indian law report - allahabad series - sep2008

8/13/2019 Indian Law Report - Allahabad Series - Sep2008

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3 All] Hasib Ahmad V. State of U.P. and others 687

APPELLATE JURISDICTIONCIVIL SIDE

DATED: ALLAHABAD 23.07.2008

BEFORETHE HON'BLE ASHOK BHUSHAN, J.

THE HON'BLE ARUN TANDON, J.

Special Appeal No. [556] of 2008

Hasib Ahmad Appellant Versus

State of U.P. and others Respondents

Counsel for the Appellant:Sri. Arvind SrivastavaSri. Krishna Kumar Singh

Counsel for the Respondents:S.C.

High Court Rules-Chapter VIII Rule 5-Special Appeal-against the judgement ofSingle Judge-writ petition against theorder passed by appellate authorityunder the provision of Statutory Rule 28of U.P. Scheduled CommoditiesDistribution Order,2004-held-specialappeal not maintainable-facts in case ofRam Dhyan Singh are distinguishable.

Held: Para 7

The Division Bench held as quoted abovethat the order of the learned Single

Judge was not against an order passed inexercise of appellate or revisional jurisdiction conferred by some Act and infact the appellate jurisdiction wasconferred by a Government Order andnot by an Act. Thus the reason forholding the Special Appeal maintainablein the case before the Division Benchwas that the appellate power wasexercised by the Commissioner underthe Government Order dated 03.07.1990and not under an Act. In the presentcase, the appellate power had beenexercised by the Commissioner under

Rule 28 of U.P. Scheduled CommoditiesDistribution Order, 2004 which had been

framed under Section 3 of the EssentialCommodities Act, 1955. Thus theappellate power exercised by theCommissioner in the present casereferable to an appellate powerconferred under an Act. Thus accordingto the ratio of the Division Bench in thecase of Ram Dhyan Singh (Supra), the

present appeal is not maintainable underchapter VIII Rule 5 of the Rules of theCourt. The Special Appeal having beenfiled against a judgment of learnedSingle Judge arising out of a writ petitionin which appellate order passed by theCommissioner was challenged whichappellate order was passed in exercise ofappellate jurisdiction under an Act is notmaintainable under Chapter VIII Rule 5of the Rules of the Court.Case law discussed:2004 (3) AWC

(Delivered by Honble Ashok Bhushan, J.)

1. This is an appeal against the judgment and order dated 28.02.2008 passed by the learned Single Judge bywhich the writ petition filed by the

petitioner challenging the order dated13.07.07 canceling the fair priceagreement as also the appellate orderdated 28.02.2008 was dismissed.

2. The Stamp Reporter has

submitted a report that the Appeal is notmaintainable under Chapter VIII Rule 5of the Rules of the Court.

3. Learned counsel for the appellantcontends that this Appeal is maintainableunder Chapter VIII Rule 5 of the Rules ofthe Court. He has placed reliance upon theDivision Bench judgment of this Courtreported in 2004 (3) AWC; Ram DhyanSingh v. State of U.P.

4. The writ petition giving rise tothis appeal filed by the appellant was


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688 INDIAN LAW REPORTS ALLAHABAD SERIES [2008

against the cancellation order as alsoagainst an appellate order passed underRule 28 of the U.P. ScheduledCommodities Distribution Order, 2004.The U.P. Scheduled CommoditiesDistribution Order, 2004 has been framedunder Section 3 of the Essential

Commodities Act, 1955. The said 2004order is thus a statutory order, Rule 28

providing for appeal is quoted herein below:

28. Appeal (1) All appeals shall liebefore the Concerned DivisionalCommissioner who shall hear anddispose of the same may by orderdelegate his/her powers to the AssistantCommissioner Food for hearing anddisposing of the appeal.

5. The appeal filed before theDivisional Commissioner under the said

provision is, therefore, a statutory appeal.The writ petition having been filed againstan appellate order, Special appeal is

barred under Chapter VIII Rule 5. TheDivision Bench judgment in the case ofRam Dhyan Singh (Supra) relied upon bythe learned counsel for the appellant wasa case where the appeal was not under theabove mentioned 2004 statutory rules.

The appeal in the said case was filedunder the Government Order dated03.07.1990 and, therefore, the DivisionBench took the view that the SpecialAppeal was maintainable as the appealwas held to be non-statutory.

6. The Division Bench in paragraph4 of the judgment has given reasons forholding the Special Appeal maintainablein that case. Following was observed bythe Division Bench in paragraph 4 which

is quoted below:

There is an office report that theSpecial Appeal is not maintainable inview of the decisions of this Court inVajara Yojna Seed Farm Kalyanpur(M/s) and others v. Presiding Officer,Labour Court-II, U.P. Kanpur andanother, 2003 UPLBEC 496 and Sita

Ram Lal v. District Inspector ofSchools, Azamgarh and others, 1994ACJ 180. These decisions hav referredto Chapter VIII, Rule 5 of theAllahabad High Court Rules whichstates that an appeal lies against the

judgment of a learned Single Judgeunder Article 226 of the Constitutionexcept when the writ petition was filedagainst such judgment or order oraward (a) of a Tribunal, Court ofauthority, made or purported to be

made in the exercise or purportedexercise of appellate or revisional

jurisdiction under any such Actmentioned in Chapter VIII, Rule 5. Inthis case, the writ petition filed beforethe learned single Judge was againstthe order of the Commissioner whodecided the appeal provided for underthe Government Order dated03.07.1990. Thus, the impugned

judgment before the learned singleJudge, was not against an order of a

Tribunal or Court or statutoryarbitrator. It was also not against anorder passed in exercise of appellate orrevisional jurisdiction conferred bysome Act. In fact, the appellate

jurisdiction was conferred by aGovernment Order and not by an Act.Hence, in our opinion this specialappeal is maintainable.

7. The Division Bench held asquoted above that the order of the learned

Single Judge was not against an order passed in exercise of appellate or


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interfere in the already progressinginvestigation specially when the reliefsought in this petition is beyond thescope of writ power.Case Law discussed:

AIR 2004 SC 536, AIR 2004 SC 1890, AIR2000 SC 740, AIR 1998 SC 3148, AIR 1955 SC196, AIR 1968 SC 117, AIR 2007 SC 351, AIR

1980 SC 326, AIR 1963 SC 447, AIR 1970 SC786, AIR 1972 SC 484, AIR 1945 P.C. 18

(Delivered by Honble Vinod Prasad, J.)

1. Smt. Leena Katiyar Informant ofcrime number 467 of 2007, under sections364A, 302,201, IPC, Police stationKotwali Fatehgarh. District Farrukhabadhas invoked our extra ordinary

jurisdiction, under Article 226 of TheConstitution Of India, with the prayers toissue a writ of mandamus commandingrespondents no.1 to 8 to submit chargesheet against Sunil Katheria and Haplu,respondents no.9 and 10 in the aforesaidcrime number, relating to SST No. 40 of2007, pending before Special Judge,(DAA), Farrukhabad. Second prayermade is to issue a writ of mandamuscommanding the aforesaid respondents 1to 8 to send the tapes and CDs recorded

between 22.4.2007 and 1.5.2007 by theSuperintendent of Police and AdditionalSuperintendent of Police for soundspectrography to voice recording experts.Another payer is to issue a writ ofmandamus commanding those veryrespondents to record voice sample of theaccused persons through Special Judge(DAA), Farrukhabad for being comparedand examined through soundSpectrography from the taps and CDSmentioned above.

2. Relevant facts are that the son ofthe informant Madhusudan @ Madhu isallegated to have been kidnapped and

murdered for ransom by the accused persons who are eight in numberincluding respondents no. 9 and 10. Policeinvestigated the offence and to decipherthe crime resorted to electronicsurveillances to tap the phoneconversations between informant and

accused persons and also inter-se betweenthem. After completion of investigationthe police submitted the charge sheetagainst the accused for theaforementioned offences on the basis ofwhich SST No. 40 of 2007 was registeredin the court of Special Judge (DAA).Farrukhabad which is still pending.

