supreme Court reportedin (2010)8 SCC 537 (Sushil KumarSinghal Vs. Regional Manager, PunjabNational Bank). Being aggrieved this writpetition has been filed challenging theaforesaid orders.

4. The contention of learned counselfor the petitioner was that thedisciplinary/appellate authority have notconsidered the conduct of the petitionerleading to his conviction and have passedthe order on the premise as if suchconviction automatically entaileddismissal from service which wascontrary to the Constitution Benchdecision in the case of Union of India andanother Vs. Tulsi Ram Patel, reported in1985 (51) FLR 362 (SC).

5. The learned counsel for the Bankon the other hand submitted that theimpugned orders do not suffer from anyerror as they have been passed in terms ofthe relevant provisions in the Rules aswell as the pronouncement of theSupreme Court in the case of DeputyDirector of Collegiate Education(Administration), Madras Vs. S. NagoorMeera reported in 1995 SCC (L&S) 686and Southern Railway Officers

Association and another Vs. Union ofIndia and others, reported in (2009) 9SCC 24 holding that a convicted bankemployee cannot be allowed to continuein service.

6. Having heard learned counsel forthe parties and perused the records we areunable to accept the contention of learnedcounsel for the petitioner. In the impugnedorder it is clearly mentioned that the saidorder was being passed after "carefullyconsidering the ground of conduct of SriChandrapal Singh which led to hisconviction". Based thereon the disciplinaryauthority formed the opinion that thecircumstances of the case warrantedimposition of penalty of dismissal fromservice. It is also relevant to refer a recentdecision of this Court in Writ Petition No.459 (SB) of 2015 Manoj Kumar Vs. Unionof India and others, decided on 09.04.2015,wherein considering the Division Benchjudgment of this Court dated 25.03.2015rendered in Special Appeal (Defective) No.219 of 2015 State of U.P. Vs. Prem MilanTiwari, the case of Deputy Director ofCollegiate Education (Administration),Madras Vs. S. Nagoor Meera (supra), andthe case of Government of A.P. And anotherVs. B. Jagjeevan Rao, reported in (2014) 7SCALE 434 as well as Union of India andanother Vs. Tulsi Ram Patel (supra) wereconsidered and following the said judgments,especially S. Nagoor Meera's case (supra) itwas observed that "Regard being had to theaforesaid enunciation of law and keeping inview the expected standard of administration,conviction on the charge of corruption has tobe viewed seriously and unless theconviction is annulled, an employer cannotbe compelled to take an employee back inservice." the Court declined to interfereduring subsistence of conviction. In our viewin the impugned order the disciplinary


authority has not only considered the conductof the petitioner which has led to hisconviction based on the provisions ofcriminal law under which he has beenconvicted for indulging in corruption, but itis also difficult to fathom that any other viewof the matter could have been taken by thedisciplinary authority in the facts of thepresent case considering the seriousness ofthe criminal offence for which the petitionerhas been convicted. We may also refer to thedecision of the Supreme Court in the case ofAllahabad Bank Vs. Deepak Kumar Bhola,reported in (1998)9 SCC 265 wherein in amatter of suspension the Supreme Courtobserved that it would be unsuitable that aBank should allow an employee to continueon duty when he is facing serious charges ofcorruption and misappropriation of themoney. Accordingly it quashed the judgmentof the High Court quashing the order ofsuspension of an employee of AllahabadBank. In the case at hand the petitioner hasalready been convicted on charges ofcorruption under the Prevention ofCorruption Act, therefore, he is not entitledto continue in service unless the conviction isset aside in the appeal filed by him againstthe same.

7. We have also perused the relevantrules which permit dismissal from service insuch circumstances and we do not find anyviolation of the rules or the law in the presentcase. In these circumstances we do not find ita fit case for interference under Article 226of the Constitution of India.

8. Consequently relief no. 2 prayedin the writ petition also cannot be grantedby this Court at this stage.

9. The writ petition is, accordingly,dismissed.

--------

ORIGINAL JURISDICTIONCIVIL SIDE


BEFORETHE HON'BLE DR. DEVENDRA KUMAR

ARORA, J.

Service Single No. 2200 of 2015

NR-20124W, Lt. Col. (Military NursingServices) Madhu Lata Gaur ...Petitioner

VersusArmed Force Tribunal Regional Bench &Ors. ...Respondents

Counsel for the Petitioner:P.N. Chaturvedi, Vinay Pandey

Counsel for the Respondents:A.S.G.

(A) Constitution of India, Art.-226-Maintainability of Writ Petition-againstorder passed by Army Tribunal-Statutoryprovision of appeal-cannot be allowed tobypassed-petition dismissed.

Held: Para-17In view of the aforesaid legalproposition, it is imminently clear thatthe writ petition filed by the petitionerassailing the order of the Tribunal is notmaintainable and as such this Court isnot inclined to exercise discretionarywrit jurisdiction under Article 226 of theConstitution and the writ petition isliable to be dismissed.

(B)Constitution of India, Art. 14-bindingprecedent-Law laid down by SupremeCourt-binding upon all High Courts-cannot be ignored-even certain relevantprovisions not brought to notice ofSupreme Court.

Held: Para-16Before parting, it may be pointed outthat the law declared by Hon'bleSupreme Court is binding on all courts,including High courts, and High courts

2 All] NR-20124W, Lt. Col. Military Nursing Services) Madhu Lata Gaur Vs. Armed Forced Tribunal, Regional Bench & Ors. 655

cannot ignore it on the ground thatrelevant provisions were not brought tothe notice of the Apex Court or that theApex Court laid down the legal positionwithout considering all the points, andtherefore its decision is not binding. See:[Ballabhdas versus Municipal Committee,(1970) 2 SCC 267].

Case Law discussed:Civil Appeal No. 7400 of 2013; [(2004) 3UPLBEC 2389]; (2010) 8 SCC 110; AIR 1997SC 1125; (2005) 7 SCC 492; (2001) 14 SCC337; 2012 (8) SCC 524

(Delivered by Hon'ble Dr. DevendraKumar Arora, J.)

1. By means of present writ petition,the petitioner has questioned thecorrectness and validity of the judgmentand order dated 16.02.2015 passed by theArmed Forces Tribunal, Regional Bench,Lucknow, (in short referred to as'Tribunal') in O.A. No. 274 of 2015 asalso the order dated 13.03.2015 passed inReview Application No. 1 of 2015.

2. The petitioner, who was grantedcommission in Military Nursing Servicewas served with a show cause noticedated 30.9.2014 by the competentauthority which was assailed by thepetitoner before the Tribunal by filingOriginal Application No. 274 of 2014.The said Original Application wasdismissed by the Tribunal vide itsjudgment and order dated 16.2.2015 beingpremature.

3. Hence this writ petition.

4. A preliminary objection has beenraised by Shri S.B. Pandey, AssistantSolicitor General of India regardingmaintainability of the writ petition.According to him, the instant writ petition

has been filed challenging the order of theTribunal, which is not maintainable inview of the recent judgment of the ApexCourt rendered in Civil Appeal No. 7400of 2013; Union of India and others Vs.Major General Srikant Sharma andanother, decided on 11.03.2015.

5. Elaborating his argument, learnedcounsel for the respondents submitted thatwhen an alternative and equallyefficacious remedy is open to a litigant, heshould be required to pursue that remedyand cannot be permitted to invoke theextra- ordinary jurisdiction of the HighCourt to issue a prerogative writ as thewrit jurisdiction is meant for doing justicebetween the parties where it cannot bedone in any other forum.

6. It has further been argued on behalfof Union of India that the High Courtcannot entertain writ petitions under Article226 of the Constitution of India contrary tothe law enacted by the Parliament being theArmed Forces Tribunal 2007 which is aspecial enactment exclusively provided foran appellate remedy by way of leave beforethe Court.

7. Refuting the allegation of therespondents, learned counsel for thepetitioner on the strength of Full BenchJudgement of this Court in MaheshChandra Ex-LNK/CI Vs. Union of Indiaand others; [(2004) 3 UPLBEC 2389],vehemently argued that the instant writpetition cannot be thrown away on theground of availability of alternativeremedy. In an attempt to substantiate hisassertions, Learned counsel for thepetitioner has drawn attention of the courttowards conclusion nos. iv, v, vi and viidrawn in the aforesaid judgement, whichread as under:


"(iv). Having said this, it needs to beemphasised that the existence ofjurisdiction and the nature of its exercisehave distinct connotations inconstitutional law. The Armed ForcesTribunal is constituted by legislationwhich provides for a specialized andefficacious administration of justice inmatters falling within its jurisdictionunder the provisions of the Act. This iscoupled with the need to maintaindiscipline in the Armed Forces;

(v) The Armed Forces Tribunal is aCourt of first instance and ordinarily,matters which fall within the purview ofits jurisdiction have to proceed foradjudication before the Tribunal and theTribunal alone. Against the decision ofthe Tribunal, there is a statutory remedyof an appeal which is provided underSections 30 and 31 to the Supreme Court;

(vi) Since a statutory remedy of anappeal is provided, the principles which arewell established for the exercise of thejurisdiction under Article 226, wouldwarrant that the High Court should becircumspect and careful while determiningas to whether any case for the exercise ofjurisdiction under Article 226 of theConstitution is made out;

(vii) The jurisdiction under Article226 has not been abrogated as it couldnot have been, being a basic and essentialfeature of the Constitution."

8. Thus this court is required to firstanswer the question regardingmaintainability of the writ petition againstthe order passed by the Armed ForcesTribunal, Regional Bench, Lucknow.

9. With regard to maintainability of thewrit petition and availing alternative remedy,it would be apt to reproduce the lawpropounded by the Apex Court in United

Bank of India v. Satyawati Tondon (2010)8SCC 110 observed as under:-

" It is true that the rule of exhaustion ofalternative remedy is a rule of discretion andnot one of compulsion, but there can be noreason why the High Court should entertain apetition filed under Article 226 of theConstitution and pass interim order ignoringthe fact that the petitioner can avail effectivealternative remedy by filing application,appeal, revision, etc and that the particularlegislation contains a detailed mechanism forredressal of his grievance."

10. In Shri Kant Sharma's case [supra]which has been relied by the Union of India,the question raised before the Apex Courtwas whether the right of appeal underSection 30 of the Armed Forces TribunalAct, 2007 against an order of Armed ForcesTribunal with the leave of the Tribunal underSection 31 of the Act on leave granted by theSupreme Court, or bar of leave to appealbefore the Supreme Court under Article136(2) of the Constitution of India, will barthe jurisdiction of the High Court underArticle 226 of the Constitution of Indiaregarding matters related to Armed Forces.

11. The Apex Court after examiningvarious case laws rendered on the subject andprovisions of the Armed Forces TribunalAct, 2007 summarized the conclusions asunder:-

"37. Likelihood of anomaloussituation

If the High Court entertains a petitionunder Article 226 of the Constitution ofIndia against order passed by ArmedForces Tribunal under Section 14 or Section15 of the Act bypassing the machinery ofstatute i.e. Sections 30 and 31 of the Act,

2 All] NR-20124W, Lt. Col. Military Nursing Services) Madhu Lata Gaur Vs. Armed Forced Tribunal, Regional Bench & Ors. 657

there is likelihood of anomalous situationfor the aggrieved person in praying for relieffrom this Court. Section 30 provides for anappeal to this Court subject to leave grantedunder Section 31 of the Act. By clause (2) ofArticle 136 of the Constitution of India, theappellate jurisdiction of this Court underArticle 136 has been excluded in relation toany judgment, determination, sentence ororder passed or made by any court or Tribunalconstituted by or under any law relating to theArmed Forces. If any person aggrieved by theorder of the Tribunal, moves before the HighCourt under Article 226 and the High Courtentertains the petition and passes a judgmentor order, the person who may be aggrievedagainst both the orders passed by the ArmedForces Tribunal and the High Court, cannotchallenge both the orders in one joint appeal.The aggrieved person may file leave to appealunder Article 136 of the Constitution againstthe judgment passed by the High Court but inview of the bar of jurisdiction by clause (2) ofArticle 136, this Court cannot entertain appealagainst the order of the Armed ForcesTribunal. Once, the High Court entertains apetition under Article 226 of the Constitutionagainst the order of Armed Forces Tribunaland decides the matter, the person who thusapproached the High Court, will also beprecluded from filing an appeal under Section30 with leave to appeal under Section 31 ofthe Act against the order of the Armed ForcesTribunal as he cannot challenge the orderpassed by the High Court under Article 226 ofthe Constitution under Section 30 read withSection 31 of the Act. Thereby, there is achance of anomalous situation. Therefore, it isalways desirable for the High Court to act interms of the law laid down by this Court asreferred to above, which is binding on theHigh Court under Article 141 of theConstitution of India, allowing the aggrievedperson to avail the remedy under Section 30read with Section 31 Armed Forces Act.

38. The High Court (Delhi High Court)while entertaining the writ petition underArticle 226 of the Constitution bypassed themachinery created under Sections 30 and 31of Act. However, we find that AndhraPradesh High Court and the Allahabad HighCourt had not entertained the petitions underArticle 226 and directed the writ petitionersto seek resort under Sections 30 and 31 of theAct. Further, the law laid down by this Court,as referred to above, being binding on theHigh Court, we are of the view that DelhiHigh Court was not justified in entertainingthe petition under Article 226 of theConstitution of India.

12. It would be relevant to add thatin the case of L. Chandra Kumar Vs.Union of India and others, reported inAIR 1997 SC 1125, on which reliance hasbeen placed by the petitioner, a sevenJudges Constitution Bench of Hon'bleSupreme Court held as under:-

"Though judicial review in the basicfeature of the Constitution, the vesting ofpower of judicial review in an alternativeinstitutional mechanism, after taking itaway from the High Courts, would not doviolence to the basic structure so long asit was ensured that the alternativemechanism was an effective and realsubstitute for the High Court."

13. In the case of Central CoalfieldsLtd. vs. State of Jharkhand and others(2005) 7 SCC, 492, it has been held that :

"If there is statutory alternativeremedy available to a person under anstatute itself, in that case the writ petitionshould not be entertained under Article226 of the Constitution of India and thepetitioner is directed to avail thealternative statutory remedy."


14. In Nivedita Sharma VersusCellular Operator Assn Of India andothers; (2001)14 SCC 337 the Apex Courtnoticed that when a statutory forum iscreated by law for redressal of grievances,a writ petition should not be entertainedignoring the statutory dispensation.

15. In Cicily Kallarackal vs. VehicleFactory 2012(8) SCC 524 the Apex Courtissued a direction of caution that it will notbe proper exercise of the jurisdiction by theHigh Court to entertain a writ petitionagainst such orders against which statutoryappeal lies before the Apex Court.

16. Before parting, it may be pointedout that the law declared by Hon'bleSupreme Court is binding on all courts,including High courts, and High courtscannot ignore it on the ground thatrelevant provisions were not brought tothe notice of the Apex Court or that theApex Court laid down the legal positionwithout considering all the points, andtherefore its decision is not binding. See:[Ballabhdas versus Municipal Committee,(1970) 2 SCC 267].

17. In view of the aforesaid legalproposition, it is imminently clear that thewrit petition filed by the petitioner assailingthe order of the Tribunal is not maintainableand as such this Court is not inclined toexercise discretionary writ jurisdiction underArticle 226 of the Constitution and the writpetition is liable to be dismissed.

18. For the reasons aforesaid, thewrit petition is dismissed being notmaintainable. It is clarified that this Courthas not delve into the merits of the case.

19. Costs easy.--------



BEFORETHE HON'BLE DR. DHANANJAYA YESHWANT

CHANDRACHUD, C.J.HON'BLE SHRI NARAYAN SHUKLA, J.

Misc. Bench No. 3146 of 2015 with Misc.Bench No. 1779 of 2015

Lok Prahari Thru. General Secy. [PIL].Petitioner

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

Counsel for the Petitioner:S.N. Shukla (In Person)

Counsel for the Respondents:C.S.C., Abhinav N. Trivedi, V.K. Dubey

Constitution of India, Art. 226-PublicInterest Litigation-Petitioner seekingdirection-to declare MLA seat vacant-ondisqualification after conviction-in criminalcase-although conviction and execution ofsentense stayed-suspended by AppellateCourt-in view of provisions Section 8(3) ofRepresentation of people Act-held-oncesimilar prayer refused in shape of PIL-keeping in view of decision of Lily Thomascase-petition misconceived.

Held: Para-13Thus, it is clear that notwithstanding thedeclaration of Section 8(4) of the Act asultra vires, the Supreme Court hasprotected the consequence of the exerciseof the power contained in Section 389(1)of the Code so that where the appellatecourt in the exercise of the power staysthe conviction, the disqualification whichwould otherwise stand attracted will notoperate from the date on which theconviction has been stayed.

Case Law discussed:(2007) 2 SCC 574; (2013) 7 SCC 653; (1995) 3SCC 513; (2007) 1 SCC 673; (2001)7 SCC 231.

2 All] Lok Prahri Thru. General Secy. [PIL] Vs. State of U.P. & Ors. 659

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

1. The third respondent was elected asa Member of the State Legislative Assemblyon 8 March 2012 from the Mirzapur Sadar -396 seat. Presently, he holds the office of aMinister of State in the State Government.On 28 February 2015, he was convicted bythe Chief Judicial Magistrate of offencesunder Sections 353, 504 and 506 of the PenalCode. The third respondent was sentenced toimprisonment of two years under Section353 and to a fine of rupees two thousand (orin default to imprisonment of three months);to imprisonment for two years in respect ofthe offence under Section 504 and to a fineof rupees two thousand (or in default toimprisonment of three months); and inrespect of the offence under Section 506 toimprisonment for three years and to a fine ofrupees five thousand (or in default toimprisonment of six months).

2. On 10 March 2015, whileadmitting the appeal filed by the thirdrespondent, the District and SessionsJudge, Mirzapur directed his release onbail and that the execution of the sentencewould remain suspended. The thirdrespondent had also sought a suspensionof the conviction during the pendency ofthe criminal appeal specifically statingthat he was a Member of the LegislativeAssembly from the Mirzapur AssemblyConstituency and that if the judgment andconviction were not stayed, he wouldincur a disqualification under Section 8(4)of the Representation of the People Act,19511. The application for stay of theconviction was heard on 10 March 2015and was deferred to 13 March 2015. Therelevant part of the order of the Districtand Sessions Judge dated 10 March 2015reads as follows:

"5[k izkFkZuk i= vihykFkhZ dh vksj ls blvk'k; dk izLrqr fd;k x;k gS fd vihykFkhZ orZekuesa fetkZiqj fo/kkulHkk {ks= ls fo/kk;d gS vkSj ;fnmlds fo:) mijksDr fu.kZ;kns'k dk izHkko LFkfxrugha fd;k x;k rks Section 8(4) ofRepresentation of People Act, 1951 dsv/khu fo/kkulHkk ls mldh lnL;rk lekIr gkstk;sxh vkSj Hkfo"; esa pquko ugha yM+ ldsxk rFkkmldh viw.kZuh; {kfr gksxhA vr,o vk{ksfirnks"kflf) dk vkns'k rFkk mldk fdz;kUo;u vihyds fuLrkj.k rd LFkfxr djus dh dik dh tk;sA

mHk; i{k dks lquk x;k ,oa vk{ksfirfu.kkZ;kns'k dk voyksdu fd;kA

i=koyh okLrs vkns'k fnukad & 13-3-2015 dksizLrqr gksA voj U;k;ky; dh i=koyh rRdky dhtk;sA"

3. On 13 March 2015, the SessionsJudge referred to the submission of thethird respondent that if the judgment ofconviction was not stayed, he would incura disqualification. The Sessions Judgealso noted that the third respondent hadalready been released on bail on 10 March2015. After referring to the judgment ofthe Supreme Court in Navjot Singh SidhuVs. State of Punjab and another2; LilyThomas Vs. Union of India and others3;and Basant Kumar Chaudhary Vs. Unionof India and others4, the Sessions Judgepassed the following order.

"vkns'kvk{ksfir fu.kZ;kns'k dk fdz;kUo;u vihy ds

fuLrkj.k rd fuyfEcr fd;k tkrk gSA izkFkZuk i= 5[k dk fuLrkj.k rnuqlkj fd;k tkrk gSA

i=koyh vfxze fu;r frfFk fnukad & 10-4-2015 dks lquokbZ gsrq izLrqr gksA"

4. A writ petition was filed beforethis Court at Allahabad, inter alia, seekinga declaration that the third respondentstood disqualified as a Member of theLegislative Assembly; for the withdrawalof all facilities provided as a StateMinister; for a declaration of the seat as


vacant to facilitate a bye-election; and arestraint against the third respondent fromfunctioning either as a Member of theLegislative Assembly or as a StateMinister.

5. The effect of the order of theDistrict and Sessions Judge wasconsidered in a judgment of a DivisionBench of this Court dated 21 April 2015,where it was held as follows:

"In the present case, as the recordbefore the Court indicates, initially by anorder dated 10 March, 2015 the fifthrespondent was enlarged on bail and theexecution of the sentence or "n.Mkns'k" wassuspended. The order of the SessionsJudge dated 10 March, 2015 specificallynotes that an application had been filed bythe fifth respondent stating that he was asitting member of the LegislativeAssembly and would incur adisqualification if the conviction was notstayed. An application for stay of theconviction and sentence was moved bythe fifth respondent on 10 March, 2015specifically drawing the attention of theSessions court to the legal position. Uponhearing the application, the SessionsJudge by a separate order dated 13 March,2015 directed that the implementation ofthe judgment under challenge would standsuspended pending the disposal of theappeal. There was no occasion for theSessions Judge, Mirzapur to pass thisorder if the conviction, as prayed, was notbeing stayed. The execution of thesentence had already been suspended bythe previous order dated 10 March, 2015and if the application for stay of the orderof the conviction was to be rejected, theSessions Judge would have proceeded topass an order of rejection of theapplication. On the contrary, the order of

the Sessions Judge would indicate that theimplementation of the entire judgmentunder appeal was suspended pending thedisposal of the appeal and the applicationwas accordingly disposed of. Havingregard to this background and the plainterms of the order dated 13 March, 2015we are unable to accept the submission ofthe petitioner that what was stayed, wasonly the implementation of the order,resulting only in a suspension of thesentence. The record and the plainterminology of the order would indicate tothe contrary."

6. Consequently, the Division Benchheld that the disqualification underSection 8(3) of the Act would not beattracted once the Sessions Judge hadstayed the conviction on 13 March 2015.The writ petition was accordinglydismissed.

7. Two writ petitions are before theCourt in these proceedings. The first writpetition by Lok Prahri seeks (i) amandamus to the Principal Secretary inthe Vidhan Sabha to issue a notificationthat the third respondent standsdisqualified as a Member of theLegislative Assembly with effect from thedate of his conviction; (ii) a writ of quowarranto to the third respondent; (iii) adeclaration that the continuance of thethird respondent after his conviction isillegal; and (iv) a direction to the ElectionCommission of India to take furtheraction for filling up the seat. Similar reliefhas been sought in the companion writpetition in which a writ of quo warrantohas been sought.

8. The submission which has beenurged on behalf of the petitioners is that inthe judgment of the Division Bench at

2 All] Lok Prahri Thru. General Secy. [PIL] Vs. State of U.P. & Ors. 661

Allahabad, this Court construed the orderof the Sessions Judge, Mirzapur dated 13March 2015 as having stayed theconviction. This aspect has not beenreagitated. However, it has been sought tobe urged that notwithstanding the stay ofconviction, the disqualification of thethird respondent would not stand obviatedsince (i) the consequence of the seatfalling vacant under Article 190(3)(a) ofthe Constitution stands attracted upon thedisqualification under Article 191(1)(e)and the seat shall thereupon automaticallybecome vacant; and (ii) the subsequentorder of stay granted by the SessionsJudge, by which the conviction wasstayed would not obliterate thedisqualification which was attracted themoment the third respondent wasconvicted of an offence punishable withimprisonment of a term of not less thantwo years under Section 8(3) of the Act.

9. At the outset, we must note thatthough strictly as a matter form, no writof quo warranto was sought in theproceedings which took place before thisCourt at Allahabad, the basis andfoundation of these proceedings as inthose which were filed at Allahabad, isthe same. The submission is that the thirdrespondent incurred a disqualificationunder Section 8(3) of the Act upon hisconviction and sentence for an offencecarrying a term of imprisonment of notless than two years and that the order ofthe Sessions Judge dated 13 March 2015did not obliterate the disqualification. Wemust of course note the distinction in thesubmissions which were urged before theCourt at Allahabad and in the presentproceedings. In the proceedings atAllahabad, what was sought to be urgedwas that the Sessions Judge by his orderdated 13 March 2015 had not stayed the

conviction. This submission was inquiredinto and specifically rejected by theDivision Bench at Allahabad. Thoseproceedings were in the nature of apetition filed in the public interest as arethe two writ petitions which form thesubject matter of these proceedings atLucknow. All the issues which could andought to have been raised at Allahabadmust be treated as having been governedby and adjudicated upon by the DivisionBench in its judgment dated 21 April2015. The remedy of a party which isaggrieved by the judgment delivered bythe Division Bench at Allahabad on 21April 2015 would be to espouse theremedies available in law against thatjudgment.

10. Be that as it may, and since thesubmission which has been urged beforethis Court has been canvassed on meritsas well, for the completeness of therecord, we deem it appropriate to dealwith the submission. The submissionproceeds on the basis that under Section8(3) of the Act, a person who is convictedof an offence and sentenced toimprisonment for not less than two yearsshall be disqualified from the date of theconviction and shall continue to bedisqualified for a further period of sixyears since his release. Article 190(1) ofthe Constitution provides fordisqualifications for membership. Sub-clause (e) of clause (1) of Article 191 ofthe Constitution provides that a personshall be disqualified for being chosen asand for being a Member of the LegislativeAssembly or a Legislative Council of aState if he is so disqualified by or underany law made by Parliament. Article190(3) of the Constitution provides that insuch a situation, if a Member of a Houseof the Legislature of a State becomes


subject to any of the disqualificationsmentioned, inter alia, in clause 1 ofArticle 191, his seat shall thereuponbecomes vacant. The submission which isurged is that the disqualification standsattracted the moment an order ofconviction is passed with the result thatthe seat would fall vacant and asubsequent stay which is granted of theconviction would not obliterate this effect.

11. In Lily Thomas (supra), theSupreme Court held the provisions ofSection 8(4) of the Representation of thePeople Act to be ultra vires. Section 8(4) ofthe Act stipulated that notwithstandinganything contained in sub-sections (1), (2) or(3) a disqualification under either sub-sectionshall not, in the case of a person who on thedate of the conviction is a Member ofParliament or the Legislature of a State takeeffect until three months have elapsed fromthat date or, if within that period an appeal orapplication for revision is brought in respectof the conviction or the sentence, until thatappeal or application is disposed of by theCourt. In paragraph 30 of the judgment inLily Thomas (supra), the Supreme Courtnoted that once a person who was a Memberof either House of Parliament or the Houseof the State Legislature becomes disqualifiedby or under any law made by Parliamentunder Article 102(1)(e) and Article 191(1)(e)of the Constitution, his seat wouldautomatically fall vacant by virtue of Article101(3)(a) and Article 190(3)(a) of theConstitution and it was not open toParliament to make a provision underSection 8(4) of the Act to defer the date onwhich the disqualification of a sittingMember would have effect. Having held this,the Supreme Court also dealt with thesubmission that if this interpretation wouldbe adopted, a sitting Member of Parliamentor of the State Legislature who suffers from a

frivolous conviction by the trial court of anoffence under sub-sections (1), (2) or (3) ofSection 8 of the Act, would be remedilessand would suffer immense hardship as hewould stand disqualified on account of theconviction in the absence of sub-section (4)of Section 8 of the Act. This submission inregard to the severe consequences of thedeclaration of Section 8(4) of the Act asultravires was dealt with in the judgment ofthe Supreme Court by adverting to the powerconferred under Section 389 (1) of the Codeof Criminal Procedure, 19735 upon theappellate court. The Supreme Court advertedto the decision in Rama Narang Vs. RameshNarang6 as having laid down the principle oflaw that the appellate court under Section389(1) of the Code has the jurisdiction tostay the execution not only of the order ofsentence but of the conviction itself. In fact,for convenience of reference, we extracthereinbelow from the decision in RamaNarang's case:

"19. That takes us to the questionwhether the scope of Section 389(1) of theCode extends to conferring power on theappellate court to stay the operation of theorder of conviction. As stated earlier, if theorder of conviction is to result in somedisqualification of the type mentioned inSection 267 of the Companies Act, we see noreason why we should give a narrowmeaning to Section 389(1) of the Code todebar the court from granting an order to thateffect in a fit case. The appeal under Section374 is essentially against the order ofconviction because the order of sentence ismerely consequential thereto; albeit even theorder of sentence can be independentlychallenged if it is harsh and disproportionateto the established guilt. Therefore, when anappeal is preferred under Section 374 of theCode the appeal is against both theconviction and sentence and therefore, we

2 All] Ravi Vs. State of U.P. & Anr. 663

see no reason to place a narrow interpretationon Section 389(1) of the Code not to extendit to an order of conviction, although thatissue in the instant case recedes to thebackground because High Courts canexercise inherent jurisdiction under Section482 of the Code if the power was not to befound in Section 389(1) of the Code."

12. This power of the appellate courtunder Section 389(1) of the Code wasspecifically adverted to in the decision ofthe Supreme Court in Lily Thomas(supra) while holding provisions ofSection 8(4) of the Representation of thePeople Act as ultra vires. In fact, afterreferring to the judgment in Ravikant S.Patil Vs. Sarvabhouma S Bagali7, theSupreme Court held as follows:

"...Therefore, the disqualificationunder sub-sections (1), (2) or (3) ofSection 8 of the Act will not operate fromthe date of order of stay of convictionpassed by the appellate court underSection 389 of the Code or the High Courtunder Section 482 of the Code."(emphasis supplied)

13. Thus, it is clear thatnotwithstanding the declaration of Section8(4) of the Act as ultra vires, the SupremeCourt has protected the consequence of theexercise of the power contained in Section389(1) of the Code so that where theappellate court in the exercise of the powerstays the conviction, the disqualificationwhich would otherwise stand attracted willnot operate from the date on which theconviction has been stayed.

14. The reliance which has beenplaced on behalf of the petitioners upon thejudgment of the Supreme Court in B.R.Kapur Vs. State of Tamil Nadu and another8,

would not advance the case any further. Inthat case before the Constitution Bench, therewas a conviction under Section 120-B of thePenal Code read with Sections 13(1)(c),13(1)(d) and 13(2) of the Prevention ofCorruption Act, 1988 and of offences underSection 409 of the Penal Code. The MadrasHigh Court while suspending the sentence ofimprisonment, dismissed the petition seekinga stay of the conviction. The Supreme Courtheld that the suspension of the execution ofthe sentence consequently did not remove thedisqualification. B.R. Kapur's case wastherefore one where there was no stay of theconviction but only a suspension of thesentence of imprisonment.

15. For these reasons and uponcareful consideration of the submissionswhich have been urged on behalf of thepetitioners, we find no merit in the writpetition. We hence also see no reason toaccede to the prayer of the petitioner inperson to refer the case to a larger bench.The petition is, accordingly, dismissed.There shall be no order as to costs.

--------REVISIONAL JURISDICTION

CRIMINAL SIDEDATED: ALLAHABAD 08.05.2015

BEFORETHE HON'BLE ARVIND KUMAR MISHRA-I, J.

Criminal Revision No. 3312 of 2013

Ravi ...RevisionistVersus

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

Counsel for the Revisionist:Sri Ravindra Sharma, Sri A.C. Srivastava,Sri A.P. Singh Raghav, Sri Saurabh Gour,Sri Sushil Shukla, Sri A.B.L. Gaur.

Counsel for the Opp. Parties:A.G.A., Sri Gaurav Kakkar.


Cr.P.C. Section 401-Criminal Revision-against order passed by Session Judge-affirming order by Juvenile JusticeBoard-on ground if released on bail-shallcause moral, psychological safety ofapplicant-damaged withoutconsideration of under taking given bymother-held-rider contained undersection 12(1) not applicable-prayer forbail of delinquent minor-liable to allow.

Held: Para-23At the cost of repetition it can besummerized that there is no adversereport or material that minor cannot beimproved under guardianship of hismother. Even the report of the DistrictProbation Officer, Gautam Budh Nagar isnot supported by any material as to howminor will fall in company of badelements if released on bail. Theobservation of the District ProbationOfficer in absence of any supportingmaterial becomes bald and vague.Consequently, the same is to be ignoredin a situation when mother of thedelinquent juvenile promises to work forimprovement of her son.

Case Law discussed:2009 Cr.L.J. 2002; 2006 (4) ALJ 353; 2007Cr.L.J. 612.

(Delivered by Hon'ble Arvind KumarMishra-I, J.)

1. Heard learned counsel for therevisionist, Sri Gaurav Kakkar, learnedcounsel for the opposite party no.2 andthe learned AGA for the State.

2. By means of the instant revision,the revisionist Kusum mother/naturalguardian wife of Jatanvir has sought bailof her minor son Ravi in Case CrimeNo.184 of 2013 under Sections 147, 148,149, 452, 302, 307 I.P.C. and 7 CriminalLaw Amendment Act, Police StationDadari, District Gautam Budh Nagar,with the prayer that the impugned

judgment and order dated 16.11.2013passed by the learned Sessions Judge,Gautam Budh Nagar, in Criminal AppealNo.79 of 2013, Ravi Vs. State of U.P.affirming the order dated 11.10.2013passed by the Juvenile Justice Board,Gautam Budh Nagar, be set aside and theapplication moved for bail of delinquentminor be allowed.

3. The relevant facts of this case in anutshell are that the first informationreport was lodged on 24.04.2013 at 19:30hours, at Police Station Dadari, DistrictGautam Budh Nagar, at the instance ofthe Phuttan Singh-opposite party no.2whereupon the allegations were madeagainst the delinquent juvenile Ravi andothers alleging the commission of crimeunder Sections 147, 148, 149, 452, 302,307 I.P.C. and 7 Criminal LawAmendment Act. The matter wasinvestigated into and after completion ofthe investigation, charge sheet wassubmitted against the delinquent juvenile.

4. During course of the proceedings,an application was moved on behalf of therevisionist that Ravi be declared to be ajuvenile as he was less than 18 years ofage on the date of the incident whereuponafter consideration of the matter, theJuvenile Justice Board, Gautam BudhNagar, declared juvenile vide order dated18.09.2013.

5. Thereafter, an application for bailwas moved by the revisionist before theJuvenile Justice Board in Case CrimeNo.184 of 2013 under Sections 147, 148,149, 452, 302, 307 I.P.C. and 7 CriminalLaw Amendment Act. The JuvenileJustice Board, after considering the case,rejected the bail application vide orderdated 11.10.2013 on the ground that in


case the juvenile is released on bail, hisrelease would have adverse impact uponhim on physical, moral and psychologicalside.

6. Feeling aggrieved by the bailrejection order dated 11.10.2013, therevisionist filed Criminal Appeal No.79 of2013 before the appellate court, whereupon,after consideration of the appeal, theappellate court dismissed the appeal videjudgment and order dated 16.11.2013affirming the order dated 11.10.2013 passedby the Juvenile Justice Board, Gautam BudhNagar. Hence this revision.

7. Learned counsel for the revisionistsubmits that the parameters required to beconsidered for granting or not granting thebail to the delinquent minor are to be read incontext to the mandate contained underSection 12 of the Act, and the gravity of theoffence will not be a guiding factor whileconsidering the bail application of thedelinquent juvenile.

8. Learned AGA has opposed theprayer so made and has submitted that thelearned Sessions Judge was basicallyguided by the material on recordparticularly by the fact that in case thedelinquent minor is released on bail thereis likelihood of his repeating the offence,which under the circumstances, wasjustified conclusion and no interference isrequired by this Court.

9. Considered the above submissionsand also perused the orders impugned inthe instant revision.

10. In view of above rivalsubmissions the moot point involved in thisrevision for adjudication relates to the factas to whether the bail to the delinquent

juvenile in conflict with law will have to beconsidered on the strength of the merits ofthe case, or on gravity of offence or on theparameters as laid down under Section 12of the Act.

11. Before dealing with the matter, itwould be appropriate to take into accountSection 12 of the Act which is extractedhereinunder:

"12. Bail of juvenile.-(1) When anyperson accused of a bailable or non-bailable offence, and apparently ajuvenile, is arrested or detained orappears or is brought before a Board,such person shall, notwithstandinganything contained in the Code ofCriminal Procedure, 1973 (2 of 1974) orin any other law for the time being inforce, be released on bail with or withoutsurety 1[or placed under the supervisionof a Probation Officer or under the careof any fit institution or fit person] but heshall not be so released if there appearreasonable grounds for believing that therelease is likely to bring him intoassociation with any known criminal orexpose him to moral, physical orpsychological danger or that his releasewould defeat the ends of justice.

(2) When such person having beenarrested is not released on bail undersub-section (1) by the officer-in-charge ofthe police station, such officer shall causehim to be kept only in an observationhome in the prescribed manner until hecan be brought before a Board.

(3) When such person is not released onbail under sub-section (1) by the Board itshall, instead of committing him to prison,make an order sending him to an observationhome or a place of safety for such periodduring the pendency of the inquiry regardinghim as may be specified in the order."


12. The above law as containedunder sub-section (1) of Section 12 of theAct categorizes a situation when bail to adelinquent juvenile can be refused.

13. In so far as the mandate of theaforesaid Section 12 of the Act relating tothe grant of bail to a delinquent juvenile isconcerned,......the only exception givenfor rejecting a bail stipulates to the extentthat he shall not be so released if thereappears reasonable grounds for believingthat the release is likely to bring him intoassociation with any known criminal orexpose him to moral, physical orpsychological danger or that his releasewould defeat the ends of justice.

14. In view of the mandateaforesaid, it is obvious that if theaforesaid conditions are existing and thereis reasonable likelihood of minor cominginto association with any known criminalor he is likely to be exposed to moral,physical or psychological danger or hisrelease would defeat the ends of justice,then the bail to the delinquent juvenile inconflict with law will not be allowed.

15. Even as per settled position oflaw, the merits/gravity of the offence willnot be the sole guiding factor for disposalof the bail application of the delinquentjuvenile in conflict with law. It is true thatthe first information report has beenlodged against the revisionist underSections 147, 148, 149, 452, 302, 307I.P.C. and 7 Criminal Law AmendmentAct but gravity of the offence losessignificance in view of the paragraphnos.4, 5 and 6 of the affidavit filed insupport of the supplementary affidavit tothe instant revision, wherein, it has beenspecifically stated that the mother of thejuvenile is willing to reform her child.

This positively indicates that she is readyto take custody of her son with a will toimprove his life.