3. Father of one of the accusedHappy @ Shivam, who now has beendeclared to be a Juvenile, rued false

implication of his minor son and, being a person of SC/ST caste, approached SC/STCommission who recommended forfurther investigation andon such arecommendation Director General OfPolice and other Higher Police officersordered for further investigation bySpecial Enquiry Cell. The investigatingofficer of Special Enquiry Cellapproached the court of Special Judge(DAA) Farrukhabad. Seeking hisapproval for further investigation and the

court approved the same vide it's orderdated 30.5.2007 and therefore furtherinvestigation in the crime is ongoingunder section 173 (8) Cr.P.C. It isimportant to note that order for furtherinvestigation has been challenged by theinformant petitioner in connected writ

petition no. 7318 of 2008 Smt. LeenaKatiyar versus State of U.P. and otherswhich is being disposed off to day itself

by passing a separate order for the sake ofconvenience. Since the police did not

charge sheet respondents no. 9 and 10


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3 All] Smt. Leena Katiyar V. State of U.P. and others 691

Sunil Katheria and Haplu hence informanthas filed the present writ petition.

4. We have heard Sri Murlidharlearned Senior counsel as well as Sri A.N.Srivastava in support of this writ petitionand Sri V.P. Srivastava, learned Senior

counsel assisted by Sri Lav Srivastava andlearned AGA in opposition and have gonethrough the averments made in this writ

petition.

5. From the record it is not disputedthat the civil police after investigation hassubmitted charge sheet against theaccused persons except respondents no. 9and 10. Informant is aggrieved by noncharge sheeting of aforesaid respondents.This can now been done only under

section 173(8) Cr.P.C. as there is no other provision in the Code of CriminalProcedure for the same. Special Judge(DAA) has also taken the cognizance ofthe offences and had summoned thecharge sheeted accused excluding thosetwo respondents. The only sections underCr.P.C. now left with the court to addaccused in the trial is section 319 Cr.P.C.,after some evidence of commission ofoffence is brought on record during trial

by the prosecution witnesses recorded

during the trial. But for the aforesaidsection there is no other provision toadd/any person as an accused in the case.See Vidyadharan vs. State of Kerala,AIR 2004 SC 536; Moley and anothervs. State of Kerala AIR 2004 SC 1890;Gangula Ashok vs. State of A.P., AIR2000 SC 740; Ranjit Singh vs. State ofPunjab AIR 1998 SC 3148.

6. For the police only section 173(8)Cr.P.C. can be resorted to add an accused.

The dichotomy of the whole situation liesin filing of two writ petitions with

contradictory reliefs. In the instant writ petition petitioner informant has prayedfor addition of accused which can be doneonly under section 173(8) Cr.P.C. throughfurther investigation as the charge sheethas already been laid in court by the local

police and, on the other hand, in the

connected writ petition 7318 of 2007 thesame petitioner has prayed for quashingof order for further investigation. Thus the

prayer made in the two writ petitions runcounter to each other in as much as if,either of the writ petition is allowed theother writ petition will automatically

become infractuous. Since we have takena view in the other writ petition thatfurther investigation can not be quashedtherefore we are of the opinion that the

petitioner for the relief sought in the

present writ petition can convinceinvestigating officer making furtherinvestigation for the relief prayed in theinstant writ petition.

7. There is yet another aspect for usfor not granting relief sought in this

petition and that is that the prayer made inthis writ petition is beyond the domain ofwrit power of this court. Under Article226 of the Constitution this court can notdirect submission of charge sheet against

an individual anointing him with thestatus of an accused and snatching hisliberty away. Whether a person is to becharge sheeted or not, on the facts of eachcase for alleged offence or offences, is thesole domain of the officer in charge of

police station concerned under section173 (2) Cr.P.C. He can not delegate that

power. No doubt investigation of offence/offences can be done by any officersubordinate to that officer in charge of

police station concerned but the final

opinion under section 173 (2) Cr.P.C. orunder section 169 Cr.P.C. has to be that of


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the officer in charges of the police stationconcerned. This aspect of the matter nolonger remains res integra and has beendealt exhaustively by the apex court in thecase of H.N. Rishbud and Inder Singh v.The State of Delhi :AIR 1955 SC 196 where in the apex Court has held as

under:-

"Thus, under the Code investigationconsists generally of the following steps:(1) Proceeding to the spot, (2)

Ascertainment of the facts andcircumstances of the case, (3) Discoveryand arrest of the suspected offender, (4)Collection of evidence relating to thecommission of the offence which mayconsist of (a) the examination of various

persons (including the accused) and the

reduction of their statements into writing,if the officer thinks fit, (b) the search of

places or seizure, of things considerednecessary for the investigation and to be

produced at the trial, and (5) Formationof the opinion as to whether on thematerial collected there is a case to placethe accused before a Magistrate for trialand if so taking the necessary steps for the

same by the filing of a charge-sheet underSection 173.

The scheme of the Code also shows

that while it is permissible for an officerin charge of a police station to depute

some subordinate officer to conduct someof these steps in the investigation, theresponsibility for everyone of these stepsis that of the person in the situation of theofficer in charge of the police station, ithaving been clearly provided in Section168 that when a subordinate officermakes an investigation he should reportthe result to the officer in charge of the

police station. It is also clear that the

final step in the investigation, viz., the formation of the opinion as to whether

or not there is a case to place theaccused on trial is to be that of theofficer in charge of the police station.There is no provision permittingdelegation thereof but only a provisionentitling superior officers to supervise or

participate under Section 551."

8. Thus what is unambiguously clearis that for sending a person or trial or not,the opinion has to be that of the officer incharge of the police station concerned andof no body else. Resultantly the courtsalso can not direct for submission ofcharge sheet against an individual as theaforementioned passage oust the power ofthe court also to direct officer in charge ofa police station to send an accused fortrial by submitting a charge sheet against

him. In this connection we may also referthe view of the apex court in the case ofAbhinandan Jha and Ors. v. DineshMishra: AIR 1968 SC 117 where in theapex court has observed thus:-

"If the report is of the action takenunder Section 169, then the Magistratemay agree with the report and close the

proceedings. If he disagrees with thereport, he can give directions to the policeunder Section 156(3) to make a further

investigation. If the police, after furtherinvestigation submits a charge-sheet, the

Magistrate may follow the procedurewhere the charge-sheet under Section 170is filed: but if the police are still of theopinion that there was no sufficientevidence against the accused, the

Magistrate may or may not agree with it.Where he agrees, the case against theaccused is closed. Where he disagreesand forms an opinion that the factsmentioned in the report constitute an

offence, he can take cognizance underSection 190(1)(c). But the Magistrate


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3 All] Smt. Leena Katiyar V. State of U.P. and others 693

cannot direct the police to submit acharge-sheet, because the submission ofthe report depends entirely upon theopinion formed by the police and not onthe opinion of the Magistrate. If the

Magistrate disagrees with the report ofthe police he can take cognizance of the

offence under Section 190(1)(a) or (c),but, he cannot compel the police to forma particular opinion on investigation andsubmit a report according to suchopinion .

This judgement shows theimportance of the opinion to be formedby the officer in charge of the policestation. The opinion of the officer incharge of the police station is the basis ofthe report. Even a competent Magistratecannot compel the concerned police

officer to form a particular opinion. The formation of the opinion of the police onthe material collected during theinvestigation as to whether judicialscrutiny is warranted or not is entirelyleft to the officer in charge of the policestation. There is no provision in the Codeempowering a Magistrate to compel the

police to form a particular opinion. ThisCourt observed that, although the

Magistrate may have certain supervisory powers under the Code, it cannot be said

that when the police submits a reportthat no case has been made out forsending the accused for trial, it is open tothe Magistrate to direct the police to filea charge-sheet. The formation of thesaid opinion, by the officer in charge ofthe police station, has been held to be a

final step in the investigation, and that final step has to be taken only by theofficer in charge of the police stationand by no other authority.

(Emphasis on under line portion)

9. Yet another facts which wayheavily against grant of relief sought bythe petitioner in this writ petition is thatthe offences are being furtherinvestigated. It is now well settled by acatena of decisions by this court as well as

by the apex court that courts can not

interfere in already progressinginvestigation. Informant petitioner callseek redressal of her grievances before theinvestigating officer conducting furtherinvestigation but, under Article 226 ofThe Constitution, we are not inclined tointerfere in the already progressinginvestigation specially when the reliefsought in this petition is beyond the scopeof writ power. Supreme court has held inthe case of Shashikant versus CentralBureau Of Investigation: AIR 2007 SC

351 as under:-

"28. The First Respondent is a statutory authority. It has a statutory dutyto carry out investigation in accordancewith law. Ordinarily, it is not within the

province of the court to direct theinvestigative agency to carry outinvestigation in a particular manner. Awrit court ordinarily again would notinterfere with the functioning of aninvestigative agency. Only in exceptional

cases, it may do so. No such case hasbeen made out by the appellant herein.The nature of relief prayed for in thewrit petition also is beyond the domain ofa writ court save and except, as indicatedherein before, an exceptional case ismade out.

10. Further in the case of State ofBihar v. J.A.C. Saldanna. AIR 1980 SC326 : it has been held by the apex court asunder:-


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"There is a clear-cut and welldemarcated sphere of activity in the fieldof crime detection and crime punishment.

Investigation of an offence is the fieldexclusively reserved for the executivethrough the police department, the

superintendence over which vests in the

State Government. The executive which ischarged with a duty to keep vigilanceover law and order situation is all obligedto prevent crime and if an offence isalleged to have been committed it is itsbounden duty to investigate into theoffence and bring the offender to book.Once it investigates and finds an offencehaving been committed it is its duty tocollect evidence for the purpose of

proving the offence. Once that iscompleted and the investigating Officer

submits report to the Court requesting theCourt to take cognizance of the offenceunder S. 190 of the Code its duty comes toan end On a cognizance of the offencebeing taken by the Court the police

function of investigation comes to an end subject to the provision contained inS.173 (8), there commences theadjudicatory function of the judiciary todetermine whether an offence has beencommitted and if so, whether by the

person or persons charged with the crime

by the police in its report to the Court,and to award adequate punishmentaccording to law for the offence proved tothe satisfaction of the Court. There is thusa well defined and well demarcated

function in the field of crime detectionand its subsequent adjudication betweenthe police and the Magistrate".

11. Supreme court has expressed thesame view in the case of State of WestBengal v. S.N. Basak, AIR 1963 SC 447

: wherein it was held:-

"The powers of investigation intocognizable offences are contained in Ch.

XIV of the Code of Criminal Procedure.S. 154 which is in that Chapter deals withinformation in cognizable offences andS.156 with investigation into suchoffences and under these Section the

police has the statutory right toinvestigate into the circumstances of anyalleged cognizable offence withoutauthority from a Magistrate and this

statutory power of the police toinvestigate cannot be interfered with bythe exercise of power under S. 439 orunder the inherent power of the Courtunder S.561A of the Criminal ProcedureCode".

12. Some other judgements of the

apex court countenancing the same vieware S.N. Sharma v. Bipen KumarTewari AIR 1970 SC 786 ; Hazari LalGupta v. Rameshwar Prasad AIR 1972SC 484 . Here we recollect that decadesago Privy Council in the case of Emperorv. Khawaja Nazir Ahmad, AIR 1945PC 18 has held as under:-

" Just as it is essential that every oneaccused of a crime should have freeaccess to a Court of justice so that he may

be duly as acquitted if found not guilty ofthe offence with which he is charged, so itis of the utmost importance that the

judiciary should not interfere with the police in matters which are within their providence and into which the lawimposes upon them the duty of enquiry. In

India as has been shown there is a statutory right on the part of the police toinvestigate the circumstances of arealleged cognizable crime withoutrequiring an, authority from the judicial

authorities, and it would, as their Lordships think, be an unfortunate result


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3 All] Mahesh Chandra Dwivedi V. State of U.P. and another 695

if it should be held possible to interferewith those statutory rights by an exerciseof the inherent jurisdiction of the Court.The functions of the judiciary and the

police are complementary notoverlapping and the combination ofindividual liberty with a due observance

of law and order is only to be obtained byleaving each to exercise its own function,always, of course, subject to the right ofthe Court to intervene in an appropriatecase when moved under S.491, Criminal

P.C., to give directions in the nature ofhabeas corpus. In such a case as the

present, however, the Court's functionsbegin when a charge is preferred before itand not until then ."

13. For the reasons above, we don't

find any merit in this writ petition as thereliefs prayed for can not be allowed andhence we dismiss the writ petition asmerit less.

---------REVISIONAL JURISDICTION

CRIMINAL SIDEDATED: ALLAHABAD 16.07.2008

BEFORETHE HON'BLE M.K. MITTAL, J.

Criminal Revision No. 3228 of 2007

Maheswh Chandra Dwivedi Revisionist Versus

State of U.P. and another Respondents

Counsel for the Revisionist:Sri. K.M. Asthana

Counsel for the Revisionist:Sri. Bal MukundSmt. Arti Singh

A.G.A.

Code of Criminal Procedure-Section 125-Maintenance claimed by wife-divorced

by mutual consent-even after divorce herstatus as wife continued till remarriage-rejection of claim for enhancement ofmaintenance or the ground ofcompromise before family court aboutnot claiming maintenance-held-beingagainst public policy hit by Section 23 ofIndian Contract Act-illegal-consequential

direction issued.

Held: Para 10

In view of this position, I come to theconclusion that even if there was anydivorce by mutual agreement and thehusband Mahesh Chandra Dwivedi hadmade lumpsum payment to SmtManorama, she was not debarred fromclaiming maintenance under Section125Cr.P.C. In the circumstances, the orderpassed under Section 125 Cr.P.C. on12.4.1994 and the enhancement order

passed on 26.7.1996 can not be said tobe illegal or without jurisdiction. LearnedJudge, family court, who rejected heapplication filed by Smt Manorama forenhancement was not justified inrejecting that application on the groundthat parties had compromised in CivilSuit and Smt Manorama had agreed notto claim any maintenance in future.Case law discussed:(1995) 5 SCC 299, (2000) 3 SCC 180, (1987) 2Hindu LR 334 (Kerala High Court), 2004,Crl.L.J., 3690, (Punjab & Haryana High Court).

(Delivered by Hon'ble M.K.Mittal, J.)

1. Criminal Revision No. 1145 of2005 has been filed by Smt. Manoramafor setting aside the order dated 18.1.2005

passed by Principal Judge, Family Court,Kanpur Nagar, in Misc. Case No. 33 of2002 whereby he rejected the applicationfiled by Smt. Manorama under Section127 Cr.P.C. for enhancement of themaintenance amount awarded underSection 125 Cr.P.C. by order dated

12.4.1994 @ Rs.200/-per month andearlier enhanced to Rs.300/- by order


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3 All] Mahesh Chandra Dwivedi V. State of U.P. and another 697

had agreed in the divorce case and thatwas decided on the basis of mutualconsent and Smt. Manorama had takenRs.10,000/- as final payment formaintenance and was not entitled to claimany thing in future. He has also contendedthat in petition under Section 125 Cr.P.C.

an order was passed on 12.4.1994 and anamount of Rs.200 was fixed formaintenance and due to his ignorance hestarted making payment of that amountand also paid the enhanced amount till2005 whereas Smt. Manorama has goodfinancial condition. Smt. Manorama filedobjection in this case and contended thatthe application under Section 125 Cr.P.C.was decided on merits and the orderenhancing the amount was also justified.There was no ground to cancel the earlier

order and also there was no ground tocancel the recovery warrant. It had also

been contended that the compromiseentered in the divorce proceedings did noteffect the proceedings under Section 125Cr.P.C.