16. However, it has been opined bythe District Probation Officer that if thedelinquent juvenile is released on bail,possibility of the delinquent juvenilefalling into company with the knowncriminal or there being physical, moral orpsychological danger to the safety of thedelinquent juvenile cannot be ruled out.But there is total absence of anysupporting material regarding aboveobservation as to why such specificopinion has been formed by the DistrictProbation Officer without there being anysupporting material giving rise to thepossibility of the minor falling intocompany with the known criminal orthere being physical, moral orpsychological danger to the minor or todefeat the ends of justice. In view ofabove backdrop of the facts, it can beconveniently observed that the bailapplication of the minor cannot beopposed simplicitor on the ground ofgravity of the offence particularly whenparents/guardian of the delinquentjuvenile in conflict with law are ready todo reformative act on their part forupliftment of their child. Consequently,the rider/exception contained underSection 12 (1) is not applicable onaccount of want of supporting material.

17. So far as the report of theDistrict Probation Officer is concerned, Ipored over the same. It indicates that theparents of the juvenile exercise lessersupervision over the juvenile and inabsence of proper care and in the event ofhis release on bail, there is possibility ofjuvenile falling into association with theknown criminal or anti social elements.


However, the observation so made is notsupported by any relevant material onrecord and mere hypothetical equationwill not, ipso facto, term bald finding intocertainty and this finding cannot be actedupon by this Court, as such any findingrecorded by the District Probation Officeris pre-supposed to contain at least somerelevant and cogent material so that theCourt may take notice of the same andmay analyze the material so placed onrecord as to whether the juvenile, ifreleased on bail, will reasonably fall intocompany with known criminal and wouldbe adverse to his physical, moral andpsychological interest and upliftment.Therefore, the report of the DistrictProbation Officer, Gautam Budh Nagar, isliable to be discarded for the reasonsaforesaid.

18. The Juvenile Justice Board,Gautam Budh Nagar completelyoverlooked this particular aspect of thecase, while rejecting the bail application.Even learned Sessions Judge whiledeciding Criminal Appeal No.79 of 2013was very much influenced by the gravityof the offence and did not take intoaccount the fact that the parents of theminor are willing to reform their child andthere is nothing on record which mayreflect that the mandate as laid downunder sub-section (1) of section 12 of theAct will be violated, in case thedelinquent minor is released on bail. Inabsence of any such clear cut findingbased upon sufficient supporting materialthat the release of the delinquent juvenilewill be in violation of the conditionscontained under Section 12 (1) of the Act,it would not be proper to give primacy togravity of the offence alone. The pertinentpoint is whether the release would bringthe minor into association with any

known criminal or will put him intophysical, psychological or moral dangeror it would defeat the ends of justice. Inthat perspective, it was incumbent uponthe learned Sessions Judge, Gautam BudhNagar to have taken into consideration theaforesaid mandate as contained undersub-section (1) of Section 12 of the Act.Even the report of the District ProbationOfficer admittedly lacks any relevant andsupporting material, which may, indicateany reasonable possibility that in casejuvenile is released on bail the ends ofjustice would be defeated.

19. Learned counsel for therevisionist submits that the naturalguardian Kusum on behalf of thedelinquent minor undertakes to exercisethe complete control over the delinquentand will not bring him into associationwith any know criminal or will not puthim in such situation that will put theminor into physical, mental orpsychological danger and the delinquentwill not repeat the offence alleged againsthim and he would be reformed.

20. In the case of A Juvenile v. Stateof Orissa: 2009 Cr.L.J. 2002 it has beenheld:-

"7. A close reading of theaforementioned provision shows that ithas been mandated upon the Court torelease a person who is apparently ajuvenile on bail with or without surety,howsoever heinous the crime may be andwhatever the legal or other restrictionscontaining in the Cr. P. C. or any otherlaw may be. The only restriction is that ifthere appear reasonable grounds forbelieving that his release is likely to bringhim into association with any knowncriminal or expose him to any moral,


physical or psychological danger or hisrelease would defeat the ends of justice,he shall not be so released."

21. In the case Sanjay Chaurasia v.State of U. P. and another:2006 (4) ALJ353 it has been laid down by this court asunder:-

"10. In case of the refusal of the bail,some reasonable grounds for believingabove-mentioned exceptions must bebrought before the Courts concerned bythe prosecution but in the present case, nosuch ground for believing any of theabove-mentioned exceptions has beenbrought by the prosecution before theJuvenile Justice Board and AppellateCourt. The Appellate Court dismissed theappeal only on the presumption that dueto commission of this offence, the fatherand other relatives of other kidnappedboy had developed enmity with therevisionist, that is why in case of hisrelease, the physical and mental life of therevisionist will be in danger and hisrelease will defeat the ends of justice butsubstantial to this presumption nomaterial has been brought before theAppellate Court and the same has notbeen discussed and only on the basis ofthe presumption, Juvenile Justice Boardhas refused the Bail of the revisionistwhich is in the present case is unjustifiedand against the spirit of the Act."

22. In the case of Ravi-Ul-Islam v.State (NCT, Delhi): 2007 Cr.L.J. 612 ithas been held as under:-

"6. Looking at the SocialInvestigation Report, it is difficult to cometo the conclusion that the release of thejuvenile would bring him into associationof any known criminal or expose him to

any physical or moral danger or hisrelease would defeat the ends of justice.Accordingly, in view of the specificprovisions of Section 12 of the said Act,the petitioner would be clearly entitled tobe released on bail."

23. At the cost of repetition it can besummerized that there is no adverse reportor material that minor cannot be improvedunder guardianship of his mother. Eventhe report of the District ProbationOfficer, Gautam Budh Nagar is notsupported by any material as to howminor will fall in company of badelements if released on bail. Theobservation of the District ProbationOfficer in absence of any supportingmaterial becomes bald and vague.Consequently, the same is to be ignored ina situation when mother of the delinquentjuvenile promises to work forimprovement of her son.

24. In view of the above, the prayerfor bail made on behalf of the delinquentminor is liable to be allowed.

25. Consequently, the orderimpugned dated 11.10.2013 passed by theJuvenile Justice Board, Gautam BudhNagar on the bail application of thedelinquent juvenile in conflict with lawand the impugned judgment and orderdated 16.11.2013 passed by the learnedSessions Judge, Gautam Budh Nagar, inCriminal Appeal No.79 of 2013 arehereby set aside and the prayer made forgrant of bail to the delinquent juvenilethrough his mother who is naturalguardian Kusum wife of Jatanvir isallowed.

26. Let the revisionist Ravi throughhis natural guardian/mother be released

2 All] Nafeesa Vs. The State of U.P. & Ors. 669

on bail in Case Crime No.184 of 2013under Sections 147, 148, 149, 452, 302,307 I.P.C. and 7 Criminal LawAmendment Act, Police Station Dadari,District Gautam Budh Nagar, on hismother Kusum furnishing a personal bondwith two solvent sureties of his relativeseach in the like amount to the satisfactionof the Juvenile Justice Board, GautamBudh Nagar with an undertaking that incase the delinquent juvenile is released onbail and is given in her custody she willnot create any situation which will bringthe delinquent juvenile into associationwith any known criminal or expose to himmoral, physical and psychological dangeror any situation when the delinquentjuvenile may repeat the offence inquestion and she will work forimprovement of the delinquent juvenile.

27. Accordingly, the instant revisionis allowed.

28. Let a copy of this order becertified to the Juvenile Justice Board,Gautam Budh Nagar, at the earliest.



BEFORETHE HON'BLE AJAI LAMBA, J.

THE HON'BLE AKHTAR HUSAIN KHAN, J.

Misc. Bench No. 3758 of 2015

Nafeesa ...PetitionerVersus

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

Counsel for the Petitioner:S.K. Sharma

Counsel for the Respondents:Govt. Advocate

Constitution of India, Art.-226-WritPetition-seeking direction-to theMagistrate-to record her statements underSection 164 Cr.P.C.-as earlier statementsbased upon pressure of her husband-held-ifindividual permitted to approach directly-very purpose of investigate frustrated-soledomine of investigation agency-no suchdirection required-even otherwisepetitioner will get opportunity to givestatements as prosecution witness beforeTrail Court-petition dismissed.

Held: Para-13, 15, 1913. In the opinion of this Court,investigation is a searching enquiry forascertaining facts; detailed or carefulexamination. Such Investigation is to beconducted by an investigating agency. Incase persons individually are permitted tocreate "evidence in the process ofinvestigation", the process of investigationwould be interfered.

15. Considering the above it becomesillusory and apparent that only a policeofficer or an investigator can sponsor awitness to a Magistrate for recording ofstatement under Section 164 Cr.P.C.

19. The petitioner would have the optionto give statement in court when she isproduced as a prosecution witness. Itwould be for the Trial Court to considerthe statement (s) of the prosecutrix andconclude whether offence has beencommitted or not.

Case Law discussed:(2000) 1 SCC 272.

(Delivered by Hon'ble Ajai Lamba, J.)

1. The question raised by way of thispetition is as to whether a witness, of hisown has the right to approach aMagistrate to record his statement underSection 164 Cr.P.C.; and whether suchMagistrate is under a legal obligation torecord the statement of such witnessunder Section 164 Cr.P.C., when


investigation in a criminal offence isgoing on?

2. The petition seeks issuance of awrit in the nature of Mandamus, directingthe investigating agency to recordstatement of the petitioner under Section164 Cr.P.C. in open Court.

3. It has been pleaded in the petitionthat the petitioner lodged false F.I.R. onthe basis of fabricated facts underpressure from her husband, bearing CaseCrime No. 358 of 2014, under Sections376 and 506 I.P.C., police stationLaharpur, district Sitapur (FirstInformation Report dated 9th September,2014, Annexure-1). It has further beenpleaded that the petitioner is an illiterateperson with no knowledge of law. Thepetitioner did not know the accused.

4. In paras-9 to 11 of the petition, ithas been pleaded that under threat of herhusband and the investigating officer ofthe case, the petitioner gave her statementunder Section 164 Cr.P.C. against Nasru,son of Buddha.

5. The petitioner moved applicationbefore the Additional Chief JudicialMagistrate-I, Sitapur for recording herstatement a second time under Section164 Cr.P.C., which has not been allowed.Appropriate directions be issued so thatsecond statement of the prosecutrix isrecorded under Section 164 Cr.P.C.

6. None appears for the petitioner.

7. We have taken note of theconceded position of the petitioner thatshe is author of F.I.R., Annexure-1,making allegation of commission ofserious offence, like rape. Subsequently,

during the course of investigation, on theinitiation of the investigating officer,statement of the petitioner was recordedunder Section 164 Cr.P.C. The petitionersupported the prosecution case, ascontained in the F.I.R. version.

8. At a later juncture, however, thepetitioner has developed the case that theearlier statement given to the police underSection 154 Cr.P.C. for registration ofF.I.R., and given as a witness underSection 164 Cr.P.C. during the course ofinvestigation, were false, under pressureand coercion of husband of the petitioner.It is in this backdrop of facts that thepetitioner wants to give another statementunder Section 164 Cr.P.C. in regard to thesame incident, and not in addition,however, giving a different version andhue to the incident.

9. It appears that the statement hasnot been recorded by the Magistratebecause the investigating officer did notmove an application for recording of suchstatement.

10. By virtue of this petition, thepetitioner seeks a writ in the nature ofMandamus, directing the Magistrate andthe investigating agency to recordstatement of the petitioner under Section164 Cr.P.C.

11. Law in regard to recording ofstatement under Section 164 Cr.P.C. hasbeen clarified by the Hon'ble Supreme Courtof India in the case of Jogendra Nahak andothers Vs. State of Orissa and others, (2000)1 SCC 272 (paragraphs 19, 22, 23 and 24).The following has been held :-

"19. In the scheme of the aboveprovisions there is no set or stage at which

2 All] Nafeesa Vs. The State of U.P. & Ors. 671

a magistrate can take note of a strangerindividual approaching him directly witha prayer that his statement may berecorded in connection with someoccurrence involving a criminal offence.If a Magistrate is obliged to record thestatements of all such persons whoapproach him the situation would becomeanomalous and every Magistrate's courtwill be further crowded with a number ofsuch intending witness brought up at thebehest of accused persons.

22. If a Magistrate has power torecord statement of any person underSection 164 of the Code, even without theinvestigating officer moving for it, thenthere is no good reason to limit the powerto exceptional cases. We are unable todraw up a dividing line between witnesseswhose statements are liable to be recordedby the Magistrate on being approached forthat purpose and those not to be recorded.The contention that there may beinstances when the investigating officerwould be disinclined to record statementsof willing witnesses and therefore suchwitnesses must have a remedy to havetheir version regarding a case put onrecord, is no answer to the questionwhether any intending witness canstraightaway approach a Magistrate forrecording his statement under Section 164of the Code. Even for such witnessesprovisions are available in law, e.g. theaccused can cite them as defencewitnesses during trial or the court can berequested to summon them under Section311 of the Code. When such remedies areavailable to witnesses (who may besidelined by the investigating officers) wedo not find any special reason why theMagistrate should be burdened with theadditional task of recording the statementsof all and sundry who may knock at thedoor of the court with a request to record

their statements under Section 164 of theCode.

23. On the other hand, if the door isopened to such persons to get in and if theMagistrates are put under the obligation torecord their statements, then too manypersons sponsored by culprits mightthrong before the portals of theMagistrates courts for the purpose ofcreating record in advance for the purposeof helping the culprits. In the present case,one of the arguments advanced byaccused for grant of bail to them wasbased on the statements of the fourappellants recorded by the Magistrateunder Section 164 of the Code. It is notpart of the investigation to open up such avista nor can such step be deemednecessary for the administration of justice.

24. Thus, on a consideration ofvarious aspects, we are disinclined tointerpret Section 164(1) of the Code asempowering a Magistrate to record thestatement of a person unsponsored by theinvestigating agency. The High Court hasrightly disallowed the statements of thefour appellants to remain on record in thiscase. Of course, the said course will bewithout prejudice to their evidence beingadduced during trial, if any of the partiesrequires it."

12. Considering the law laid downby the Hon'ble Supreme Court of India,and extracted hereinabove, it becomesclear that a Magistrate cannot take note ofan individual approaching him directlywith a prayer that his/ her statement maybe recorded in connection with someoccurrence involving a criminal offence.If liberty is given to anybody, andeverybody, to approach a Magistrate forrecording of statement under Section 164Cr.P.C. in connection with an occurrenceinvolving criminal offence, and if


Magistrates are put under an obligation torecord their statement, there is everylikelihood that persons sponsored byaccused/ culprits might be asked toapproach court of the Magistrate forcreating record/ evidence in defence withthe purpose to help an accused/benefactor.If such a provision is made by way ofgiving liberty to a person unsponsored bythe investigating agency to give statementunder Section 164 Cr.P.C., entireinvestigation process would be derailed.

13. In the opinion of this Court,investigation is a searching enquiry forascertaining facts; detailed or carefulexamination. Such Investigation is to beconducted by an investigating agency. Incase persons individually are permitted tocreate "evidence in the process ofinvestigation", the process ofinvestigation would be interfered.

14. It is the duty of the investigatingagency to conduct investigation. When itis felt relevant and necessary, theinvestigating officer makes an applicationto the magistrate to record statement of awitness under Section 164 Cr.P.C. Suchstatement becomes a part of investigationrecord under Chapter XII of the Code ofCriminal Procedure. This process wouldsurely be interfered, if persons on theirown claim a right to give statement underSection 164 Cr.P.C. Surely such astatement cannot be construed inpursuance of investigation by theconcerned investigating agency.'Investigation' has been defined underSection 2(h) as follows:

"2(h)"investigation" includes all theproceedings under this Code for thecollection of evidence conducted by apolice officer or by any person (other than

a Magistrate) who is authorised by aMagistrate in this behalf".

15. Considering the above itbecomes illusory and apparent that only apolice officer or an investigator cansponsor a witness to a Magistrate forrecording of statement under Section 164Cr.P.C.

16. Considering the averments madein the petition, we are of the consideredopinion that while exercisingextraordinary writ jurisdiction, suchdirection, as sought in the petition, cannotbe given. The investigating agency isrequired to proceed as per law. Ordinarily,a direction is not required to be given tothe investigating agency to investigate acase in a particular manner. A witness canbe produced before the Magistrate forrecording his/her statement under Section164 Cr.P.C. only by the investigatingofficer. Apparently, the petitioner hasalready given her statement once underSection 164 Cr.P.C., on the asking of theinvestigating agency.

17. From the pleadings in thepetition, it has become evident that thepetitioner concedes that she knowinglygave a false statement. Clearly, thepetitioner can be proceeded against forgiving a statement that is false to herknowledge and belief.

18. At this stage, in theseproceedings, it cannot even be deducedwhether the earlier version given by thepetitioner was truthful or the case set upin this petition is truthful.

19. The petitioner would have theoption to give statement in court when sheis produced as a prosecution witness. It

2 All] Smt. Manju Misra Vs. The State of U.P. & Ors. 673

would be for the Trial Court to considerthe statement (s) of the prosecutrix andconclude whether offence has beencommitted or not.

20. The question posed to the Courtis answered in the negative, for thereasons recorded above.

21. Considering the law as noticedabove, as also the peculiar facts andcircumstances of the case, this Courtwould not like to interfere in the processof investigation by way of issuingdirection to the magistrate to recordstatement of the petitioner under Section164 Cr.P.C.

22. Petition is dismissed.--------



BEFORETHE HON'BLE AJAI LAMBA, J.

THE HON'BLE AKHTAR HUSAIN KHAN, J.

Misc. Bench No. 4153 of 2015

Smt. Manju Misra ...PetitionerVersus

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

Counsel for the Petitioner:Gopal Trivedi, Lalit Kishore Pandey

Counsel for the Respondents:Govt. Advocate, Arun Sinha, Riyaz Ahmad

Constitution of India, Art.-226-Mandamus-praying stay from arrest-offence underSection 420, 467, 468, 504, 506, 471IPC-as in sale transaction-neitherbeneficiary-nor transferor- evidencebeing documentary nature no recoveryof any article required-nor custodianinterrogation requires-held-in view of

Smt. Hema Misra case-if evidencesubmitted under Section 173-unto 10days from notice no arrest-in case ofarrest conditional bail be given.

Held: Para-15Keeping in view the facts andcircumstances of the case, in context ofthe law, as laid down by Hon'ble supremeCourt of India in Hema Mishra's case(supra), as extracted above, we are of theconsidered opinion that manifest injusticewould be caused if the petitioner is takenin custody. The petitioner admittedly is nota beneficiary in the transaction. Theevidence is documentary in nature. Norecovery is to be affected from thepetitioner. Custodial interrogation of thepetitioner is not required duringinvestigation proceedings.

Case Law discussed:AIR 2014 SC 1066

(Delivered by Hon'ble Ajai Lamba, J.)

1. This petition seeks issuance of awrit in the nature of certiorari quashingFirst Information Report lodged as CaseCrime No.131 of 2015 under Sections420, 504, 506, 467, 468, 471 I.P.C., P.S.Bakshi Ka Talab, district Lucknow(Annexure-1).

2. In the second prayer, the petitionseeks issuance of a writ in the nature ofmandamus directing the Investigating Officernot to arrest the petitioner in connection withCase Crime No.131/2015 under Sections420, 504, 506, 467, 468, 471 I.P.C., P.S.Bakshi Ka Talab, district Lucknow .

3. Learned counsel appearing for thepetitioner states at the outset that thepetitioner does not press the petition inregard to the first prayer, noted above.The petitioner presses for grant of secondprayer in view of peculiar facts and


circumstances of the case, viz. the firstInformation Report is against a number ofpersons. The petitioner is only one of suchaccused, however, not a beneficiary in thetransaction.

4. Contention of learned counsel for thepetitioner is that the petitioner is not abeneficiary; rather will not get the property atissue on account of actions of the mainaccused. It has been alleged in the FirstInformation Report that Rajnish KumarMishra, vide sale-deed executed on31.12.2014, sold the property in question infavour of complainant (respondent No.3),represented by Mr. Siddharth Sinha, Advocate(Caveator). Just four months thereafter, theproperty was gifted to the petitioner byRajnish Kumar Mishra through a gift deedexecuted on 6.4.2015. The petitioner did nothave any intention to frustrate the right/title ofprivate respondent Preeti, which was gainedthrough execution of sale-deed, prior toexecution of the Gift Deed.

5. Contention of learned counsel forthe petitioner is that the petitioner had norole to play in the transaction. No overt actcan be attributed to the petitioner. Thedocuments are registered and can beprocured from the office of Sub Registrar.The petitioner has no knowledge of anyexclusive fact which is required to beextracted by way of interrogation of thepetitioner.

6. Learned counsel appearing for thecaveator admits the facts, as noted above.It has been admitted that the petitioner isnot the transferor of the property, norappears to be the beneficiary.

7. Learned counsel for the partiespray for disposal of the case at this stageitself.

8. We have heard learned counsel.

9. In the considered opinion of theCourt, case of the petitioner is clearlydistinguishable from that of transferor ofthe property, Rajnish Kumar Mishra.

10. In Hema Mishra versus State ofU.P. AIR 2014 SC 1066, in paras 22, 28,35, 36 and 37, the Hon'ble Supreme Courtof India has held the following :

"22. I may, however, point out thatthere is unanimity in the view that in spiteof the fact that Section 438 has beenspecifically omitted and madeinapplicable in the State of UttarPradesh, still a party aggrieved caninvoke the jurisdiction of the High Courtunder Article 226 of the Constitution ofIndia, being extraordinary jurisdictionand the vastness of the powers naturallyimpose considerable responsibility in itsapplication. All the same, the High Courthas got the power and sometimes duty inappropriate cases to grant reliefs, thoughit is not possible to pin-point what are theappropriate cases, which have to be left tothe wisdom of the Court exercisingpowers under Article 226 of theConstitution of India.

28. I would like to remark that in theabsence of any provisions like Section 438of Cr.P.C. applicable in the State of UttarPradesh, there is a tendency on the partof the accused persons, against whom FIRis lodged and/or charge-sheet is filed inthe Court to file Writ Petition forquashing of those proceedings so thatthey are able to get protection against thearrest in the interregnum which is theprimary motive for filing such petitions. Itis for this reason that invariably after thelodging of FIR, Writ Petition underArticle 226 is filed with main prayer to

2 All] Smt. Manju Misra Vs. The State of U.P. & Ors. 675

quash those proceedings and to claiminterim relief against pre-arrest in themeantime or till the completion of thetrial. However, the considerations whichhave to weigh with the High Court todecide as to whether such proceedingsare to be quashed or not are entirelydifferent than that of granting interimprotection against the arrest. Since thegrounds on which such an FIR or chargesheet can be quashed are limited, once theWrit Petition challenging the validity ofFIR or charge-sheet is dismissed, thegrant of relief, incidental in nature,against arrest would obviously not arise,even when a justifiable case for grant ofanticipatory bail is made out .

35. It would be pertinent to mentionhere that in light of above mentionedstatements and cases, the High Courtwould not be incorrect or acting out ofjurisdiction if it exercises its power underArt.226 to issue appropriate writ ordirection or order in exceptional cases atthe behest of a person accused of anoffence triable under the Act or offencejointly triable with the offences under theAct.

36. It is pertinent to mention thatthough the High Courts have very widepowers under Art.226, the very vastnessof the powers imposes on it theresponsibility to use them withcircumspection and in accordance withthe judicial consideration and wellestablished principles, so much so thatwhile entertaining writ petitions forgranting interim protection from arrest,the Court would not go on to the extent ofincluding the provision of anticipatorybail as a blanket provision.

37. Thus, such a power has to beexercised very cautiously keeping in view,at the same time, that the provisions ofArticle 226 are a devise to advance

justice and not to frustrate it. The powersare, therefore, to be exercised to preventmiscarriage of justice and to preventabuse of process of law by authoritiesindiscriminately making pre-arrest of theaccused persons. In entertaining such apetition under Art.226, the High Court issupposed to balance the two interests. Onthe one hand, the Court is to ensure thatsuch a power under Art.226 is not to beexercised liberally so as to convert it intoSection 438,Cr.P.C. proceedings, keepingin mind that when this provision isspecifically omitted in the State of UttarPradesh, it cannot be resorted to as toback door entry via Art.226. On the otherhand, wherever the High Court finds thatin a given case if the protection againstpre-arrest is not given, it would amount togross miscarriage of justice and no case,at all, is made for arrest pending trial, theHigh Court would be free to grant therelief in the nature of anticipatory bail inexercise of its power under Art. 226 of theConstitution. It is again clarified that thispower has to be exercised sparingly inthose cases where it is absolutelywarranted and justified."

11. The Court is of the consideredopinion that the Court is required tobalance the equities while consideringpetition for issuance of a writ in the natureof mandamus directing the investigatingofficer not to arrest a person accused ofcommitting an offence.

12. No person can be deprived of hispersonal liberty, except in accordancewith the procedure established by law.The procedure in such cases, has beenprovided under the Code of CriminalProcedure, 1973. The investigation of acase is required to be conducted underChapter XII of the said Code. A person


accused of committing a cognizableoffence can be arrested by theinvestigating agency.

13. This Court, however, is required todeliberate various aspects of the case, whileruling on petition of an accused approachingthis Court for issuance of a writ in the natureof mandamus, as sought by the petitioner. Inview of the judgment rendered by theHon'ble Supreme Court of India in HemaMishra's case (supra), writ in the nature ofmandamus can be issued, in case petitionershows exceptional circumstances. In theconsidered opinion of the Court, the variousparameters to be considered would includeseriousness/gravity of the offence; roleplayed by the accused approaching theCourt, in the incident/transaction;antecedents/criminal history of such accusedpetitioner; nature of offence allegedlycommitted; chances of the accused/petitioner escaping from the clutches of law,or delaying the process of investigation ortrial; in case relief is granted, whether itwould result in interference withinvestigation process; whether theinvestigating agency apprehends that a factwould be discovered as a consequence ofinformation received from the accused;whether custodial interrogation ofaccused/petitioner is required for effectiveinvestigation; and whether there is primafacie evidence/material available to indicateinvolvement of the petitioner in commissionof the crime. These aspects, as noted above,are some, and not all the factors to beconsidered while weighing the liberty ofsuch person vis-a-vis public interest andinterest of effective investigation.

14. The petitioner is required tomake out a special/exceptional case forgrant of relief, as sought by her. It ismarkedly to be seen whether the

petitioner/ accused has been evading theprocess of law. The larger interest of thepublic or the State is required to beconsidered while contemplating whetherrelief of pre arrest bail is to be given, ornot.

15. Keeping in view the facts andcircumstances of the case, in context ofthe law, as laid down by Hon'ble supremeCourt of India in Hema Mishra's case(supra), as extracted above, we are of theconsidered opinion that manifest injusticewould be caused if the petitioner is takenin custody. The petitioner admittedly isnot a beneficiary in the transaction. Theevidence is documentary in nature. Norecovery is to be affected from thepetitioner. Custodial interrogation of thepetitioner is not required duringinvestigation proceedings.

16. Rajnish Kumar Mishra, the mainaccused executed a gift deed in favour of thepetitioner. The pleaded case of the petitioneris that the petitioner had no knowledge of theearlier sale-deed executed in favour ofrespondent No.3. In such circumstances,involvement of the petitioner in the crimeappears to be remote. Equity and law,considered in context of the facts, demandthat the prayer pressed by the petitioner isallowed.

17. Liberty is a precious right ofevery citizen of the country. It would bemiscarriage of justice if the petitioner isallowed to be taken in custody. Thepetitioner is entitled to protection of theCourt, particularly because by way ofarrest of the petitioner and curtailing hisliberty, interest of investigation shall notbe advanced. Effective investigation canbe conducted even without arrest of thepetitioner, in view of the facts and

2 All] Santosh Kumar Mishra Vs. State of U.P. 677

circumstances, noted above. The offenceper se is not against the public; ratherinvolves transfer of property having civilconsequences. The transaction has civilcomplexion. The respondents have notdrawn attention of the Court towards anymaterial which would indicate thatpetitioner has criminal antecedents. In theopinion of the Court, this is one of theexceptional cases, in which extraordinarywrit jurisdiction is required to be invoked.

18. In view of above, a writ in thenature of mandamus is issued. It isdirected that in the event of arrest in CaseCrime No.131 of 2015 under Sections420, 504, 506, 467, 468, 471 I.P.C., P.S.Bakshi Ka Talab, district Lucknow, thepetitioner shall be enlarged on bail on herfurnishing bail bonds to the satisfaction ofthe arresting/Investigating Officer, subjectto the following conditions :

(1) The petitioner shall make herselfavailable for interrogation as and whenrequired;

(2) The petitioner shall not directlyor indirectly make any inducement, threator promise to any person acquainted withthe facts of the case so as to dissuade himfrom disclosing such facts to the Court, orto the investigating agency; and

(3) The petitioner shall not leaveIndia without the previous permission ofthe Court.

It is further directed that this ordershall subsist till 10 days after thepetitioner receives a notice of filing ofinvestigation report under Section 173CrPC, within which period, the petitionerwould be at liberty to apply for regularbail. The time thus granted would not beextended by this Court.

It is specifically provided that theprosecuting agency would be at liberty toapproach this Court for withdrawing theconcession granted to the petitioner, incase the petitioner violates any of theconditions imposed by this Court.

19. The petition is allowed in theabove terms.

--------APPELLATE JURISDICTION


BEFORETHE HON'BLE ARVIND KUMAR TRIPATHI, J.

THE HON'BLE PRAMOD KUMARSRIVASTAVA, J.

Criminal Appeal No. 4479 of 2008

Santosh Kumar Mishra ...AppellantVersus

State of U.P. . ...Opp. Party

Counsel for the Appellant:Sri K.K. Tripathi, Sri Aman Khan, Sri M.K.Tripathi, Sri Mohd. Aman Khan, Sri T.K.Mishra

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

Criminal Appeal-conviction for offenceunder Section 323, 376, 504 IPC-prosecution fully proved charges-beyonddoubt-evidence of complainant and victimare clinically convincing-punishmentinflicted by Trail Court-confirmed-appealdismissed.

Held: Para-14On the basis of above discussion we are ofthe considered opinion that prosecutionside had proved the charges leveled againstthe accused-appellant regarding allegationof rape and trial Court had rightly passedthe judgment in this regard. The evidencesof complainant and of victim are


convincing, therefore judgment of trialcourt regarding conviction of accused foroffences punishable under sections 376,323, 504 and 506 IPC is found correct. Thefindings of trial court and judgment ofconviction for those charges are herebyconfirmed.

(B)SC/ST (prevention of atrocities) Act1989-Section 3(2)(v)-rape committed-tofulfill undue lust-rather to take revenge ofbeing scheduled caste-finding andconviction by Trail Court-not sustainable-set-a-side appeal allowed partly.

Held: Para-18On the basis of above discussion it isexplicitly clear that charged offence ofrape had not been committed becausevictim-complainant was a member ofSC/ST community. This offence appearsto had been committed only forsatisfying the lusty desire of appellant.In such a case offence punishable undersection 3(2)(v) of Scheduled Castes orSchedule Tribes Act has not beencommitted. Therefore the finding of oftrial Court holding the appellant guiltyfor the offence under SC/ST Act iserroneous and is hereby set aside.

Case Law discussed:AIR 2006 SC 1267; (2007) 2 SCC 170

(Delivered by Hon'ble Pramod KumarSrivastava, J.)

1. This appeal has been preferredagainst the judgment of conviction andpunishment dated 16.07.2008 passed bySpecial Judge SC/ST Act, Kanpur Dehatin Special S.T. No. 80 of 2002 (arisingout of crime no. 40 of 2001) State v.Santosh Mishra under sections 323, 376,504, 506 IPC and section 3(2)(v) of theScheduled Castes or Schedule Tribes(Prevention of Atrocities) Act, 1989[hereinafter referred to as "SC/ST Act"].

2. Prosecution case in brief is thatcomplainant Shyam Narayan (PW-2) and

his wife Smt. Meera Devi (PW-1) belongto chamar caste and are resident of villageIndalpur, p.s. Shivrajpur, district KanpurDehat. On 03.04.2001 at about 05:00 p.m.in evening complainant's wife Meera Deviwas cutting grass near the field of RamanShukla of his village, then accusedSantosh Mishra came from behind,grabbed her neck, closed her mouth andforcibly dragged in the field of RamanShukla where he raped Meera Devi.When she raised alarm the complainantreached there and saw that SantoshMishra was lying over the body of MeeraDevi in necked condition. Whencomplainant raised alarm then SantoshMishra had scuffle with him, due to whichneck of complainant was wounded bynails of accused Santosh Mishra. Duringthis episode Sri Krishna, Awadhesh, andother villagers came there and saw thatSantosh Kumar Mishra was abusing andthreatening them. Complainant wentdirectly to police station Shivrajpur forlodging report, but his report was notlodged, then he approached senior officersof police and thereafter he again movedapplication dated 07.04.2001 to S.S.P.Kanpur Dehat on which case crime no. 40of 2001 under Section 323, 354, 376, 504and 506 IPC and Section 3(1)(X) SC/STAct was registered.

3. After completion of investigation,police had submitted charge-sheet foroffences punishable under Section323,376, 504 and 506 SIPC and Section3(2)(v) SC/ST Act. On the basis of saidcharge-sheet, special session trial no. 80of 2012 (State Vs. Santosh Mishra) wasregistered.

4. Special Judge (SCST Act) / Addl.Sessions Judge, Kanpur Dehat had framedcharge of offences on 11.12.2002 against


accused for several offences to whichaccused pleaded not guilty and claimedhis trial. Thereafter charges wereamended and replaced by fresh charges on06.04.2005 for offences under Section323, 354, 376, 504 and 506 IPC read withSection 3(2)(v) SC/ST Act . Accusedagain pleaded not guilty and claimed to betried.

5. In oral evidences prosecution sidehad examined PW-1 Meera Devi (victim),PW-2 Shyam Narayan (complainant),PW-3 C.O. J.P. Tiwari, PW-4 Dr. PushpaGurnani, PW-5 lady constable AnjuShukla and PW-6 Dr. R.B Gautam. Theyproved documentary evidences ofprosecution side.

6. After closure of prosecutionevidence statement of accused underSection 313 CrPC was recorded in whichhe had denied the prosecution case andstated that on 2.4.2001 Meera Devi wasdamaging wheat crop in the garb ofgrazing grass when he objected thenMeera Devi had started abusing after thaton 05.04.2001 Meera Devi , Lalita andShyam Narayan had put their cow andgoat in the field of wheat, on which theyhad quarreled, due to this enmitycomplainant had lodged wrong report andfalse case was registered. As per defenceevidence, accused had examined DW-1Santosh Kumar, DW-2 Ram Nath andDW-3 Ram Swaroop.

7. After affording opportunity ofhearing prosecution of defence side SpecialJudge SC/ST Act / Additional SessionsJudge, Kanpur Dehat had passed judgmentdated 16.07.2008 by which accused SantoshMishra was convicted for the charges ofSection 323, 376, 504, 506 IPC and Section3(2)(v) SC/ST Act. Accused was acquitted

from the charge of Section 354 IPC.Thereafter trial court had affordedopportunity of hearing to accused onquantum of sentence and passed the order ofpunishment and sentenced on 16.07.2008, bywhich accused was convicted six monthsrigorous imprisonment for charge underSection 323 IPC, 10 years rigorousimprisonment and Rs. 2,000/- fine (in defaultof payment of three months additionalimprisonment), for charge under Section 376IPC, six months rigorous imprisonment, forcharge under Section 504 IPC, six monthsrigorous imprisonment for offence underSection 506 IPC and imprisonment for lifeand Rs. 2,000/- (in default of payment ofthree months imprisonment), for the chargeof Section 3(2)(v) SC/ST Act. The trial courthad also directed that all sentences would runconcurrently. Aggrieved by this judgment ofconviction and sentence dated 16.07.2008accused had preferred present appeal

8. The argument of learned counselfor the appellant was that there wascontradiction in evidences of prosecutionwitnesses, therefore, they should betreated as believable. Since prosecutionside had failed to prove the chargesagainst appellant, therefore impugnedjudgment based on false evidences shouldbe set aside. Learned AGA hadconfronted the argument of appellant sideand contended that two witnesses of fact,namely, PW-1 Meera Devi (victim) andPW-2 Shyam Narayan (complainant) hadproved the charges framed againstaccused appellant therefore appeal shouldbe dismissed.

9. The alternative argument oflearned counsel for the appellant was thatevent if chargse of offences of IndianPenal Code are accepted to be proved inthat case also charge of offence under


Section 3(2)(v) SC/ST Act is not proved.His argument was that prosecution sidehad not proved that alleged offencse ofrape etc. were committed because thevictim belong to SC/ST community;therefore the conviction under Section3(2)(v) SC/ST Act is erroneous andshould be set aside. His contention wasthat in any case sentence of 10 yearsimprisonment for offence under Section376 IPC in present case is excessivewhich should be mitigated.

10. We have considered the rivalcontentions and perused the records.

11. It is admitted case that medico-legal examination of victim wasperformed very late on 08.04.2001 inwhich no evidence regarding rape wasfound, and PW-4 Dr. Pushpa Gurnani hadstated that no opinion about rape can begiven. She had also stated that victim washabitual to sexual intercourse and alsostated that sperms can be found within 72hours of the incident. In the present casemedico-legal examination performed afterabout 5 days so the absence of medicalevidence about commission of intercourseor rape is not unlikely. But in this casetwo witnesses of facts were examined byprosecution side which are PW-1 MeeraDevi (victim) and PW-2 Shyam Narayan(complainant).

12. We have examined the statementof PW-1 (victim) who had specifically statedthat at the time of incident appellant hadcommitted rape with her when she wasmowing the grass in the field. At that timeaccused appellant had used forced and shuther mouth, dragged her by neck and rapedher in the field of Pramod Shukla byinserting his private part in her vagina. Shehad tried resist and cut his hand, then his

hand was removed from her mouth and sheraised alarm. Then her husband came therewith other persons, who had tried to catch theaccused but he escaped from the spot. In thisincident her blouse was torn. That day reportby her husband could not be lodged. Hermedical examination was conducted after afew days. Police had come after 5-6 days andtaken her blouse and dhoti in custody.During cross-examination the victim statedthat she had not suffered any injury but herhusband had got some scratches on his neck.PW-2 complainant Shyam Narayan hadstated that on 03.04.2001 at about 05:00 p.m.he was watering crop of wheat in the fieldand his wife was cutting grass at theboundary of field of Ramesh Shukla, thenaccused Santosh Mishra had forcibly takenhis wife in the field of Raman Shukla andraped. On alarm of his wife, he alongwith SriKrishna, Awadhesh and Naresh came onspot and saw that incident and shouted, thenaccused fled away after abusing andthreatening them. His report was not lodgedsame day in police station, then he hadapproached S.S.P., D.I.G and other policeofficers, thereafter his report was lodged.During cross-examination PW-2 stated thatat the time of incident accused had pushedhim and ran away. At that time he had seenthat accused was committed rape with hiswife in naked state.