5. Learned Judge, Family Court byorder dated 19.7.2007 held that earlier itwas held in the case between the partiesthat the right under Section 125 Cr.P.C.would not be curtailed on the basis of the

compromise entered into between the parties and that the order passed underSection 125 Cr.P.C. and the order dated26.7.1996 under Section 127 Cr.P.C. had

become final as the same were notchallenged. Therefore learned Judgerejected the application filed by MaheshChandra Dwivedi, under Section 127Cr.P.C.

6. Feeling aggrieved the revisionshave been filed by both the parties. The

main question involved in these revisionsis whether the wife is entitled to claim

maintenance under Section 125 Cr.P.C.even after the compromise decree has

been passed between them wherein thewife accepts the lump sum amount for hermaintenance and agrees not to file anyclaim for maintenance in future.

7. Learned counsel for MaheshChandra Dwivedi has contended that thecompromise was based on mutual consentand therefore in view of Section 125 (4)Cr.P.C. Smt. Manorama is not entitled forany maintenance or enhancedmaintenance under Section 125 Cr.P.C. or127 Cr.P.C . As against it learned counselfor Smt. Manorama has contended thatthe provisions of Section 125 Cr.P.C. areindependent of divorce proceedings andthe words "living separately by mutual

consent" do not cover divorce orsettlement for maintenance in divorcecase by mutual consent.

Section 125 (4) Cr.P.C. reads asunder:-

"No wife shall be entitled to receivean allowance for the maintenance or theinterim maintenance and expenses of

proceedings as the case may be from herhusband under this Section if she is living

in adultery, or if, without any sufficientreason, she refuses to live with herhusband, or if they are living separately

by mutual consent."

8. In the case of Vanamala Vs.H.M. Ranganatha Bhatta (1995) 5 SCC299 , it has been held by Hon'ble ApexCourt that a wife who obtains divorce bymutual consent cannot be deniedmaintenance by virtue of Section 125(4)of the Code. If the marriage between the

parties is terminated by a decree ofconsent divorce, that would not amount to


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live separately by mutual consent. In thecase of Rohtash Singh Vs. Ramendri(Smt), (2000) 3 SCC 180 , Hon'ble ApexCourt has held that on account ofexplanation (b) to Sub section 1 ofSection 125 of the Code, a woman, whohas been divorced by her husband on

account of a decree passed by the FamilyCourt under the Hindu Marriage Act,continues to enjoy the status of a wife forthe limited purpose of claimingmaintenance allowance from her ex-husband. The claim of maintenance underSection 125 of the Code by a divorcedwife is based on the foundation providedunder explanation (b) to Sub Section 1 ofSection 125 of the Code. If the divorcedwife is unable to maintain herself, and ifshe has not re-married, she will be entitled

to claim maintenance allowance. Awoman after divorce becomes a destitute.If she is not able to maintain herself andremains unmarried, the man who wasonce her husband continues to be under astatutory duty and obligation to providemaintenance to her. Therefore I am of theview that even if compromise decree has

been passed between the parties, it is noteffected by Section 125 (4) of the Codeand Smt. Manorama is entitled to claimmaintenance from Mahesh Chandra

Dwivedi till she re-marries and is unableto maintain herself.

9. Now it has to be seen whetherSmt. Manorama is debarred or stoppedfrom claiming the said maintenance onthe plea that at the time of granting ofdivorce decree by mutual consent she hadagreed not to claim maintenance from the

petitioner in future. Right to claimmaintenance by the wife, children and theold parents who are not capable to

maintain themselves has been providedunder Section 125 of the Code as public

policy by the State. Definition of wife hasalso been given extended meaning by theStatute in order to provide the security inlife to a wife whose marriage has beendissolved by a decree of divorce and who

being destitute is unable to maintainherself. This is matter of public policy and

not of an individual. In suchcircumstances, the statutory right whichhas been conferred on a person under

public policy cannot be waived by thesaid person by mutual agreement. It isalso well settled that any contract which isopposed to public policy is void underSection 23 of the Indian Contract Act1872, and the same cannot be enforced ina Court of Law. If the object orconsideration of an agreement woulddefeat the provisions of any law, and if it

is against the public policy, the agreementwill be treated as unlawful and void. In asimilar situation in the case of SadasivanPillai Vs. Vijayalakshmi, (1987) 2Hindu LR 334 (Kerala High Court),and Sushil Kumar Vs. Neelam 2004,Crl. L. J., 3690, (Punjab & HaryanaHigh Court) it has been held that inspiteof any such agreement wife could not bedebarred from claiming maintenanceunder Section 125 Cr.P.C.

10. In view of this position, I cometo the conclusion that even if there wasany divorce by mutual agreement and thehusband Mahesh Chandra Dwivedi hadmade lumpsum payment to Smt.Manorama, she was not debarred fromclaiming maintenance under Section125Cr.P.C. In the circumstances, the order

passed under Section 125 Cr.P.C. on12.4.1994 and the enhancement order

passed on 26.7.1996 can not be said to beillegal or without jurisdiction. Learned

Judge, family court, who rejected heapplication filed by Smt. Manorama for


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3 All] National Insurance Co. Ltd. V. Riyasat Ali and others 699

enhancement was not justified in rejectingthat application on the ground that partieshad compromised in Civil Suit and Smt.Manorama had agreed not to claim anymaintenance in future. Therefore theimpugned order dated 18.1.2005 is to beset aside and the Criminal Revision No.

1145 of 2005 is to be allowed. The Judge,family court has rightly rejected theapplication filed by Mahesh ChandraDwivedi under Section 127 Cr.P.C. andthe Criminal Revision No. 3228 of 2007

being devoid of merits is liable to bedismissed.

11. Criminal Revision No. 1145 of2005 is hereby allowed. Order dated18.1.2005 is set aside and the case isremanded to learned Trial Judge, Family

Court, Kanpur Nagar, who shall decidethe application under Section 127 Cr.P.C.for enhancement of maintenanceallowance on merits. Parties are directedto appear in the Trial Court for furtherorders on 11.8.2008.

12. Criminal Revision No. 3228 of2007 is hereby dismissed.

---------APPELLATE JURISDICTION

CIVIL SIDEDATED: ALLAHABAD 17.07.2008

BEFORETHE HON'BLE AMITAVA LALA, J.

THE HON'BLE A.P. SAHI, J.

First Appeal From Order No. 1791 of 2008

National Insurance Company Ltd.Appellant

VersusRiyasat Ali and others Respondents

Counsel for the Appellant:Sri. K.S. Amist

Counsel for the Respondents:Sri. Nigamendra Shukla

Motor vehicle Act 1988- Rule2(44)-Tractor for agricultural purpose-accidentcaused due to hit by train-Tribunal fixed

joint liability-appeal by insurancecompany-disputing the use of tractor forpurpose other than agriculture-total nonconsideration of this aspect-caseremitted back for fresh consideration.

Held: Para 8

Hence in totality, we dispose of theappeal at the stage of admission withoutimposing any costs giving liberty to theappellant to make an application beforethe Tribunal which would be heard uponnotice and giving opportunity of hearingto all the parties but under nocircumstances the payment ofcompensation to the claimants should bestalled

(Delivered by Hon'ble Amitava Lala, J.)

1. This appeal is arising out of a judgment and order passed by theconcerned Motor Accident ClaimsTribunal, Bulandshahar, dated 20.2.2008in M.A.C. No. 152 of 2000. Two personsdied and one injured when the Tractorwas hit by a Train on the way. It has been

contended by the learned counselappearing for the insurance Companyhere as well as in the court below that theTractor is meant for agricultural purpose

but when it was carrying some householdmaterial like cement and sands etc. for theconstruction of the house, it has been

proceeded in contravention of theinsurance Policy for which either theowner has to pay the compensation or theinsurance Company will pay with theright of recovery of the same from the

owner. The claimants are represented bySri Nigamendra Shukla, the learned


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3 All] Amir Hasan V. State of U.P. and others 701

purpose can be expanded forreconsideration by the court on theapplication of the insurance Company andgiving opportunity of hearing to all the

parties to arrive at a right conclusionindependently without being influenced

by the, prima facie, observation of the

Court.

8. Hence in totality, we dispose ofthe appeal at the stage of admissionwithout imposing any costs giving libertyto the appellant to make an application

before the Tribunal which would be heardupon notice and giving opportunity ofhearing to all the parties but under nocircumstances the payment ofcompensation to the claimants should bestalled.

9. Incidentally, the appellant-insurance company prayed that thestatutory deposit of Rs.25,000/- made

before this Court for preferring this appeal be remitted back to the concerned MotorAccidents Claims Tribunal asexpeditiously as possible in order toadjust the same with the amount ofcompensation to be paid to the claimants,however, such prayer is allowed.

Appeal disposed of.

----------ORIGINAL JURISDICTION

CIVIL SIDEDATED: ALLAHABAD 30.07.2008

BEFORETHE HON'BLE SABHAJEET YADAV, J.

Civil Misc. Writ Petition No. 4009 of 2003

Amir Hasan Petitioner Versus

State of U.P. and others Respondents

Counsel for the Petitioner:Sri. M.A. Quadeer

Sri. Shamim Ahmad

Counsel for the Respondents:S.C.

Land Acquisition Act 1894-Section 54- Applicability of the provisions of C.P.C.-during pendency of referenceproceeding-applicant died-brother of theapplicant doing hotel business atBombay-rarely visits his home town-after getting information movedsubstitution application with applicationfor condonation of delay-rejection byDistrict Judge as provisions of Limitation

Act not applicable-held-illegal contraryto view settled by High Court as well asSupreme Court-liberal view ought tohave adopted-instead of remitting thematter before Court below-delay in filingsubstitution condoned-reference Courtdirected to decide substitutionapplication on merit.

Held: Para 18

Now coming to the fact of the case, itappears that the impugned order waspassed by the court below/referencecourt rejecting the delay condonationapplication of petitioner moved alongwith substitution application underOrder XXII Rule 3 for bringing the legalrepresentative and heir of the claimantSabbir Hasan on record on the groundthat the same was not maintainablebefore the court, in my opinion, viewtaken by the court below is contrary tothe view taken by me, therefore, cannotbe sustained. The rejection of delaycondonation application of the petitionermoved along with substitutionapplication on merits too appears to beerroneous. I am of the consideredopinion that liberal view ought to havebeen taken by the court below whileconsidering the cause shown by thepetitioner in moving such belatedapplication. The specific case taken bythe petitioner was that he was residingin Bombay in connection of his Hotelbusiness and rarely visits his home town


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at Tilhar in district Shahjahanpur and hewas not aware of the proceedingpending in court below, therefore, inabsence of rebuttal of his statementmade in affidavit on oath and in absenceof contrary material brought on record,the correctness of his statement couldnot be doubted by the court below. In

my opinion, the view taken contrary to itcannot be sustained. In given facts andcircumstances of the case, the causeshown in moving the belatedsubstitution application by the petitionerappears to be sufficient and, therefore,the delay caused in moving suchapplication ought to have beencondoned. Accordingly, the delay causedin moving substitution application by thepetitioner is hereby condoned. Theimpugned order dated 8.11.2002 passedby the court below is hereby quashed.The court below is directed to decide the

substitution application moved by thepetitioner on merit by restoring theaforesaid reference proceeding on file.Case law discussed:

A.I.R. 1970 Madras 184, A.I.R. 1967 Gujarat118, A.I.R. 1982 Alld. 394, AIR 1978 Delhi129, AIR 1989 Delhi 97, AIR 1991 Alld. 241,

A.I.R. 1979 SC 404, AIR 2003 SC 2302.

(Delivered by Hon'ble Sabhajeet Yadav, J.)

1. This petition is directed againstthe judgment and order dated 8.11.2002

passed by Special Judge/AdditionalDistrict Judge, Shahjahanpur in Reference

No.62 of 1997 Sabbir Hasan Vs. State ofU.P. and others , whereby delaycondonation application moved by the

petitioner along with substitutionapplication in pending reference has beenrejected.

2. The reliefs sought in the writ petition rest on the assertions that the plot No.76/1, 82/1, 89/1, 90, 74 situated inVillage Tilhar Qasba, DistrictShahjahanpur belonging to Sabbir Hasan

were acquired under the provisions ofLand Acquisition Act, 1894, for which theaward was given by the Collector on14.1.1997. Feeling aggrieved against theaforesaid award Sabbir Hasan had movedapplication under Section 18 of the LandAcquisition Act requiring the Collector to

make reference for enhancement ofcompensation, which was registered asL.A. Reference No.62 of 1997 and was

pending in the Court of 9th AdditionalDistrict Judge, Shahjahanpur. During the

pendency of reference Sabbir Hasan haddied on 25.4.2001 as issue-less. The

petitioner being his brother and sole heirand legal representative had noknowledge or information about the

pendency of the aforesaid reference. The petitioner is residing in Bombay since

1981 where he is engaged in hotel business and rarely visits to his permanenthome town Tilhar, District Shahjahanpur.On 1.8.2002 one Gopal Babu who wasMukhtare-aam and pairokar of SabbirHasan has met him and told about the

pendency of aforesaid reference. On thatday for the first time the petitioner cameto know about it. Thereafter the petitionerfiled application for substitution of hisname in place of Sabbir Hasan on2.8.2002 supported by an affidavit. The

petitioner has also filed an applicationsupported by an affidavit for condoningthe delay under Section 5 of theLimitation Act in moving the aforesaidsubstitution application. The applicationand affidavit are on record as Annexures4 and 5 of the writ petition. It is alsostated that due to typing error in theaffidavits, the date of death of SabbirHasan was wrongly typed as 16.1.2001instead of 25.4.2001, therefore, anapplication for amendment along with

affidavit dated 16.9.2002 was filed forcorrection of date of death incorrectly


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mentioned in the substitution applicationand delay condonation application. It isfurther stated that although the D.G.C.(Civil) has filed objection dated 24.9.2002

but neither any affidavit was filed insupport thereof nor any counter affidavitin opposition to the affidavits filed by the

petitioner referred above was filed.Despite, thereof the court below videimpugned order dated 8.11.2002 haswrongly rejected the delay condonationapplication and substitution application ofthe petitioner on merits and on the groundof maintainability also. Hence this

petition.

3. Sri M.A. Qadeer, learned seniorcounsel appearing for the petitioner hassubmitted that by virtue of the provisions

of Section 53 of the Land AcquisitionAct, 1894 the provisions of Code of CivilProcedure are applicable to all

proceedings before the Court under theLand Acquisition Act, unless they areinconsistent with any provisionscontained under the said Act. He furthersubmitted that the provisions of OrderXXII of the Code of Civil Procedurewhich pertains to substitution of heirs andlegal representatives of parties cannot besaid to be in any manner inconsistent or

contrary to any provisions of LandAcquisition Act, therefore, the same willapply with its full force. He furthercontended that any substitutionapplication, if moved after expiry of

period of limitation as prescribed underArticle 120 of the Schedule appended tothe Limitation Act 1963, the delaycondonation application under Section 5of the Limitation Act can be moved alongwith such substitution application.Besides this, since the reference

proceeding is a proceeding before thecourt contemplated under the Land

Acquisition Act, therefore, there can beno doubt about the applicability of the

provisions of Section 5 of the LimitationAct in moving such substitutionapplication in reference proceedings

before the Court. Accordingly, the samecan be admitted after the prescribed

period of limitation, if the applicantsatisfies the court that he had sufficientcause for not making such applicationwithin prescribed period of limitation.Thus, learned counsel for the petitionerhas submitted that the impugned order

passed by the court below is highlymisconceived and erroneous, as such isnot sustainable in the eye of law.

4. In view of the aforesaidcontention of the learned counsel for the

petitioner, the question which arises forconsideration before this Court is whetherthe provision of Order XXII C.P.C. areapplicable in reference proceeding

pending before the Court and whether the provisions of the Limitation Act wouldalso apply to such proceeding before theCourt under the Land Acquisition Act?