13. The evidences of two witnessesof facts, namely, PW-1 Meera Devi(victim) and PW-2 Shyam Narayan(complainant) supported each other andappear to be credible which are alsosupported by other formal evidences. Thefindings of facts regarding proving ofcharges against accused were recorded bylearned Sessions Judge in impugnedjudgment holding that rape of Meera Deviwas committed by accused-appellant. Thefindings of trial Court to this effect are


based on proper appreciation of evidencewhich are plausible and convincing.Though defence side had examined threedefence witnesses, namely, DW-1Santosh Kumar, DW-2 Ram Nath andDW-3 Ram Swaroop, but these witnesseshad given evidence regarding incident ofscuffle and manhandling happenedbetween accused and complainant on05.04.2001. They had also given evidenceof fact regarding altercation betweenaccused and complainant on other dates,but they had not given any evidenceregarding incident of 03.04.2001 forwhich charges were framed againstaccused appellant. For the incident of03.04.2001, the evidence of defencewitnesses are useless and have no valuebecause admittedly they had not givenany credible evidence regarding incidentof 03.04.2001 as mentioned in the charge.

14. On the basis of above discussionwe are of the considered opinion thatprosecution side had proved the chargesleveled against the accused-appellantregarding allegation of rape and trial Courthad rightly passed the judgment in thisregard. The evidences of complainant and ofvictim are convincing, therefore judgment oftrial court regarding conviction of accusedfor offences punishable under sections 376,323, 504 and 506 IPC is found correct. Thefindings of trial court and judgment ofconviction for those charges are herebyconfirmed.

15.Section 3(2)(v) of the ScheduledCastes or Schedule Tribes (Preventionand Atrocities) Act, 1989 reads as under:

"3(2) whoever, not being a memberof Scheduled Caste or Schedule Tribe-

(v) commits any offence under theIndian Penal Code (45 of 1860)

punishable with imprisonment for a termof ten years or more against a person orproperty on the ground that such personis a member of a Scheduled Caste or aScheduled Tribe or such property belongsto such member, shall be punishable withimprisonment for life and with fine"

16. The provision of Section 3(2)(v)of the SC/ST Act, as noted above providesthat a person can be punished under thisprovision only when he commit suchoffence against person of SC/STcommunity on the ground that such aperson/victim is a member of SC/ST. Fromthe evidence, it appears that alleged act ofrape had been committed by accused-appellant for satisfying his lust and not forany other reason. It was not the prosecutioncase that rape was committed becausevictim belongs to scheduled castecommunity. At least there is no evidence inthis regard. Therefore, we are of wellthought-out opinion that accused-appellantcannot be punished for offence punishableunder Section 3(2)(v) of SC/ST Act.Hon'ble Supreme Court in Dinesh @Buddha v. State of Rajasthan, AIR 2006 SC1267 has held as under:

"15. Sine qua non for application ofSection 3(2)(v) is that an offence must havebeen committed against a person on theground that such person is a member ofScheduled Castes and Scheduled Tribes. Inthe instant case no evidence has been led toestablish this requirement. It is not case ofthe prosecution that the rape was committedon the victim since she was a member ofScheduled Caste. In the absence of evidenceto that effect, Section 3(2)(v) has noapplication. Had Section 3(2)(v) of theAtrocities Act been applicable then byoperation of law, the sentence would havebeen imprisonment for life and fine.


16. In view of the finding that Section3(2)(v) of the Atrocities Act is notapplicable, the sentence provided inSection 376(2)(f), IPC does not per sebecome life sentence."

17. Hon'ble Supreme Court inRamdas v. State of Maharashtra, (2007) 2SCC 170 has held as under:

"11. At the outset we may observe thatthere is no evidence whatsoever to prove thecommission of offence under Section 3(2)(v)of the Scheduled Castes and ScheduledTribes (Prevention of Atrocities) Act, 1989.The mere fact that the victim happened to bea girl belonging to a Scheduled Caste doesnot attract the provisions of the Act. Apartfrom the fact that the prosecutrix belongs tothe Pardhi community, there is no otherevidence on record to prove any offenceunder the said enactment. The High Courthas also not noticed any evidence to supportthe charge under the Scheduled Castes andScheduled Tribes (Prevention of Atrocities)Act, 1989 and was perhaps persuaded toaffirm the conviction on the basis that theprosecutrix belongs to a Scheduled Castecommunity. The conviction of the appellantsunder Section 3(2)(v) of the ScheduledCastes and Scheduled Tribes (Prevention ofAtrocities) Act, 1989 must, therefore, be setaside."

18. On the basis of above discussionit is explicitly clear that charged offenceof rape had not been committed becausevictim-complainant was a member ofSC/ST community. This offence appearsto had been committed only for satisfyingthe lusty desire of appellant. In such acase offence punishable under section3(2)(v) of Scheduled Castes or ScheduleTribes Act has not been committed.Therefore the finding of of trial Court

holding the appellant guilty for theoffence under SC/ST Act is erroneous andis hereby set aside.

19. Accordingly this appeal is partlyallowed. The punishment awarded toappellant, in in Special S.T. No. 80 of 2002(arising out of crime no. 40 of 2001) State v.Santosh Mishra, p.s. Shivrajpur, KanpurDehat passed by the Court of Addl. SessionsJudge/ Spl. Judge (SCST Act), KanpurDehat is amended. The appeal is confirmedfor the conviction and punishment of chargeu/ss 323, 376, 504, 506 IPC. But theconviction and punishment for the charge u/s376 IPC read with section 3(2)(v) ofScheduled Castes or Schedule Tribes Act isset aside and accused-appellant is acquittedof the said charge. All sentences would runconcurrently and the period alreadyundergone in jail by accused-appellant in thiscase will be adjusted in his punishment.

20. The copy of this judgment besent to concerned Superintendent JailSuperintendent and also to SessionsJudge, Kanpur Dehat for ensuringcompliance.


CIVIL SIDEDATED: ALLAHABAD 18.05.2015

BEFORETHE HON'BLE DR. DHANANJAYA YESHWANT

CHANDRACHUD, C.J.THE HON'BLE MANOJ KUMAR GUPTA, J.

C.M.W.P. No. 6976 of 2015

Rahul Upadhyay ...PetitionerVersus

Union of India & Ors. ...Respondents

Counsel for the Petitioner:Sri W.H. Khan, Sri J.H. Khan, Sri GulrejKhan

2 All] Rahul Upadhyay Vs. Union of India & Ors. 683

Counsel for the Respondents:C.S.C., A.S.G.I./2015/0253, Sri PankajMehrotra

(A)National Highways fee (Determinationof Rates and Collection) Rules 2008-Rule3(1)-Exemption on imposition toll fee-issued by notification dated 02.01.2015-state government under agency of uniongovernment executed contract on29.03.2014 for three years-whether suchnotification of exemption applicableretrospectively-?-held-'No'.

Held: Para-8In other words, the exemption is withprospective effect, from the date ofnotification. The fact that the petitionerhas an existing contract would not resultin the notification becomingretrospective. It is trite law that aninstrument of a statutory character doesnot become retrospective merelybecause it may operate on some eventswhich may have taken place in the past.No accrued rights have been taken away.The contract provides that it is capableof being terminated. Its term can becurtailed.

(B)National highways fee (determinationof rates and collection)Rules 2008 Rule3(1)-Right of contractor to collect toll feein term of contract executed on29.03.2014 for 3 years-exemptionnotification having applicability withprospective effect-whether can beenforced under writ jurisdiction?-held-'No'-in view of clause 17 schedule I ofcontract-petitioner to invoke arbitrationclause-no reason to entertain the petition.

Held: Para-9Basically, the petitioner is a collectionagent for the State for collecting the tollon the use of the bridge under the termsof the contract. At the highest, thecontractor can have a grievance that as aresult of the exemption which has beengranted in exercise of the powerconferred by the proviso to Rule 3 (1) ofthe Rules of 2008, the petitioner has

been deprived of the benefit of thecollection of the toll which would haveotherwise been permissible under theterms of the contract. This is a grievancewhich is redressable and quantifiable inmonetary terms. Such a contract cannot beenforced by specific performance. Theclaim of the petitioner would sound indamages for which an arbitral remedy isprovided in Clause 17 of Schedule I of thecontract dated 29 March 2014. We,accordingly, leave it open to the petitionerto invoke arbitration by adopting suitableproceedings in accordance with law.

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

1. The petitioner has sought tochallenge the legality of a notificationissued by the Union Government in theMinistry of Road Transport andHighways on 2 January 2015 in exerciseof the power conferred by Rule 3 of theNational Highways Fee (Determination ofRates and Collection) Rules, 20081. Bythe notification, the Central Governmenthas exempted eight bridges in the State ofUttar Pradesh from the levy of a user fee.The bridge in question to which thepetition relates is at serial number fourand is described as Tons (Katka-Setu) atKilometer 430 of NH-76E (35). Acontract was entered into between thepetitioner and the State Governmentacting as an agency of the UnionGovernment on 29 March 2014 for thecollection of a fee for a period of threeyears from 1 April 2014 to 31 March2017. The Union Ministry of RoadTransport and Highways issued anotification on 2 January 2015 exemptingthe imposition of the levy of a user fee oneight bridges including the bridge coveredby the contract to the petitioner. Thepower has been exercised under the Rulesof 2008.


2. Rule 3 (1) provides as follows:

"3. Levy of fee. - (1) The CentralGovernment may by notification, levy feefor use of any section of nationalhighway, permanent bridge, bypass ortunnel forming part of the nationalhighway, as the case may be, inaccordance with the provisions of theserules:

Provided that the CentralGovernment may, by notification, exemptany section of national highway,permanent bridge, bypass or tunnelconstructed through a public fundedproject from levy of such fee or partthereof, and subject to such conditions asmay be specified in that notification."

3. Two submissions have been urgedon behalf of the petitioner. The first isbased on the proviso to sub-section (3) ofSection 7 of the National Highways Act,1956. Section 7 provides as follows:

"7. Fees for services or benefitsrendered on national highways. - (1) TheCentral government may, by notificationin the Official Gazette, levy fees at suchrates as may be laid down by rules madein this behalf for services or benefitsrendered in relation to the use of ferries,permanent bridges the cost ofconstruction of each of which is morethan rupees twenty-five lakhs and whichare opened to traffic on or after the 1April 1976, temporary bridges and tunnelson national highways and the use ofsections of national highways.

(2) Such fees when so levied shall becollected in accordance with the rulesmade under this Act.

(3) Any fee leviable immediatelybefore the commencement of this Act forservices or benefits rendered in relation to

the use of ferries, temporary bridges andtunnels on any highway specified in theSchedule shall continue to be leviableunder this Act unless it is altered inexercise of the powers conferred by sub-section (1):

Provided that if the CentralGovernment is of opinion that it isnecessary in the public interest so to do, itmay, by like notification, specify anybridge in relation to the use of which feesshall not be leviable under this sub-section."

4. The submission is that the provisowhich is extracted above under which theCentral Government has been empowered toexempt the payment of fees in public interestleviable on any bridge is a proviso whichapplies to the entire Section 7 and not only toSection 7 (3). The second submission is thatthe notification which has been issued on 2January 2015 cannot apply retrospectively tocontracts which were executed prior to thedate of notification and hence, to that extentit is ultra vires in so far as it affects accruedrights.

5. Under Section 7 (1), the UnionGovernment has been empowered to levyfees at such rates as may be prescribed byrules made in that behalf for services orbenefits rendered inter alia in relation tothe use of ferries and permanent bridgesthe cost of construction of each of whichis in excess of rupees twenty-five lakhsand which are opened to traffic on or after1 April 1976, as well as temporarybridges and tunnels on national highways.Sub-section (3) deals with fees leviableimmediately before the commencement ofthe Act for services or benefits renderedin relation to the use of ferries, temporarybridges and tunnels on any highway

2 All] Rahul Upadhyay Vs. Union of India & Ors. 685

specified in the Schedule. These fees undersub-section (3) were to continue to beleviable under the Act unless and until theywere altered in exercise of the powersconferred by sub-section (1). The provisowhich follows is evidently a proviso to sub-section (3) of Section 7. This is evident fromtwo aspects. The first is the plain language ofthe proviso which stipulates that the CentralGovernment may, if it is of the opinion that itis necessary in public interest to do so,specify that fees shall not be leviable "underthis sub-section" on any bridge specified.The expression "under this sub-section" is inreference to sub-section (3). Secondly, theproviso which is preceded by a colon. Acolon in grammatical use is a punctuationwhich is associated with what immediatelyprecedes it. Hence, there would be no meritin the submission that the proviso qualifiesthe entire Section 7.

6. The power which has beenexercised by the Central Government isunder the proviso to Rule 3 (1) of theRules of 2008 under which the CentralGovernment has been empowered to issuea notification exempting any section of anational highway, permanent bridge,bypass or tunnel constructed through apublic funded project from the levy ofsuch fee or part thereof.

7. The second submission is that thepower to issue a notification under theproviso to Rule 3 (1) of the Rules of 2008has been exercised retrospectively bytaking away accrued rights and hence, isunlawful.

8. We find no element ofretrospectivity in the notification dated 2January 2015. The notification expresslystates that the Central Government"hereby exempt" all eight bridges in the

State of Uttar Pradesh mentioned in thenotification from the levy of a user fee. Inother words, the exemption is withprospective effect, from the date ofnotification. The fact that the petitionerhas an existing contract would not resultin the notification becoming retrospective.It is trite law that an instrument of astatutory character does not becomeretrospective merely because it mayoperate on some events which may havetaken place in the past. No accrued rightshave been taken away. The contractprovides that it is capable of beingterminated. Its term can be curtailed.

9. That leads to the Court to thebasic question as to the remedy which isavailable to a contractor, such as the onein the present case, who claims to have acontract for the collection of a toll. In thecontract which has been entered intobetween the petitioner and the State on 29March 2014, there is an arbitrationagreement in Clause 17 of Schedule I ofthe contract. Basically, the petitioner is acollection agent for the State forcollecting the toll on the use of the bridgeunder the terms of the contract. At thehighest, the contractor can have agrievance that as a result of the exemptionwhich has been granted in exercise of thepower conferred by the proviso to Rule 3(1) of the Rules of 2008, the petitioner hasbeen deprived of the benefit of thecollection of the toll which would haveotherwise been permissible under theterms of the contract. This is a grievancewhich is redressable and quantifiable inmonetary terms. Such a contract cannotbe enforced by specific performance. Theclaim of the petitioner would sound indamages for which an arbitral remedy isprovided in Clause 17 of Schedule I of thecontract dated 29 March 2014. We,


accordingly, leave it open to the petitionerto invoke arbitration by adopting suitableproceedings in accordance with law.

10. For these reasons and leaving itopen to the petitioner to invokearbitration, we see no reason to entertainthe petition, which is, accordingly,dismissed. There shall be no order as tocosts.



BEFORETHE HON'BLE AMRESHWAR PRATAP SAHI, J.

THE HON'BLE MRS. VIJAY LAKSHMI, J.

Criminal Misc. Writ Petition No. 8053 of 2015

Jangali Pasi ...PetitionerVersus

State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:Sri R.S. Shukla

Counsel for the Respondents:A.G.A.

Constitution of India-Art.-226-Writ petition-scope of interference discussed wherestatutory remedy of appeal providedunder Section 18 of U.P. Gangsters andanti social activities (prevention) Act1986-against ceasure of property-writcourt declined to interfere-on twogrounds-discussed.

Held: Para-27 & 2827. In such a situation if release isrefused, then an appellate forum withco-extensive powers should be availableand that is what Section 18 purports todo when it recites the words any order orjudgment. This is analogous to Section452 of the Cr.P.C. and therefore thelegislature was conscious of also making

a provision that Chapter XXIX willmutatis mutandis apply.

28. Even though the writ jurisdictionmay not be barred in appropriatematters as held in Badan Singh's case(supra) but if the statutory remedy ofappeal is available, then filing of writpetitions stands obviated for at least tworeasons. First that in an appeal allquestions of fact and law can be pleaded,evidence led and be adjudicated.Secondly, ordinarily questions of factthat may be disputed, cannot be goneinto in the exercise of jurisdiction underArticle 226 of the Constitution.

Case Law discussed:AIR 1987 Alld. 235; 2013 (8) SCC 368; 2012(76) ACC page 187; 2001 ALJ page 2852;2012 (6) ADJ page 231; 2008 (63) ACC page687; 2015 (1) JIC 435 Alld.; 2010 (3) ADJpage 69; 2001 Cr.L.J. 949 page 4; 2000 Cr.L.J.Page 949.

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

1. The petitioner who is a memberof the scheduled caste, has come upbefore this Court questioning the order ofthe District Magistrate, Kaushambi dated18.12.2014 arising out of proceedings ofattachment and refusal to release a truckthat had been seized invoking theprovisions of U.P. Gangsters and Anti-Social Activities (Prevention) Act, 1986.The background in which this seizure wasmade is to the effect that the petitionerwas implicated in three other criminalcases, namely, Case Crime No.117 of2012 under Section 379 IPC r/w Section136 of the Indian Electricity Act, CaseCrime No.140 of 2012 under Section 379IPC r/w Section 136 of the IndianElectricity Act and the third case beingCase Crime No.146 of 2012 underSections 399/401 IPC.

2 All] Jangali Pasi Vs. State of U.P. & Anr. 687

2. It appears from the record that thetruck in question bearing registration no.U.P 70 N 9212 is registered in the nameof the petitioner and the same came to beseized in the aforesaid criminal cases.Learned counsel for the petitioner submitsthat the petitioner has been bailed out inthe said criminal cases, but on the strengthof the same cases the petitioner has beenbooked under Section 2/3 of the 1986 Act,where also he has been bailed out on14.8.2013 by the competent court.

3. The truck was seized in Case CrimeNo.146 of 2012. A release application wasfiled where it was noticed that the said truckwas also subject matter of seizure in CaseCrime Nos.140 of 2012 and 117 of 2012 asnoted above. The truck had already beenreleased in the said cases on 15.5.2013.Consequently, a release order was also passedon 22.1.2014 in relation to Case CrimeNo.146 of 2012. The said orders have beenfiled on record.

4. However, since the petitioner hadbeen booked under the Gangster Act, the saidtruck became subject matter of detentionafter putting the petitioner to notice on theground that this truck appears to have beenpurchased from sources that have its genesisin the cases of theft registered against thepetitioner. An ex parte order was passedagainst the petitioner on the basis of a policereport on 30.7.2014 attaching the said truckunder the provisions of the 1986 Act. Thepetitioner filed his objection that is on recordwhereafter the impugned order has beenpassed by the District Magistrate observingthat since the petitioner has not been able togive effective details with regard to thesource of his earnings from where he hasacquired this truck and the information givenis unclear, his objection deserves to berejected.

5. The case of the petitioner was thathe had received a reimbursement againstthe insurance policy of his son who haddied, and that money had been utilized byhim that was transacted through a PostOffice and a Bank account whereafter itwas ultimately utilized for the purchase ofthe truck through a finance company.

6. The learned District Magistratehas opined that from the said Post Officetransaction is not clear as to whether theamount had been received by theapplicant or not and how much furtheramount had been financed by the privatefinance company referred to in theobjection. Similarly, the transactionthrough the State Bank of India in relationto the said reimbursement of the policyamount is also not clear. It is this orderthat is assailed herein.

7. Having heard Sri Shukla, learnedcounsel for the petitioner, and Sri A.K.Sand, learned A.G.A., the prayer made bySri Shukla in this petition is to the effectthat if the District Magistrate Kaushambiwas refusing to release the attachedproperty, which is a truck, in terms ofSection 15 read with Section 16 of theU.P. Gangsters & Anti Social Activities(Prevention) Act, 1986 then he ought tohave referred the matter to the Court ofthe Special Judge for determination andhaving failed to do so, the impugned orderis vitiated as it does not comply with theprovisions of Section 16(1) of the Act.

8. Sri Shukla, learned counsel forthe petitioner, submits that the DistrictMagistrate was under a legal obligation todo so and having failed to exercise hisjurisdiction, the impugned order deservesto be quashed with a direction to theDistrict Magistrate to adopt the procedure


under Section 16 for deciding the issue ofrelease as per the provisions aforesaid.

9. Sri A.K. Sand, learned A.G.A.,contends that this petition is absolutelypremature, inasmuch as, even if theDistrict Magistrate has not referred thematter to the learned Special Judge, thepetitioner ought to have moved anapplication in terms of the aforesaidprovision for a reference to the specialcourt. Apart from this, he also contendsthat after an order is passed by the courtof competent jurisdiction under Section17 of the Act then there is a furtherremedy to the petitioner of filing anappeal in terms of Section 18 of the Act,hence there should be no interference.

10. At the outset it may bementioned that the validity of the Act hasbeen upheld by this Court in the case ofAshok Kumar Dixit Vs. State, AIR 1987Alld. 235 and considered by the ApexCourt in the case of Dharmendra KirthalVs. State of U.P. 2013 (8) SCC 368.Unfortunately no rules appear to havebeen framed by the State of U.P. asdesired inspite of a query raised by thiscourt vide order dated 28.11.2011 inCriminal Misc. Bail ApplicationNo.26805 of 2011, Akbar Vs. State ofU.P. 2012 (76) ACC Page 187.

11. In order to appreciate theaforesaid controversy, it would beappropriate to put on record that the 1986Act was framed by the legislature to makespecial provisions for the prevention ofand for coping with gangsters and antisocial activities and for matters connectedtherewith or incidental thereto. In theinstant case, we are concerned with theprocedure to be adopted for attachmentand release of the property of an alleged

gangster in terms of Sections 14 to 17 ofthe Act and further as to whether anappeal would be maintainable as urged bythe learned A.G.A. under Section 18 if anorder is passed by the court in terms ofSection 16(3)(b) of the Act.

12. To appreciate the controversythe provisions of Sections 14 to 18 of theAct are extracted hereinunder :-

14. Attachment of property.- (1) Ifthe District Magistrate has reason tobelieve that any property, whethermoveable or immovable, in possession ofany person has been acquired by agangster as a result of the commission ofan offence triable under this Act, he mayorder attachment of such propertywhether or not cognizance of such offencehas been taken by any Court.

(2) The provisions of the Code shall,mutatis mutandis apply to every suchattachment.

(3) Notwithstanding the provisions ofthe Code the District Magistrate mayappoint an Administrator of any propertyattached under sub-section (1) and theAdministrator shall have all the powers toadminister such property in the bestinterest thereof.

(4) The District Magistrate mayprovide police help to the Administratorfor proper and effective administration ofsuch property.

15. Release of property - (1) Whereany property is attached under Section14, the claimant thereof may within threemonths from the date of knowledge ofsuch attachment make a representation tothe District Magistrate showing thecircumstances in and the sources bywhich such property was acquired by him.

(2) If the District Magistrate issatisfied about the genuineness of the


claim made under sub-section (1) he shallforthwith release the property fromattachment and thereupon such propertyshall be made over to the claimant.

16. Inquiry into the character ofacquisition of property by Court -(1) Whereno representation is made within the periodspecified in sub-section (1) of Section 15 orthe District Magistrate does not release theproperty under sub-section (2) of Section 15he shall refer the matter with his report to theCourt having jurisdiction to try an offenceunder this Act.

(2) Where the District Magistratehas refused to attach any property undersub-section(1) of Section 14 or hasordered for release of any property undersub-section (2) of Section 15, the StateGovernment or any person aggrieved bysuch refusal or release may make anapplication to the Court referred to insub-section (1) for inquiry as to whetherthe property was acquired by or as aresult of the commission of an offencetriable under this Act. Such Court may, ifit considers necessary or expedient in theinterest of justice so to do, orderattachment of such property.

(3) (a) On receipt of the referenceunder sub-section (1) or an applicationunder sub-section (2), the Court shall fixa date for inquiry and give notices thereofto the person making the applicationunder sub-section (2) or, as the case maybe, to the person making therepresentation under Section 15 and tothe State Government, and also to anyother person whose interest appears to beinvolved in the case.

(b) On the date so fixed or anysubsequent date to which the inquiry maybe adjourned, the Court shall hear theparties, receive evidence produced bythem, take such further evidence as itconsiders necessary, decide whether the

property was acquired by a gangster as aresult of the commission of an offencetriable under this Act and shall pass suchorder under Section 17 as may be just andnecessary in the circumstances of thecase.

(4) For the purpose of inquiry undersub-section (3) the Court, shall have thepower of a Civil Court while trying a suitunder the Code of Civil Procedure, 1908(Act No.5 of 1908), in respect of thefollowing matters, namely :-

(a) summoning and enforcing theattendance of any person and examininghim on oath;

(b) requiring the discovery andproduction of documents;

(c) receiving evidence on affidavits.(d) requisitioning any public record

or copy thereof from any Court or office:(e) issuing commission for

examination of witness or documents;(f) dismissing a reference for default

or deciding it ex parte:(g) setting aside an order of

dismissal for default or ex parte decision(5) In any proceedings under this

section, the burden of proving that theproperty in question or any part thereofwas not acquired by a gangster as a resultof the commission of any offence triableunder this Act, shall be on the personclaiming the property, anything of thecontrary contained in the Indian EvidenceAct, 1872 (Act No.1 of 1872),notwithstanding.

17. Order after inquiry - If upon suchinquiry the Court finds that the propertywas not acquired by a gangster as a resultof the commission of any offence triableunder this Act it shall order for release ofthe property of the person from whosepossession it was attached. In any othercase the Court may make such order as itthinks fit for the disposal of the property


by attachment, confiscation or delivery toany person entitled to the possessionthereof, or otherwise.

18. Appeal - The provisions ofChapter XXIX of the Code shall, mutatismutandis, apply to an appeal against anyjudgement or order of a Court passedunder the provisions of this Act.

13. A perusal thereof leaves no roomfor doubt that as per sub-section (2) ofSection 15 if the District Magistrate hasrefused to release the property then heshall refer the matter with his report to thecourt having jurisdiction to try an offenceunder this Act under Section 16(2) of Act.Sri Shukla is not wrong in contending thatif the District Magistrate has refused torelease the property then a reference hasto be made to the court having jurisdictionto try the offence under the Act.

14. Sub-section (3)(a) of Section 16obliges the court that on receipt ofreference under sub-section (1) or anapplication under sub-section (2), thecourt can fix a date for inquiry and put theconcerned person to notice and thereafteris obliged to pass orders under clause (b)of sub-section (3) read with Section 17 ofthe Act as may be necessary. For thepurpose of inquiry under Section 16(3) ona reference the court has extensive powersof a civil court as that of trying a suit. It isthus clear that the matter has to bereferred to the court if the DistrictMagistrate has refused to release theproperty. The assessment andadjudication on evidence led, is within thepowers of the court as the outcomethereof leads to the civil consequencesdirectly relating to the attached property.

15. A further perusal of the saidsection would also demonstrate that the

court where the matter is referred hasfurther powers of disposal of suchproperty in case it is not releasedinasmuch as the Act does not indicate anypower available with the DistrictMagistrate authorizing him for disposal ofthe property. Secondly, the applicationwhich has been referred to in sub-section(2) of Section 16 is against refusal toattach and not refusal to release. In thecircumstances, the learned A.G.A. is notcorrect in his submission that the personclaiming such property can move anapplication in the given circumstances.The application can only be moved whenthere is a refusal to attach either by theState Government or by any other personconcerned. The issue of release istherefore either before the DistrictMagistrate and if he refuses to do so thenthe reference has to be made to the courtconcerned.

16. In the instant case the DistrictMagistrate vide ex parte order dated30.7.2014 had rejected the request forrelease and on an application to set asidethe ex parte order has proceeded to decidethe same once again by the impugnedorder dated 18.12.2014 rejecting theapplication moved by the petitioner andhas maintained the earlier order dated30.7.2014. We are of the consideredopinion that the District Magistrate wasunder an obligation to have referred thematter with his report to the court havingjurisdiction as per Section 16(1) forrelease of such property which hadadmittedly not been done as is evidentfrom a perusal of the order dated18.12.2014.

17. Coming to the question ofavailability of a remedy against suchorders to the petitioner, Section 18 of the


1986 Act makes a provision for appeal.The said section has already beenextracted hereinabove. The provision ofappeal would be available only after anorder is passed by a court of competentjurisdiction.

18. Having said so the othercontention raised by the learned A.G.A.deserves to be answered as to whether anappeal would be maintainable after anorder of the nature presently involved ispassed by the competent court. In thisregard the decision in the case of BadanSingh @ Baddo Vs. State of U.P. andothers reported in 2001 ALJ Page 2852has been placed before the Court. Thesaid judgment of a learned Single Judgeof this Court holds in paragraph 9 asfollows :-

"I shall now advert to the argumentadvanced by the learned A.G.A. as to themaintainability of the writ petitions on theground of availability of alternativeremedy under S.18 of the Act. To answerthe question, it is necessary to allude toS.18 which reads as under :

"18 Appeal. The provisions ofChapter XXIX of the Code shall, mutatismutandis, apply to an appeal against anyjudgment or order of a Court passedunder the provisions of this Act."

9. CHAPTER XXIX of the Code ofCriminal Procedure, 1973 under caption'Appeal' contains twenty three sectionsrunning from Ss. 372 to 394. Section 372provides that no appeal shall lie from anyjudgment or order of a Criminal Courtexcept as provided for by this Code or byany other law for the time being in force.Section 373 makes provision for appealagainst order passed under S. 117 and121, Cr.P.C. Under S.374 appeal lies tothe Supreme Court and the High Court

against the order of conviction. Section375 bars appeal against the order ofconviction on the accused admitting hisguilt. Section 376 provides that no appealshall lie in petty cases. Under S. 377 righthas been conferred on the StateGovernment to move in appeal againstinadequacy of sentence. Section 378provides for filing appeal against theorder of acquittal. Section 379 makesprovision for appeal to the Supreme Courtagainst the order of the High Courtreversing acquittal to conviction. Specialright to appeal in certain cases isprovided under S.380. Sections 381 and382 prescribe the procedure for filing ofappeal in the Court of Sessions and themanner of hearing. The Act is a penalStatute and Section 3 thereof prescribespunishment to be awarded to a gangsteras well as public servant rendering illegalhelp or support to a gangster. Noseparate procedure is prescribed tochallenge the order of conviction oracquittal passed by the Special Judge inexercise of power conferred by the Act.So, on a conspectus of CHAPTER XXIX,Cr.P.C. and Ss. 3 and 18 of the Act whatappears is that appeal would lie againstthe order of conviction or acquittal underthe Act and not against the order ofattachment of the District Magistrate orthe order of the Special Court on thereference made by the DistrictMagistrate. Even assuming that Section18 has the application and orders of theDistrict Magistrate and the Special Courtcan be challenged by way of appeal yet Iwould hold that the writ petition underArt. 226 of the Constitution ismaintainable when the very order ofattachment passed by the DistrictMagistrate is illegal, arbitrary andwithout jurisdiction. For arriving at suchconclusion, I derive support from the


decision of the Apex Court in WhirlpoolCorporation V. Registrar of Trade marks,Mumbai (1998) 7 JT (SC) 243 where it islaid down that availability of effective andefficacious remedy will not operate as barto approach the High Court under Art.226 of the Constitution in at least threecontingencies, namely where writ petitionhas been filed for enforcement offundamental rights, or where there hasbeen violation of principle of naturaljustice or where the order or proceedingsare without jurisdiction or vires of an Actis challenged."

19. The said judgment was citedbefore a learned Single Judge raising apreliminary objection to themaintainability of the appeal on thestrength of the aforesaid observations.The matter came to be considered inCriminal Appeal No.3000 of 2003,Kailash Sahkari Awas Samiti Vs. State ofU.P. & others and another learned SingleJudge upon a consideration of all therelevant provisions of the Act as well asthe Criminal Procedure Code ruled asunder vide order dated 2.2.2010 to thefollowing effect :-

"x x x x x x x x xI have heard both the sides and have

pondered over rival submissions. Sincethe bone of contention between rival sidesrequire interpretation of a statutoryprovision of an enacted statute,consideration of the whole of the saidstatute seems to be un-eschewable toforesee legislative intent of the section tobe interpreted and while undertaking thatexercise a glimpse of the Act indicatesthat the Act was enacted to containgangsterism and anti social activitieswithin the State of U.P. which hasattained menacing dimensions. The Act

was brought to life on 19.3.1986, onwhich date it was published in the U.P.Gazette part one. Section 1 of the Actmentions it's title and extent ofapplication, Section 2 provides definitionsand meaning of various words occurringunder the Act. Section 2 (f) which is ofsome importance to the presentcontroversy provides that the words andphrases used but not defined in the Actbut defined under the Code of CriminalProcedure, 1973 or the Indian PenalCode shall have the respective meaningsassigned to them in those statutes. Section3 of the Act provides for penalty foroffences under the Act, whereas section 4lays down special rule of evidence to beapplied in the trial of offences under theAct. Section 5 to 10 contemplates creationof special Courts to try offences under theAct, eligibility of the presiding Judge,place of sitting of special courts and thenature of offences to be tried andprocedure to be followed by it. Withoutvolumenising, it is recorded thataccording to section 10 of the Act SpecialJudge shall have the Power of a Session'sJudge and shall follow the same warranttrial procedure which is to be followed bya Magistrate unless the offence ispunishable with imprisonment notexceeding three years, in which case itcan try the offence in a summary way inconsonance with sections 263 to 265 ofthe code. Section 11 provides forprotection to the witnesses whereassection 12 mentions that the trial underthe Act shall have precedence over thetrial of other cases. Section 13 registersthe power to transfer the cases to regularCourts by the Special Court if it finds thatthe offences being tried by it is not triableby it. From section Section 14 to section17, the Act provides for attachment ofproperty and it's release. Section 14 lays


down that if the District Magistrate hasreason to believe that any property,whether movable or immovable,possessed by any person has beenacquired by gangsterism as a result ofcommission of any offence under the Act,then the District Magistrate can orderattachment of such property irrespectiveof the fact whether cognizance of suchoffence has been taken by any Court ornot. Sub Section 14 (2) provides thatprovisions of Cr.P.C. shall appliedmutatis mutandis to every attachmentcarried out under the Act. Section 14(3)and (4) provides for appointing of anadministrator over the attached propertyby the District Magistrate and for policehelp to administer such property. Section15 of the Act provides for applying forrelease of the property by any claimantthrough an application made to theDistrict Magistrate within three monthsfrom the date of the knowledge ofattachment. Section 15(2) enact that if theDistrict Magistrate is satisfied about thecase of the claimant then he can direct therelease of the property from attachmentand thereafter the property shall behanded over to the claimant. Perusal ofthe Section 16 of the Act indicate that ifno representation is made within thespecified period of three months from thedate of the knowledge of attachment orthe District Magistrate does not releasethe property to the claimant as isprovided under Section 15(2) of the Actthen he (District Magistrate) shall referthe matter with his report to the Courthaving jurisdiction to try the offencesunder the Act. Section 16(2) postulatesthat if the District Magistrate does not actunder Section 14(1) of the Act to attachthe property, or releases the propertyunder Section 15(2) of the Act then theState Government or any person

aggrieved by such refusal or release canmake an application to the Court havingjurisdiction to try an offence under thisAct for inquiry for the purposes ofdetermining whether any property hasbeen acquired by gangsterism or not?Pendente lites such inquiry, the court hasbeen conferred with the power to orderfor attachment of such property as wasdone in the instant case. Section 16(3) ofthe Act, which is in two partscontemplates in sub section (a) that theCourt on a reference under Sub Section(1) of Section 16 or on an applicationunder Sub Section (2) of the said sectionshall conduct an inquiry and sub section(b) provides that on the date so fixed theCourt shall hear the parties, receiveevidences produced by them, take suchfurther evidences as it considerednecessary and decide whether theproperty was acquired by a gangster as aresult of commission of an offence underthe Act or not and then shall pass anorder under Section 17 as the case may bewhich is necessary in its opinion. Section16(4) confers same power on the Courtunder the Act which is possessed by acivil court under Code of Civil Procedure1908 in matters of inquiry. Section 16(5)of the Act legislates that the burden ofproving that the property or any partthereof has not been acquired bygangsterism or by commission of anyoffence under the Act shall be on theperson claiming the release of theproperty irrespective of any provision tothe contrary contained in the IndianEvidence Act. Section 17 of the Actprovides that upon such an inquiry if theCourt finds that the property was notacquired by a gangster as a result ofcommission of any offence under the Actthen the Court shall order for release ofsuch property to the person from whose


possession it was attached. In any othercase, the Court may make such orders asit deems fit for disposal of such propertyeither by attachment, confiscation ordelivery to any person entitled topossession thereof or otherwise. Section18, which is the apple of discard betweenthe rival sides, legislates and provides forapplicability of chapter XXIX of the Codein an appeal preferred under the Act. Fora clear understanding of the legislativeintent, Sections 17 and 18 of the Act arereproduced below:- .

"17. Order after inquiry- If uponsuch inquiry the Court finds that theproperty was not acquired by a gangsteras a result of the commission of anyoffence triable under this Act it shallorder for release of the property of theperson from whose possession it wasattached. In any other case the Court maymake such order as it thinks fit for thedisposal of the property by attachment,confiscation or delivery to any personentitled to the possession thereof, orotherwise.

18. Appeal- The provisions ofChapter XXIX of the Code shall mutatismutandis, apply to an appeal against anyjudgment or order of a Court passedunder the provisions of this Act."

From the two referred statutoryprovisions it is abundantly clear thatSections 14 to 17 of the Act, which dealswith attachment/non attachment orrelease of any property in question isanalogous to sections 451, 452, and 457of the Code. For a ready reference, theaforesaid provisions of Cr.P.C. areregistered herein below:-

"451. Order for custody and disposalof property pending trial in certain cases-When any property is produced beforeany Criminal Court during any inquiry ortrial, the Court may make such order as it

thinks fit for the proper custody of suchproperty pending the conclusion of theinquiry or trial, and, if the property issubject to speedy and natural decay, or ifit is otherwise expedient so to do, theCourt may, after recording such evidenceas it thinks necessary, order it to be soldor otherwise disposal of.

Explanation- For the purposes of thissection, "property" includes-

(a) property of any kind or documentwhich is produced before the Court orwhich is in its custody.

(b) any property regarding which anoffence appears to have been committedor which appears to have been used forthe commission of any offence.

452. Order for disposal of propertyat conclusion of trial- (1) When aninquiry or trial in any Criminal Court isconcluded, the Court may make suchorder as it thinks fit for the disposal, bydestruction, confiscation or delivery toany person claiming to be entitled topossession thereof or otherwise, of anyproperty or document produced before itor in its custody, or regarding which anyoffence appears to have been committed,or which has been used for thecommission of any offence.

(2) An order may be made undersub-section (1) for the delivery of anyproperty to any person claiming to beentitled to the possession thereof, withoutany condition or on condition that heexecutes a bond with or without sureties,to the satisfaction of the Court, engagingto restore such property to the Court if theorder made under sub-section (1) ismodified or set aside on appeal orrevision.

(3) A Court of Session may, insteadof itself making an order under sub-section (1), direct the property to bedelivered to the Chief Judicial Magistrate,


who shall thereupon deal with it in themanner provided in sections 457, 458 and459.

(4) Except where the property islivestock or is subject to speedy andnatural decay, or where a bond has beenexecuted in pursuance of sub-section (2),an order made under sub-section (1) shallnot be carried out for two months, orwhen an appeal is presented, until suchappeal has been disposed of.