5. In order to answer the aforesaidquestions, it is necessary to examinerelevant provisions of the Land

Acquisition Act 1894 hereinafter referredto as "the Act" and Section 5 of theLimitation Act. Section 3 (d) of the Actdefines the expression 'court' and Section53 of the Act provides that the provisionsof the Code have been made applicable tothe proceedings before the court.Therefore, the said provisions areextracted as under:-

" 3 (d) the expression "Court" meansa principal Civil Court of original

jurisdiction, unless the [appropriateGovernment] has appointed (as it is


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hereby empowered to do) a special judicial officer within any specified locallimits to perform the functions of theCourt under this Act;"

53. Code of Civil Procedure to applyto proceedings before Court - Save in so

far as they may be inconsistent withanything contained in this Act, the

provisions of the [Code of Civil Procedure, 1908], shall apply to all proceedings before the Court under this Act."

6. At this juncture it would also beuseful to extract the provisions of Section5 of the Limitation Act, 1963, whichempowers the court to admit an appeal orapplication moved beyond prescribed

period as under:-

"5. Extension of prescribed periodin certain cases.- Any appeal or anyapplication, other than an applicationunder any of the provisions of Order XXIof the Code of Civil Procedure, 1908, maybe admitted after the prescribed period, ifthe appellant or the applicant satisfies theCourt that he had sufficient cause for not

preferring the appeal or making theapplication within such period."

Explanation.- The fact that the appellantor the applicant was misled by any order,

practice or judgment of the High Court inascertaining or computing the prescribed

period may be sufficient cause within themeaning of this section."

7. At this juncture, it is alsonecessary to point out that the question inissue has drawn attention of various HighCourts and this Court also at several

occasions, it would be useful to refersome of them, hereinafter.

8. In State of Madras Vs. Alameluthayammal A.I.R. 1970 Madras184 , a Division Bench of Madras HighCourt has held that in view of Section 53of the Act the Court hearing referenceunder Section 18 of the Act has power toallow the amendment of the pleadings in

reference to certain extent. The pertinentobservations made in para 13 of thedecision are extracted as under:-

"13. ......... Section 53 of the Act provides that save in so far as they maybe inconsistent with anything contained inthe Act, the provisions of the Civil

Procedure Code shall apply to all proceedings before the Court under the Act. The Court hearing a reference underSection 18 of the Act has power to allow

an amendment of the pleadings in areference. But the jurisdiction to allow

such amendment cannot extend toincreasing the claim to a figure beyondthat which was claimed before theCollector, as it would be against the

provisions of Section 25 (1) of the Act.The appellants did not take any objectionto the reference under Section 18 of the

Act and the learned Government Pleadertook exception only to the grant ofcompensation in excess of the amounts

claimed in the counter statement of theclaimants."

9. Similar view has been taken byGujarat High Court in case of Alihusain

Abbasbhai and others Vs. Collector, Panch Mahals A.I.R. 1967 Gujarat 118 ,wherein it was held that by virtue ofSection 53 of the Act the provisions ofC.P.C. are applicable to all proceedings

before Court under the Act unless such provisions in the Code are inconsistent

with anything contained in LandAcquisition Act. The aforesaid


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observation was made in context ofapplicability of the provisions of OrderXXII Rule 3 of the Civil Procedure Codeand it was held that there is nothing underthe Act contrary to the aforesaid

provisions of the Code. The pertinentobservations made in paras 4 and 5 of the

decision are extracted as under:-

"4. ........ The reference becomes a proceeding before the Court as soon as itis received, taken on file and numberedand it is because it is a proceedingalready initiated before the Court that theCourt can fix a day for its hearing and

give notice of such date to the various persons mentioned in Section 20. Moreover, it is difficult to appreciate hownotice of a reference can go to the

collector who is in the position of adefendant before the reference hascommenced. Ordinarily notice of a

proceeding would go to the opposite partyafter the proceeding has commencedbefore the Court: unless the proceeding isbefore the Court, there would be noquestion of giving notice of the

proceeding by the Court to the opposite party. The contention of the petitionersthat the proceeding in the reference hadnot commenced at the date of the death of

Abbasbhai since no notice was served onhim before his death is, therefore, clearlyunsustainable and it must be concludedthat the proceeding in the referencecommenced before the Court as soon asthe reference was received, taken on fileand numbered and it was pending when

Abbasbhai died.

5. The next question that arises iswhether Order 22 Rule 3 applied to the

Reference for it is only if that provision

applied to the reference that the questionof abatement could arise. Now Section 53

which is reproduced above clearlydeclares that save in so far as they may beinconsistent with anything contained inthe Act, the provisions of the Code ofCivil Procedure shall apply to all

proceedings before the Court under the Act and since a reference under Section

18 is a proceeding before the Court underthe Act, Order 22 Rule 3 must apply to thereference unless that provision isinconsistent with anything contained inthe Act. The question which, therefore,calls for consideration is whether there isanything in the Act which is inconsistentwith Order 22 Rule 3. ............ It is,therefore, clear that the nature of areference under Section 18 is not suchthat it must necessarily result in themaking of an award by the Court and

when I use the word "award" I mean it inthe sense of an award determining theamount of compensation for the land. Thereference is not different from an ordinarycivil proceeding in which the applicantwho is in the position of a plaintiff objectsto the amount of compensation offered inthe award of the Collector and claimsadditional compensation. If the applicant

fails to appear at the hearing of thereference, the reference must by force ofOrder 9 Rule 8 which is made applicable

by Section 53 be dismissed for want ofappearance like any other civil

proceeding and in the same way if theapplicant does not produce evidence in

support of the objection, the referencemust be dismissed just as any other civil

proceeding would be dismissed for wantof evidence in support of the claim. Whenthe reference is dismissed the award ofthe Collector stands and the applicant canalways accept the offer contained in suchaward. Now if the reference can be

dismissed for default of appearance of theapplicant or for want of evidence before


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the Court, there is no reason why Order22 Rule 3 should not be applicable to thereference. If Order 22 Rule 3 does notapply to the reference, what is to happenwhen the applicant dies during the

pendency of the reference? The right toclaim additional compensation which the

applicant is agitating in the referencewould certainly survive to his heirs frommaking an application to the Court forbringing themselves on record in place ofthe applicant. It is difficult to see whyinstead of permitting the heirs to followthe ordinary and simple procedure ofapplying to the court for bringingthemselves on record in place of theapplicant and proceeding with thereference, the law should insist that theCollector who is the opposite party must

supply the names of the heirs to the Courtand the Court should issue notices toheirs as persons interested in theobjection and then proceed with thereference. There is clearly nothing in thenature of the reference which isinconsistent with Order 22 Rule 3 sub-rule (1) and the provision contained inOrder 22 Rule 3 sub-rule (1) can beapplied to the reference without causingany anomaly or inconsistency. Order 22

Rule 3 sub-rule (2) provides for

abatement of the proceeding if noapplication for bringing the heirs onrecord is made within the time limited bylaw and the question may, therefore, wellarise whether there is any time limited bylaw for the making of an application tobring the heirs of a deceased applicant onrecord in a pending reference. If there isa time prescribed by law for making suchapplication and such application is notmade within the time so prescribed, thereference would abate leaving the award

of the Collector unaffected. But if no time for making such application is prescribed

by law, the application can obviously bemade at any time and there would be noabatement of the reference & in that eventas soon as the application is made, theCourt would bring the heirs of thedeceased applicant on record and

proceed with the reference. Order 22 Rule

3 sub-rule (2) is also, therefore, not in anyway inconsistent with the nature of thereference. The provision enacted in boththe sub-rules of Order 22 Rule 3 can bemade applicable without creating anyinconsistency or disharmony and it must,therefore, be concluded that Order 22

Rule 3 applies to a reference underSection 18."

10. In Smt. Katori Devi and otherVs. Collector, Aligarh A.I.R. 1982 Alld.

394 , a Division Bench of this Court hasheld that while disposing of a referenceunder Section 18 of the Act the DistrictJudge functions as court. The provisionsof C.P.C. have been specifically madeapplicable to the proceeding before thecourt by Section 53 in so far as they arenot inconsistent with anything containedin the Land Acquisition Act. Whiledealing with the applicability of the

provisions of Order IX Rule 8 C.P.C. itwas held that there is no provision in

Land Acquisition Act which may beinconsistent with the provisions of OrderIX C.P.C., therefore, Order 9 C.P.C.applies to the proceedings before theDistrict Judge on a reference made underSection 18 of the Act and as such DistrictJudge has power to dismiss the referencefor default of appearance by the claimantand consequently when the reference is sodismissed, an application under Order IXRule 9 to set aside the order of dismissalwould be maintainable. For ready

reference the pertinent observations made by the Division Bench of this Court in


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paras 6, 7 and 11 of the decision areextracted as under:-

"6. It is thus evident that the learned District Judge functions as a Court whiledisposing of a reference under Section 18of the Act The provisions of the Civil P.C

have specifically been made applicable to such proceedings by Section 53 of the Act. Ex facie the provisions of O.IX C.P.C.will be applicable to these proceedings.We have gone through the provisions ofthe L.A. Act and we do not find any

provision anywhere which may beinconsistent with the provisions of O.IXC.P.C."

7. With due respect to the Hon'ble Court,we are unable to subscribe to the views

expressed by the Karnataka High Court inthe aforesaid decision. S.26 of the Actcomes into operation only when thereference is to be decided on merits afterconsidering the evidence led by the

parties and the provisions of S.23 of the Act. S.26 of the Act does not say anythingwhich may be inconsistent with the courts

power under O.IX. R.8 C.P.C. to dismissa reference for default of appearance bythe claimants. Since there is nothinginherently inconsistent in Sec.26 of the

Act with the existence of O.IX R.8 C.P.C.we fail to see on what principle can the

provisions of O.IX, R.8 C.P.C. beexcluded when Sec.53 of the Act

specifically makes them applicable.

11. We are in respectful agreement withthe views expressed by the Madras,

Madhya Pradesh and Gujarat HighCourts. In our opinion the provisions ofO.IX, C.P.C. are applicable to

proceedings on a reference under Sec.18

of the L.A. Act. We are further of theopinion that there is nothing in the L.A.

Act which may be inconsistent with the provisions of O.IX, C.P.C."

11. Somewhat identical question asinvolved in this case has come forconsideration before Full Bench of DelhiHigh Court in Mst. Ram Piari and others

Vs. The Union of India and others AIR1978 Delhi 129 (Full Bench), whereinafter dealing in detail about the scheme ofthe provisions of the Act in paras 19, 20and 21of the decision Full Bench has heldas under:-

"19. As noted earlier S. 21 of the Actrestricts the scope of the enquiry to aconsideration of the interests of the

persons at whose behest the Collectormakes the reference on their applying to

the Collector to make the reference. Thatbeing so, it is incumbent on them to

pursue their claim as provided under the Act. In the event of the death of a personat whose instance the reference was madethe right to continue the reference

survives to his legal representatives. It is for the legal representatives if they chooseto pursue the reference to apply to theCourt for being brought on the record toenable them to prosecute the reference.

No obligation is cast on the Collector to

furnish the names and addresses of thelegal representatives of a deceasedclaimant to keep the reference alive. Thereference is to be answered and an award

given by the Court only on evidence being produced before it by the claimant whochallenges the award given by theCollector." If no evidence is led thereference has to be declined. The

provisions of the Act do not cast anyobligation on the Collector to justify hisaward. It is only when a claimant

produces evidence before the Court and succeeds in showing that the award made


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by the Collector is inadequate that theCollector is to lead evidence in rebuttal.The Act itself does not prescribe the

procedure applicable to the proceedingsbefore the Court while hearing areference application. Sec. 53 of the Act,however, makes the provisions of the

Code applicable to these proceedings. Accordingly the procedure laid down inthe Code has to be followed by the Courtin deciding a reference application.

20. The procedure laid down in the Codebeing applicable to these proceedings, itcannot be urged that the applicability ofthe provisions of Order 9 and Order 22 ofthe Code are not attracted to the

proceedings in the Court.

21. An application under O. 22 requiringthe legal representatives to be brought onthe record has to be moved within the

period prescribed for moving suchapplication. In case the application is notmoved within time the reference wouldabate and the Court is not obliged toanswer such a reference. It is no doubttrue that a reference application is not a

suit, however because of the applicabilityof the procedure prescribed in the Codeto the proceedings before the Court in

such applications, the proceedings beforethe Court partake the nature of a suit.

During the proceedings before the Courtin the reference application the claimantswill partake the status of plaintiffs whilethe non-claimants and Collector wouldoccupy the position of defendants."

12. While considering theapplicability of provisions of Order 22C.P.C. and those of Limitation Act beforethe reference court made under Section

30/31 of the Land Acquisition Act a FullBench of Delhi High court in Chander

and others Vs. Mauji and others reportedin AIR 1989 Delhi 97 in para 16 of thedecision has observed as under:-

"16. Whether the proceedings havebeen initiated on a reference under S.18or under S.30, the dispute to be settled is

as to the persons to whom thecompensation is payable or theapportionment of the compensationamong the persons interested. Theconflicting claims to the compensationmoney is the dispute which has beenreferred either under S.18 or under S.30of the Act. The lis between the parties isidentical whether the proceedings areunder S.18 or under S.30. An adjudicationon the title to receive compensation on areference under S.18 stands on the same

footing as an adjudication on a referenceunder S.30 or for that matter on a depositunder S.31(2) of the Act. The scheme ofthe Act is that the Collector has to paycompensation to the rightful owners aboutwhom he gives his award. The disputescould be settled either on a referenceunder S.18 or on a reference under S.30to enable the Collector to disburse thecompensation to the rightful owners. Allquestions relating to the dispute as to titleto compensation, whether on a reference

under S.18 or on a reference under S.30,traverse the same field. we can see no

fundamental difference in the proceedingsunder S.18 and S.30/31 of the Act. Thetwo operate in the same arena. The

procedure before the Court on a referenceunder S.30 would also be governed by the

provisions contained in the Code of Civil Procedure. Section 30 does not containany provision expressly or by necessaryimplication that the provisions of theCode of Civil Procedure are not

applicable. The Full Bench in Ram Piari'scase (AIR 1978 Delhi 129) said that a


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reference under S.18 of the Act partakesthe nature of a suit. Similarly any disputeas to the apportionment of compensationor as to the persons to whom the same is

payable on a reference, whether underS.18 or under S.30, is really in the natureof an inter- pleader suit initiated by the

Collector either on a petition or suo motu.The persons interested are directed toestablish their title to the acquired land.There is no reason for not making the

provisions of the code of Civil ProcedureO.22 and for that matter the limitationcontained therein, applicable to the

proceedings under S.30 for the samereasons as are applicable to the

proceedings under S.18 of the Act."