(5) In this section, the term"property" includes, in the case ofproperty regarding which an offenceappears to have been committed, not onlysuch property as has been originally inthe possession or under the control of anyparty, but also any property into or forwhich the same may have been convertedor exchanged, and anything acquired bysuch conversion or exchange, whetherimmediately or otherwise.

457. Procedure by police uponseizure of property-

(1) Whenever the seizure of propertyby any police officer is reported to aMagistrate under the provisions of thisCode, and such property is not producedbefore a Criminal Court during aninquiry or trial, the Magistrate may makesuch order as he thinks fit respecting thedisposal of such property or the deliveryof such property to the person entitled tothe possession thereof, or if such personcannot be ascertained, respecting thecustody and production of such property.

(2) If the person so entitled is known,the Magistrate may order the property tobe delivered to him on such conditions (ifany) as the Magistrate thinks fit and ifsuch person is unknown, the Magistratemay detain it and shall, in such case,issue a proclamation specifying thearticles of which such property consists,and requiring any person who may have a

claim thereto, to appear before him andestablish his claim within six months fromthe date of such proclamation."

What is noticeable here is that anorder under sections 452 and 453 of theCode is appealable under section 454thereof. The special provision has beenenacted under the Act for a solemnpurpose to deter an individual and /orpublic to acquire property by commissionof offences under the Act and thereby tocurb the activities of gangsterism.Attachment and release of property or anyorder of such a nature dealing withdisposal of any property by a court hasserious consequences of far reachingeffects and it impinges upon the right toproperty of an individual andconsequently, under the code such typesof orders are made appealable undersection 454 thereof. For a ready referenceSection 454 Cr.P.C. is reproducedbelow:-

"454. Appeal against orders undersection 452 or section 453.- (1) Anyperson aggrieved by an order made by aCourt under section 452 or section 453,may appeal against it to the Court towhich appeals ordinarily lie fromconvictions by the former Court.

(2) On such appeal, the AppellateCourt may direct the order to be stayedpending disposal of the appeal, or maymodify, alter or annul the order and makeany further orders that may be just.

(3) The powers referred to in sub-section (2) may also be exercised by aCourt of appeal, confirmation or revisionwhile dealing with the case in which theorder referred to in subsection (1) wasmade."

Now, turning towards the Act it isrecorded that the Act is not a selfcontained Code. For innumerable aspectsof trial procedure and for many


interlocutory matters it falls back on theCode. What is of significance here is thatthe Act does not provide anywhere whatorders are appealable and what are not?Under section 18 only this much has beenlegislated that chapter XXIX of the Codeshall mutatis mutandis apply to an appealagainst any judgment and order of a courtpassed under the provisions of this Act.Thus the Act confers right to appealagainst all orders and judgment of a courtunder it as the words " an appeal" and"any judgment and order" occurring insection 18 are of enormous magnitude. Inconsonance with the Principles ofinterpretation of Statute and harmoniousconstruction of various statutes, thesewords should be taken to preserve allappeals provided under the Code. Themeaning attached to these words can notbe restricted in it's scope only to take init's purview convictions and sentencespassed under the Act. Divastation of onceproperty has got enormous detrimentalcivil consequences which even can not berecouped in future and in such matters theremedial remedy of appeal can andshould not be squeezed from an aggrievedperson by the courts when they are calledupon to fillup the grey areas left by thelegislature in matters of interpretation ofa statutory provision. It seems that it isbecause of this reason that section 454has been enacted in the code andtherefore benefit of the said right underthe Act to an individual should not bedenied against consequentially analogousorders, especially when there is nolegislative intent to the contrary, as theAct is silent on the aspects as to whichorders are appealable and which are not?

Another dimensional facet of theinvolved issue is that courts are requiredto adopt warrant trial or summary trial

procedures while prosecuting an accusedas is mandated under section 10 of theAct. Various orders in those trialprocedures are appealable. Once the Actdoes not carve out any exception inmatters of appeal in those trialprocedures, it will be very injudicious toread them in a statute (Act), as doing sowill amount to legislate, which the courtsare not capable of. Besides 454, otherexempler appealable sections are 86, 341,351, and 449 of the Code. More over thetwo trial procedures, in it's application tooffences under the Act and those of IPCand other statutes, can not be bifurcatedinto two. If the trial procedure providesfor filing of an appeal against any orderpassed during the trial , then those ordersshall be appealable under the Act as well.Drawing of such an opinion can becountenanced even on the basis of thewords used in section 372 of the code aswell which falls under chapter XXIXthereof. Section 372 of the Codepostulates that no appeal shall lie fromany judgment or order of a criminalCourt except as is provided in the Code orin any other law for the time beingenforce. The said section clearly indicatesthat an appeal shall lie from a judgmentand order of a criminal court, if it is soprovided under the Code or under anyother statute in vogue. This section,therefore, imbibes in itself all appealsunder Sections 86,341,351, 454 and 449of the code. In this connection, Section386 (d) is also noticeable and is of muchsignificance as it provides as follows:-

"386. Powers of the AppellateCourt.- After perusing such record andhearing the appellant or his pleader, if heappears, and the Public Prosecutor, if heappears, and in case of an appeal underSection 377 or section 378, the accused, ifhe appears, the Appellate Court may, if it


considers that there is no sufficientground for interfering, dismiss the appeal,or may-

(a) ...........................................(b) ...........................................(c) ...........................................(d) in an appeal from any other

order, alter or reverse such order;(e) .........................................."Thus a co-joint reading of Section

372 and 386(d) of the code conspicuouslylays down maintainability of all appealsprovided under the code. Since section 17of the Act is an analogous provision ofsections 451, 452 and 457 Cr.P.C., thesame will be appealable under chapterXXIX of the Code as all appeals under theAct has to be dealt with under thatchapter. I am also fortified in my viewfrom the phraseology of Section 18 f theAct, which provides that the provisions ofappeal under Chapter XXIX shall mutatismutandis apply to an appeal under theAct. Section 18 has been couched in ageneral phraseology and, therefore, it hasto be read in conjunction with chapterXXIX of the Code. Eikly, in matters ofappeal under Section 15 of the ActCr.P.C. will also apply as Section 2 of theAct specifically provides for itsapplication. It will be preposterous tocogitate that the offences under theGangsters Act, which is an off shoot ofvarious offences mentioned under thepenal code and other statutes will be trieddifferentially and will have differentappealable sections than that of Cr.P.C. Ifthe legislative intend was that only aconviction and sentence passed under theAct be made appealable, the legislaturewould have provided for such aneventuality which it has not doneconsciously as it was conscious of the factthat the attachment, confiscation ordisposal of property in any manner has

got serious consequences as it evenimpinges upon the right to property of acitizen of this country. To accept theargument of learned counsel for therespondents, in this respect will lead tohazardous consequences. If a person isdeprived of his property without any rightof appeal, that will be in directcontradiction with the provisions of Codeof Criminal Procedure. In such a view theappeal provided for under Section 18 ofthe Act takes into its purview all theappeals which are provided for under theCode of Criminal Procedure.

Turning towards, the decision reliedupon by the counsel for the respondents, itis to be noted that in the said judgmentHon'ble Single Judge has himselfobserved thus:-

"No separate procedure isprescribed to challenge the order ofconviction or acquittal passed by theSpecial Judge in exercise of power ofChapter XXIX Cr.P.C. and Sections 3 and18 of the Act what appears is that appealwould lie against the order of convictionor acquittal under the Act and not againstthe order of attachment of the DistrictMagistrate or the order of the SpecialCourt on the reference made by theDistrict Magistrate. Even assuming thatSection 18 has the application and ordersof the District Magistrate and the SpecialCourt can be challenged by way of appealyet I would hold that the writ petitionunder Article 226 of the Constitution ismaintainable when the very order ofattachment passed by the DistrictMagistrate is illegal, arbitrary andwithout jurisdiction."

(underline emphasis mine)Thus the aforesaid judgment Badan

Singh (Supra), does not rule outmaintainability of an appeal against anorder passed under Section 17 of the Act.


Further, I find that the appeal wasadmitted by this Court vide order dated10.7.2003. The State did not objectmaintainability of an appeal at that stageand, therefore, also I am of the consideredview that the instant appeal is maintainablefor challenging an order passed undersection 17 of the Act and therefore I rejectthe preliminary objection raised by thecounsels for the respondents 2 to 18.

This appeal will now be listed on8.2.2010 for further final hearing onmerits as part heard.

20. The appeal after having beenheld to be maintainable by the aforesaidorder, the same was decided on merits bythe learned Single Judge vide judgmentdated 22.5.2012 reported in 2012 (6) ADJPage 231 Kailash Sahkari Awas SamitiVs. State of U.P. & others. This issue ofhaving decided the preliminary objectionof the maintainability of the appeal wasagain referred to in the final judgment inparagraph 15 which is quoted hereinunder:-

"A priory, a preliminary objectionwas raised by the respondents counselregarding maintainability of this appealin this court, which issued was decided aspreliminary issue and it was held thatappeal is maintainable as section 372 ofthe Code (Cr.P.C.) read with section 18 ofthe Act read jointly preserves all theappeals provided for under the Code. Itwas noted that the Act is not a self-contained Code and for trial procedure itfalls back on the provisions of the Code. Itwas further noted that since chapter XXIXof the code applies mutatis mutandis toappeals under the Act, hence in view ofsection 372 of the Code appeal againstattachment or release of property shall bemaintainable under the Act, just as appeal

u/s 454 of the Code is maintainable. Itwas also noted that the appeal wasentertained on 10.7.2003 and Act does notprohibit entertaining appeal againstattachment under Section 18.

After deciding preliminary objection,appeal was heard on merits."

21. Another decision that holds thatan order passed under Section 17 of theAct is subject to an appeal is that ofManzoora Vs. State of U.P. & others,2008 (63) ACC page 687. Appeals havebeen entertained by this Court in suchmatters and have been decided, one ofwhich is Shashi Kant Chaurasiya Vs.State of U.P. 2015 (1) JIC 435 Alld. Twoother judgments, even though short andnot loaded with reasons, but straight to thepoint are State of U.P. Vs. Manoj KumarPandey 2010(3) ADJ Page 69 para 10extracted hereinunder :-

"An objection about themaintainability of the appeal was initiallyraised by the respondents but it wassubsequently given up and was notpressed. Neither party has, therefore,addressed the Court on this question.However, since Section 18 of the Actprovides for the appeal against thejudgment or order of the Court passedunder the Act and the impugned judgmentand order have been passed by the Courtunder Section 17 of the Act, therefore, theappeal is maintainable."

22. and the division bench decisionin the case of Krishna Murari AgrawalVs. D.M. Jhansi & others, 2001 Cr.L.J.949 para 4 that is already extractedhereinafter.

23. A learned Single Judge of thisCourt in Government Appeal No.6042 of


2010, State of U.P. Vs. Nasim Khan &others after noting the Division Benchjudgment in the case of Manzoora (supra)came to a prima facie opinion that anappeal against an order of release/partialrelease as aforesaid and passed underSection 17 of the 1986 Act is notmaintainable. It was further commentedby the learned Single Judge that theremark in Manzoora's case was madecasually without going through theprovisions of Section 18 of the Act aswell as Chapter XXIX of the CriminalProcedure Code and then proceeded tomake a reference before a division benchfor consideration vide his order dated28.1.2015 which is extracted hereinunder:-

"Present appeal has been filed byState of U.P. under Section 18 of theUttar Pradesh Gangsters and Anti SocialActivities (Prevention) Act, 1986 againstjudgement and order dated 23.7.2010passed by Additional Sessions Judge,Court No.6/Special Judge Gangster Act,Allahabad in Miscellaneous Case No.5 of2009 (Nasim Khan Vs. State of U.P.),Miscellaneous Case No.3 of 2009 (AbdulNafis Vs. State of U.P.), MiscellaneousCase No.4 of 2009 (Sayeed Khan andanother Vs. State of U.P.), MiscellaneousCase No.2 of 2009 (Nizam Vs. State ofU.P.) and Miscellaneous Case No.6 of2009 (Salim Khan Vs. State of U.P.)arising out of Crime No.254 of 2007,under section 2/3 of the Uttar PradeshGangsters and Anti Social Activities(Prevention) Act, 1986, Police StationHandia, District Allahabad wherebyAdditional Sessions Judge, CourtNo.6/Special Judge Gangster Act,Allahabad has allowed applications undersection 16 of the Uttar Pradesh Gangstersand Anti Social Activities (Prevention)

Act, 1986 moved in aforesaid eachmiscellaneous case and has set asideorder dated 30.1.2009 passed by DistrictMagistrate, Allahabad under section14(1) of Uttar Pradesh Gangsters andAnti Social Activities (Prevention) Act,1986.

Affidavits have already beenexchanged between the parties.

Shri Narendra Dev Roy, learnedA.G.A. appeared for State of U.P. ShriDaya Shankar Mishra as well as ShriMukhtar Alam appeared for respondents.

I have heard learned A.G.A. as wellas learned counsel for respondents andperused the record.

Learned A.G.A. contended thatimpugned judgement and order passed byAdditional Sessions Judge, CourtNo.6/Special Judge Gangster Act,Allahabad is against provisions of theUttar Pradesh Gangsters and Anti SocialActivities (Prevention) Act, 1986 as wellas evidence on record .

Learned A.G.A. contended thatimpugned judgement and order dated23.7.2010 passed by Additional SessionsJudge, Court No.6/Special JudgeGangster Act, Allahabad should be setaside and impugned order 30.1.2009passed by District Magistrate, Allahabadshould be restored.

Learned counsel for respondentscontended that impugned order has beenpassed under section 17 of the UttarPradesh Gangsters and Anti SocialActivities (Prevention) Act, 1986(hereinafter referred to as "Act") andthere is no provision of appeal againstorder passed under section 17 of Acteither in the Act or in Chapter XXIX ofCriminal Procedure Code which has beenmade applicable on appeals againstjudgement and order passed under the Actper section 18 of the Act.


Learned counsel for respondentsfurther contended that learned trial courthas passed impugned judgement andorder after having considered allevidence and submissions made by theparties. The impugned judgement andorder passed by trial court is inaccordance with provisions of the Act aswell as evidence on record.

Learned counsel for respondentscontended that appeal has no merit and itshould be dismissed.

In reply learned A.G.A. contendedthat appeal is maintainable againstimpugned judgement and order in view ofSection 18 of the Act.

Learned A.G.A. placed reliance uponjudgement of Division Bench of this HighCourt rendered in the case of ManzooraVs. State of U.P. through Secretary Home,Government of U.P., Lucknow and others,reported in 2008(63) ACC 687.

In view of contentions made by theparties following points for determinationarise in this appeal:

1. Whether appeal filed by State ofU.P. is maintainable in view of Section 18of the Act against impugned judgementand order passed by trial court.

2. Whether impugned judgement andorder passed by trial court is againstprovisions of the Act as well as evidenceon record.

Admittedly, District Magistrate,Allahabad passed order of attachment ofproperty of respondents under section 14-(1) of the Act against which respondentsmade representation before DistrictMagistrate for release of property undersection 15(1) of the Act. But DistrictMagistrate, Allahabad did not releaseproperty attached and referred the matterunder section 16-(1) of the Act to thecourt having jurisdiction to try offenceunder the Act, whereupon trial court

made inquiry under section 16(3) of theAct and ultimately passed impugned orderunder section 17 of the Act whereby hehas allowed the applications ofrespondents moved under section 15-(1)of the Act and has set aside order dated30.1.2009 passed by District Magistrate,Allahabad under section 14(1) of the Act.

Section 18 of the Act providesprovisions for appeal. Section 18 of theAct is reproduced below:

"The provisions of Chapter XXIX ofthe Code shall, mutatis mutandis, apply toan appeal against any judgement or orderof a Court passed under the provisions ofthis Act".

Reading of Section 18 of the Actshows that it does not speak aboutjudgements and orders which areappealable. It says only that ChapterXXIX of the Code (Criminal ProcedureCode) shall mutatis mutandis apply to anappeal against any judgement or order ofa Court passed under the provisions ofthe Act.

In view of Section 18 of the Act it isrelevant to go through provisions ofChapter XXIX of the Criminal ProcedureCode.

Heading of Chapter XXIX of theCriminal Procedure Code is "appeals". ThisChapter consists of Sections 372 to 394, outof which Section 372 provides that no appealshall lie from any judgement or order of aCriminal Court except as provided for bythis Code or by any other law for the timebeing in force. Section 373 of the Chapterprovides provision for appeal against ordersrequiring security or refusal to accept orrejecting surety for keeping peace or goodbehaviour.

Section 374 of the Chapter providesprovision for appeal from convictions.

Section 375 of the Chapter providesthat notwithstanding anything contained


in Section 374, where an accused personhas pleaded guilty and has been convictedon such plea, there shall be no appeal.

Section 376 of the Chapter providesprovision for no appeal by convictedperson in certain petty cases.

Section 377 of the Chapter providesprovision for appeal by State Governmentagainst the sentence on the ground of itsinadequacy.

Section 378 of the Chapter providesprovision for appeal in case of acquittal.

Section 379 of the Chapter providesprovision for appeal against conviction byHigh Court in certain cases.

Section 380 of the Chapter providesthat notwithstanding anything containedin this Chapter, when more persons thanone are convicted in one trial, and anappellable judgement or order has beenpassed in respect of any of such persons,all or any of the persons convicted at suchtrial shall have a right of appeal.

Section 381 of the Chapter providesprovisions that appeal to the Court ofSession shall be heard by the SessionsJudge or by an Additional Sessions Judge.

Section 382 of the Chapter providesthat appeal shall be made in the form ofpetition in writing.

Section 383 of the Chapter providesprocedure of appeal when appellant is injail.

Section 384 of the Chapter providesprovision for summary dismissal ofappeal.

Section 385 of the Chapter providesprocedure for hearing of appeals notdismissed summarily.

Section 386 of the Chapter providesprovisions regarding powers of theappellate court.

Section 387 of the Chapter containsprovisions regarding judgements ofsubordinate appellate court.

Section 388 of the Chapter providesthat order of High Court on appeal shallbe certified to lower court.

Section 389 of the Chapter providesprovisions regarding suspension ofsentence during pendency of appeal orrelease of appellant on bail.

Section 390 of the Chapter providesprovisions regarding arrest of accused inappeal from acquittal.

Section 391 of the Chapter providesthat appellate court may take furtherevidence itself or direct it to be taken by aMagistrate, or when the appellate court isa High Court, by a Court of Session or aMagistrate.. Section 392 of the Chapter providesprocedure where Judges of Court ofAppeal are equally divided.

Section 393 of the Chapter providesthat judgements and orders passed by anAppellate Court upon an appeal shall befinal, except in the cases provided for inSection 377, Section 378, sub-section (4)of Section 384 or Chapter XXX.

Section 394 of the Chapter providesprovisions regarding abatement ofappeals.

After having gone through ChapterXXIX of Criminal Procedure Code it isapparent that this Chapter providesprovisions for appeal against judgementand order of conviction or acquittal ororder requiring securing or refusal toaccept or rejecting surety for keepingpeace or good behaviour. In this Chapterthere is no provision for appeal againstorder passed in respect of attachment,release or disposal of property. There isno provision either in Section 18 oranywhere in Uttar Pradesh Gangstersand Anti Social Activities (Prevention)Act, 1986 also to provide right of appealagainst order passed under section 17 ofAct by trial court regarding release or


disposal of property attached by DistrictMagistrate under section 14(1) of the Actwhere as section 372 of Chapter XXIX ofCriminal Procedure Code clearlyprovides that no appeal shall lie from anyjudgement or order of a criminal courtexcept as provided by CriminalProcedure Code or by any other law fortiming being in force. In view of section18 of the Act and Chapter XXIX ofCriminal Procedure Code order passedunder section 17 of the Act is not anappelable order.

But in the case of Manzoora Vs. Stateof U.P. and others (2008) 63 A.C.C. 687,Honourable Division Bench of this HighCourt in a writ petition filed against orderpassed by District Magistrate undersection 14(1) of the Act has made aremark to the effect that the order passedunder section 17 of the Act is subject toan appeal to the High Court under section18. This remark has been made casuallywithout going through provisions ofsection 18 of the Act as well as ChapterXXIX of Criminal Procedure Code.

In the case of Mamleshwar Prasadand another Vs. Kanhaiya Lal (dead)through L. Rs., 1975 (2) S.C.C. 232,Hon'ble Apex Court in para 7 of thejudgement has observed as follows:

"Certainty of the law, consistency ofrulings and comity of courts - all floweringfrom the same principle - converge to theconclusion that a decision once renderedmust later bind like cases. We do not intendto detract from the rule that, in exceptionalinstances, where by obvious inadvertence oroversight a judgment fails to notice a plainstatutory provision or obligatory authorityrunning counter to the reasoning and resultreached, it may not have the sway of bindingprecedents."

In the case of State of U.P. andanother Vs. Synthetics and Chemicals

Limited and another, 1991 (4) S.C.C. 139,Hon'ble Apex Court in para 40 ofjudgment has observed as follows:

"Incuria" literally means'carelessness'. In practice per incuriamappears to mean per ignoratium. Englishcourts have developed this principle inrelaxation of the rule of stare decisis. The'quotable in law' is avoided and ignored ifit is rendered, 'in ignoratium of a statuteor other binding authority'. (Young Vs.Bristol Aeroplane Co. Ltd. (1994) 1 KB718 : (1944) 2 All ER 293. Same has beenaccepted, approved and adopted by thisCourt while interpreting Article 141 of theConstitution which embodies the doctrineof precedents as a matter of law."

In view of above pronouncements ofHonourable Apex Court I am of the viewthat the issue as to whether order passedunder section 17 of the Uttar PradeshGangsters and Anti Social Activities(Prevention) Act, 1986 is an appelableorder and appeal is maintainable undersection 18 of the Act should be referred toDivision Bench for consideration.

Let the records be placed beforeHon'ble The Chief Justice for order."

24. We have been informed that thesaid reference is still pending before adivision bench and has not yet beenanswered.

25. Since this issue has been raisedbefore us by the learned A.G.A., we proceedto deal with the same in the light of the factsstated hereinabove. To us, it appears that thelearned Single Judge who has made thereference on 28.1.2015 has not noticed thejudgment in the case of Kailash SahkariAwas Samiti (supra). The other twojudgments that have also not been noticed arethe division bench judgment in the case ofKrishna Murari Agrawal (supra) and the


decision of the learned Single Judge in thecase of State of U.P. Vs. Manoj KumarPandey (supra). We also find that the learnedSingle Judge while making the reference hasnot referred to the provisions particularlySections 5, 451, 452 and 457 of the CriminalProcedure Code that have been comparedwith analogous provisions in the case ofKailash Sahkari Awas Samiti (supra) alongwith the provisions of appeal under Section454 of the Code read with Section 18 of the1986 Act. In our opinion, the learned SingleJudge in the case of Kailash Sahkari AwasSamiti (supra) has rightly distinguished thecase of Badan Singh (supra) by observingthat it does not rule out the maintainability ofan appeal against an order passed underSection 17 of the Act. The conclusion drawnin the case of Kailash Sahkari Awas Samiti(supra) finds our approval for all the reasonsgiven therein inasmuch as, even if an appealis a creature of statute, yet in view of theprovisions of Section 18 of the 1986 Act readwith Chapter XXIX of the CriminalProcedure Code we find that a provision ofappeal is necessary and has to be interpretedas such because the property attached in suchproceedings can be confiscated as well underSection 17 of the 1986 Act. This provision,therefore, is plenary and peremptory innature thereby depriving a person of hisproperty by operation of law. The power ofconfiscation is positively imperious, eventhough the order of the District Magistrate orthe court concerned before whom thereference is made does not appear to be final.In the circumstances they are subject to recallor otherwise appealable.

26. In such a situation, where there is aconstitutional mandate under Article 300-Athat no person should be deprived of propertysave by authority of law, then the provisionof an appeal against an order of confiscationis necessary, inasmuch as, to allow the order

of the court to become final in a matter ofconfiscation of property would be deprivinga person to question and contest this matterbefore a higher forum that is inbuiltintentionally by the legislature in the Statute.We say this because it will not be possiblefor a person to claim the property in questionthrough any other mode or source of lawexcept through a writ petition. There is nodoubt that property acquired throughunlawful means and being an outcome ofcrime cannot be claimed as a matter of rightbut at the same time a law that provides forattachment, release or confiscation of suchproperty should be capable of, and visitedwith a procedure, so as to adjudicate anyclaim arising therefrom in a fair andreasonable manner.

27. The 1986 Act therefore has to beread as a complete Code in itself so as toprovide such benefit of appeal which thelegislature appears to have intended underSection 18. Applying the interpretive tool,Section 18 categorically provides an appealagainst any judgment or order and thenmutatis mutandis applies Chapter XXIX ofthe Cr.P.C. to such an appeal. Judges whileinterpreting such provisions have to adoptthe legalistic method as well as thepragmatistic method as they are said to weartwo hats. This distinguishes them from mereumpires and they enjoy a more certaininterpretive freedom by applying reasoningthrough analogy in order to interpret andexplain cannons of statutory construction.Applying the said principles, we are also ofthe opinion that Section 18 does not containany prohibitive language nor does it give arestrictive meaning to the right of appealagainst any judgment or order under the Actwhich is a special act. This therefore includesthe right of an appeal against an orderrefusing to release attached property. Theinterpretation has to be meaningful and that


which advances the cause of justice. Thatalso checks infallibility and rules out anypossibility of failure or miscarriage of justice.There is yet a dimension to ponder. Ifultimately the prosecution ends in acquittalor there is a probability of acquittal then arelease of attached property has to beadjudicated. There is yet another grey area,namely what happens to attached property ifthe proceedings abate due to the death of anundertrial under the Gangsters Act. Shouldthe property be automatically refused to bereleased or released to the heirs of thedeceased. In the former case if the trial failsto end up in conviction in such a contingencydue to the death of an undertrial, then thequestion of release has to be determined butin the latter case can the attached property bereleased automatically even if no proof isprovided by the heirs of the mode ofacquisition of the property. In both cases anadjudication has to be made at the instance ofthe State Government or any interestedperson. In such a situation if release isrefused, then an appellate forum with co-extensive powers should be available andthat is what Section 18 purports to do when itrecites the words any order or judgment. Thisis analogous to Section 452 of the Cr.P.C.and therefore the legislature was conscious ofalso making a provision that Chapter XXIXwill mutatis mutandis apply.

28. Even though the writ jurisdictionmay not be barred in appropriate matters asheld in Badan Singh's case (supra) but if thestatutory remedy of appeal is available, thenfiling of writ petitions stands obviated for atleast two reasons. First that in an appeal allquestions of fact and law can be pleaded,evidence led and be adjudicated. Secondly,ordinarily questions of fact that may bedisputed, cannot be gone into in the exerciseof jurisdiction under Article 226 of theConstitution. This has been held in a short

judgment in the case of Krishna MurariAgarwal Vs. District Magistrate, Jhansi &others, 2000 Cr.L.J. Page 949, extractedhereinunder :-

"1. The property of the petitionerwas attached under Section 14(1) of theU.P. Gangsters & Anti Social (Activities)Prevention Act, 1986 by order of theDistrict Magistrate, Jhansi.

2. The petitioner made a representationagainst the order of attachment underSection 16(1) of the said Act. The DistrictMagistrate by his order dated 12.10.2000rejected the representation and referred thematter with his report to the Special Judge(Gangsters Act) in accordance with Section16(1) of the Act. It is this order which issubject-matter of challenge in the presentwrit petition.

3. We have heard Sri UK Saxena,learned counsel for the petitioner atconsiderable length and have perused therecord.

4. The question whether the propertyattached has been acquired by a gangsteras a result of the commission of anoffence under U.P. Gangsters & AntiSocial Activities (Prevention) Act, 1986 isa pure question of fact. The claim of thepetitioner that the property has not beenacquired by commission of an offence orthat it is an ancestral property can onlybe established by appraisal of theevidence. It will be open to the petitionerto lead oral and documentary evidence insupport of his claim before the SpecialJudge (Gangsters Act) where the matterhas been referred. Such appraisal ofevidence is not possible in the presentproceedings under Article 226 of theConstitution of India. The Act provides acomplete machinery as against thedecision of the Court an appeal lies underSection 18 of the Act.


5. In these circumstances we do notconsider it a fit case for interferenceunder Article 226 of the Constitution ofIndia.

6. Learned counsel for the petitionerhas submitted that the house of thepetitioner has been attached and he issuffering great hardship and, therefore, adirection may be issued to the SpecialJudge concerned to decide theproceedings at an early date.

7. Taking into consideration the entirefacts and circumstances of the case, it isdirected that the proceedings referred to theSpecial Judge by the District Magistrateunder Section 16(1) of the Act shall beconcluded as expeditiously as possiblepreferably within three months of the filing ofa certified copy of this order before the Courtconcerned. It is understood that thepetitioner will co-operate with the enquiryand will not seek adjournments unlessabsolutely necessary.

8. Subject to the observations madeabove, the writ petition is dismissed."

29. The reasoning given by thelearned Single Judge in the case ofKailash Sahkari Awas Samiti (supra)appears to be perfect and sound whereasthe apprehension expressed in thereferring order dated 28.1.2015 does notappear to have noticed the same. For allthe reasons given hereinabove and for thereasons given by the learned SingleJudge, referred to hereinabove, weapprove of the ratio of the decision in thecase of Kailash Sahkari Awas Samiti(supra).

30. Why is a statutory appealnecessary and what is the purpose ofproviding an appeal has been veryelaborately dealt with by the Apex Courtexplaining its philosophy in the celebrated

decision of Sita Ram and others Vs. Stateof U.P. (1979) 2 SCC Page 656. Thus, theimportance of a provision of appealcannot be diluted and the learned SingleJudge in the case of Kailash SahkariAwas Samiti (supra) was fully justified ininterpreting Section 18 to be available forsuch purpose. Retention of property maynot be a guaranteed fundamental right, butit is reasonable to construe thatdeprivation of property without authorityof law is unconstitutional and leads tocivil consequences of a permanent nature.We, therefore, extract para 25, portion ofpara 31, paras 41, 42 and 45 of Sita Ram'scase (supra) to the following effect :-

25. At the threshold, we have todelineate the amplitude of an appeal, not inabstract terms but in the concrete context ofArticle 134 read with Article 145 and orderXXI Rule 15 and s. 384 of the CriminalProcedure Code, 1973. The nature of theappeal process cannot be cast in a rigidmould as it varies with jurisdictions andsystems of jurisprudence. This point has beenbrought out sharply in "Final Appeal". Thelearned authors ask :

But what does 'appeal' really mean :indeed, is it a meaningful term at all in anyuniversal sense ? The word is in fact merely aterm of convenient usage, part of a system oflinguistic shorthand which accepts the needfor a penumbra of uncertainty in order toachieve universal comprehensibility at a verylow level of exactitude. Thus, while 'appeal' isa generic term broadly meaningful to alllawyers in describing a feature common to awide range of legal systems, it would bemisleading to impute a precise meaning to theterm, or to assume, on the grounds that theword (or its translated equivalent) hasinternational currency, that the concept of anappeal means the same thing in a wide rangeof systems.


On any orthodox definition, a appealincludes three basic elements: a decision(usually the judgment of a court or the rulingof an administrative body) from which anappeal is made; a person or personsaggrieved by the decision (who is often,though by no means necessarily party to theoriginal proceedings) and a reviewing bodyready and willing to entertain the appeal.

The elasticity of the idea is illuminedby yet another passage which bearsquotation:

'Appeals' can be arranged along acontinuum of increasingly formalisedprocedure, ranging from a condemned manin supplication before his tribal chief tosomething as jurisprudentially sophisticatedas appeal by certiorari to the Supreme Courtof the United States. Like Aneurin Bevan'selephant an appeal can only be describedwhen it walks through the court roomdoor......... The nature of a particularappellate process-indeed the character of anentire legal system-depends upon amultiplicity of interrelated (though largelyimponderable) factors operating within thesystem. The structure of the courts; the statusand rule (both objectively and subjectivelyperceived) of judges and lawyers, the form oflaw itself-whether, for example it is derivedfrom a code or from judicial precedentmodified by statute; the attitude of the courtsto the authority of decided cases; thepolitical and administrative structure of thecountry concerned-whether for example itsinternal sovereignty is limited by itsallegience to a colonizing power. The list ofpossible factors is endless, and their weightand function in the social equation defyprecise analysis."

In short, we agree in principle withthe sum-up of the concept made by theauthor:

Appeal, as we have stressed, covers amultitude of jurisprudential ideas. The

layman's expectation of an appeal is veryoften quite different from that of the lawyerand many an aggrieved plaintiff denied his'just' remedy by judge or jury has come uponthe disturbing reality that in England adisputed finding of fact can seldom, if ever,form the basis of an appeal. Similarly, aFrenchman accustomed to a narrowlylegalistic appeal incessation, subject tosubsequent reargument in a court below,would find little familiarity in the ponderousfinality of the judgment of the House ofLords. And a seventeenth-century lawyeraccustomed to a painstaking search fortrivial mistakes in the court record, whichformed the basis of the appeal by writ oferror, would be bewildered by the greatflexibility and increased sophistication of ajurisprudential argument which characterizea modern appeal.

31. x x x x x A single right of appealis more or less a universal requirement ofthe guarantee of life and liberty rooted inthe conception that men are fallible, thatJudges are men and that makingassurance doubly sure, before irrevocabledeprivation of life or liberty comes topass, a full-scale re-examination of thefacts and the law is made an integral partof fundamental fairness or procedure.

41. Going to the basics, an appeal is theright of entering a superior court andinvoking its aid and interposition to redressthe error of the court below.... An appeal,strictly so called, is one "in which the questionis, whether the order of the court from whichthe appeal is brought was right on thematerials which that court had before it" (perLord Davey, Ponnamma v. Arumogam,(1905) A.C. at p.390) .... A right of appeal,where it exists, is a matter of substance, andnot of procedure (Colonial Sugar RefiningCo. v. Irving, (1905) AC 369 and Newman v.Klausner, (1922) 1 K.B. 228). Thus, the rightof appeal is para mount, the procedure for

2 All] Ravindra and Anr. Vs. State of U.P. & Ors. 707

hearing canalises so that extravagant prolixityor abuse of process can be avoided and a fairworkability provided. Amputation is notprocedure while pruning may be.

42. Of course, procedure is withinthe Court's power but where it paresdown prejudicially the very right, carvingthe kernal out, it violates the provisioncreating the right. Appeal is a remedialright and if the remedy is reduced to ahusk by procedural excess, the rightbecomes a casualty. That cannot be.

45. An appeal is a re-hearing, and asViscount Cave laid down, it was the duty of acourt of appeal in an appeal from a judgesitting alone to make up its own mind, notdisregarding the judgment appealed fromand giving special weight to that judgmentwhere the credibility of witnesses comes intoquestion, but with full liberty to draw its owninferences from the facts proved or admitted,and to decide accordingly."

31. Having considered the above, wetherefore find ourselves in full agreementwith the judgment of the learned SingleJudge in the case of Kailash Sahkari AwasSamiti (supra) which lays down the lawcorrectly and an appeal against an orderrefusing to release attachment under Section17 of the 1986 Act would be maintainableunder Section 18 of the same Act.

32. After having held that, we partlyallow this petition with a direction to theDistrict Magistrate to proceed to refer thematter to the court concerned and to thatextent the impugned order dated 18.12.2014stands modified. The District Magistrateought to have reflected on the provisions ofSections 15 and 16 of the 1986 Act carefullybut such errors may keep on recurring asRules do not appear to have been framedinspite of the query raised by this Court inAkbar's case (supra). Once the reference is

made to the court concerned, as indicatedabove, then the matter shall be disposed off bythe court in accordance with the provisionsquoted hereinabove and the law indicated inthis regard. The aforesaid process becompleted expeditiously and the DistrictMagistrate shall pass appropriate orderspreferably within four weeks' from the date ofproduction of a certified copy of this orderbefore him. Once the matter reaches the court,the court shall endeavour to dispose of thesame under the provisions of the 1986 Actread with Criminal Procedure Code preferablywithin three months thereafter.

33. A copy of this judgment may alsobe placed on the record of GovernmentAppeal No.6042 of 2010 for information andthe Reporting Section of the High Court shallalso take notice of this judgment to proceedfor reporting such appeals filed under Section18 of the 1986 Act. The learned GovernmentAdvocate may apprise the State Governmentas well the learned Advocate General of thisjudgment so as to expedite consideringframing of appropriate Rules as observedhereinabove.



BEFORETHE HON'BLE RAN VIJAI SINGH, J.

Writ-C No. 8762 of 2015

Ravindra and Anr. ...PetitionersVersus

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

Counsel for the Petitioners:Sri Kundan Rai

Counsel for the Respondents:C.S.C., Sri D.D. Chauhan, Sri PrabhakarDubey


Constitution of India, Art.-226-FisheriesRights-whether inheritable?-held-'yes'-petitioner’s mother granted license offisheries rights-having validity upto 2018-on death of original licensee-petitionerbeing a legal heirs-claimed license in hisfavor-District Magistrate rejected-saying -such rights not inheritable-held-illegal.

Held: Para-6This type of controversy has earlier cameup before this Court in the writ petitionno. 5536 of 2005 (Mohan Lal Vs. State ofU.P.and others) decided on 9.2.2005,wherein this Court has held that thefishery lease is inheritable. Not only inthat case, but in another Writ (C) No.7322 of 2014 (Smt. Sonmati Vs. State ofU.P. and others), this Court has held thatfishery lease is inheritable. In view ofthe law laid down by this Court in theaforesaid cases, I am of the opinion thatthe Collector has erred in rejecting thepetitioners' application holding that thepetitioners have no right to performfishery right on the strength of theearlier lease executed in favour of theirmother. The question as to whether thepetitioners are the sons of the originallessee or not, this is a question of factand that can be examined by the DistrictMagistrate but so far as their inheritableright is concerned, that cannot be deniedin view of the law laid down by thisCourt in the case of Mohan Lal andSmt.Sonmati (supra).

Case Law discussed:W.P. No. 5536 of 2005; Writ(C) No. 7322 of2014

(Delivered by Hon'ble Ran Vijai Singh, J.)

1. Learned counsel for the petitioneris permitted to correct the description ofrespondent no. 3 and serve copy of thewrit petition to Sri D.D.Chauhan, learnedcounsel for the Gaon Sabha.

2. Heard Sri Kundan Rai, learnedcounsel for the petitioners, learned

Standing Counsel for the Staterespondents, Sri D.D.Chauhan, learnedcounsel for the Gaon Sabha and SriPrabhakar Dubey, learned counsel for therespondent no. 4.

3. By means of this writ petition, thepetitioners have prayed for issuing a writ ofcertiorari quashing the order dated 21.1.2015passed by the Collector/Zila Aadhikari, SantKabir Nagar in Misc. Case No. 8 (Ravindraand others Vs. Shoba Devi and others) bywhich the petitioners' application, forpermitting them to perform their fishery rightover pond situated over Plot No. 290-Ka(measuring about 0.376 hectare) situated inVillage Dharmsinghva Tappa PatanaPargana Bansi Purab Tehsil MehadawalDistrict Sant Kabir Nagar, has been rejected.

4. While assailing this order, learnedcounsel for the petitioners submits thatfishery lease is inheritable and the Collectorconcerned has erred in rejecting thepetitioners' application on the ground thatafter the death of the petitioners' mother inwhose favour lease was executed, the periodof lease has come to an end and the petitionercannot be permitted to inherit the same.

5. The facts giving rise to this caseare that a lease was executed in favour ofthe petitioners' mother Smt. ChandrawatiDevi for performance of fishery right overthe pond mentioned hereinabove. Thelease was executed for the period of tenyears and was operative till 31.12.2018.Later on, the petitioners' mother has diedand after the death of the mother, therespondents have started hindrance inperformance of fishery right by thepetitioners. In that eventuality, thepetitioners have approached this Courtthrough Writ Petition No. 64996 of 2014.The aforesaid writ petition was disposed

2 All] Sagar Malik Vs. State of U.P. & Ors. 709

of on 2.12.2014 with the liberty to thepetitioner to make arepresentation/application before theCollector/District Magistrate Sant KabirNagar. Pursuant thereto, therepresentation was filed. The Collectorhas rejected the petitioners' application onthe ground that after the death of theoriginal lessee, the period of lease hascome to an end and stand cancelled andthe heirs and legal representatives cannotinherit the same.

6. This type of controversy has earliercame up before this Court in the writpetition no. 5536 of 2005 (Mohan Lal Vs.State of U.P.and others) decided on9.2.2005, wherein this Court has held thatthe fishery lease is inheritable. Not only inthat case, but in another Writ (C) No. 7322of 2014 (Smt. Sonmati Vs. State of U.P. andothers), this Court has held that fishery leaseis inheritable. In view of the law laid downby this Court in the aforesaid cases, I am ofthe opinion that the Collector has erred inrejecting the petitioners' application holdingthat the petitioners have no right to performfishery right on the strength of the earlierlease executed in favour of their mother.The question as to whether the petitionersare the sons of the original lessee or not, thisis a question of fact and that can beexamined by the District Magistrate but sofar as their inheritable right is concerned,that cannot be denied in view of the law laiddown by this Court in the case of MohanLal and Smt.Sonmati (supra).

7. In view of foregoing discussions,the writ petition succeeds and is allowed.The impugned order dated 21.1.2015passed by the Collector/Zila Aadhikari,Sant Kabir Nagar in Misc. Case No. 8(Ravindra and others Vs. Shoba Devi andothers) is hereby quashed with the

direction to pass a fresh order in this regardin accordance with law looking into the orderpassed in this petition and earlier decisions ofthis Court as mentioned hereinaboveexpeditiously but not later than two monthsfrom the date of filing of certified copy of theorder of this Court.



BEFORETHE HON'BLE AMRESHWAR PRATAP SAHI, J.

THE HON'BLE MRS. VIJAY LAKSHMI, J.

Criminal Misc. Writ Petition No. 10050 of 2015

Sagar Malik ...PetitionerVersus


Counsel for the Petitioner:Ms. Zia Naz Zaidi, Sri Rajul Bhargava

Counsel for the Respondents:A.G.A.

Constitution of India, Art.-226-Petitioner agang leader-continue in jail-stategovernment exercising power u/s 268 interms of Section 417 (I) Cr.P.C.-issueddirection transferring petitioner fromMuzaffar Nagar to district jail Varanasi-before passing impugned transfer order-following principle of natural justice-onlyreason disclosed that his uncle and otherfamily members are confined in same jail atMuzaffar Nagar-can not be basis-orderimpugned not suffer from any infirmityrequires no interference-rather petitioner atVaranasi having video conferencing system-having full choice of engagement oflawyers-no prejudice going to caused-petition dismissed.

Held: Para-18In our opinion, the Magistrate has onlygiven a permission for transfer toanother Jail and the reasons given are


the existence of an eminent possibility ofa gang war. Apart from this, thepetitioner in his objection had only takena plea that since his uncle and relativesare lodged in the same Jail, he shouldnot be transferred. No other plea hasbeen taken in the said objection. Thus,principles of natural justice have beencomplied with and the petitioner hadfiled an objection which has beennoticed where after the impugned orderhas been passed by the learnedMagistrate. Merely because the relativesof the petitioner are lodged in the sameJail, the same cannot be a ground torefuse transfer and, therefore, the orderof the Magistrate does not suffer fromany infirmity or perversity calling for aninterference. The said order has nowbeen already executed with the issuanceof a Government Order on 26.2.2015which has not been challenged. In theaforesaid circumstances, when theprinciples of natural justice have beencomplied with and sufficient reasonshave been indicated in the orderpermitting transfer, we do not find anygood ground to interfere with the sameat least at this stage.

Case Law discussed:(2012) 13 SCC 192; AIR 1991 SC 746; W.P.No. 6719(M/B) of 2002; 1991 JIC 95.

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

1. This petition questions the orderof the Chief Judicial Magistrate dated25.2.2015 whereby the learned Magistratehas passed an order granting permissionto transfer the petitioner to some other Jailfrom the District Jail at Muzaffarnagarwhere he had been detained.

2. Learned A.G.A. for therespondent - State Sri Nitin Sharma hadbeen called upon to obtain instructions aswell in the matter. A written instructionssigned by the Superintendent of Jail,

Muzaffarnagar, dated 27.4.2015 has beenplaced before the Court.

3. The petitioner was arrested on16.2.2015 in the circumstances as indicated inthe F.I.R. It appears that one Vikky Tyagi, analleged gang leader, had gone to attend hiscase in the Court of Xth Addl. District Judge,Muzaffarnagar, on 16.2.2015 when he wasattacked by several persons including thepetitioner, who allegedly fired shots leavinghim dead in the court premises. It is in thisbackground that the petitioner is alleged tohave indulged into a gang war as Vikky Tyagihimself is narrated to be one of the leaders ofthe gang and came to be taken into custody.

4. This background led to the movingof an application by the Superintendent ofJail for transferring the petitioner to someother Jail and it is this application, which hasbeen disposed of as a misc. application bythe order impugned dated 25.2.2015. TheCourt has recorded that after receipt of thesaid application, the same was served on thepetitioner calling upon him to give a reply tothe same by 21.2.2015. The petitioneradmitted having received the said applicationon 20.2.2015 and thereafter moved anapplication on 21.2.2015 itself in the shapeof an objection, a certified copy whereof isAnnexure No.3 to the writ petition, whereinthe petitioner has stated that the petitioner'suncle and other relatives are already detainedin Muzaffarnagar Jail and, therefore, he issafe with his family members hence heshould not be transferred to any other Jail.He is alleged to have moved anotherapplication on 23.2.2015 praying for time togive a further reply and also to filedocuments with regard to his juvenility.

5. Learned Counsel for the petitionerMs. Zaidi and Mr. Rajul Bhargava haveurged that without giving any further


opportunity, the impugned order waspassed and, therefore, the same is inviolation of principles of natural justice.

6. The court below has recorded thatseveral other accused of the gang of Vikrantalias Vikky Tyagi are lodged in the sameJail and there is every likelihood of aserious gang war. The petitioner himself hasdisclosed his age to be about 19 years and,therefore, it is not necessary at this stage toconsider any plea of juvenility. It has furtherbeen recorded that in the aforesaidbackground if the petitioner is transferred tosome other Jail, then no prejudice will becaused and rather it would be in the interestof the petitioner and his security.

7. The Court further recorded that inview of the Apex Court decision in the caseof State of Maharashtra and others Vs. SaeedSohail Sheikh and others, (2012) 13 SCC192, opportunity has been given to thepetitioner who has filed his objection and, assuch, natural justice having been compliedwith, permission was granted to transfer thepetitioner to some other Jail. Directions wereissued to take ample security measures andmedical care of the petitioner while doing so.

8. It is this impugned order, which hasbeen challenged contending that the order is inviolation of principles of natural justice as nofurther time had been granted and secondly itviolates the fundamental rights of thepetitioner for which reliance has been placedon the decision in the case of Francis CoralieMullin Vs. Administrator for the UnionTerritory of Delhi, AIR 1991 SC 746 and thedecision in the case of State of Maharashtraand others Vs. Saeed Sohail Sheikh and others(supra).

9. The contention of the learnedCounsel for the petitioner is that the

petitioner would not be able to meet hisrelatives or engage a Counsel of hischoice if transferred to a far off Jail as thepetitioner has now been sent to a Jail atVaranasi almost 800 kms. away and,therefore, if transfer is necessary, he maybe shifted to a Jail in some nearby district.

10. The written instructions thathave been produced by the learnedA.G.A. are extracted here under:-

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6 'kklukns'k la0 & 45@2015@656ts0,y0@22&3&15&100 ¼18½@2015] fnukad& 26-02-15 ftlesa fopkjk/khu cUnh lkxj efyd dksiz'kklfud vk/kkj ij ftyk dkjkxkj okjk.klhLFkkukUrfjr djus dh vuqefr iznku dh x;h] QSDlds ek/;e ls ftyk eftLVs~zsV] eqtQQjuxj dks izkIrgqvkA ftyk eftLVsz~ }kjk vkns'k fnukad & 26-02-15dks dkjkxkj ij Hkstk x;kA

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vr% iz'uxr ;kfpdk cyghu gS o fujLr fd;stkus ;ksX; gSA

Hkonh;v/kh{kdftyk dkjkxkj eqtQ~Qjuxj^^

11. A perusal thereof clearly indicatesabout the possibility of a gang war in theJail at Muzaffarnagar. This fact has alsobeen noticed by the Court. It has also beennoticed that the petitioner was given anopportunity to file an objection as indicated

above. In paragraph No.4 of theinstructions, it has been categorically statedthat the facility of Video Conferencing hasto be made available and, as such, he hasbeen transferred to Varanasi where suchfacilities are available.

12. What is more revealing is thatthe State government has issued aGovernment Order on 26.2.2015 fortransferring the petitioner fromMuzaffarnagar to Varanasi Jail. To ourmind, this power has been exercised interms of Section 417 (1) of the CriminalProcedure Code, extracted herein below:-

"417. Power to appoint place ofimprisonment.--(1) Except whenotherwise provided by any law for thetime being in force, the State Governmentmay direct in what place any person liableto be imprisoned or committed to custodyunder this Code shall be confined."

13. The Uttar Pradesh Jail Manualprovides for a complete procedure forlodging of prisoners and their transferfrom one prison to another. For this, onehas to turn to the Prisoners Act, 1900 andthe U.P. Jail Manual.

14. Sri A.K. Sand, learned A.G.A.,has provided assistance to the Court bypointing out the Decision Bench in thecase of Raghuraj Pratap Singh alias RajaBhayya and another Vs. State of U.P. andothers, Writ Petition No.6719 (M/B) of2002, decided on 11.12.2002 that tookstock of a previous Division Benchjudgment in the case of Balram SinghYadav Vs. State of U.P. and others, 1991JIC 95, and extensively dealt with theprovisions under the Prisons Act and thePrisoners Act read with the provisions ofU.P. Jail Manual to point out that


paragraph No.8 of Chapter II of the U.P. JailManual lays down the powers indicatinglodging of under trials and specially to para409-A of the said Manual which extends theapplicability of all rules in the Jail Manualsto under trial prisoners as in the case ofconvicts. The Court then went on to discussparas 137 and 138 of the Jail Manual relatingto transfer and held that the power soexercised for transfer from one prison toanother is well within the competence of theauthorities empowered to do so. The power,therefore, vests with the State Government totransfer and such power appears to have beenexercised with the passing of theGovernment Order dated 26.2.2015.

15. The provision that empowersthat courts to issue directions to theofficer-in-charge of a prison is Section267 of the Cr.P.C. under Chapter XXIIthereof, but at the same time Section 268Cr.P.C. again empowers the StateGovernment to refuse removal of aprisoner subject to the conditionsenumerated in sub Section (2) thereof.Apart from this, it is the judgment in Stateof Maharashtra Vs. Saeed Sohail Sheikh(supra) that spells out the necessity of thecourts granting permission for suchtransfer.

16. The petitioner has nowherechallenged the said order dated 26.2.2015passed by the State Government and asindicated in the instructions received fromthe State Government. TheCourt/Magistrate concerned has onlygranted permission but the place ofimprisonment has been fixed by the StateGovernment in exercise of such powers.

17. In the absence of any challengeto the order of the State Government, theonly question remains as to whether the

permission granted by the Court isjustified or not.

18. In our opinion, the Magistratehas only given a permission for transfer toanother Jail and the reasons given are theexistence of an eminent possibility of agang war. Apart from this, the petitionerin his objection had only taken a plea thatsince his uncle and relatives are lodged inthe same Jail, he should not betransferred. No other plea has been takenin the said objection. Thus, principles ofnatural justice have been complied withand the petitioner had filed an objectionwhich has been noticed where after theimpugned order has been passed by thelearned Magistrate. Merely because therelatives of the petitioner are lodged in thesame Jail, the same cannot be a ground torefuse transfer and, therefore, the order ofthe Magistrate does not suffer from anyinfirmity or perversity calling for aninterference. The said order has now beenalready executed with the issuance of aGovernment Order on 26.2.2015 whichhas not been challenged. In the aforesaidcircumstances, when the principles ofnatural justice have been complied withand sufficient reasons have been indicatedin the order permitting transfer, we do notfind any good ground to interfere with thesame at least at this stage.

19. Now one of the grounds whichhas been additionally argued before us isabout the distance of the transferredprison namely to Varanasi whichaccording to the petitioner will not onlycause inconvenience but would alsoviolate his fundamental rights. Havinggiven our anxious consideration thebackground in which the petitioner hasbeen shifted cannot be ignored. Secondly,the system of Video Conferencing is


already available at Varanasi and,therefore, the question of any longjourney being undertaken by thepetitioner at this stage affecting his rightsdoes not arise. To the contrary atMuzaffarnagar his rival gang is alsolodged in the same Jail which itself is animpending danger. Thirdly, the questionof engaging a Counsel of his choice at thisstage cannot be an impediment and wouldnot violate any of his fundamental rightsinasmuch as the petitioner is not beingprohibited from engaging any Counsel ofhis choice. The transfer to a far off Jailcan also be countenanced with the factthat the district of Varanasi itself has alarge number of lawyers practising on thecriminal side, who can cater to and giveproper advice in such a case. After allwhenever a litigant enters the portals of aCourt, he has to opt and choose a lawyeras it cannot be supposed that all litigantshave retainer lawyers from before. Thechoice of lawyers does not get limited nordoes their engagement get prohibited. Thepetitioner is well within the State of U.P.This argument even otherwise would notbe available to the petitioner inasmuch asthe learned Counsel have time and againstated that they do not oppose the transferof the petitioner to any nearby district.Thus, this plea also does not in any wayhelp the petitioner in assailing theimpugned order as he would still have toengage a lawyer whenever required.

20. Consequently, the shifting of thepetitioner is in his own interest and for thetime being does not prejudice his causeoccasioning any miscarriage of justice orfailure of justice. The order passed by theMagistrate, therefore, has to be upheld.

21. The issue of interference withsuch orders has also been dealt with by a

Division Bench in the case of State ofU.P. through Principal Secretary (Prison),U.P., Lucknow Vs. Fast Track CourtNo.2, Maharajganj, and others, 2008 (63)ACC 317, that has followed the ratio inthe case of Kalyan Chandra Sarkar Vs.Rajesh Ranjan alias Pappu Yadav andanother, (2005) 3 SCC 284.

22. It goes without saying that if andwhen any necessity arises or in suchcircumstances exists that may indicate there-transfer of the petitioner from one Jailto another, it would be open to thecompetent authority to exercise suchpowers in accordance with law whichmay be necessary on the basis of materialon record.

23. In view of the aforesaid reasonsand the circumstances of the case, we donot find any fundamental rights of thepetitioner being violated so as to causeinterference inasmuch as the Court hadapplied it's mind fairly and objectivelyand after giving an opportunity to thepetitioner. Paragraph No.35 of thejudgment in the case of State ofMaharashtra and others Vs. Saeed SohailSheikh and others (supra) is the ratio ofthe said judgment and which appears tohave been complied with by theMagistrate while passing the order whichhas now taken the shape of theGovernment Order dated 26.2.2015whereupon the petitioner has beentransferred to Varanasi.

24. Consequently, there is no meritin the writ petition. The writ petition isdismissed.



2 All] Amit Kumar Gaur Vs. State of U.P. 715

BEFORETHE HON'BLE MRS. VIJAY LAKSHMI, J.

Application U/S 482 No. 10486 of 2015

Amit Kumar Gaur ...ApplicantVersus

State of U.P. ...Opp. Party

Counsel for the Applicant:Sri P. N. Dwivedi

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

Cr.P.C. Section 482-Prayer for quashingcharge-sheet-offence under Section 419,420, 467, 468 IPC-based oncompromise-neither verified-nor actedupon-even after death of complainant-neither charge can be quashed-norinterference with proceeding required-application rejected.

Held: Para-7Considering all the facts andcircumstances, at this stage it cannot besaid that no offence is made out againstthe applicants. All the submissions madeat the bar relate to the disputedquestions of fact, which cannot beadjudicated upon by this Court underSection 482 Cr.P.C.

Case Law discussed:A.I.R. 1960 S.C. 866; 1992 SCC (Cr.) 426;1992 SCC (Cr.) 192; 2005 SCC (Cr.) 283;(2012) 10 SCC 303; 2004 (57) ALR 290; 2009(3) ADJ 322 (SC)

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

1. Heard learned counsel for theapplicant and learned AGA for the State.

2. This application under Section482 Cr.P.C. has been filed for quashingthe impugned charge-sheet dated29.12.2005 as well as entire proceedingsof Criminal Case No. 3354 of 2006, State

Vs. Rajesh Pandit arising out of CaseCrime No. 300 of 2005, under Sections420, 467, 468, 469, 471 IPC, PoliceStation-Sadar Bazar, District-Mathurapending in the court of Additional ChiefJudicial Magistrate, Court No. 1,Mathura.

3. Learned counsel for the applicantsubmitted that the applicant is shown onlyas a marginal witness in the disputed saledeed and he is not a beneficiary of thesale deed. Moreover, the first informantnamely Leela Bihari Das (now deceased)had filed an affidavit before the ChiefJudicial Magistrate, Mathura in the samecase crime number to the effect that beingmisguided by his neighbours, he hadlodged the aforesaid F.I.R. The accusedpersons had never cheated him and hadnot committed any forgery. The partieshave entered into a compromise and theinformant does not want to proceed in thepresent criminal case any further.

4. On the aforesaid grounds learnedcounsel has made submission to quash thecharge-sheet in the aforesaid case crimenumber.

5. Learned AGA has raised apreliminary objection that the charge-sheetwas filed in the year 2005 on which thecognizance was taken in the year 2006. Afterexpiry of such a long period the applicant hascome before this Court for quashing of thecharge-sheet that too on the basis of anaffidavit of a person (first informant) who isdead and there is no one to inform the courtabout the actual position.

6. Learned A.G.A. has furthercontended that as all the offences inwhich the applicant is charge-sheeted arenot compoundable so the charge-sheet


cannot be quashed on the ground that theparties have settled their dispute in termsof the compromise. Moreover as thecompromise (Annexure No. 6) has notbeen been duly proved by the parties inthe court hence it is just like a waste paperand no reliance can be placed upon it.

7. Considering all the facts andcircumstances, at this stage it cannot be saidthat no offence is made out against theapplicants. All the submissions made at thebar relate to the disputed questions of fact,which cannot be adjudicated upon by thisCourt under Section 482 Cr.P.C. At thisstage only prima facie case is to be seen inthe light of the law laid down by SupremeCourt in cases of R.P. Kapur Vs. State ofPunjab, A.I.R. 1960 S.C. 866, State ofHaryana Vs. Bhajan Lal, 1992 SCC (Cr.)426, State of Bihar Vs. P.P.Sharma, 1992SCC (Cr.) 192 and lastly ZanduPharmaceutical Works Ltd. Vs. Mohd.Saraful Haq and another (Para-10) 2005 SCC(Cr.) 283. Although criminal proceedingsmay be quashed under inherent jurisdiction ifthe parties have compromised even in thenon-compoundable cases as per the law laiddown by the Apex Court in Gian Singh Vs.State of Punjab (2012) 10 SCC 303, and alsoin Narinder Singh and others Vs. State ofPunjab Criminal Appeal No. 686 of 2014decided on 27th March 2014, in whichHonble Supreme Court has quashed thecriminal proceedings involving section 307of IPC. However, in the present case, as thecomplainant has died and the compromisedeed filed by the applicant as Annexure No.6 does not reflect that it has ever been dulyverified and accepted by the court concerned,no reliance can be placed on it for quashingof the charge-sheet.

8. Hence, the prayer for quashingthe entire proceeding as well as charge

sheet submitted in the aforesaid case isrefused.

9. However, it is directed that incase the applicant appears and surrendersbefore the court below within 30 daysfrom today and applies for bail, his prayerfor bail shall be considered and decided inview of the settled law laid by this Courtin the case of Amrawati and another Vs.State of U.P. reported in 2004 (57) ALR290 as well as judgement passed byHon'ble Apex Court reported in 2009 (3)ADJ 322 (SC) Lal Kamlendra PratapSingh Vs. State of U.P.

10. It is made clear that the applicantwill not be granted any further time bythis Court for surrendering before theCourt below as directed above.

11With the aforesaid directions, thisapplication is finally disposed of.



BEFORETHE HON'BLE TARUN AGARWALA, J.

THE HON'BLE AMAR SINGH CHAUHAN, J.

C.M.W.P. No. 14897 of 2015

Ruchi Kashyap ...PetitionerVersus


Counsel for the Petitioner:Sri Mahipal Singh

Counsel for the Respondents:C.S.C., Sri M.C. Chaturvedi, Sri S.C.Dwivedi

Constitution of India. Art.-21-petitionerseeking protection from her father on

2 All] Ruchi Kashyap Vs. State of U.P. & Ors. 717

apprehension of life danger-petitionerbeing major working in private MNC-competent to take decision-petitionernot disclosed her living place-missingFIR already lodge-no interferencerequired-petitioner to appear beforeconcern police station-who may takeappropriate steps-if violence allegation-found recourse of law under DomesticViolence Act 2005-petition disposed of.

Held: Para-9From the assertions made in the writpetition, we are of the opinion that it isnot a case of threat perception of her lifewhich warrants a security cover to beprovided to her. Article 21 of theConstitution should not be invoked inthis cavalier fashion. It is sacrosanctprovision, which should be invoked withfull responsibility. From the assertionsmade in the writ petition, it is clear thata case of a domestic violence, if anycould be made out. In such a situation,the petitioner could approach theappropriate forum under the ProtectionOf Women From Domestic Violence Act,2005. The writ forum is not theappropriate forum for such purpose.

(Delivered by Hon'ble Tarun Agarwala,J.)

1. We have heard Sri MahipalSingh, the learned counsel for thepetitioner, the learned Standing Counselfor the State and Sri M.C.Chaturvedi, thelearned counsel for the respondent no.4.

2. In this petition, the petitioner hasdragged her father, respondent no.4 to thisCourt with the prayer that she should begiven protection by the State against herfather as she feels threatened that her lifewould be in danger by the action of herfather. The allegation, in short is, that thepetitioner has become major, has a pancard and is working in a private firm andthat her father is forcing her to get

married to a stranger against her wishes.In this regard, the petitioner's father isthreatening her and sometimes beats herup. The petitioner contends that in thisregard, she moved an application beforethe Senior Superintendent of Police(hereinafter referred to as the SSP),Meerut on 13.03.2015 bringing all thesefacts to his knowledge and, on herapplication, the SSP directed the StationHouse Officer (hereinafter referred to asthe SHO), Brahampuri to conduct anenquiry and ensure that no untowardincident happens. The petitioner contendsthat without making due enquiry, theSHO lodged a missing report on14.03.2015 at the instance of her fatherpresumably in retaliation to herapplication. This necessitated thepetitioner to rush to this Court in filingthis writ petition.

3. By our order dated 23.03.2015,we had directed the SSP to file a counteraffidavit indicating as to why a missingreport was lodged when the petitioner waspresent before him on 13.03.2015. Thecounter affidavit filed by the SSPindicates that the petitioner hadapproached her on 13.03.2015 and on herapplication, had directed the SHO toinvestigate and ensure that no untowardincident takes place. The counter affidavitfurther reveals that on the father'sapplication, a missing report was lodgedon 14.03.2015. Unfortunately, the counteraffidavit does not reveal as to whatinvestigation was done on the petitioner'sapplication. It is apparently clear that theSHO did not make the relevant anddesired investigation on the petitioner'sapplication, but proceeded on the father'sapplication. This is some what strangeand undesirable. The police is required totake an independent and impartial stand.


4. Be that as it may. The presentsituation is, that the petitioner is present inperson before this Court. Respondentno.4, namely, the father is also present.Before lunch we had directed the learnedcounsel for both the parties to give anopportunity to the parties to speak to eachother since the petitioner is the daughterof respondent no.4. During lunch recess,the parties met and it transpires that thepetitioner is adamant in living alone anddoes not want to reside with her fatherthough she has indicated that her fathercould visit her whenever he desires.

5. Respondent no.4, being the father, isanxious for the welfare and safety of herdaughter and, in that scenario, if he has usedharsh words or if he has given a threat insome manner, it was only for the protectionof her welfare and it does not mean that therewas a perceptible threat on the life of thepetitioner. Nothing has come forward beforethis Court to indicate that a real threatperception exists. In fact, the prayer made bythe petitioner before this Court is, that sheshould not be harassed in any manner andthat the respondents should be restrainedfrom interfering in her life. Prayer no.3 iswith regard to providing security by the Statemachinery on the apprehension of threat toher life from her father and her relatives.

6. The law is very clear. Article 21of the Constitution of India provides thatevery citizen has a right to live withdignity and with respect. If a real threatperception exists, the Court will definitelyinterfere in the matter and provide asecurity cover. But merely, on anapprehension, a security cover cannot beprovided.

7. In the facts and circumstances,which has been depicted in the writ

petition and what we have statedaforesaid, we are of the opinion that onsuch bald assertion and on mere allegationof apprehension about her life, no securitycan be provided to the petitioner by theState.

8. The learned counsel for therespondent no.4, i.e., the father has madea statement that if petitioner desires tolive independently she could do sowithout any fear from him and that he willnot come in the way of her living apeaceful life. The learned counsel forrespondent no.4 submitted that the fatheris only apprehensive about her welfareand if the petitioner chooses to live herlife in her own fashion, she could do sowithout any interference.

9. From the assertions made in thewrit petition, we are of the opinion that itis not a case of threat perception of herlife which warrants a security cover to beprovided to her. Article 21 of theConstitution should not be invoked in thiscavalier fashion. It is sacrosanctprovision, which should be invoked withfull responsibility. From the assertionsmade in the writ petition, it is clear that acase of a domestic violence, if any couldbe made out. In such a situation, thepetitioner could approach the appropriateforum under the Protection Of WomenFrom Domestic Violence Act, 2005. Thewrit forum is not the appropriate forumfor such purpose.

10. From the counter affidavit of theSSP it is clear that the petitioner is majorand is working in a private firm. She hasthe freedom and liberty to live her lifeaccording to her own choice and will. Noone can come in her way, not even herfather, respondent no.4. We, however,

2 All] Ram Pyare Pal Vs. State of U.P. & Ors. 719

find that the father has lodged a missingreport, which is being investigated by thepolice. The petitioner has categoricallystated that she is living somewhere buthas not disclosed her residential address.

11. We, accordingly, dispose of thewrit petition directing the petitioner toappear before the SHO, Brahampuri,District Meerut within ten days fromtoday and disclose her residential address.Upon such information being provided tothe police, the SHO will consign themissing report to the records. In the event,the petitioner feels that her father or anyof her relatives is subjecting her to any actfrom which she feels threatened, it wouldbe open to the petitioner to move anapplication before the appropriate forumfor redressal of her grievance.



BEFORETHE HON'BLE YASHWANT VARMA, J.

C.M.W.P. No. 15797 of 2015

Ram Pyare Pal ...PetitionerVersus


Counsel for the Petitioner:Sri B.K. Mishra, Sri H.N. Singh

Counsel for the Respondents:C.S.C., Sri Shyam Kumar Gupta, Sri SunilKumar Singh, Sri N.L. Pandey

(A) Constitution of India, Art.-226-Writpetition maintainability-petitioner beingmember of general body-challengingelection process of management-onground of not inclusion of name of 54members-materially effect the result-admittedly the petitioner already on role

of election-no individual rights ofpetitioner-going to affected-not withinaggrieved person-petition on behalf ofpetitioner-not maintainable.

Held: Para-9In the judgments referred to above thisCourt has taken the consistent view thatan individual member does not have aright to assail the decision or actiontaken in respect of a society orassociation of which he was a memberunless his rights personally get effectedby the impugned action.

(B)Constitution of India, Art.-226-Writjurisdiction-scope of interference withprocess of election-discussed-in view ofApex Court decision-when electionprocess started-either Civil Court or HighCourt no jurisdiction to interfere.

Held: Para-14This Court is of the clear opinion that anyinterference in the matter at this stagewould clearly stall and affect the processof elections which has already been setin motion. This Court must necessarilybear in mind the fact that the finalizationof a list by the Assistant Registrar byvirtue of exercise of powers under theAct, 1860 is based upon a prima facieview taken by him.

Case Law discussed:2010 (1) ADJ 262; 2013 (10) ADJ 532; 2006(6) AWC 6354; AIR 1980 SC 1612; 2000 (8)SCC 216; 1997 (1) UPLBEC 415; 1997 (3) ESC1807; 2010 (1) ADJ 262; 2004 (11) SCC 247;2014 (5) ADJ 263.

(Delivered by Hon'ble Yashwant Varma, J.)

1. The challenge in the presentpetition is to an order dated 4th March,2015 in terms of which the electoralcollege of the Society Sri Tilak KisanLaghu Madhyamik Vidyalaya,Kamhariya, Post Padari Bazar, TehsilSalempur, District Deoria has come to befinalized and an election schedule


announced by the District BasicEducation Officer, Deoria. As wasnoticed by this Court in its order dated26th March, 2015, the learned counsel forthe respondent No. 3 had raised apreliminary objection with regard to themaintainability of the writ petition and itwas on the said objection alone that thelearned counsel for parties were heard andorders reserved.

2. The basic grievance of thepetitioner, who is a member of theGeneral Body of the Society, is the non-inclusion of the names of 54 members inthe list finalized by the respondent No. 5.Sri H.N. Singh, learned Senior Counselappearing in support of the writ petitionhas submitted that the said respondent ispatently illegal for that the non-inclusionof the 54 members will materially affectthe results of the election. He has furthersubmitted that insofar as the State of U.P.is concerned, the legislature by enactingU.P. Act No. 23 of 2013, has consciouslyadded Section 4B to the SocietiesRegistration Act, 1860 (hereinafterreferred to as the "Act, 1860") as aconsequence of which, it was incumbentupon the respondent to undertake aninquiry into the membership of theGeneral Body.

3. However, firstly this Courtnecessarily needs to consider thepreliminary objection raised by SriPandey. Sri Pandey, learned counselappearing for the contesting respondentshas submitted that the petitioner is amember of the General Body of theSociety whose name stands included inthe list finalized by the AssistantRegistrar. He submits that the petitionerwould have no locus standi to challengeor assail the non-inclusion of 54

members. He submits that if there be anycause which may exist against theimpugned order, the same would inhereonly in those 54 members and not in thepetitioner.

4. Learned counsel has furthersubmitted that this Court has on morethan one occasion held that thefinalization of an electoral college and achallenge thereto, should not beentertained by this Court inasmuch as itwould clearly derail the election processand in any view of the mater it is alwaysopen to an aggrieved person to challengethe elections as a whole after completionof the process.

5. In support of his abovesubmission, Sri Pandey has relied uponthe following judgments of this Court: (i)Ratan Kumar Solanki Vs. State of U.P. &Others 2010 (1) ADJ 262; (ii) Comm. OfManagement Maharana Pratap VidyalayaVs. State of U.P. 2013 (10) ADJ 532; (iii)Uttam Nishad Vs. State of U.P. 2006 (6)AWC 6354.

6. Responding to the abovesubmissions, Sri H.N. Singh, learnedSenior Counsel has submitted that thepetitioner being an active member of theSociety was clearly entitled to assail theorders passed by the Assistant Registrarfinalizing the Electoral College and theconsequential order passed by the DistrictBasic Education Officer announcing theelection programme. Placing relianceupon the judgments of the Hon'bleSupreme Court of India in Bar Council ofDelhi Vs. Surjeet Singh and others AIR1980 SC 1612, he submits that anindividual member does have a right tochallenge an order finalizing a voter listas is sought to be done in the facts of the

2 All] Ram Pyare Pal Vs. State of U.P. & Ors. 721

present case. Responding to thesubmission of Sri Pandey that this Courtshould lay its hands off deciding upon thevalidity of the orders impugned herein atthis stage. Sri Singh, learned SeniorCounsel has relied upon the judgmentrendered by the Apex Court in ElectionCommission of India Vs. Ashok Kumarand others 2000 (8) SCC 216. Referringparticularly to Para 20 of the report, SriSingh submits that as was held by theApex Court, the present challenge was notdesigned to interfere with the progress ofelections but to accelerate the completionof a valid election.

7. Having heard learned counsel forparties, this Court finds that the fact thatthe name of the petitioner finds mentionin the Electoral College finalized by theAssistant Registrar is not disputed. Whathas constrained the petitioner to approachthis Court is the non-inclusion of 54members in the said list.

8. The issue of the locus of amember of the Association drawing upproceedings of this nature was earlierconsidered by this Court on variousoccasions and in fact as early as in 1951in Indian Sugar Mills Association throughits President Shri Hansraj Swaroop Vs.Secretary to Government, Uttar PradeshLabour Department and others; AIR 1951All 1. Again this issue cropped up and fellfor consideration before a Division Benchof this Court in Dr. P.P. Rastogi Vs.Meerut University 1997 (1) UPLBEC 415and Vimla Devi Vs. Deputy Director ofEducation 1997 (3) ESC 1807.

9. In the judgments referred to abovethis Court has taken the consistent viewthat an individual member does not have aright to assail the decision or action taken

in respect of a society or association ofwhich he was a member unless his rightspersonally get effected by the impugnedaction.

10. Noticing the above referredjudgments, a Division Bench of this Courtin 2010 (1) ADJ 262 summed up the legalposition in Paragraph 24 as under:

"24. What is discernible from the abovediscussion is where the right of an individualis affected or infringed, and, he has no othereffective remedy, if such rights of theindividual concerned are borne out from thestatute or the provision of bye-laws etc.having the flavour of statute, a writ petitionat his instance may be maintainable subjectto attracting the condition where the Courtmay decline to interfere namely availabilityof alternative remedy, delay, laches etc. butwhere a legal right of an individual is notdirectly affected, a writ petition expousingthe cause of the collective body or othermembers of the collective body would not bemaintainable at the instance of an individualwho himself is not directly affected. We mayadd here that in a given case, if it is foundthat an election was held by an imposter andhe is supported by DIOS or othereducational authorities, such an action ofDIOS as also the election can be challengedby the individual member since it cannot besaid that he is not a person aggrieved butwhether a writ petition at his instance wouldbe maintainble or he can challenge theelection by filing a civil suit etc., would be adifferent aspect of the matter and has to beconsidered in each and every caseconsidering the facts, relevant provision andother relevant aspects of the matter."

11. In light of the above position,this Court finds that in the facts of thepresent case, the instant writ petition does


not espouse the rights of the petitionerindividually. This petition admittedlyseeks to espouse and canvass the interestof 54 members whose names have notbeen included in the Electoral List. Thenon-inclusion of these 54 members doesnot directly affect any legal right inheringin the petitioner. The Court must bear inmind the law succinctly summarised inRatan Kumar Solanki (supra) where thisCourt held that where a writ petition hasbeen preferred merely for espousing thecause of the collective body or othermembers of the collective body, by anindividual member, the same would notbe maintainable.

12. As noticed above, the name ofthe Petitioner already stands included inthe electoral college. He is therefore notdirectly affected by the order impugned.In the opinion of the Court, therefore, thePetitioner clearly lacks the locus standi tomaintain the writ petition.

13. Insofar as the reliance placed bySri Singh on Bar Council of Delhi (supra) isconcerned, suffice it to state that the ApexCourt in the facts of the said case found thatthe electoral list itself was null and voidhaving been prepared on the basis of aproviso to rule 3 (j) which was found to beinvalid. The judgment in ElectionCommission (supra) has no application to thefacts of this case inasmuch as this petition isclearly not aimed at accelerating the processof election.

14. Coming then to the secondaspect of the matter and that is whetherthis Court should, in fact, interfere withthe order impugned at this stage. ThisCourt is of the clear opinion that anyinterference in the matter at this stagewould clearly stall and affect the process

of elections which has already been set inmotion. This Court must necessarily bear inmind the fact that the finalization of a list bythe Assistant Registrar by virtue of exerciseof powers under the Act, 1860 is based upona prima facie view taken by him. Even ifthere be competing claims at this stage andthe Assistant Registrar proceed to finalise theElectoral College, the authority is not reallyadjudicating a dispute conclusively. He is atthis stage only accepting a list of memberswhich he finds to be prima facie constitutingthe valid general body. In fact, it would beapposite to notice what the Apex Court heldin this regard in A.P. Aboobaker Vs. Distt.Registrar 2004 (11) SCC 247. In para 3 ofthe report the Apex Court held as under:-

" ..........The Division Bench of theHigh Court was right in taking the viewthat the list accepted by the DistrictRegistrar did not become final; if theappellant was aggrieved, it was open tohim to establish his claim in a competentcourt/forum. To us, it appears even theDistrict Registrar did not adjudicate anydispute as such. It was only a question ofaccepting, prima facie, the list ofmembers of the governing body. If theappellant's claim was right and justified,merely becauses the District Registraraccepted the list of the governing body ofmembers by E.R. Aboobaker, it did notprevent him from estbalishing his claim ina competent court."

15. Following the above a learnedSingle Judge of our Court in Gyan BhartiShiksha Sadan and another Vs. State ofUttar Pradesh 2014 (5) ADJ 263 held asfollows in paragraph 34:

" ....Thus the dispute of the officebearers are decided under S. 4 of theSocieties Registration Act by the

2 All] Saroj Yadav & Ors. Vs. State of U.P. & Anr. 723

Registrar on the basis of prima faciesatisfaction, as he has to deal with themfor performing his administrativefunctions under the various provisions ofthe Act as detailed above. The aggrievedparties are left open to adopt the remediesavailable such as civil suit."

16. It is perhaps in the abovebackdrop that this Court in Committee ofManagement, Maharana Pratap Vidyalaya(supra) held as follows:

"9. In order to avoid a large number ofwrit petitions filed for quashing the orderspassed by the educational authorities duringthe process of elections and in seekingdirections to them, we hereby declare thatthe principles of law laid down by theSupreme Court in N.P. Ponnuswami v.Returning Officer, AIR 1952 SC 64;Harcharan Singh v. Mohinder Singh andothers, AIR 1968 SC 1500; Mohinder SinghGill and another v. The Chief ElectionCommissioner, AIR 1978 SC 851; Jyoti Basuand others v. Debi Ghosal and others, AIR1982 sc 983; Harikrishna Lal v. Bau LalMarandi, (2003) 8 SCC 613 and ShyamdeoPd. Singh v. Naval Kishore Yadav, (2000) 8SCC 46, restraining the Courts frominterfering in the process of election after theelections are notified is equally applicable tothe elections of the office bearers of thecommittee of management of the societies aswell as the Committee of Management to beelected in accordance with the provisions ofthe scheme of administration of theeducational institutions. The principles oflaw that the Courts should keep their handsoff in electoral matters and that all electiondisputes must be tried by the ElectionTribunal, is also incorporated in theConstitution of India under Article 329 (b)for the elections of the Parliament or tothe house or either house of the

legislature, under Article 243 O for theelections of Panchayats and Article 243ZG in the matter of elections of themunicipalities.

10. There is no reason as to why thesetime tested and settled principles should notbe made applicable to the elections of theoffice bearers of the societies and for theCommittee of Management under the schemeof administration of the educationalinstitutions.

11. We have every reason to believethat in future the Court will refuse tointerfere in the process of elections untilthe elections are concluded and willrefuse to entertain election disputes andrelegate the parties to approach theElection Tribunals or to file civil suit tochallenge the results of the elections."

17. Accordingly and in view of theabove, this Court declines to entertain thiswrit petition and it is accordinglydismissed.



BEFORETHE HON'BLE MANOJ MISRA, J.

Application U/S 482 No. 19266 of 2014

Saroj Yadav & Ors. ...ApplicantsVersus

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

Counsel for the Applicants:Sri I.N. Yadav, Sri Alok Kumar Yadav

Counsel for the Opp.Parties:A.G.A., Sri M.C. Yadav, Sri Manoj Yadav

Cr.P.C.-Section 482-Quashing of criminalproceeding-offence under Section 419and 420 IPC-on ground in absence of


ingredients of cheating-no offence madeout-dispute being purely civil nature-noeffort made to pay balance amount ofsale consideration and get sale deedregistered-in absence of particular ofdate in agreement deed-period wouldbe3 years-mere execution of sale deed infavor of third party-except breach ofcontract-no offence made out impugnedcompliant including proceeding-amountsabuse of the process of Court-quashed.

Held: Para-9 & 109. It has not been demonstrated either inthe complaint or in the counter affidavitthat there was some period fixed forperformance under the contract and thatthird party sale took place within thatperiod. Further, there is nothing in thecomplaint to show that within threeyears of the agreement for sale or withinany stipulated period fixed by theagreement, on any specific date, effortwas made to demand specificperformance of the agreement bytendering the balance sale considerationto the applicants. The bald allegationthat an additional Rs.50,000/- was takenby the accused is also not supported bymention of any date or written receipt.Under the circumstances, mereexecution of sale deed in favour of thirdparty after lapse of more than threeyears from the date of the agreementwould not be sufficient to presume thatthere existed any dishonest intention onthe part of the applicants at the time ofentering into an agreement.

10. In view of the discussion madeabove, the complaint does not disclosecommission of any offence except asimple breach of contract, which can beresolved in civil proceedings, if otherwisenot barred by limitation. Accordingly, theimpugned complaint as also theconsequential proceeding would amountto abuse of the process of Court and,therefore, to secure the ends of justicethe same deserves to be quashed.

Case Law discussed:(2009) 14 SCC 696; (2003) 3 SCC 11.

(Delivered by Hon'ble Manoj Misra, J.)

1. Heard Sri Alok Kumar Yadav forthe applicants; the learned AGA for theState; Sri Manik Chandra Yadav for theopposite party no.2 and perused therecord.

2. The instant application underSection 482 CrPC has been filed seekingquashing of the proceeding of caseno.1376 of 2013 (Uma ShankarBhattacharya Vs. Dinesh Singh Yadavand others), under Sections 419 and 420IPC, police station Daraganj, districtAllahabad, pending in the Court ofSpecial Chief Judicial Magistrate,Allahabad.

3. Briefly stated the facts giving rise tothis application are that the opposite partyno.2 filed a complaint against the applicantsalleging therein that Saroj Yadav (applicantno.1) had entered into a registered agreementfor sale dated 9th March, 2007 with thecomplainant thereby agreeing to execute saledeed in respect of her share in House no.82/62, Matiyara Road for which theapplicant no.1 took Rs.1 lac by way ofearnest money and, thereafter, further sum ofRs.50,000/- was taken by her husbandDinesh Singh Yadav (applicant no.2) and hisbrother Ravi Karan Yadav (applicant no.3),but despite having taken Rs.1,50,000/- theydid not execute sale deed in favour of thecomplainant and, later, on 7th May, 2011, asale deed was executed in favour of oneSuman Bajpayee for a sum of Rs.6,50,000/-.Similar allegations have been made in thestatements recorded under sections 200 and202 CrPC.

4. The quashing of the complaintand the proceeding in pursuance thereofhas been sought on the ground that the

2 All] Saroj Yadav & Ors. Vs. State of U.P. & Anr. 725

allegations made in the complaint onlymake out a civil cause of action, inasmuchas, there is nothing in the complaint or inthe statement in support thereof to suggestthat there had been a dishonest intentionon the part of the applicants from the verybeginning that is at the time of enteringinto agreement for sale. It has beensubmitted that in the agreement for sale,the total consideration for the sale wasfixed at Rs.2,50,000/- and as balancepayment was not made and more thanthree years passed from the date of theagreement, sale deed was executed infavour of third party. It has been arguedthat ordinarily where no date is fixed forexecution of sale deed, the limitation forinstituting a suit for specific performanceon the agreement for sale would be threeyears from the date of execution ofagreement and since, admittedly, no suitwas instituted within the period oflimitation, the complaint, which has beenlodged after six years from the date of theagreement, is nothing but abuse of theprocess of law. It has also been pleadedthat the complainant had failed to arrangefor the balance amount therefore hecannot claim now that the applicants havefailed to execute the sale deed despitepromise. It has been submitted that thecomplaint has been lodged only after thecivil proceeding had become barred bytime, which clearly goes to showmalicious intention on the part of oppositeparty no.2 in filing the complaint.

5. Some dispute with regards to theamount advanced to the applicants is alsothere but that is not relevant for decidingthis case.

6. Learned counsel for the oppositeparty no.2 submitted that since theapplicant no.1 had received part of the

sale consideration and the applicant no.2had, subsequently, received furtheramount of Rs.50,000/- and withoutreturning back the money to the oppositeparty no.2, they have sold the property toa third party clearly shows that they hadbeen dishonest.

7. Before the court proceeds toassess whether a case has been made outfor quashing of the complaint, it would beuseful to first discuss the law on the issueas to whether in a case of simple breachof contract an offence of cheating wouldbe made out or not, if so, then under whatcircumstances. In the case Dalip Kaur v.Jagnar Singh, (2009) 14 SCC 696, theapex court, in paragraph 10 of the report,observed that: "If the dispute between theparties was essentially a civil disputeresulting from a breach of contract on thepart of the appellants by non-refundingthe amount of advance the same wouldnot constitute an offence of cheating.Similar is the legal position in respect ofan offence of criminal breach of trusthaving regard to its definition containedin Section 405 of the Penal Code."Likewise in the case of Ajay Mitra v.State of M.P. (2003) 3 SCC 11, a threejudges bench of the apex court, afternoticing several judgments, held, that inorder to constitute an offence of cheatingthe intention to deceive should be inexistence at the time when the inducementwas offered. Unless the complaint showedthat the accused had dishonest intention atthe time complainant parted with themoney, it would not amount to an offenceof cheating but may amount to a breach ofagreement.

8. In view of the law noticed above,in a case of a breach of contract to makeout a case for criminal prosecution of a


person who is guilty of such breach for anoffence of cheating what is essential to bealleged in the complaint/ statement madein support thereof or the police report, asthe case may be, is that there had been adishonest intention on the part of suchperson from the very beginning that issince the inception of the agreement.Existence of such dishonest intention canalso be inferred from the conduct of theaccused narrated in the complaint /statement made in support thereof or thepolice report, as the case may be.

9. Coming to the facts of the instantcase, from a perusal of the complaint andthe statement made in support thereofthere is nothing to show that any falsepromise was made by the accused at thetime of entering into the agreement so asto deceive or to induce the complainantto part with money for entering into anagreement to purchase the property.There is also nothing in the complaint orthe statement made in support thereof toshow that the accused had dishonestintention from the very beginning that issince the time of entering into theagreement in question. Mere nonperformance of an agreement for salewould not amount to commission of anoffence of cheating in absence of anyallegation that there had been dishonestintention since the very beginning. Suchdishonest intention cannot also beinferred from the conduct of the accusedinasmuch as they have transferred theproperty to a third party after three yearsfrom the date of the agreement for salewhich, ordinarily, is the period oflimitation to institute a suit for specificperformance, unless there is some otherdate fixed for its performance. It has notbeen demonstrated either in thecomplaint or in the counter affidavit that

there was some period fixed forperformance under the contract and thatthird party sale took place within thatperiod. Further, there is nothing in thecomplaint to show that within three yearsof the agreement for sale or within anystipulated period fixed by the agreement,on any specific date, effort was made todemand specific performance of theagreement by tendering the balance saleconsideration to the applicants. The baldallegation that an additional Rs.50,000/-was taken by the accused is also notsupported by mention of any date orwritten receipt. Under the circumstances,mere execution of sale deed in favour ofthird party after lapse of more than threeyears from the date of the agreementwould not be sufficient to presume thatthere existed any dishonest intention onthe part of the applicants at the time ofentering into an agreement.

10. In view of the discussion madeabove, the complaint does not disclosecommission of any offence except asimple breach of contract, which can beresolved in civil proceedings, if otherwisenot barred by limitation. Accordingly, theimpugned complaint as also theconsequential proceeding would amountto abuse of the process of Court and,therefore, to secure the ends of justice thesame deserves to be quashed.

11. The application is allowed. Thecomplaint as well as the proceeding ofcase no.1376 of 2013 (Uma ShankarBhattacharya Vs. Dinesh Singh Yadavand others), under Sections 419 and 420IPC, police station Daraganj, districtAllahabad, pending in the Court ofSpecial Chief Judicial Magistrate,Allahabad are hereby quashed.

--------

2 All] Shiv Charan Vs. Allahabad Bank AMU Branch, Aligarh & Ors. 727


DATED: ALLAHABAD 06.05.2015

BEFORETHE HON'BLE TARUN AGARWALA, J.

THE HON'BLE AMAR SINGH CHAUHAN, J.

C.M.W.P. No. 25953 of 2015

Shiv Charan ...PetitionerVersus

Allahabad Bank AMU Branch, Aligarh &Ors. ...Respondents

Counsel for the Petitioner:Sri Sudhanshu Pandey

Counsel for the Respondents:C.S.C., Sri Tarun Verma, Sri J.S. Pandey

Securitisation and Reconstruction offinancial Asset and Enforcement of SecurityInterest Act 2002-Section 14 (I)-words andexpressions-word 'shall' used held-mandatory-application without affidavit-can not allowed by District Magistrate-quashed.

Held: Para-10From the aforesaid decision of the SupremeCourt in Standard Chartered Bank (Supra),we are of the opinion that the word 'shall'used in the first proviso to Section 14(1) ofthe Act is mandatory. It is an essentialrequirement for the Bank that theapplication filed under Section 14 must beaccompanied by an affidavit duly affirmedby the authorized officer of the securedcreditor indicating the ingredientscontemplated under sub clause (i) to subclause (ix) to the first proviso. Non filing ofthe affidavit in our opinion would be fatal.

Case Law discussed:[2014(6) SCC-1]; [2013(9) SCC 620].

(Delivered by Hon'ble Tarun Agarwala, J.)

1. The petitioner is the guarantor andfather of respondent nos. 5 and 6 who took a

cash credit limit of rupees seventy five lacs ina partnership firm known as S.R. Tractors in2012 in which they were the partners. Thepetitioner stood guarantee for the cash creditlimit by depositing the title deeds of hisresidential house no. 5/298A, Lohia NagarBanna Devi, G.T. Road, Aligarh. It transpiresthat the accounts of respondent nos. 5 and 6became NPA on 31.5.2014 pursuant to whicha notice under Section 13(2) of theSecuritisation and Reconstruction of FinancialAssets and Enforcement of Security InterestAct, 2002 (hereinafter referred to as the 'Act')dated 2.6.2014 was issued demanding a sumof Rs. 44.92 lacs. Thereafter, symbolicpossession under Section 13(4) was also takenon 29.8.2014. It further transpires that therespondent bank filed an application dated30.10.2014 before the District Magistrateunder Section 14 of the Act praying for actualphysical delivery of possession. On thisapplication, the Additional District Magistrate(F&R), respondent no. 3 issued an order dated4.3.2015 for delivery of physical possessionpursuant to which the Additional CityMagistrate, respondent no. 5 issued an orderdated 21.4.2015 fixing 6.5.2015 for takingphysical possession. The petitioner beingaggrieved by the application of therespondents under Section 14 of the Act filedan application under Section 17 before theDebt Recovery Tribunal. The Tribunal by anorder dated 1.5.2015 rejected the stayapplication relying upon a decision of theSupreme Court in the case of HarshadGovardhan Sondagar Vs. InternationalReconstruction Company Ltd. and others[2014 (6) SCC-1] on the ground that the orderunder Section 14 of the Act cannot bechallenged on an application under Section 17of the Act. The petitioner being aggrieved hasfiled the present writ petition.

2. We have heard Sri SudhanshuPandey, learned counsel for the petitioner


and Sri Tarun Verma for the respondentbank.

3. Since there is no factualcontroversy and only a legal point has tobe decided, we are proceeding to disposeof the writ petition at the admission stageitself without calling for a counteraffidavit.

4. The contention of the learnedcounsel for the petitioner is that the DistrictMagistrate alone can decide the applicationunder Section 14 of the Act and that there isno power to delegate it to any subordinateofficer. The second ground urged is that theapplication of the bank under Section 14 ofthe Act is required to be accompanied by anaffidavit which is mandatory and which hasnot been done in the instant case. It wasurged that non filing of the affidavit was fatalto the disposal of the application underSection 14 and such application withoutbeing accompanied by an affidavit could notbe allowed.

5. Sri Tarun Verma, learned counselfor the bank, on instructions received tohim, submitted that the District Magistratehas full authority and power to delegatehis power to any subordinate officer underthe Act and the mere fact that theapplication was not accompanied by anaffidavit, was not fatal to the disposal ofthe application since all the ingredientsrequired in the affidavit were present andexisting in the application. Learnedcounsel submitted that non filing of anaffidavit at best could be termed as anirregularity curable and which was notfatal to the disposal of the applicationunder Section 14 of the Act.

6. Having heard the learned counselfor the parties, we find that Section 14 (1)

gives power to the District Magistrate or tothe Chief Metropolitan Magistrate to assistthe secured creditor in taking possession ofthe secured assets. Section 14 (1A) providesthat the District Magistrate or the ChiefMetropolitan Magistrate may authorize anyofficer subordinate to him to take possessionof such assets and document relating theretoand to forward such assets and documents tosecured creditor. This Sub Section (1A) toSection 14 of the Act was inserted by ActNo. 1 of 2013. In the light of this provision, itis clear that the District Magistrate coulddelegate the power to any officer subordinateto him for the purpose of taking possessionof such secured assets to the secured creditor.In the light of the aforesaid, the submissionof the learned counsel for the petitioner onthis issue cannot be accepted.

7. By Act No. 1/2013 a proviso wasalso added to Section 14(1) whichrequired that where an application is filedby a secured creditor for the purpose oftaking possession of a secured asset, thesaid application shall be accompanied byan affidavit duly affirmed by theauthorized officer of the secured creditorwhich would contain nine ingredients. Forfacility, proviso to Section 14(1) isextracted hereunder:

"Provided that any application bythe secured creditor shall beaccompanied by an affidavit duly affirmedby the authorized officer of the securedcreditor, declaring that--

(i)the aggregate amount of financialassistance granted and the total claim ofthe Bank as on the date of filing theapplication;

(ii)the borrower has created securityinterest over various properties and thatthe Bank or Financial Institution is

2 All] Shiv Charan Vs. Allahabad Bank AMU Branch, Aligarh & Ors. 729

holding a valid and subsisting securityinterest over such properties and theclaim of the Bank or Financial Institutionis within the limitation period;

(iii)the borrower has created securityinterest over various properties giving thedetails of properties referred to in sub-clause (ii) above;

(iv)the borrower has committeddefault in repayment of the financialassistance granted aggregating thespecified amount;

(v)Consequent upon such default inrepayment of the financial assistance theaccount of the borrower has beenclassified as a non performing asset;

(vi)affirming that the period of sixtydays notice as required by the provisions ofsub-section (2) of section 13, demandingpayment of the defaulted financial assistancehas been served on the borrower.

(vii)The objection or representationin reply to the notice received from theborrower has been considered by thesecured creditor and reasons for non-acceptance of such objection orrepresentation had been communicated tothe borrower'

(viii)the borrower has not made anyrepayment of the financial assistance inspite of the above notice and theAuthorised Officer, therefore, entitled totake possession of the secured assetsunder the provisions of sub-section (4) ofsection 13 read with section 14 of theprincipal Act;

(ix)that the provisions of this Act andthe rules made thereunder had beencomplied with:

8. This provision was considered bythe Supreme Court in Standard CharteredBank Vs. V. Noble Kumar and others[2013 (9) SCC 620] whereas the SupremeCourt analysed the nine sub clauses of the

proviso indicating that the followinginformation must be furnished in theaffidavit, namely that there was a loantransaction under which a borrower isliable to repay the loan amount withinterest; that there was a security interestcreated in a secured asset belonging to theborrower; that the borrower committed adefault in the repayment; that a noticecontemplated under Section 13(2) was infact issued; that in spite of such a notice,the borrower did not make the repayment;that the objections of the borrower wasconsidered and rejected and the reasonswas communicated to the borrower.

9. The Supreme Court held that thisinsertion was done in order to providesafeguards to the interest of the borrower andthat this provision stipulates that a securedcreditor who is seeking the intervention of theMagistrate under Section 14 was required tofile an affidavit furnishing the informationcontemplated under various sub-clauses (i) to(ix) of the proviso. The Supreme Court furtherheld that the affidavit containing the aforesaidinformation was necessary as it wouldobligate the Magistrate to pass suitable ordersregarding taking and delivery of possession ofthe secured asset only after being satisfiedwith the contents of the affidavits. TheSupreme Court further held that thesatisfaction of the Magistrate under the secondproviso to Section 14(1) necessarily requiresthe Magistrate to examine the factualcorrectness of the assertions made in such anaffidavit and only after recording thesatisfaction that the Magistrate could passappropriate orders regarding taking ofpossession of the secured assets.

10. From the aforesaid decision ofthe Supreme Court in Standard CharteredBank (Supra), we are of the opinion that theword 'shall' used in the first proviso to


Section 14(1) of the Act is mandatory. It isan essential requirement for the Bank that theapplication filed under Section 14 must beaccompanied by an affidavit duly affirmedby the authorized officer of the securedcreditor indicating the ingredientscontemplated under sub clause (i) to subclause (ix) to the first proviso. Non filing ofthe affidavit in our opinion would be fatal.

11. Sri Tarun Verma, learned counselfor the bank has conceded that in the instantcase no affidavit was filed. Consequently, theapplication could not have been allowed bythe District Magistrate.

12. Consequently, for the reasonsstated aforesaid, the impugned order ofthe Additional District Magistrate dated4.3.2015 and the consequential orderdated 21.4.2015 passed by the AdditionalCity Magistrate being illegal, cannot besustained and are hereby quashed. Thewrit petition is allowed.

13. It would be open to the respondentbank to proceed afresh by filing a freshapplication under Section 14 in accordancewith the provisions of the Act.



BEFORETHE HON'BLE MAHESH CHANDRA TRIPATHI, J.

C.M.W.P. No. 33208 of 1990

Love Prasad Dwivedi & Ors. ..PetitionerVersus


Counsel for the Petitioner:Sri Rajiv Sharma, Sri Amit Saxena, Sri J.L.Yadav

Counsel for the Respondents:S.C., J.P.Nigam

Uttar Pradesh Retirement Benefits Rule1961-Rule 3(8)-qualifying period of pension-petitioner promoted on post of ADO on02.12.88 for 90 days-extended from time totime continued till regularization01.02.2000-retired between 31.10.2012 to31.01.2015-regular promotion on16.11.2012-whether the period of regularpromotion on officiating promotion shall becounted for qualifying service-held-from thedate of officiating promotion-reasonsdiscussed.

Held: Para-13-1413. Proviso to Rule 3(8) itself prescribesthat continuous temporary service withoutinterruption followed by confirmation shallcount as qualifying service. Thus, it iswholly immaterial that the service of thepetitioner was regularised on 1.2.2001, ashe was continuously working since the dateof initial appointment. Though earlier hisworking was against a temporaryestablishment, as there was no sanctionedpost but after temporary post wassanctioned and later on converted intopermanent post, the service so rendered,fully qualifies for being counted for purposeof payment of pension and retiral benefits.

14. For the aforesaid reasons, the Courtfinds that the petitioners had renderedqualifying pensionary service with effectfrom the date of his promotion in theyear 1988 and which shall be treated asservice qualifying for pension.

Case Law discussed:2012 Law Suit (All) 2208; Spl. Appeal No. 445 of2011; 2006 (8) ADJ 371, 2011 (4) AWC 3564.

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

1. Heard Shri Amit Saxena, learnedcounsel for the petitioners and ShriPrashant Rai, learned Standing Counselfor the State respondents.

2 All] Love Prasad Dwivedi & Ors. Vs. State of U.P. & Ors. 731

2. By means of present writ petition,the petitioners have prayed for quashingthe impugned order dated 25.11.1990(Annexure No.4 to the writ petition)passed by the respondent no.3. By theamendment application allowed on29.7.2013, they have further prayed fordirection in the nature of mandamuscommanding the respondents to promotethem on the post of AssistantDevelopment Officer (Co-operative) onregular basis w.e.f. 20.12.2001 and togrant all consequential benefits to them,which will flow from the aforesaid regularpromotion.

3. Shri Amit Saxena, learnedcounsel for the petitioners states that ShriHariom Srivastava-petitioner no.6 filed anappeal, which was allowed and hisservices had been regularized. Thepetitioner no.6 is also receiving thepension and as such, he does not have anygrievance. Shri Amit Saxena states that atpresent, he has instructions only withregard to petitioner nos. 1, 2 and 4. Hedoes not have any instructions with regardto petitioner nos. 3 and 5.

4. Brief facts giving rise to thepresent case are that the petitioner nos. 1to 4 were appointed as CooperativeSupervisors on 22.7.1978, 18.7.1978,3.3.1960 and 3.17.1978 respectively andthe petitioner no.5 was appointed as GramVikas Adhikari on 29.11.1956. Thepetitioner nos. 1 to 5 were eventuallypromoted as Assistant DevelopmentOfficer (Cooperative) for 90 days vide anorder dated 2.12.1988 (Annexure No.1 tothe writ petition). Thereafter, they weregiven extension from time to time and assuch the petitioners are working asAssistant Development Officer(Cooperative) since December, 1988.

5. Learned counsel for thepetitioners submits that the post ofAssistant Development Officer(Cooperative) falls under the StateGovernment and they have been paidsalary from the State exchequer. Thepetitioners are continuously dischargingtheir duties with utmost satisfaction totheir superior officers since the year 1988.Finally the petitioner no.1 retired on31.7.2013; petitioner no.2 retired on31.1.2015 and petitioner no.4superannuated on 31.10.2012. By theorder dated 16.11.2012 the respondentspromoted the petitioner nos. 1 and 2 onregular basis from the date of their takingover charge.

6. Learned counsel for thepetitioners that the petitioners weredischarging their duties as AssistantDevelopment Officer (Panchayat) sincethe year 1988, and they have alreadycompleted the minimum required periodfor pension. Under U.P. Regularization ofAd-hoc Promotion (On Post Outside thePurview of Public Service Commission)Rules, 1988, as amended on 20.12.2011,the petitioners became entitled for regularpromotion by virtue of the fact that theywere fully qualified for promotional postof Assistant Development Officer(Panchayat) and had already completedmore than three years of service on thesaid post, and regular vacancies were inexistence. Rule 4 of the RegularizationRules of 1988 provides that such ad-hocappointees shall be promoted before anyregular appointment is made against suchvacancy under the Rules and therefore,the petitioners were entitled for regularpromotion since 20.12.2001 itself. Hefurther submits that once the petitionershad been promoted on ad-hoc basis andno person had joined on such posts and


the petitioners could not have beenreverted back, they became entitled forregular promotion on the basis ofRegularization Rules, 1988. Thepetitioners were promoted on ad-hoc basisand were in fact treated to be regularpromotee throughout for the period of 25years by deducting the GPF and grantingthem all service benefits including payscales and increments of regular AssistantDevelopment Officers.

7. Learned counsel for thepetitioners has placed his reliance on aDivision Bench judgment of this Court inAmrendra Narain Srivastava vs. State ofUP and others 2012 LawSuit (All) 2208.The relevant paragraph nos. 6, 7, 10, 11,12 and 13 are reproduced hereinafter:-

"6. It is submitted by Shri AshokKhare, that under the Uttar PradeshRetirement Benefits Rules, 1961, thequalifying service, defined in Rule 3 (8),means service, which qualifies forpension in accordance with the provisionsof Article 368 of the Civil ServicesRegulations. Rule 3 (8) is quoted asbelow:-

"Rule 3 (8)- "Qualifying service"means service which qualifies for pensionin accordance with the provisions ofArticle 368 of the Civil ServicesRegulations:

Provided that continuous temporaryor officiating service under theGovernment of Uttar Pradesh followedwithout interruption by confirmation inthe same or any other post except-

(i) periods of temporary orofficiating service in a non-pensionableestablishment.

(ii) periods of service in a work-charged establishment, and

(iii) periods of service in a post, paidfrom contingencies, shall also count asqualifying service.

Note- If service rendered in a non-pensionable establishment, work-chargedestablishment or in a post paid formcontingencies falls between two periodsof temporary service in a pensionableestablishment or between a period oftemporary service and permanent servicein a pensionble establishment, it will notconstitute an interruption of service."

7. Regulation 368 of the CivilServices Regulations, provides thatservice does not qualify, unless the officerholds a substantive office in a permanentestablishment. Regulations 368 and 369provides as follows:-

"368. Service does not qualify unlessthe officer holds a substantive office on apermanent establishment.

369. An establishment, the duties ofwhich are not continuous but are limitedto certain fixed periods in each year, isnot a temporary establishment. Service insuch an establishment, including theperiod during which the establishment isnot employed qualifies but the concessionof counting as service the period duringwhile the establishment is not employeddoes not apply to an officer who was noton actual duty when the establishmentwas discharged, after completion of itswork, or to an officer who was not onactual duty on the first day on which theestablishment was again re-employed."

10. The petitioner was appointed intemporary capacity in Zila Parishad on21.3.1983. The non-government medicalhospitals of Zila Parishad wereprovincialised on 8.11.1990. Thepetitioner's option for absorption in theState Ayurvedic and Unani MedicalServices was accepted, and that he wastaken as a Medical Officer, Ayurvedic

2 All] Love Prasad Dwivedi & Ors. Vs. State of U.P. & Ors. 733

and Unani on adhoc basis. There is nodenial, that he held a substantive office ina permanent establishment. His servicesultimately came to be regularized on16.3.2005 without any break. At no pointof time the petitioner, after his absorption,was not in substantive office, which wasnot in permanent establishment. Hisservices, therefore, have to be countedwith effect from the date of his absorptionand the joining in the State Government.

11. The qualifying service, asdefined in sub-rule (8) of Rule 3, includesthe service, which qualifies for pension inaccordance with the provisions of Section368 of Civil Services Regulation. Thepetitioner does not fall in any of theexceptions inasmuch as the period of histemporary service was not in a non-pensionable establishment after he wasregularized in the State Government.

12. For the aforesaid reasons, wefind that the petitioner has renderedqualifying pensionary service with effectfrom the date of his joining in the StateGovernment on his option, and whichshall be treated as service qualifying forpension and for which under theGovernment Orders, by which thehospitals were provincialised, thecontribution of his pension has beendeposited by the Zila Parishad.

13. The objection, that thecontribution of pension, has not beendeposited in the relevant account head, istoo technical to be accepted. The amounthas been credited to the account of theState Government in the Treasury. It is forthe Treasury Officer to appropriate theamount in the correct account head. Anerror in depositing the amount in thewrong account head cannot be treated tohave taken away the right of petitioner topension based upon his continuance in theState Government beginning from 1991.

14. The writ petition is allowed. Theimpugned order dated 20.9.2011 isquashed. The petitioner shall be entitledto pension with effect from 01.2.1991, thedate on which he joined in the StateGovernment. The State Government willcalculate his pension and issue thepension payment order within twomonths. The entire arrears of pensionshall be paid over to him within a periodof three months."

8. Learned counsel for the petitionerhas also relied upon the judgment inSpecial Appeal No.445 of 2011(Bhuneshwar Rai vs. State of UP & ors)decided on 18.9.2014. Paragraph-5 of thejudgment is reproduced herein below:-

"5. In support of his aforesaidcontention, learned counsel for theappellant has relied upon the judgmentrendered by the Apex Court in the case ofPunjab State Electricity Board andanother versus Narata Singh, 2010-Laws(SC)-2-40, which has been relied upon bythe learned Single Judge of this Court inthe case of Mohd. Mustafa versus State ofU.P., (2010 (1) ADJ-329 (All)(LB).holding that where the petitioner has putin 23 years of service including 113months and 11 days i.e. 9 years 5 months& 11 days of regular service then denialof pension for not having completed 10years of regular service, was not proper.In that case, the Court directed therespondents to grant pensionary benefit tothe petitioner considering him to havecompleted 10 years of regular service andpay him regularly every month from thedate of retirement. The State of U.P.preferred an appeal against the aforesaidjudgment in re: Mohd. Mustafa versusState of U.P.(Special Appeal DefectiveNo. 254 of 2013), State of U.P. and others


versus Prem Chandra and others whereinthe Court relying upon the judgment ofthe Apex Court in Punjab ElectricityBoard (supra) vide its judgment dated13.5.2013 held that the provisions ofregulation 370 of the U.P. Civil ServiceRegulation have to be read down in linewith the judgment of the Apex Court.Aggrieved , the State of U.P. preferredSLP (Civil) No. CC 22271 of 2013, Stateof U.P. and others versus Prem Chandraand others before the Apex Court, whichwas dismissed vide judgment and orderdated 7.1.2014."

9. Learned counsel for thepetitioners submits that as per Rule 3(8)of the Uttar Pradesh Retirement BenefitRules, 1961, the petitioners hadcompleted 10 years of qualifying serviceand are, thus, entitled to pensionarybenefits. He has placed reliance on thejudgment of this Court reported in 2006(8)ADJ 371, 2011 (4) AWC 3564.

10. On the other hand, learnedStanding Counsel does not dispute thelegal position. He submits that since thepetitioners had not completed 10 years ofservice from the date of regularisation,and therefore, they were rightly not paidpension and other retiral benefits.

11. Rule 3(8) of the Rules, defines"qualifying service" as under:-

"Rule 3 (8)- "Qualifying service"means service which qualifies for pensionin accordance with the provisions ofArticle 368 of the Civil ServicesRegulations:

Provided that continuous temporaryor officiating service under theGovernment of Uttar Pradesh followed

without interruption by confirmation inthe same or any other post except-

(i) periods of temporary orofficiating service in a non- pensionableestablishment.

(ii) periods of service in a work-charged establishment, and

(iii) periods of service in a post, paidfrom contingencies, shall also count asqualifying service.

Note- If service rendered in a non-pensionable establishment, work-chargedestablishment or in a post paid fromcontingencies falls between two periodsof temporary service in a pensionableestablishment or between a period oftemporary service and permanent servicein a pensionble establishment, it will notconstitute an interruption of service."

12. Regulation 368 and 369 of theCivil Services Regulations reads as under:-

"368. Service does not qualify unlessthe officer holds a substantive office on apermanent establishment.

369. An establishment, the duties ofwhich are not continuous but are limitedto certain fixed periods in each year, isnot a temporary establishment. Service insuch an establishment, including theperiod during which the establishment isnot employed qualifies but the concessionof counting as service the period duringwhile the establishment is not employeddoes not apply to an officer who was noton actual duty when the establishmentwas discharged, after completion of itswork, or to an officer who was not onactual duty on the first day on which theestablishment was again re-employed."

13. Proviso to Rule 3(8) itselfprescribes that continuous temporary

2 All] Dr. Gorakhnath Vs. Judge, Small Causes Court, Gorakhpur & Ors. 735

service without interruption followed byconfirmation shall count as qualifyingservice. Thus, it is wholly immaterial that theservice of the petitioner was regularised on1.2.2001, as he was continuously workingsince the date of initial appointment. Thoughearlier his working was against a temporaryestablishment, as there was no sanctionedpost but after temporary post was sanctionedand later on converted into permanent post,the service so rendered, fully qualifies forbeing counted for purpose of payment ofpension and retiral benefits.

14. For the aforesaid reasons, theCourt finds that the petitioners hadrendered qualifying pensionary servicewith effect from the date of his promotionin the year 1988 and which shall betreated as service qualifying for pension.

15. In the aforesaid facts andcircumstances the impugned order dated25.11.1990 (Annexure No.4 to the writpetition) and the order dated 16.11.2012(Anneuxre RA No.2 to the rejoinderaffidavit), cannot be sustained to theeffect that the petitioners are not eligiblefor pensionary benefits as they do nothave qualifying service of ten years andare quashed.

16. The writ petition is allowed. Therespondents are directed to finalise thepetitioners' pension treating them to bepromoted on the post of AssistantDevelopment Officer (Co-operative) onregular basis w.e.f. 20.12.2001 under theRegularization Rules of 1988 andquantify the retiral benefits payable tothem and to pay the same to them withinthree months from the date of productionof certified copy of this order before therespondents.

--------



BEFORETHE HON'BLE SUNEET KUMAR, J.

C.M.W.P. No. 34386 of 2011

Dr. Gorakhnath ...PetitionerVersus

Judge, Small Causes Court, Gorakhpur &Ors. ...Respondents

Counsel for the Petitioner:Sri K.M. Misra, Sri H.R. Mishra, SriKamlesh Kumar Mishra, Sri Narayan Das

Counsel for the Respondents:Sri A.K. Pandey, Sri Ashutosh Kumar

Small Causes Court Act 1887-Section 17-whether provisions of Section 17requiring the tenant to deposit entiredecreetal amounts mandatory ordirectory ?-held-mandatory-no court canignore the said requirement.

Held: Para-12The Division Bench considered thejudgment rendered in Kedarnath (supra)and held that the provisions of Section 17 ofthe Act is mandatory and non compliancethereof would entail dismissal of theapplication, non-compliance cannot becondoned or overlooked by the Court. Thereis no provision in the statute that wouldprovide either for extension of time or tocondone the default in depositing the rentwithin the stipulated period, the Court doesnot have the power to do so.

Case Law discussed:AIR 2002 SC 5825:2002 (1) ARC 186; 2005 (1)ARC 253; 2002 (1) ARC 440; 2006(4) Supp.ARC 571; 2010 (1) ARC 432; 2012 ACJ 1738

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

1. Supplementary affidavit filedtoday on behalf of the petitioner, is taken


on record. Learned counsel appearing forthe respondents states that reply to thesaid affidavit is not required.

2. Heard Sri H.R. Mishra, SeniorAdvocate assisted by Sri Kamlesh KumarMishra, learned counsel appearing for thepetitioner and Sri A.K. Pandey, learnedcounsel for the respondents.

3. The respondent/landlord IInd setfiled a suit for eviction and arrears of rentbefore Small Cause Court at Gorakhpurbeing Suit No. 106 of 1993. The suit wasdecreed against the petitioner/tenant on 23December 1998. The petitioner filed arestoration application under Order 9 Rule13 of the Code of Civil Procedure on 23November 2002 for setting aside the exparte judgment and order. The petitioneradmittedly did not deposit the entiredecretal amount as required in terms ofthe proviso to Section 17 of the SmallCauses Court Act, 18871. On 8September 2006, the restorationapplication was rejected by the Court onthe ground that mandatory provision ofproviso to Section 17 of the Act 1887 wasnot complied. On 4 January 2011, thepetitioner moved another application (27-Ga) before the Small Causes Court, forrecalling the earlier order dated 8September 2006 and praying that theapplication under Order 9 Rule 13 of theC.P.C. be decided by permitting thepetitioner to deposit the decretal amount.The Court vide order dated 16 April 2011rejected the application being barred byres judicata.

4. The petitioner is assailing theorder dated 16 April 2011 passed by theSmall Causes Court, Gorakhpur rejectingthe application (27-Ga) of the petitioner,and a direction has been sought that the

restoration application (4-Ga) dated 23November 2002 be decided on merit.

5. It is made clear that the orderdated 8 September 2006 rejecting therestoration application is not beingassailed.

6. It is not disputed by learnedcounsel for the petitioner that theprovisions contained in proviso to Section17 of the Act 1887 was not compliedwith. The learned counsel would submitthat the language of the proviso isdirectory in nature and not mandatory,therefore, in the interest of justice, thejudgment and decree should be recalledand the suit be heard on merits.

7. In rebuttal, Sri A.K. Pandey, learnedcounsel appearing for the respondents IIndset would submit that proviso to Section 17of the Act, 1887 is a mandatory provisionand not directory, it is not in dispute that thepetitioner had not deposited the entiredecretal amount, there is no illegality orinfirmity in the impugned order.

8. The court below vide order dated8 September 2006 noted that the judgmentand decree was passed on 23 December1998 whereas the application under Order9 Rule 13 of the C.P.C. was filedsupported by an affidavit dated 23November 2002. It was admitted by thepetitioner in the application that due towrong legal advise, mandatory provisionsof Section 17 of the Act 1887 was notcomplied with, accordingly, theapplication was rejected. The petitioneron 4 January 2011 moved anotherapplication to recall the above mentionedorder stating that due to inadequate legaladvice, he was not aware of the provisionscontained in Section 17 of the Act, 1887.

2 All] Dr. Gorakhnath Vs. Judge, Small Causes Court, Gorakhpur & Ors. 737

It was further stated that the petitionerrealised the mistake, consequently, filedan application to recall the order dated 8September 2006 which has been rejectedby the impugned order being anapplication for the same cause of action.The record would, thus, reflect that therequirement of depositing the decretalamount in terms of Section 17 of the Act1887 was not complied by the petitioner.

9. The Apex Court in Kedarnath vs.Mohan Lal Kesarwari and others2, held asfollows:

"A bare reading of Section 17(1)Proviso shows that the legislature havechosen to couch the language of theproviso in a mandatory form and there isno reason to interpret, construe and holdthe nature of the proviso as directory. Anapplication seeking to set aside an ex-parte decree passed by a Court of SmallCauses or for a review of its judgmentwas to be accompanied by a deposit in thecourt of the amount due from theapplicant under the decree or in pursuanceof the judgment. The provision as todeposit can be dispensed with by theCourt in its discretion subject to aprevious application by the applicantseeking direction of the Court for leave tofurnish security and the nature thereof.The proviso does not provide for theextent of time by which such applicationdispensation may be filed. It may be filedat any time up to the time of presentationof application for setting aside ex-partedecree or for review and the Court maytreat it as a previous application. Theobligation of the applicant is to move aprevious application for dispensation. It isthen for the Court to make a promptorder. The delay on the part of the court inpassing an appropriate order would not be

held against the applicant because nonecan be made to suffer for the fault of thecourt."

10. This Court in the case of KhillaDevi @ Manju Singh v. Vishwa Mohini3,Jai Prakash v. Gulab Singh Rathor4,Dinesh Kumar Dubey v. Ganga ShankarTiwari5 and in Raj Kumar and another vs.Neeraj Kumar Singhal,6 held that thecompliance of Section 17 of the Act ismandatory for the maintainability of anapplication under Order IX, Rule 13C.P.C.

11. A Division Bench in Raj KumarMakhija and others vs. M/s S.K.S. AndCompany and others7, on a referencemade regarding the scope of Section 17 ofthe Act held that a bonafide mistake onthe part of the applicant in not depositingthe entire decretal amount cannot becondoned under Section 17 of the Act, theapplication would be liable to be rejected.The reference before the Court was asfollows:

"Whether the proviso to Section 17 ofthe Provincial Small Causes Courts Actcompletely bars any rectification or removalof a bona fide error after the expiry of theperiod of limitation when substantialcompliance by way of deposit of the decretalamount and furnishing security has been madewithin the period of limitation particularlywhen Section 5 of the Limitation Act, 1963has been made applicable to Order IX Rule 13of the Code of Civil Procedure?"

12. The Division Bench consideredthe judgment rendered in Kedarnath(supra) and held that the provisions ofSection 17 of the Act is mandatory andnon compliance thereof would entaildismissal of the application, non-


compliance cannot be condoned oroverlooked by the Court. There is noprovision in the statute that would provideeither for extension of time or to condonethe default in depositing the rent withinthe stipulated period, the Court does nothave the power to do so.

13. The Constitution Bench of theSupreme Court in Radhey Shyam andanother vs. Chhabi Nath and others,8 heldthat writ petition under Article 226 of theConstitution is not maintainable against ajudicial order of a court .The Courtapproved the ratio laid down in ShaliniShetty and another vs. Rajendra ShankarPatil9, that no petition can be entertainedin writ jurisdiction being a disputebetween landlord and tenant i.e. amongstprivate parties.

14. For the reasons and law statedherein above, I do not find any illegalityor irregularity in the impugned orderdated 16 April 2011 passed by firstrespondent, Judge Small Causes Court,Gorakhpur.

15. The writ petition is dismissed,both on merit and maintainability.

16. Interim order, if any, standsvacated.

17. No order as to costs.--------




C.M.W.P. No. 36019 of 2008

Madhusudan Agarwal ...Petitioner

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

Counsel for the Petitioner:Sri Anil Kumar Bajpai

Counsel for the Respondents:C.S.C.

Payment of Gratuity Act 1972-Section4(6)-deductions from gratuity-withoutfull fledged disciplinary enquiry-merelyon basis of show cause notice-held noneof contingencies of Section 4(6) of Act-fulfilled-principle of Natural Justice-violated-deduction order quashed-withdirection to refund all recovered amountwith 9% interest.

Held: Para-14It is admitted case that in the presentmatter no departmental enquiry hastaken place. Only on the basis of showcause the department had proceededinto the matter and took final decisionand held that the petitioner was liable topay Rs.5,86,562/-, which is against theprinciple of natural justice. While inservice neither preliminary nor fullfledged departmental enquiry has beenmade in the matter. No adverse materialhas been brought on record against thepetitioner in his career.

Case Law discussed:{2015 (2) ADJ 673 (DB)(LB)}; 2015 (3) ADJ305 (DB); 2009 (2) SLJ 105; (2007) (2) BLJR2847); Letters Patent Appeal No. 113 of 2012.


1. Heard Shri Anil Kumar Bajpay,learned counsel for the petitioner and ShriPankaj Rai, learned Addl. Chief StandingCounsel for the respondents.

2. By means of the present writpetition, the petitioner has prayed forfollowing reliefs:-

2 All] Madhusudan Agarwal Vs. State of U.P. & Ors. 739

"(i) to issue a writ, order ordirection, in the nature of certiorari,quashing the impugned order dated25.7.2007 passed by the SuperintendingEngineer, Bulandshahr Circle, PublicWorks Department, Bulandshahr (Annexure-I to the writ petition).

(ii)to issue a writ, order or direction,in the nature of certiorari, quashing theinformation letter dated 20.03.2008 bywhich Rs.5,86,562/- has been deductedfrom the gratuity and encashment i.e.Rs.3,02,000/- from gratuity andRs.2,36,562/- from encashment and hasbeen paid vide Cheque No.510698 by theExecutive Engineer, Provincial Division,Public Works Department, Bulandshahr(Annexure-IA to the writ petition).

(iii)to issue a writ, order ordirection, in the nature of mandamus,directing the respondents to release theamount to the tune of Rs.5,86,562/- whichwas deducted from the gratuity andencashment as intimated to the petitionervide letter dated 20.03.2008 along withinterest @ 12%.

(iv)to issue a writ, order or direction,in the nature of mandamus, directing therespondents to also pay temporaryimprest fro a sum of Rs.51,000/- andRs.12,621/-.

(v) to award the cost of the petitionerto the petitioner."

3. Brief facts giving rise to thepresent writ petition are that the petitionerwas initially appointed as Overseer in theyear 1970. Later on the said designationwas changed to Junior Engineer. Thecareer of the petitioner was alwaysunblemished and nothing adverse exceptthe present incidence had been brought onrecord by the respondents. The petitionerhas attained the age of superannuation on31.7.2007. Shri Rajendra Prasad Sharma,

who was then posted as ExecutiveEngineer, Provincial Division, PublicWorks Department, Bulandshahar hadissued an order on 2.12.2006 asking thepetitioner to hand over the charge of storeto Shri V.P. Singh-II, Junior Engineerwith immediate effect.

4. Serious allegations have beenlevelled by the petitioner against ShriRajendra Prasad Sharma, the details ofwhich have been averred in para 6 of thewrit petition. But at the time of argumentthe counsel for the petitioner has notpressed the relief against the ExecutiveEngineer.

5. It has also been averred in the writpetition that Shri Rajendra Prasad Sharmawas transferred on 19.12.2006 and at hisplace Shri S.R. Verma was posted asExecutive Engineer since 19.12.2006 to30.12.2006. Thereafter, in a very shortspan many Executive Engineers came onthe said post, the details of which havebeen given in para 8 of the writ petition.Shri Rajendra Prasad Sharma had againtaken over as Executive Engineer atBulandshahar and passed a detailed orderon 17.2.2007 appointing two Asstt.Engineers to assume the charge and bythe same order authorisation of thepetitioner to receive maxphalt (bitumen)from the Indian Oil Corporation, Mathurawas cancelled on the ground that 2 and ½months had elapsed and he failed to handover the charge and, therefore, why notthe disciplinary proceedings may beinitiated against the petitioner. It has beencontended that the petitioner on 20.2.2007had handed over the charge to Shri V.P.Singh in pursuance to order dated2.12.2006 along with all details of thestore, but the reason best known to ShriV.P. Singh, he had not made any


endorsement on the charge, the details ofwhich have been averred in Annexure 4 tothe writ petition.

6. For measurement of the stockposition the Committee was constitutedand as on 23.2.2007 the total stock of291.883 metric tones were shown in themeasurement book. The Chief Engineer,Public Works Department vide OfficeMemo dated 7th January, 1984 had issuedcircular by which it had been indicatedthat in case person has been transferredand is not handing over charge within theappointed day, then after expiry of threedays the Executive Engineer shall appointa committee of two Asstt. Engineers, whoshall be of the same division but shall notbe the Asstt. Engineer, who is holding thecharge of such Junior Engineer. In theinstant case the Asstt. Engineer-I washolding the charge of store in which thepetitioner along with Shri V.P. Singhwere posted.

7. Learned counsel for the petitionersubmits that in utter disregard to the saidoffice memo Shri Sharma hasmanoeuvred the things according to hisown in order to get the result as per hisown desire and to falsely implicate thepetitioner. Learned counsel for thepetitioner also submits that in the presentmatter on 17.3.2007 Shri V.P. Singh-II,Junior Engineer in whose favourassumption of charge was sought to bemade had issued bitumen to Shri AnilKumar twice and continued to release thestock material to the contractors of thedepartment, which was not noticed by theCommittee. In pursuance to the letterdated 15.3.2007 the Committee hassubmitted report on 17.2.2007 by which ithad been indicated that 39.64 metric tonesbitumen was found short. In this

background Shri Sharma had issued aletter to the petitioner on 20th March,2007 by which it had been indicated thatas per the stock register the total bitumenof department's store should have been331.323 metric tones, whereas afterphysical verification it was only 291.68metric tones of bitumen, hence there is ashortfall of 39.64 metric tones and as suchthe petitioner was called for anexplanation. Immediately in response tothe said show cause notice the petitionerhad responded that he had already givencharge on 20.2.2007 along with stockposition and as such no shortfall wasfound at the relevant time. Therefore, hewas not liable for this shortfall. In thisbackground on 7.6.2007 the petitionerwas served with detailed show cause onthe ground that the petitioner had nothanded over the charge, therefore, thecommittee was constituted and afterphysical verification it was found that thebitumen to the tune of 39.64 metric tonesworth Rs.8,49,928/- was found deficient.In has also been stated under the aforesaidfacts that as to why suitable proceedingsmay not be initiated under CCS Rulesagainst the petitioner. A detailed replyhad been submitted by the petitioner on20.6.2007 in which the allegations ofmalafide have been levelled against thethen Executive Engineer and it iscategorically stated that he had alreadyhanded over the charge on 20.2.2007. Adeliberate attempt had been made by ShriSharma so that at the fag end of hiscareer, his entire service may be ruinedand retiral benefits may be forfeited.

8. Learned counsel for the petitionervehemently submits that the track recordof the petitioner was unblemished. All theallegations were malafide against thepetitioner and serious allegations were


also levelled against Shri Sharma forillegal demand but the petitioner could notfulfil the same, therefore, he was falselyimplicated. He has also submitted that inthe present matter no enquiry had beeninitiated and in the absence of any regularenquiry the liability could not be fastenover the petitioner and as such the amountcould not be realised from the gratuity aswell as from the retiral benefits. He hasalso submitted that surprisingly initiallythe deficiency of 39.62 metric tones ofbitumen was alleged but subsequently ithad been reduced to 27.343 metric toneworth Rs.5,86,562/-.

9. Learned counsel for the petitionerhas also apprised to the Court that on4.6.2007 the bitumen measuring 39.62metric tone was handed over to Shri V.P.Singh-II. The same has also been broughton record as Annexure No.17. In thisregard the petitioner had alsocommunicated to the Executive Engineerthat once Shri V.P. Singh-II had alreadyreceived the said bitumen on 4.6.2007,therefore, the show cause notice dated25.7.2007 was liable to be quashed. Hesubmits that the illegal deduction of theamount from the gratuity cannot besustained. It is well settled law that theamount can only be recovered from thegratuity strictly in accordance with lawand as such no procedure has beenadopted by the department.

10. In support of his submissions,learned counsel for the petitioner hasplaced reliance on a judgment of thisCourt in Ghanshyam Das Varshney v.State of U.P. & Ors. {2015 (2) ADJ 673(DB) (LB)} in which the Court held thatin the matter of allegations of committingcertain irregularities proper enquiryshould be conducted. Without holding

proper enquiry the punishment cannot beawarded to the employee. The petitionerhas also placed reliance on a recentjudgment of this Court in Bankey BihariChauhan v. State of U.P. & Ors. reportedin 2015 (3) ADJ 305 (DB) in which aDivision Bench of this Court held thatadjustment of huge amount from gratuityis not permissible unless the employee isterminated in view of Section 4 (6) of thePayment of Gratuity Act, 1972. The Courthas held that recovery from the gratuitycan only be made after fulfilling theconditions as contained in Section 4 (6) ofthe Act. The Court has allowed the appealand quashed the recovery order fromgratuity. The recovered payment wasordered to be paid along with interest asper sub-section (3A) of Section 7 of theAct. The relevant portion of the judgmentare quoted as under:-

"Section 4 (6) of the Act provides forthe circumstances in which the gratuity ofan employee, whose services have beenterminated, can be forfeited. Section 4 (6)is in the following terms:

"4. Payment of gratuity. - (1) ... ...(6) Notwithstanding anything

contained in sub-section (1), -(a) the gratuity of an employee,

whose services have been terminated forany act, willful omission or negligencecausing any damage or loss to, ordestruction of, property belonging to theemployer shall be forfeited to the extentof the damage or loss so caused;

(b) the gratuity payable to anemployee may be wholly or partiallyforfeited, -

(i) if the services of such employeehave been terminated for his riotous ordisorderly conduct or any other act ofviolence on his part, or


(ii) if the services of such employeehave been terminated for any act whichconstitutes an offence involving moralturpitude, provided that such offence iscommitted by him in the course of hisemployment."

In the decision of the Supreme Courtin Jaswant Singh Gill Vs Bharat CokingCoal Limited4, it has been held thattermination of services for any of thecauses enumerated in sub-section (6) ofSection 4 of the Act is imperative beforethe gratuity can be forfeited. The sameprinciple has been followed in a morerecent decision of the Supreme Court inState of Jharkhand Vs Jitendra KumarSrivastava, 2013 (2) ESC 554 (SC).

In the present case, it is not in disputethat the services of the appellant were neverterminated. The appellant continued to be inservice and retired on attaining the age ofsuperannuation. In the circumstances, thebasic pre-condition for the forfeiture ofgratuity under Section 4 (6) of the Act was notfulfilled. We may also note that Regulation 63of the Regulations provides for penalties andclause (4) thereof provides for the recoveryfrom pay or deposit at the credit of anemployee of the whole or part of a pecuniaryloss caused to the Corporation by negligenceor breach of an order. The Regulations mustnecessarily be harmonized with the provisionsof the Act and cannot override the expressstatutory provision. In any event, it is clearthat even Regulation 63 contains no suchprovision of recovery from gratuity. In thesecircumstances, we are of the view that theaction for recovery from gratuity wascontrary to law and in the teeth of the expressprovision of the Act. The learned SingleJudge, with great respect, was not justified indismissing the petition on the ground that theappellant had not challenged the order ofpenalty or the appellate order. For the

purposes of the present proceedings, it is notnecessary for the Court to enquire into thegrievance of the appellant that he was notserved with the appellate order. Moreover, wemay clarify that the learned counsel for theappellant has only confined himself to thepayment of gratuity. Even if the order ofpenalty has attained finality, as is urged onbehalf of the employer, any recovery oradjustment of the amount of gratuity has to bemade by following the statutory provisionscontained in the Act. Since the conditions setout in Section 4 (6) of the Act for forfeiture ofthe gratuity have not been fulfilled, the actionof the employer was ultra vires."

11. Per contra learned Addl. ChiefStanding Counsel submitted that thepetitioner was incharge of the departmentalgodown and later on it was found thatbitumen measuring 27.34 metric tone wasdeficient in the record and only after physicalverification the loss of Rs.5,86,562/- wasrecovered from the petitioner. He has alsosubmitted that vide order dated 12.12.2006there was clear cut direction to the petitionerto hand over the charge to Shri V.P. Singh ofthe store-godown but the petitioner had notfollowed the direction issued by the superiorsand as such he was responsible for theshortfall of the bitumen. He further submittedthat in the present matter on account of thismess a committee of two Assistant Engineerswas constituted on 17.2.2007 and in theirpresence the measurement had been madeand as such 291.683 metric tone bitumenwere verified in the godown. Even at thetime of verification the petitioner was verymuch present and also made endorsementover the said verification. Therefore, at thisbelated stage a plea cannot be taken by thepetitioner that such verification had not takenplace in his presence. Thus, the writ petitionis liable to be dismissed on the ground thatadmittedly the department had sufferred loss,


which was liable to be recovered from theretiral benefits of the petitioner.

12. Heard rival submission andperused the record.

13. In the present matter the detailedshow cause was given on 20.3.2007 by whichit had been indicated that after verification ithad been found that 39.64 metric tone ofbitumen was fallen short in the godown.While issuing the impugned show causenotice the Executive Engineer observed thatthe matter was serious in nature. Thepetitioner was asked to submit his reply withinthree days' time otherwise the matter would bereferred to the higher authorities fordepartmental enquiry. In response to the showcause the petitioner had respondedimmediately with details refuting theallegations and with categorical averment thatat the time of handing over the charge therewas no shortfall. Even Shri V.P. Singh, whohas taken over the charge from the petitionerhad also acknowledged the receiving of 39.62metric tone of bitumen on 4.6.2007, whichhas also been brought on record as Annexure17 to the writ petition. But it is surprised tonote that merely on the basis of show causenotice and in the absence of any departmentalenquiry how the department had reached tothe conclusion that it had sufferred financialloss. Even the department had not shown anydetails regarding any full fledged enquiry inthe matter or it had tried to ascertain thecorrect position from the godown. At oneplace the loss of 39.62 metric tone bitumenwas found, whereas in the same letter thedepartment came to the conclusion that onlyloss of 27.343 metric tone bitumen wasoccurred amounting to Rs.5,86,562/-. It isrelevant to indicate that while passing theimpugned order dated 25.7.2007 theExecutive Engineer, Bulandshahar hadobserved as under:-

"vf/k'kklh vfHk;Urk izk0[k0] cqyUn'kgj us viusi=kad 2406@2, ctV] fnukad 24-7-07 }kjk vf/k'kklhvfHk;Urk] fu0 [k0&2] cqyUn'kgj ds mijksDr i= ovoj vfHk;Urk ds izR;kosnu dks lek;ksftr djrs gq,Jh e/kqlwnu voj vfHk;Urk ds fo:) 27-343 esS0VufcVqfeu dh deh] ftldh ykxr :0 586562-00 vkrhgS] dh 'kkldh; gkfu ds fy;s Jh e/kqlwnu vojvfHk;Urk dks nks"kh Bgjk;k gSA vr% Jh e/kqlwnu vojvfHk;Urk] izk0[k0] yks0fu0fo] cqyUn'kgj ls 'kkldh;gkfu :0586562-00 ek= dh olwyh fd;s tkus dsvkns'k ikfjr fd;s tkrs gaSA vf/k'kklh vfHk;Urkizk0[k0yks0fu0fo0] cqyUn'kgj ;g lqfuf'pr gks ysa fdizR;sd n'kk esa mDr /kujkf'k dh olwyh Jh e/kqlwnuvoj vfHk;Urk ds osru] xzsP;qVh vkfn ns;ksa ds Hkqxrkuls iwoZ dj ysaA ;fn voj vfHk;Urk ds mDr ns;ksa lsokafNr /kujkf'k dh olwyh iwjh ugh gksrh gS rks okafNr/kujkf'k dh owlyh Jh e/kqlwnu voj vfHk;Urk dhpy&vpy lEifRr ls fd;s tkus gsrq lEcaf/krftykf/kdkjh ds ek/;e ls dk;Zokgh gh tk;sA"

14. It is admitted case that in thepresent matter no departmental enquiry hastaken place. Only on the basis of show causethe department had proceeded into the matterand took final decision and held that thepetitioner was liable to pay Rs.5,86,562/-,which is against the principle of naturaljustice. While in service neither preliminarynor full fledged departmental enquiry hasbeen made in the matter. No adverse materialhas been brought on record against thepetitioner in his career.

15. The judgments cited by learnedcounsel for the petitioner fully support hiscase. It is not in dispute that services ofthe petitioner were never terminated. Thepetitioner continued to be in service andretired on attaining the age ofsuperannuation. In the circumstances, thebasic pre-condition for the forfeiture ofgratuity under Section 4 (6) of theGratuity Act, 1972 was also not fulfilled.

16. It has also been held time andagain that the retiral benefits like pension,


gratuity or leave encashment are notbounty or grace but are earned by theemployee through the years of service ofa company. They are an employee'ssecurity after retirement.

17. In Dr. Dudh Nath Pandey v. TheState of Jharkhand & Ors., 2009 (2) SLJ 105(Jharkhand), the Division Bench ofJharkhand High Court after scanning variouscase laws on the subject held that theconditions precedent for imposing penalty ofwithholding pension is that there should be afinding in departmental enquiry or judicialproceeding that the pensioner committedgrave misconduct in the discharge of his dutywhile in office. The Court held that leaveencashment also cannot be withheld sincethat is paid in lieu of unutilized leave as itpartakes the character of salary.

18. In Dr. Dudh Nath Pandey v. TheState of Jharkhand (2007 (2) BLJR 2847),the Full Bench of Jharkhand High Court hasheld that there is no power for theGovernment to withhold Gratuity andPension during the pendency of thedepartmental proceeding or criminalproceeding. There is no power with thegovernment to withhold Leave Encashmentat any stage either prior to the proceeding orafter conclusion of the proceeding.

19. In the matter of leave encashmentthe Full Bench of Punjab and Haryana HighCourt in Punjab State Civil SuppliesCorporation Ltd. & Ors. v. Pyare Lal (LettersPatent Appeal No.113 of 2012) has held thatthe amount of leave encashment is payable tothe retiring employee notwithstanding thependency of the departmental enquiry orcriminal proceedings.

20. In the present matter, leave thequestion of finding, even the proper

enquiry was not conducted. Only on thebasis of show cause the amount has beenwithheld from the encashment withoutgiving any opportunity to the petitioner,which is against the principle of naturaljustice.

21. In view of the above, the orderimpugned dated 25.07.2007 cannot besustained and is hereby set aside. The writpetition is allowed. The petitioner will beentitled for all the retiral benefits, which isdue to him. The recovered amount shall bepaid to the petitioner alongwith 9% interestcalculated from the date, when it is payabletill the date of its actual payment. The sameshall be given to the petitioner within aperiod of three months from the date acertified copy of this order is producedbefore the authority concerned.



BEFORETHE HON'BLE PRADEEP KUMAR SINGH

BAGHEL, J.

C.M.W.P. No. 36320 of 2009

Smt. Vimla Devi Sharma ...PetitionerVersus


Counsel for the Petitioner:Sri Ashok Khare, Sri Siddharth Khare


Uttar Pradesh State Aided EducationalInstitute Employees Contribution Rules1964-Rule-18-Qualifying period of servicefor pension-petitioner working assistantteacher in primary section attached tointermediate college-taken grant in aid01.10.89-retired on 30.06.2001-denied

2 All] Smt. Vimla Devi Sharma Vs. State of U.P. & Ors. 745

pensionary benefit as was working in boyssection while similarly situated other teacherof girl wings given pensionary benefit-held-cut of date of G.O. 28.01.2004 alreadyquashed-as per rule 18 working ontemporary or officiating service followedwithout interruption by confirmation-wouldbe counted pension benefit.

Held: Para-21 & 2221. Rule-18 of the Rules, 1964 articulatesthat the amount of pension that may begranted shall be determined by the lengthof qualifying service. Rule-19 contemplatesthat the service will not count for pensionunless the employee holds a substantivepost on a permanent establishment.However, in respect of temporary orofficiating service, it provides that thecontinuous temporary or officiating servicefollowed without interruption byconfirmation in the same or another postshall also count as qualifying service.

22. From a simple reading of the aforesaidprovisions, it instantly brings out that ateacher of the primary section is entitled forpension in terms of the Rules, 1964 and theGovernment Order dated 28th January,2004 is merely clarificatory in nature.Moreover, the cut-off date mentioned in thesaid Government order has already beenstruck down by this Court in Mangali PrasadVerma (supra).

Case Law discussed:Writ-A No. 17819 of 2007; Writ-A No. 28679of 2009; W.P. No. 75746 of 2005; W.P. No.17033 of 2012; 2009 (2) UPLBEC 1557.

(Delivered by Hon'ble Pradeep KumarSingh Baghel, J.)

1. The petitioner is a retiredAssistant Teacher of a Primary School.She has moved this writ petition underArticle 226 of the Constitution forissuance of a writ of certiorari to quashthe order dated 12th June, 2008 passed bythe Additional Director of Education(Secondary), U.P., Allahabad, the third

respondent, whereby her representationfor sanction of pension has been rejected.

2. The essential facts are that GurukulSarvodaya Inter College, Panchali Khurd,District Meerut1 is a recongnised educationalinstitution, wherein education is imparted fromClass-I to Class-XII. The Institution receivesthe financial aid out of the State fund. It isgoverned by the provisions of the Uttar PradeshIntermediate Education Act, 1921 (U.P. ActNo. II of 1921)2 and the Uttar Pradesh HighSchools and Intermediate Colleges (Paymentof Salaries of Teachers and other Employees)Act, 1971 (U.P. Act No. 24 of 1971)3. Initially,the primary section from Classes I to V,attached to the Institution, was not receivinggrant-in-aid. It was first time brought on thegrant-in-aid list with effect from 01st October,1989, therefore, it also came under the purviewof the Act, 1971.

3. The petitioner was initially appointedas an Assistant Teacher in the primary sectionof the Institution on 01st July, 1964. Shereached her age of superannuation on 30thJune, 2001. The grievance of the petitioner isthat she has not been sanctioned pension.When several representations having beenmade by the petitioner for sanction of pensionremained pending, the petitioner along withfour other similarly placed Assistant Teachersof primary section of another institution,namely, Gurunanak Girls Inter College,Kankarkhera, Meerut approached this Courtunder Article 226 of the Constitution bymeans of Civil Misc. Writ Petition No. 1565of 2008 (Smt. Sushila Thapar and others v.State of U.P. and others). The aforesaid fourother Assistant Teachers, who joined the saidwrit petition along with the petitioner, werealso appointed between 1966 and 1969 andthey retired from service between 2001 and2002. The said writ petition was disposed ofby this Court vide order dated 09th January,


2008 with a direction upon the authorityconcerned to take appropriate decision in thematter and pass a reasoned and speakingorder.

4. After the order of this Court, thepetitioner submitted a detailed representation,wherein she stated that there was regulardeduction from her salary against theGeneral Provident Fund (GPF) andInsurance and she has submitted her optionfor the pension. She had also cited theexamples of Sri Radhey Shyam Verma, whowas an Assistant Teacher in the PrimarySection of D.A.V. Inter College,Kankarkhera, Meerut, and Sri Ajab Singh,Assistant Teacher of Primary Section, whowere sanctioned pension on 15th March,2004. In compliance of the order of thisCourt dated 09th January, 2008, the thirdrespondent vide impugned order dated 12thJune, 2008 rejected the claim of thepetitioner, whereas he sanctioned the pensionto the co-petitioners (aforementioned otherfour Assistant Teachers) of Writ Petition No.1565 of 2008. In the impugned order theonly ground mentioned is that the petitionerwas appointed in the attached PrimarySection of a Boys Higher Secondary School,whereas the other petitioners of the said writpetition were appointed in the girlsinstitution. Against this background, thepetitioner has filed the present writ petition.

5. A counter affidavit has been filedon behalf of the respondents, wherein ithas been admitted that the Institution isgoverned by the provisions of the Act,1971 and it is receiving financial aid fromthe State fund with effect from 01stOctober, 1989. It is also stated that thepetitioner has been receiving salary fromthe salary-payment account of the Statesince 01st October, 1989. The principle standtaken in the counter affidavit, as averred in

paragraphs-6 and 11 thereof, is that by aGovernment Order dated 28th January, 2004the State Government has sanctioned thebenefit of pension, family pension, gratuityand G.P.F. to the teachers of attachedboys/girls primary section from the date ofissuance of the said Government Order i.e.28th January, 2004, and in view of theprovisions of the said Government Order, theteachers who retired prior to enforcement ofthe said Government Order are not entitledfor the pension. Therefore, as the petitionerstood retired prior to 2004, the said benefit isnot applicable to her.

6. I have heard Sri Ashok Khare,learned Senior Advocate, assisted by SriSiddhartha Khare, learned counsel for thepetitioner, and the learned StandingCounsel.

7. Sri Ashok Khare submitted that thepetitioner is entitled to pension under theprovisions of the Uttar Pradesh State AidedEducational Institution Employee'sContributory Provident Fund-Insurance-Pension Rules, 19644, under which thebenefit of pension is available to all categoriesof Government aided institutions and thedistinction sought to be drawn by the thirdrespondent is wholly misconceived andartificial. He further submitted that the facts ofthe identical matters in the cases of SriRadhey Shyam Verma and Sri Ajab Singh,referred to above, have not been properlyaddressed in the impugned order. Lastly, SriKhare has placed reliance on a judgment ofthis Court in the case of Mangali PrasadVerma v. State of U.P. and others5 and SriKrishna Prasad Yadav and others v. State ofU.P. and others6.

8. Learned Standing Counsel hassupported the reasons mentioned in theimpugned order and has also invited the

2 All] Smt. Vimla Devi Sharma Vs. State of U.P. & Ors. 747

attention of the Court to paragraphs-6 and11 of the counter affidavit.

9. I have considered the rivalsubmissions advanced by the learnedcounsel for the parties and perused therecord.

10. It is a common ground of theparties that the petitioner was appointed as anAssistant Teacher in the Primary Section ofthe Institution on 01st July, 1964 and retiredon 30th June, 2001 and the Institution wassanctioned the financial aid w.e.f. 01stOctober, 1989. The State Government issueda Government Order dated 28th January,2004 to the effect that benefit of the pension,family pension, gratuity and G.P.F. shall beadmissible to the teachers of the primarysections attached to the higher secondaryschools with effect from the date of issuanceof the said Government Order.

11. The aforesaid Government Orderdated 28th January, 2004 came to beconsidered by this Court in MangaliPrasad Verma (supra) and this Courtfound that the condition and the cut offdate mentioned in the said Governmentorder are arbitrary and discriminatoryamongst the teachers who retired before28th January, 2004. The Court also foundthat the said Government Order is onlyclarificatory in nature. The relevant partof the judgment is extracted hereunder:

"The condition and cut-off datementioned in the Government Order dated28.1.2004 is arbitrary and discriminationamongst the teachers who retired before28.1.2004. The pension is not beingclaimed or to be provided under theGovernment Order dated 28.1.2004 butthat is only clarification. Merely due tothe fault from part of the respondents for

deduction from the salary of the petitionertowards G.P.F., etc. and delay in issuingthe clarification, it cannot be accepted thatthe petitioner is not entitled for thepension under Rules, 1964, though it wasapplicable to the Primary teachers as wellas teachers of the higher secondaryeducation."

12. In the said case, the Court hasrelied upon earlier judgments of thisCourt in the cases of Smt. Shanti Solankiv. State of U.P. and others7, Lal ChandraSingh v. State of U.P. and others8, andSmt. Ram Keshi Devi v. State of U.P. andothers9.

13. From the record it transpires thatwhen the order of this Court in MangaliPrasad Verma (supra) was not compliedwith, a contempt proceeding, beingContempt Application (Civil) No. 6286 of201310, was taken out by the petitionertherein. My attention has been drawn to theshort counter affidavit filed by the Stateauthorities in the said contempt proceeding.In paragraph-3 of the said short counteraffidavit, which was sworn by the Director ofEducation (Secondary), U.P., Lucknow, ithas been stated that the State Government issympathetically considering the matter ofsuch teachers who have retired prior toissuance of the Government Order dated28th January, 2004 for making them entitledto receive pension and there are severalthousands teachers who would get benefit ifthe Government takes decision in theirfavour. A supplementary affidavit ofcompliance was also filed in that case and thepension was paid to the petitioner therein.

14. In the case of Mangali PrasadVerma (supra) the facts were identical tothe case in hand. In the said case also theprimary section of the institution was


brought on the grant-in-aid list on thesame date i.e. 01st October, 1989 and thepetitioner therein was appointed in 1961in the primary section on the post ofAssistant Teacher and he retired on 30thJune, 1995. Thus, the law laid down in theaforesaid case applies to the present factswith full force.

15. In Sri Krishna Prasad Yadav(supra) also similar issue was involvedand this Court following the decision ofMangali Prasad Verma (supra), allowedthe claim of the petitioner therein.

16. In addition to above, the StateGovernment has framed the Rules, 1964 andthey have been made applicable w.e.f. 01stOctober, 1964. These Rules have been madeapplicable to the institutions run either by theLocal Body or by a private management andrecognised by the competent authority for thepurposes of payment of grant-in-aid. Thesaid Rules have been made applicable to thefollowing institutions:

(1) Primary Schools;(2) Junior High Schools;(3) Higher Secondary Schools;(4) Degree Colleges; &(5) Training Colleges.

17. Rule 4 of the Rules, 1964provides three types of service benefits,viz., contributory provident fund,insurance and pension (Triple BenefitScheme). Rule 5(g) defines the word"employee" in the following terms:

"(g) 'Employee' means a permanentlyemployed person borne on the whole-timeteaching or non-teaching establishment ofan aided institution, excluding (a) theinferior staff, and (b) the ministerial staff

of the institutions maintained by a LocalBody."

18. The expression 'Institution' hasbeen defined in Section 5(l) of the Rules,1964, as under:

"(l) 'Institution' means an aided schoolor college referred to in Rule 3 above."

19. Rule-5(p) of the Rules, 1964gives the meaning of 'pension', thus:

"(p) 'Pension' means the pensionpayable to an employee under the rulesChapter V of these Rules."

20. Chapter V of the Rules, 1964deals with the pension. Rule 17 prescribesthe eligibility for pension which, insofaras is material for this case, reads as under:

"17. An employee shall be eligiblefor pension on—

(i) retirement on attaining the age ofsuperannuation or on the expiry of extensiongranted beyond the superannuation age;

(ii) voluntary retirement aftercompleting 25 years of qualifyingservices;

(iii) retirement before the age ofsuperannuation under a medical certificateof permanent incapacity for furtherservice; and

(iv) discharge due to abolition of postor closure of an institution due towithdrawal of recognition or other validcauses."

21. Rule-18 of the Rules, 1964articulates that the amount of pension thatmay be granted shall be determined by thelength of qualifying service. Rule-19

2 All] Surendra Nath Pandey Vs. State of U.P. & Ors. 749

contemplates that the service will not countfor pension unless the employee holds asubstantive post on a permanentestablishment. However, in respect oftemporary or officiating service, it providesthat the continuous temporary or officiatingservice followed without interruption byconfirmation in the same or another postshall also count as qualifying service.

22. From a simple reading of theaforesaid provisions, it instantly bringsout that a teacher of the primary section isentitled for pension in terms of the Rules,1964 and the Government Order dated28th January, 2004 is merely clarificatoryin nature. Moreover, the cut-off datementioned in the said Government orderhas already been struck down by thisCourt in Mangali Prasad Verma (supra).

23. After careful consideration of thematter, I am of the considered opinion thatthe petitioner is entitled for pension and theview taken by the third respondent is notsustainable. Hence, the impugned orderdated 12th June, 2008 passed by the thirdrespondent is set aside. As no factual disputeis involved in the matter and the impugnedorder was based on misconstruction of theGovernment Order dated 28th January, 2004,wherein the cut off date has been fixed, nouseful purpose would be served to send thematter back to the authority concerned forconsideration afresh as this Court has alreadydeclared the cut off date as arbitrary in thecase of Mangali Prasad Verma (supra).Accordingly, the respondents are directed toextend the benefit of the Government Orderdated 28th January, 2004 and the Rules,1964 to the petitioner for payment of pensionwith effect from 30th June, 2001 within aperiod of four months from the date ofcommunication of a certified copy of thisorder. The petitioner is entitled for the arrears

of pension with interest at the rate of 9% perannum with effect from 30th June, 2001 tillthe date of actual payment. The respondentsare further directed to permit the petitioner todeposit the Management's contribution, if notalready made, within a period of two monthsand after deposit of the contribution, she willbe entitled for the pension, as directed above.

24. Accordingly, the writ petition isallowed.




BEFORETHE HON'BLE SURYA PRAKASH

KESARWANI, J.

C.M.W.P. No. 36900 of 2000

Surendra Nath Pandey ...PetitionerVersus


Counsel for the Petitioner:Sri S.K. Mishra


U.P. Police Officers of Subordinate Ranks(Punishment and Appeal) Rule 1991-Rule-4-Punishment withholding integrity-beyondcompetence awarding minor or majorpunishment- order being contrary to law isnullity-quashed.

Held: Para-12Imposing the punishment for a proveddelinquency is regulated and controlledby the statutory rules. Therefore, whileperforming the quasi-judicial functions,the authority is not permitted to ignorethe statutory rules under whichpunishment is to be imposed. The


disciplinary authority is bound to givestrict adherence to the said rules.

Case Law discussed:Writ A No. 32261 of 2011; J.T. 2012 (4) SC105; W.P. No. 32261 of 2011.

(Delivered by Hon'ble Surya PrakashKesarwani, J.)

1. Heard Sri S.K. Mishra, learnedcounsel for the petitioner and the learnedstanding counsel for the respondent.

2. This writ petition has been filedchallenging the order dated 3rd April,2000 passed by the Respondent No.2whereby the punishment awarded to thepetitioner by the subordinate authoritieswithholding his integrity has been upheld.

3. Learned counsel for the petitionersubmits that there is no provision in Rule4 of the U.P. Police Officers of theSubordinate Ranks (Punishment andAppeal) Rules 1991 for awardingpunishment by withholding integrity and,as such, the order of punishment asupheld by the impugned order dated 3rdApril, 2000 is wholly without authority oflaw. In support of his submissions herelies upon the judgment of this Court inWrit A No. 32261 of 2011, SurendraKumar Singh Vs. State of U.P. and othersdated 23rd September, 2013.

4. Learned standing counsel submitsthat the petitioner was habitual ofcommitting mistakes and, therefore, after dueinquriy and after affording him opportunity,he was lawfully punished by withholding hisintegrity.

5. I have carefully considered thesubmissions of learned counsel for theparties.

6. Briefly stated the facts of the presentcase are that the petitioner was Assistant SubInspector (Ministerial)/ Assistant Accountantin 4th Batalian, P.A.C., Allahabad. A showcause notice dated 23.7.1999 was issued tohim for punishing him by withholding hisintegrity for the year 1998 on the ground thathe has not recorded factual aspects in hisnoting on the provident fund advanceapplication of Constable Vijay Shankarpandey. The petitioner submitted reply dated12.8.1999 through Senior Superintendent ofPolice, Allahabad. His explanation was notaccepted and an order dated 10th September,1999 was passed by the Commandant, 4thBattalion, P.A.C., Allahabad withholding hisintegrity.

7. Aggrieved with this order, thepetitioner filed an appeal under Rule 22(i) of the U.P. Police Officer of theSubordinate Ranks (Punishment andAppeal) Rules, 1991 (hereinafter referredto as the Rules) before the D.I.G., P.A.C.Kanpur, U.P. Kanpur through properchannel which was dismissed by orderdated 5th February, 2000. Against thisorder the petitioner filed a revision beforethe next higher authority under Rule 23 ofthe Rules which was dismissed by theimpugned order dated 3rd April, 2000.Aggrieved with this order the petitionerhas filed the present writ petition.

8. In paragraph No.4 of theimpugned order it is stated that for theirregularities committed by the petitioner,a show cause notice was issued to him bythe competent authority and chargeslevelled against him were found proved.

9. It is undisputed that in the matterof disciplinary proceedings the petitioneris governed by the provisions of theaforesaid Rules, 1991. Rule 4 of the Rules

2 All] Surendra Nath Pandey Vs. State of U.P. & Ors. 751

1991 provides for major penalties as well asminor penalties which may be imposed upona police officer for good and sufficientreasons. Rule 4 of the Rules 1991 does notprovide for penalty by way of withholdingintegrity. Under the circumstances, theimpugned order dated 3rd April, 2000awarding punishment of withholdingintegrity, is wholly without authority of lawand, therefore, cannot be sustained.

10. In the case of Vijay Singh Vs.State of U.P. and others J.T. 2012 (4) SC105 in para 11 Hon'ble Supreme Courtheld as under:

"11. The issue involved herein isrequired to be examined from another anglealso. Holding departmental proceedings andrecording a finding of guilt against anydelinquent and imposing the punishment forthe same is a quasi-judicial function and notadministrative one. (Vide: Bachhittar Singh v.State of Punjab & Anr., AIR 1963 SC 395;Union of India v. H.C. Goel, AIR 1964 SC364; Mohd. Yunus Khan v. State of U.P. &Ors., (2010) 10 SCC 539; and Chairman-cum-Managing Director, Coal India Ltd. &Ors. v. Ananta Saha & Ors., (2011) 5 SCC142).

Imposing the punishment for a proveddelinquency is regulated and controlled by thestatutory rules. Therefore, while performingthe quasi-judicial functions, the authority isnot permitted to ignore the statutory rulesunder which punishment is to be imposed. Thedisciplinary authority is bound to give strictadherence to the said rules.

Thus, the order of punishment beingoutside the purview of the statutory rulesis a nullity and cannot be enforcedagainst the appellant."

11. In Writ Petition No. 32261 of2011 Surender Kumar Singh Vs. State of

U.P. and others dated 23rd September,2013 held in paragraph No.8 as under:

"8. Similar issue, i.e., with regard toimposition of punishment of withholding ofintegrity in respect of police officers ofsubordinate rank, has been considered earlieralso by this Court and such orders ofpunishment have been set aside holding thatpunishment, not prescribed in Rules, cannotbe imposed. These judgements are in WritPetition No. 49071 of 2012, Abdul KadirKhan and another Vs. State of U.P. andothers, decided on 22.03.2012 (by Hon'bleRam Surat Ram (Maurya), J.); Writ PetitionNo. 25665 of 2012, Narendra Singh YadavVs. State of U.P. and others, decided on23.05.2012 (by Hon'ble Amreshwar PratapSahi, J.); Writ Petition No. 58153 of 2006,Surendra Nath Rai Vs. State of U.P. andothers, decided on 06.09.2012 (by Hon'bleDevendra Pratap Singh, J.); Writ Petition No.58154 of 2006, Sanjay Kumar Singh Vs. Stateof U.P. and others, decided on 21.12.2012 (byHon'ble Sunil Hali, J.); Writ Petition No. 7190(SS) of 2011, Ram Kumar Vs. State of U.P.and others, decided on 17.01.2013 (byHon'ble Ritu Raj Awasthi, J.); Writ PetitionNo. 52328 of 2011, Abdul Qadir Khan Vs.State of U.P. and others, decided on23.01.2013 (by Hon'ble Dilip Gupta, J.); WritPetition No. 1386 of 2008, Phool ChandraPrasad and another Vs. State of U.P. andothers, decided on 04.03.2013 (by Hon'bleTarun Agarwala, J.); Writ Petition No. 34465of 2012, Akhilesh Kumar Vs. State of U.P. andothers, decided on 26.07.2013 (by Myself);and, Raj Kumar Gautam Vs. State of U.P. andothers, 2013(2) ADJ 80 (by Myself). Besidesabove, a Division Bench of this Court has alsoexpressed same view in Writ Petition No.1315 (SB) of 2003, Satya Deo Sharma Vs.State of U.P. and others, decided on02.04.2010 (by Hon'ble Rajiv Sharma, J. andHon'ble Arvind Kumar Tripathi (II), J.)."


12. Thus imposition of punishment ofwithholding of integrity in respect of a policeofficer of subordinate rank, is withoutauthority of law since such punishment is notprovided in Rule 4 of the Rules 1991. Holdingdepartmental proceedings and recording afinding of guilt against any delinquent andimposing the punishment for the same is aquasi-judicial function and not administrativeone. Imposing the punishment for a proveddelinquency is regulated and controlled by thestatutory rules. Therefore, while performingthe quasi-judicial functions, the authority isnot permitted to ignore the statutory rulesunder which punishment is to be imposed.The disciplinary authority is bound to givestrict adherence to the said rules.

13. Thus the punishment ofwithholding integrity awarded to thepetitioner and upheld by the impugnedorder dated 3rd April, 2000 being outsidethe purview of Rule 4 of the Rules 1991,is a nullity. Consequently the impugnedorder is set aside.

14. In result the writ petitionsucceeds and is hereby allowed. Howeverthere shall be no order as to costs.




C.M.W.P. No. 45926 of 2006

Badrul Hasan Alvi ...PetitionerVersus


Counsel for the Petitioner:Sri S.F.A. Naqvi

Counsel for the Respondents:

C.S.C.

Constitution of India, Art.-226-Benefit ofsalary and other consequential benefit-working promotional post purely temporaryarrangement-promotion with stipulation ofreversion on appointment of regular selectedcandidates or any infirmity in working-admittedly for 34 years working onpromotional post-junior and other similarlysituated persons getting benefit-held-bylong period of working petitioner-possessingexperience-rejection of claim as perregulation 1993 on ground of not possessingrequisite qualification-not proper-petitionerentitled for every consequential benefit asjunior engineer.

Held: Para-17The judgements cited by learned counselfor the petitioner are fully applicable to thepetitioner's case. If a worker gainssufficient experience after serving severalyears in the department, he cannot berefused confirmation on the ground that hedid not possess requisite qualifications. Thepetitioner worked on the promoted post fora substantial period of time without beingquestioned by the respondents and at thefag end of his retirement he cannot bedenied confirmation.

Case Law discussed:1990 AIR (SC) 371; Civil Appeal No. 2835 of2015; (1993) 3 SCC 237.


1. Heard Shri S.F.A. Naqvi, learnedcounsel for the petitioner and learnedStanding Counsel for the respondents.

2. By this writ petition the petitionerhas prayed for following reliefs:-

"(i) issue a writ, order or direction inthe nature of certiorari quashing theimpugned order dt.19.05.2006 passed byrespondent no.2 (Annexure No.1).

2 All] Badrul Hasan Alvi Vs. State of U.P. & Ors. 753

(ii) issue a writ, order or direction inthe nature of mandamus directing andcommanding the respondents to regularizethe services of the petitioner on the post ofJunior Engineer as well as to grant supertime pay scale in the said cadre with effectfrom the date upon which the petitioner waspromoted upon the post of Junior Engineerand all other consequential benefits, which innormal circumstance is payable to aconfirmed Junior Engineer.

(iii) issue a writ, order or directionin the nature of mandamus directing andcommanding the respondents to payinterest at the permissible rate, which thisHon'ble Court may deem fit and properupon all the financial benefits which areliable to be paid by the respondentauthorities in pursuance of grant ofconsequential reliefs claimed in reliefno.2.

(iv) issue a writ, order or direction,which this Hon'ble Court may deem fitand proper in the circumstances of thecase.

(v) award the cost of the petition infavour of the petitioner."

3. Brief facts giving rise to the writpetition are that the petitioner was appointedon the post of Civil Draftsman vide orderdated 16th August, 1967. Thereafter, thepetitioner was promoted on the post ofOverseer by order dated 25.10.1972. Thepost of Overseer is now known as JuniorEngineer. While promoting the petitioner onthe post of Overseer it was mentioned in thepromotion order dated 25.10.1972 that incase the work of the petitioner was not foundsatisfactory or a qualified Overseer isappointed, the petitioner will be revertedback to his original post of Draftsman. It issubmitted by learned counsel for thepetitioner that the petitioner was working onthe post of Junior Engineer till he attained the

age of superannuation in the year 2006. It issubmitted that at the time of initial inductionin service he had the requisite qualifications.No other person was appointed on the saidpost in which the petitioner was working. Itis averred that the entire career of thepetitioner was unblemished and the petitionerwas never granted any adverse entry duringhis career. It is also submitted that underRule 4 of the U.P. Government ServantConfirmation Rules, 1991 the petitioner isfully qualified to be confirmed on the saidpost.

4. It is also submitted that othersimilarly placed persons who wereappointed simultaneously with thepetitioner as Draftsman were promotedand confirmed on the post of JuniorEngineer after 1972 and they were alsoawarded consequential benefits. Thisshows that the petitioner wasdiscriminated by the respondents. Inparagraphs 14, 15 and 16 of the writpetition the petitioner has given theexamples of similarly situated persons,who have been promoted and confirmedon the post of Junior Engineer.

5. Learned counsel for the petitionerprayed that the petitioner should bepromoted and confirmed on the post ofJunior Engineer by the department and allconsequential benefits should also begiven to him.

6. Petitioner's learned counsel furthersubmits that it is well settled that the personwho had worked for a considerable longperiod on a particular post and had obtainedpractical experience he should not be deniedregularisation on the said post. It wasmentioned in the promotion order that thepetitioner will be reverted back to his originalpost of Draftsman if his work will not be


found satisfactory or a qualified Overseer(Junior Engineer) is appointed on the saidpost. Neither any complaint was ever lodgedagainst the petitioner nor any qualifiedperson was appointed on the said post, hence,the petitioner should be confirmed on thepost of Junior Engineer.

7. The petitioner has made severalrepresentations to the respondents topromote him on the said post but therespondents had not paid any attention onthe grievance of the petitioner. Aggrievedwith this attitude of the respondents thepetitioner had earlier filed a writ petitionbearing Writ Petition No.889 of 2006(Badrul Hasan Alvi v. State of U.P. &Ors.) in which Hon'ble Court has passedthe following order on 6.1.2006:-

"Petitioner on the strength of hisworking as Junior Engineer since 1972seeks regularisation as well as othermonetary benefits which have becomelegally due to him as a consequence to theregularisation. Petitioners in that regardhas already made a representation dated13.4.2005 which is pending considerationbefore respondent no. 3. Hence thepresent writ petition.

In the facts and circumstances of thecase writ petition is disposed of with adirection upon respondent no. 2 toconsider and decide the representation bymeans of a reasoned speaking orderstrictly in accordance with law preferablywithin four weeks from the date a certifiedcopy of this order is filed before him.Respondent no. 2 shall pass a reasonedspeaking order."

8. In pursuance of the order passedby this Hon'ble Court the respondentsconsidered the claim of the petitioner andrejected the same by the impugned order

dated 19.5.2006 stating that as he is notholding the requisite qualifications for thesaid post, he cannot be regularised on thepost.

9. Learned counsel for the petitioner, insupport of his claim, has placed reliance onthe judgement in Bhagwati Devi v. DelhiState Mineral Development Corporation,1990 AIR (SC) 371 in which it was held thatthe workers not possessing prescribededucational qualification at the time ofappointment and they gained sufficientexperience after service of several years,confirmation of such employees cannot berefused on the ground that at the time ofappointment they did not possess requisitequalifications. If a worker is allowed to workfor a considerable length of time, it would behard and harsh to deny him the confirmationin the respective post on the ground that helacks the prescribed qualifications.

10. Learned counsel for thepetitioner has also placed reliance on arecent judgment of Hon'ble SupremeCourt in Civil Appeal No.2835 of 2015(Amarkant Rai vs. State of Bihar & ors)decided on 13.3.2015. The relevantparagraph nos. 11 to 17 of the judgmentare reproduced hereinafter:-

"11. As noticed earlier, the case of theappellant was referred to Three MembersCommittee and Three Members Committeerejected the claim of the appellant declaringthat his appointment is not in consonancewith the ratio of the decision laid down bythis Court in Umadevi's case (supra). InUmadevi's case, even though this Court hasheld that the appointments made againsttemporary or ad-hoc are not to beregularized, in para 53 of the judgment, itprovided that irregular appointment of dulyqualified persons in duly sanctioned posts


who have worked for 10 years or more canbe considered on merits and steps to be takenone time measure to regularize them. In para53, the Court observed as under:-

"53. One aspect needs to be clarified.There may be cases where irregularappointments (not illegal appointments) asexplained in S.V. Narayanappa, R.N.Nanjundappa and B.N. Nagarajan andreferred to in para 15 above, of dulyqualified persons in duly sanctioned vacantposts might have been made and theemployees have continued to work for tenyears or more but without the intervention oforders of the courts or of tribunals. Thequestion of regularisation of the services ofsuch employees may have to be consideredon merits in the light of the principles settledby this Court in the cases abovereferred toand in the light of this judgment. In thatcontext, the Union of India, the StateGovernments and their instrumentalitiesshould take steps to regularise as a one-timemeasure, the services of such irregularlyappointed, who have worked for ten years ormore in duly sanctioned posts but not undercover of orders of the courts or of tribunalsand should further ensure that regularrecruitments are undertaken to fill thosevacant sanctioned posts that require to befilled up, in cases where temporaryemployees or daily wagers are being nowemployed. The process must be set in motionwithin six months from this date. We alsoclarify that regularisation, if any alreadymade, but not sub judice, need not bereopened based on this judgment, but thereshould be no further bypassing of theconstitutional requirement and regularisingor making permanent, those not dulyappointed as per the constitutional scheme."

The objective behind the exceptioncarved out in this case was prohibiting

regularization of such appointments,appointed persons whose appointments isirregular but not illegal, ensure securityof employment of those persons whoserved the State Government and theirinstrumentalities for more than ten years.

12. Elaborating upon the principleslaid down in Umadevi's case (supra) andexplaining the difference betweenirregular and illegal appointments inState of Karnataka & ors vs. M.L. Kesari& ors (2010) 9 SCC 247, this Court heldas under:

"7. It is evident from the above thatthere is an exception to the generalprinciples against "regularisation"enunciated in Umadevi (3), if thefollowing conditions are fulfilled:

(i) The employee concerned shouldhave worked for 10 years or more in dulysanctioned post without the benefit orprotection of the interim order of anycourt or tribunal. In other words, theState Government or its instrumentalityshould have employed the employee andcontinued him in service voluntarily andcontinuously for more than ten years.

(ii) The appointment of suchemployee should not be illegal, even ifirregular. Where the appointments are notmade or continued against sanctionedposts or where the persons appointed donot possess the prescribed minimumqualifications, the appointments will beconsidered to be illegal. But where theperson employed possessed the prescribedqualifications and was working againstsanctioned posts, but had been selectedwithout undergoing the process of opencompetitive selection, such appointmentsare considered to be irregular."

13. Applying the ratio of Umadevi'scase, this Court in Nihal Singh & ors vs.State of Punjab & ors (2013) 14 SCC 65directed the absorption of the Special


Police Officers in the services of the Stateof Punjab holding as under:

"35. Therefore, it is clear that theexistence of the need for creation of the postsis a relevant factor with reference to whichthe executive government is required to takerational decision based on relevantconsideration. In our opinion, when the factssuch as the ones obtaining in the instant casedemonstrate that there is need for thecreation of posts, the failure of the executivegovernment to apply its mind and take adecision to create posts or stop extractingwork from persons such as the appellantsherein for decades together itself would bearbitrary action (inaction) on the part of theState.

36. The other factor which the State isrequired to keep in mind while creating orabolishing posts is the financial implicationsinvolved in such a decision. The creation ofposts necessarily means additional financialburden on the exchequer of the State.Depending upon the priorities of the State,the allocation of the finances is no doubtexclusively within the domain of thelegislature. However in the instant casecreation of new posts would not create anyadditional financial burden to the State asthe various banks at whose disposal theservices of each of the appellants is madeavailable have agreed to bear the burden. Ifabsorbing the appellants into the services ofthe State and providing benefits on a parwith the police officers of similar rankemployed by the State results in furtherfinancial commitment it is always open forthe State to demand the banks to meet suchadditional burden. Apparently no suchdemand has ever been made by the State.The result is-the various banks which availthe services of these appellants enjoy thesupply of cheap labour over a period ofdecades. It is also pertinent to notice thatthese banks are public sector banks."

14. In our view, the exception carved outin para 53 of Umadevi is applicable to thefacts of the present case. There is no materialplaced on record by the respondents that theappellant has been lacking any qualificationor bear any blemish record during hisemployment for over two decades. It ispertinent to note that services of similarlysituated persons on daily wages forregularization viz. one Yatindra KumarMishra who was appointed on daily wages onthe post of Clerk was regularized w.e.f. 1987.The appellant although initially workingagainst unsanctioned post, the appellant wasworking continuously since 03.1.2002 againstsanctioned post. Since there is no materialplaced on record regarding the detailswhether any other night guard was appointedagainst the sanctioned post, in the facts andcircumstances of the case, we are inclined toaward monetary benefits be paid from01.01.2010.

15. Considering the facts andcircumstances of the case that theappellant has served the University formore than 29 years on the post of NightGuard and that he has served the Collegeon daily wages, in the interest of justice,the authorities are directed to regularizethe services of the appellantretrospectively w.e.f. 03.01.2002 (the dateon which he rejoined the post as perdirection of Registrar).

16. The impugned order of the HighCourt in LPA No.1312 of 2012 dated20.02.2013 is set aside and this appeal isallowed. The authorities are directed tonotionally regularize the services of theappellant retrospectively w.e.f.03.01.2002, or the date on which the postbecame vacant whichever is later andwithout monetary benefit for the aboveperiod. However, the appellant shall beentitled to monetary benefits from01.01.2010. The period from 03.01.2002


shall be taken for continuity of serviceand pensionary benefits.

17. The appeal is allowed in terms ofthe above. No order as to costs."

11. Learned counsel for thepetitioner has also placed reliance on thejudgement of Hon'ble Supreme Courtreported in (1993) 3 SCC 237 (BhaskarGajanan Kajrekar v. Administrator, Dadraand Nagar Haveli), in which inparagraphs 3 to 7 it is observed as under:-

"3. Kajrekar was not given pension onthe ground that throughout his service heworked on officiating basis and was neverappointed substantively to any of the postsheld by him. Kajrekar challenged the actionof the respondents, denying pension to him,before the Central Administrative Tribunal,Bombay. The Tribunal rejected hisapplication on the ground that he retiredfrom service without holding lien on anysubstantive post and as such was not entitledto pension under Rule 13 of the Central CivilServices (Pension) Rules, 1972 (the Rules).The application of Kajrekar was disposed ofex-parte by the Tribunal and his prayer forrestoration and hearing was also rejected.These appeals by way of special leavepetitions are against the orders of theCentral Administrative Tribunal.

4. It is not disputed that the post ofChief of Police under Dadra and NagarHaveli Administration was declaredpermanent with effect from June 14, 1967.On that date the appellant had already put inabout thirteen years of service but his casefor confirmation was not considered on theground that there were no Recruitment Rulesfor the post in existence. The RecruitmentRules for the post of Chief of Police underthe Administration of Dadra and NagarHaveli came into force on January 19, 1980.The said Rules provided "by transfer on

deputation" as the method of recruitment tothe post of Chief of Police. The RecruitmentRules have no relevance to the question ofconfirmation of the appellant as he hadretired from service on January 31, 1977much before the coming into force of theRecruitment Rules. It was incumbent on therespondents to have considered the questionof confirmation of the appellant before hisretirement, specially when he was beingretired after serving the respondents fortwenty three years. It was wholly arbitraryon the part of the respondents to have keptthe appellant as an unconfirmed employeefor a period of twenty three years on theground that there were no Recruitment Rulesfor the post he was holding.

5. The Union Territory of Dadra andNagar Haveli in its counter filed in thisCourt has stated that after the publicationof the Recruitment Rules 63 aDepartmental Promotion Committee wasconvened on July 4, 1981 for consideringthe question of confirmation of theappellant as Chief of Policy. TheDepartmental Promotion Committee didnot recommend the appellant forconfirmation on the ground that duringthe course of his service, twodepartmental enquiries were institutedagainst the appellant. The enquiries couldnot be completed before the appellant'sretirement and the findings were madeavailable thereafter. The proceedings ofthe Departmental Promotion Committeefurther show that as a result of theenquiries Rs. 4,000 was to be deductedfrom the gratuity amount of the appellantas a measure of punishment. TheDepartmental Promotion Committeefound that the confidential reports of theappellant for the last three years weregood but the Committee declined torecommend confirmation because of thetwo enquiries.


6. It is not disputed that the findings inthe two enquiries were never communicatedto the appellant during the period of hisservice. Those were served on him only afterretirement. The question of his confirmationwhich was due in the year 1967 could nothave been linked with the enquiries whichwere initiated at a much later stage. TheDepartmental Promotion Committee shouldhave considered the appellant forconfirmation on the basis of the record of theappellant as existed in the year 1967/1968.There is no material before us to show thatthe service record of the appellant prior to1970 was adverse in any manner rather theaverments made by the appellant in therejoinder to the effect that there was nothingadverse against him on the record prior to1971, have not been controverted. Even theDepartmental Promotion Committee foundthe confidential reports of the appellant forthe last three years as good. We are of theview that on the availability of a permanentpost of Chief of Police on June 14, 1967 theappellant was entitled to be confirmedagainst the said post. It was wholly arbitraryfor the respondents to have deferred thequestion of confirmation of the appellant onthe ground that there were no RecruitmentRules. We, therefore, hold that the appellanthaving served the respondents for aboutthirteen years on June 14, 1967 when thepost of Chief of Police was made permanentand there being nothing adverse against himat that point of time, he was entitled to beconfirmed in the said post. In that view of thematter the appellant was a confirmedemployee when he retired from service onJuly 31, 1977.

7. We, therefore, direct therespondents to treat the appellant ashaving 64 been retired as a confirmedemployee and fix his pension and otherpost-retiral benefits on that basis. Wefurther direct the respondents to complete

the pension case of the appellant withinthree months from today and pay him allthe arrears of the pension within twomonths thereafter alongwith 12% intereston the said arrears. We allow the appealswith costs which we quantify as Rs.10,000."

12. Learned counsel for thepetitioner submits that in the similarcircumstances the department hadpromoted one Shri Ram Dutt Sharma sonof Shri Asha Ram Sharma, who hadpassed only High School and wasworking as Civil Draftsman, wasconfirmed in the cadre of Junior Engineer.He had been placed at Sl.No.14-A in theseniority list between Shri Vakil Ahmad(Sl.No. 14) and Shri Hari Mohan Yadav(Sl.No. 15) vide order dated 27.6.1992,whereas in the case of the petitioner, therespondents had denied the right on theground that the petitioner did not have therequisite qualification. It had also beenreiterated that Shri Ram Dutt Sharma hadalso not obtained any such degree ordiploma from the Rural EngineeringCollege and had been placed in the cadreof Junior Engineer and as suchdiscrimination has been made, which isalso violative of Art.14 of theConstitution of India.

13. Controverting the petitioner'sstand, learned counsel for the respondentsstates that the petitioner was initiallyappointed on the post of Civil Draft Man. Hedid not have the requisite qualifications forthe post of Junior Engineer/ Overseer asprovided under the Rules. By the promotionorder dated 25.10.1972 it was clearly statedthat the petitioner is temporarily posted onthe post of Overseer/ Junior Engineer in astop gap arrangement subject to qualifiedOverseer is appointed or his work and


conduct is found satisfactory. The solecontention of the respondents is that thepetitioner did not have the requisitequalifications for the post of Junior Engineerand the impugned order has been passedreasonably.

14. Having heard the rival contentionsof learned counsel for the parties, perusing therecord and considering the judgements cited atthe bar, I find that the petitioner was appointedon the post of Civil Draft Man on 16thAugust, 1967. He was promoted on the postof Overseer (now known as Junior Engineer)by order dated 25.10.1972. After serving onthe promoted post for about 34 years, heretired after attaining the age ofsuperannuation. The department slept over thematter of the petitioner for about 34 years andthe petitioner had been regularly working onthe post of Junior Engineer without beingconfirmed. When after making repeatedrepresentations nothing has been done by therespondents, he had taken the shelter of writjurisdiction. When writ court has given somerelief of deciding representation, thedepartment awakened and passed theimpugned order at the fag end of theretirement of the petitioner. The departmenthas overlooked the service of the petitioner forabout 34 years and passed the impugned ordermerely on the ground that he did not haverequisite qualification for the post. Thepromotion order was passed with thecondition that the petitioner will work on thepost until the regularly selected candidatejoins or his work and conduct was foundunsatisfactory. The petitioner's work andconduct was never questioned by therespondents at any point of time in 34 years ofservice on promoted post and no qualifiedOverseer was appointed on the said post.

15. In the present matter while denyingthe claim of the petitioner the respondents

have set out their case that although thepetitioner was appointed on the post of CivilDraftsman but did not have the requisitequalifications for the post of Junior Engineer/Overseer as per the U.P. Engineering Service(Irrigation Department) (Group-B) ServiceRegulations, 1993, governing therecruitments, and terms and conditions of theappointment. Even in the order dated25.10.1972 it was clearly provided that thepetitioner was temporarily promoted to thepost of Overseer in a stop gap arrangementwith condition that in case qualified Overseeris appointed by the Director, Agriculture, thepetitioner will be reverted.

16. It is not disputed that thepetitioner had been given charge videorder dated 25.10.1972 as Overseer in astop gap arrangement with condition thatin case qualified Overseer is appointed bythe Director, Agricultural, the petitionerwould be reverted. Nowhere therespondents had denied the fact that since25.10.1972 the petitioner had not workedover the said post or he was not fit for thesaid assignment and as such he could notperform the technical work. Therefore, atthis belated stage, the respondents cannottake this plea that at the initial stage in theyear 1972 the petitioner did not have therequisite qualification and as such he isnot entitled for the Super Time Pay Scaleand other benefits of Junior Engineer. It isadmitted case that the petitioner continuedto discharge the duty on the post of JuniorEngineer/ Overseer. Therefore, at suchbelated stage after lapse of more than 34years of his career the department isprecluded from taking technical view thatat the initial stage while assigning thework the petitioner did not have requisitequalifications. Admittedly the petitionerdischarged his duties with utmostsincerity and no adverse material has been


placed before this Court to indicate thatthe petitioner failed to do substantialjustice with the said post.

17. The judgements cited by learnedcounsel for the petitioner are fully applicableto the petitioner's case. If a worker gainssufficient experience after serving severalyears in the department, he cannot be refusedconfirmation on the ground that he did notpossess requisite qualifications. Thepetitioner worked on the promoted post for asubstantial period of time without beingquestioned by the respondents and at the fagend of his retirement he cannot be deniedconfirmation.

18. With the aforesaid observations,the writ petition is allowed. Theimpugned order dated 19.05.2006 ishereby set aside. The petitioner is entitledto get all the benefits, which have beengiven to similarly situated persons, fromthe same date. The said exercise shall becompleted by the respondents within aperiod of two months from the date ofproduction of certified copy of this order.

19. There shall be no order as tocosts.



BEFORETHE HON'BLE SUNEET KUMAR, J.

C.M.W.P. No. 54978 of 2014

Raj Kumar Agarwal ...PetitionerVersus

Suresh Chandra Jain ...Opp. Party

Counsel for the Petitioner:Sri S.N. Verma, Sri Sarvan Kumar Mishra

Counsel for the Respondents:Sri Amitabh Patel

C.P.C.-Order IX Rule 13-Application torecall ex-parte decree-without showingsufficient cause for non appearance-judgment passed on merit-can not berecalled-without disclosing date andparticular of negotiation on compromise-mere story of compromise can not bebelieved-Courts below-justified inrejection of application to recall thejudgment passed on merit.

Held: Para-23In such circumstances, I do not find anymerit in the contention of the petitioner.The Court below was not justified inrejecting the application to recall thejudgment and ex parte decree merely onthe ground that the judgment anddecree was passed on merits.

Case Law discussed:(2009) 2 SCC 205; 1964 SC 993; (2011) 3 SCC545; (2000) 3 SCC 54; AIR 1962 SC 257; AIR1930 Cal 488; (2005) 1 SCC 787.

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

1. Heard learned counsel for theparties.

2. The respondent/landlord filed anapplication under Section 21 (1)(a) of ActNo. 13 of 1972 for release of the shop indispute. The application was allowed ex-parte on 12 December 2011 by thePrescribed Authority. Aggrieved,petitioner made an application underOrder 9 Rule 13 of Code of CivilProcedure stating that he could not appearon the date of hearing for the reason thathe was trying to settle the dispute outsidethe Court with the respondent/landlord.The settlement could not be reached,therefore, he did not appear on the datefixed for hearing. The Authority by order

2 All] Raj Kumar Agarwal Vs. Suresh Chandra Jain 761

dated 10 April 2012 rejected theapplication noting that the application wasnot maintainable as the release applicationwas decided on merits. Aggrieved, by theorder dated 10 April 2012 rejecting theapplication under Rule 13 of Order 9 andthe decree, the petitioner has approachedthis Court in writ jurisdiction.

3. The submission of the learnedcounsel for the petitioner is that on 25October 2011, the evidence of thepetitioner was closed, however, the Courtpermitted the petitioner for filing theevidence on 18 November 2011. On 18November 2011 the petitioner appeared,but, the date was adjourned for 22November 2011. On the said date thepetitioner did not appear taking a plea thathe was trying to settle the matter out sidethe Court. On 22 November 2011 the casewas directed to come up for argument on1 December 2011, finally the releaseapplication was decided on merits on 12December 2011. The Court below uponnoting the aforementioned dates and theconduct of the petitioner rejected theapplication to recall the judgment anddecree holding that since the applicationwas decided on merits, the applicationunder Order 9 Rule 13 is notmaintainable.

4. It is contended on behalf of thepetitioner that the petitioner could notappear after 18.11.2011 on a bona fidebelief that a compromise would beeffected between the parties, therefore, thepetitioner may be given an opportunityand the matter be decided upon rehearingthe petitioner.

5. In an application under Order 9Rule 13 to recall an ex parte judgment anddecree, the petitioner would have to

establish that he was prevented by anysufficient cause from appearing when thecase/suit was called on for hearing. It isadmitted that the petitioner wasparticipating in the proceedings andappeared on 18 November 2011,thereafter, the petitioner did not appear onthe pretext that effort was being made tosettle the matter outside the Court,therefore, the petitioner was aware of thedate next fixed in the case for 22November 2011. On the said date thepetitioner did not appear on the plea ofnegotiation and settlement. But it is urgedthat no settlement could be arrived atbetween the parties, therefore, it wasincumbent upon the petitioner to haveenquired from his counsel the next datefixed on 22 November 2011, the date ofwhich the petitioner admittedly hadknowledge. The Court fixed 1 December2011 for argument and finally the releaseapplication was decided on 12 December2011.

6. This rule requires an applicationby the defendant and if the defendantsatisfies the court that (i) the summonswas not duly served; or (ii) he wasprevented by any sufficient cause fromappearing when the suit was called out forhearing, the court will set aside the decreepassed against him and appoint a day forproceeding with the suit.

7. The language of the rule is plain,express and unambiguous and the groundsmentioned therein are exhaustive.

8. As provided in Rule 6, the suitmay proceed ex parte against thedefendant only when it is proved by theplaintiff to the satisfaction of the courtthat the defendant did not appear eventhough the summons was duly served. In


that case, an ex parte decree may bepassed against him. Therefore, if thedefendant satisfies the court that thesummons was not duly served upon him,the court must set aside the ex partedecree passed against him.

9. The expression "sufficient cause"has not been defined anywhere in theCode. It is a question to be determined inthe facts and circumstances of each case.The words "sufficient cause" must beliberally construed to enable the court toexercise powers ex debito justitaie. Aparty should not be deprived of hearingunless there has been somethingequivalent to misconduct or grossnegligence on his part. Necessarymaterials should be placed on record toshow that the applicant was diligent andvigilant. Improper advice of advocate maybe a good ground to set aside ex partedecree but it cannot be accepted as asufficient cause in all cases. Conversely,if "sufficient cause" is not shown, ex partedecree cannot be set aside. "The right andthis duty is a sine qua non of judicialprocedure. An order setting aside ex partedecree is judicial, it must be supported byreasons. (Refer: Mahesh Yadav vs.Rajeshwar Singh1)

10. If there are delaying tactics andnon-cooperation on the part of the party,he cannot seek indulgence of the court.The test to be applied is whether the partyhonestly intended to remain present at thehearing of the suit and did his best to doso.

11. In Arjun Singh vs. MohindraKumar AIR2 Supreme Court observedthat every good cause is a sufficient causeand must offer an explanation for non-appearance. The only difference between

a "good cause" and "sufficient cause" isthat the requirement of a good cause iscomplied with on a lesser degree of proofthan that of a "sufficient cause".

12. When an application for settingaside ex parte decree is made by thedefendant, the court should considerwhether the defendant was prevented by"sufficient cause" from appearing beforethe court when the suit was called out forhearing. "Sufficient cause" is a questionof fact.

13. The following causes have beenheld to be sufficient for the absence of thedefendant;

(1)bona fide mistake as to the date ofhearing;

(2)Late arrival of a train;(3)sickness of the counsel;(4)fraud of the opposite party;(5)mistake of pleader in noting

wrong date in diary;(6)negligence of next friend or

guardian in case of minor plaintiff ordefendant;

(7)death of relative of a party;(8)imprisonment of party;(9)strike of advocates;(10)no instructions pursis by a

lawyer, etc.

14. The following causes, on theother hand, have been held not to besufficient for absence of the defendant forsetting aside an ex parte decree;

(1)dilatory tactics;(2)bald statement of noting wrong

date in diary;(3)negligence of party;(4)counsel busy in other court;(5)suit of high valuation;

2 All] Raj Kumar Agarwal Vs. Suresh Chandra Jain 763

(6)absence of defendant after prayerfor adjournment is refused;

(7)hardship of defendant;(8)absence to get undue advantage;(9)mere thinking that the case will

not be called out; not taking part inproceedings, etc.

15. The Supreme Court in Parimalvs. Veena3 was considering the scope andambit of an application under Order 9Rule 13. In the facts of that case, the trialcourt recorded that the notice of thepetition was served upon the applicantwho refused to accept the notice,subsequently, when served the applicantagain refused to accept the noticethereafter, the notice was published in adaily and was sent to the applicant at heraddress.

16. In these circumstances, theapplication under Order 9 Rule 13 filedby the applicant on the plea that she wasnot residing at the said residence but wasresiding with her brother. The trial courtrejected the application. The SupremeCourt held that the presumption ofpublications stood rebutted by a baldstatement made by the applicant that shewas living at a different address with herbrother. The Apex Court reversed theorder passed by the High Court, as theapplication was not considered in the rightperspective regarding substituted service.The Court observed as follows:

"However, in case the matter doesnot fall within the four corners of Order 9Rule 13 CPC, the Court has nojurisdiction to set aside an ex partedecree. The manner in which thelanguage of the second proviso to Order 9Rule 13 CPC has been couched by thelegislature makes it obligatory on the

appellate Court not to interfere with an exparte decree unless it meets the statutoryrequirement."

17. Material date for deciding"sufficient cause" for non-appearance bythe defendant is the date on which exparte decree was passed and not hisprevious negligence or past defaults. InG.P. Srivastava v. R.K. Raizada4, theSupreme Court observed:

"The 'sufficient cause' for non-appearance refers to the date on whichthe absence was made a ground forproceeding ex parte and cannot bestretched to rely upon other circumstanceanterior in time. If sufficient cause' ismade out for non-appearance of thedefendant on the date fixed for hearingwhen ex parte proceedings initiatedagainst him, he cannot be penalized forhis previous negligence which had beenoverlooked and thereby condonedearlier."

18. Since the Code makes specificprovision for setting aside ex parte decree,no inherent power can be exercised to setaside such decree.

19. As Rankin, L.J. stated, "Ientirely dissent from the view that, if nocase is made out under that rule (Rule 13),it is open to the learned Judge to enlargethe rule by talking about Section 151."(Refer: Manohar Lal vs. Seth Hira Lal5,K.B. Dutt vs. Shamsuddin Shah6).

20. Remedy against an ex-partedecree has two options (1) to file a regularappeal (2) to file an appeal for settingaside the order in terms of Order 9 Rule13. Both the proceedings are availablesimultaneously.


21. In Bhanu Kumar Jain v. ArchanaKumar & Anr7 the Supreme Court held asfollows:

"26. When an ex parte decree is passed,the defendant (apart from filing a reviewpetition and a suit for setting aside the exparte decree on the ground of fraud) has twoclear options, one, to file an appeal andanother to file an application for setting asidethe order in terms of Order 9 Rule 13 of theCode. He can take recourse to both theproceedings simultaneously but in the eventthe appeal is dismissed as a result whereof theex parte decree passed by the trial courtmerges with the order passed by the appellatecourt, having regard 9 to Explanationappended to Order 9 Rule 13 of the Code apetition under Order 9 Rule 13 would not bemaintainable. However, Explanation Iappended to the said provision does notsuggest that the converse is also true."

22. Applying the principles of lawupon the facts of the case. The petitionerin the application has not made anyaverment for his absence from 22November 2011 to 12 December 2011.The application under Order 9 Rule 13was moved on 5 January 2012. It wouldappear that the absence of the petitioneron the date of hearing was deliberate andwillful without sufficient cause, the pleathat the petitioner was negotiating withrespondent/landlord was not acceptable asthe entire application is silent as to whenthe negotiation commenced and the dateon which it failed. It is also not the case ofthe petitioner that under the garb ofnegotiation, the petitioner was kept indark, the respondent/landlord proceededwith the case behind the petitioner's back.

23. In such circumstances, I do notfind any merit in the contention of the

petitioner. The Court below was notjustified in rejecting the application torecall the judgment and ex parte decreemerely on the ground that the judgmentand decree was passed on merits.

24. For the reasons stated hereinabove, this Court is not inclined tointerfere with the impugned order thoughfor other reasons.

25. The amount of rent deposited bythe petitioner while filing the present writpetition which was converted fromrevision shall be paid by the Court belowto the respondent within six weeks fromthe date of service of certified copy of thisorder.

26. The writ petition is dismissed.


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REVISIONAL JURISDICTION 1. Heard Sri Mohan Singh, learned ... · Mohan Singh, 1978 ARC 496. This was a case under Order IX, Rule 13, of the Code of Civil Procedure. The next decision