13. In Gorakhpur Development

Authority, Gorakhpur Vs. District Judge,Gorakhpur and others AIR 1991 Alld.241 a Division Bench of this Court has,however, held that Order 1 Rule 10C.P.C. has no application to reference

proceeding under Section 18 of the LandAcquisition Act, its applicability isexcluded by the context of the Act i.e. bynecessary implication. The pertinentobservations made by Hon'ble Mr. JusticeB.P. Jeevan Reddy (as he then was theChief Justice of this Court) in para 17 of

the decision are as under:-

"17. ....... Accordingly, and for thereasons given hereinbefore, we hold thatO.1, R.10, C.P.C. has no application toreference proceedings under Section 18 ofthe Land Acquisition Act. Its applicationis excluded by the context of the Act, thatis, by necessary implication. A beneficiary(local authority or company for whosebenefit the land is being acquired andwho is ultimately liable to bear the

burden of paying the compensation)cannot apply for impleading, nor can it be

impleaded as a party - respondent underO.1, R.10, C.P.C. read with S.53 of the

Land Acquisition Act. Its right is only theone recognised by S.50(2) of the Act. Itcan appear in such a reference andadduce evidence in support of its case andalso to contradict the evidence produced

by the claimants. It can also cross-examine the witnesses produced by theclaimants. It cannot either ask for areference under S.18, nor can it file anappeal against the judgment and award ofthe Civil Court as a matter of right underS.54 of the Act. It can file such an appealwith the leave of the Court and, asobserved hereinbefore (see F.B. decisionof this Court in Gaurdham (1980 All CJ345) (supra). Such leave should,normally, be granted to a beneficiary,

who has appeared and participated in thereference proceedings. Even where it didnot so appear and participate, it may wellbe entitled to apply for such leave and theCourt should consider such a request

sympathetically for the simple reason thatthe ultimate burden of paying thecompensation falls upon suchbeneficiary."

14. Thus, in view of statement oflaw enunciated hereinbefore, there can be

no scope for doubt to hold that by virtueof Section 53 of the Act the provisions ofC.P.C. are made applicable in proceeding

before the reference court constitutedunder the Act, so far as they are notinconsistent or contrary to any provisionsof the Act. In other words, the provisionsof C.P.C. cannot be held applicable ifsuch provisions are excluded by necessaryimplication in context of the provisions ofthe Act or if they are found contrary orinconsistent with any provisions of the

Act or application of such provisionscreates anomalous situation or leads to an


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absurdity or creates disharmony with the provisions of the Act. Therefore, beforeapplying the provisions of CivilProcedure Code in a reference proceeding

before Court it has to be examined as towhether the said provision of Code isanyway inconsistent or contrary to the

provisions of the Act or as to whether theapplicability of such provisions of Codehas been excluded in context of

provisions of the Act by necessaryimplication or the applicability of any

provision of the Code causes any anomalyor disharmony with any provisions of theAct. If it is found that the provision ofCode has been excluded in context of the

provisions of the Act by necessaryimplication or the provisions of Code areanyway inconsistent or contrary to the

provisions of the Act or its applicationcreates anomalous situation or leads to anabsurdity, in that eventuality theapplicability of such provisions of theCode should be taken to be excluded,otherwise it shall apply to the reference

proceeding before the court, accordinglyany broad proposition with regard to theuniversal application of the provisions ofthe Code can not be laid down and thecourt has to examine every individualcase of applicability of the provisions of

the Code in context of the provisions ofthe Act.

15. Now before proceeding further itis also necessary to make it clear that the

jurisdiction of the court while dealingwith the reference cases under the Act isof special nature. It has no original

jurisdiction like a civil court dealing withcivil suit in reference cases, wherein thecivil court has jurisdiction to try all thesuit of civil nature unless such suits are

expressly barred by statute or impliedly barred by necessary implication.

However, in reference cases before thecourt its jurisdiction is limited and iscircumscribed by the reference made to iteither under Section 18 or 30 of the Act.Having regard to the statutory schemeunderlying in the aforesaid provisions ofthe Act, the court functioning under the

Act being a tribunal of special jurisdiction, can assume its jurisdictiononly where a valid reference is made to iteither under the provisions of Section 18or 30 of the Act and the requisiteconditions for making such reference aresatisfied before the Collector whilemaking such reference to the court. If therequisite conditions while makingreference are not satisfied, the court cannot assume its jurisdiction if the referenceis not validly made to it by the Collector

under the Act, as held by Hon'ble ApexCourt in Mohd. Hansuddin Vs. State of

Maharashtra A.I.R. 1979 SC 404 . Inother words before the tribunal assumes

jurisdiction in a matter, it must besatisfied that the conditions requisite forits acquiring seisin of that matter have infact arisen. Similar view has also beentaken by Hon'ble Apex Court in PrayagUpniwas Awas Nirman Sahkari Samiti

Litd. Vs. Allahabad Vikas Pradhikaranand other AIR 2003 SC 2302 , wherein

the Hon'ble Apex Court in para 7 of thedecision has observed that the referencecourt gets jurisdiction only if the matter isreferred to it under Section 18 or 30 of theAct by Land Acquisition Officer and thatcivil court has got jurisdiction andauthority only to decide the objectionsreferred to it. The reference court cannotenlarge the scope of jurisdiction ordecides the matter which are not referredto it. Therefore, while examining theapplicability of the provisions of Code of

Civil Procedure in reference proceeding before the court, the context of the


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provisions of Act has to be examinedscrupulously and strictly in individualcases having regard to the nature of

jurisdiction conferred upon the referencecourt and no broad proposition havinguniversal application of the provisions ofthe Code can be laid down in this regard.

16. It is no doubt true that areference application is not a suit, but

because of applicability of procedure prescribed in the Code of civil procedure before the court, in such applications the proceedings before the court partake thenature of suit. During the proceedings

before the court in the referenceapplication, the claimants will partake thestatus of plaintiff while the non claimantsand Collector would occupy the position

of defendant. Having regard to thescheme of the Act, I do not find any

provision therein which is inconsistent orcontrary to the provisions of Order XXIIof the Code of Civil Procedure whichdeals with regard to bringing the legalrepresentatives and heirs of deceased

party on record of the court. Therefore, inmy opinion, the aforesaid provisions ofCode of Civil Procedure does not appearto be excluded by necessary implicationin context of the provisions of the Act. In

such situation, there can be no scope fordoubt to hold that the provisions of OrderXXII of the Code of Civil Procedure havefull application in the reference

proceeding pending before the Court.Accordingly, an application under OrderXXII C.P.C. requiring the legalrepresentatives to be brought on recordhas to be moved within the period

prescribed for moving such application. Incase, the application is not moved withintime prescribed, the reference would be

abated and dismissed and the court wouldnot be obliged to answer such reference.

17. Once it is held that the provisions of Order XXII C.P.C. areapplicable for bringing the legalrepresentatives and heirs of claimant onrecord before the court in reference

proceeding, the applicability of provisionsof the Limitation Act can also not be

doubted atleast for two reasons firstly it is proceeding before the court where the provisions of Section 5 of the LimitationAct have full application and secondlyunder the provisions of Order 22 Rule-3of the C.P.C. if the application forsubstitution of legal representative andheir of deceased plaintiffs or appellants isnot moved within prescribed period, the

proceeding shall stand abated. For movingsuch application although no period oflimitation has been provided under Order

22 of the C.P.C. but under article 120 ofSchedule appended to the Limitation Act,the period of limitation prescribed is 90days from the date of death of plaintiff,appellant, defendant or respondent, as thecase may be and under Article 121 of theschedule 60 days' period of limitation has

been prescribed for setting aside the orderof abatement from the date of abatement.And by virtue of Order 22 Rule 9(2) and(3) of C.P.C. the provisions of Section 5of the Limitation Act have also been

made applicable, therefore, if theapplicant satisfies the court that he hadsufficient cause for not making thesubstitution application within such

period prescribed under the provisions ofthe Limitation Act, the court is fullyempowered to set aside the abatementorder and admit such application byextending the prescribed period forlimitation in moving such applicationunder Order 22 C.P.C..

18. Now coming to the fact of thecase, it appears that the impugned order


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was passed by the court below/referencecourt rejecting the delay condonationapplication of petitioner moved alongwith substitution application under OrderXXII Rule 3 for bringing the legalrepresentative and heir of the claimantSabbir Hasan on record on the ground that

the same was not maintainable before thecourt, in my opinion, view taken by thecourt below is contrary to the view taken

by me, therefore, cannot be sustained. Therejection of delay condonation applicationof the petitioner moved along withsubstitution application on merits tooappears to be erroneous. I am of theconsidered opinion that liberal view oughtto have been taken by the court belowwhile considering the cause shown by the

petitioner in moving such belated

application. The specific case taken by the petitioner was that he was residing inBombay in connection of his Hotel

business and rarely visits his home townat Tilhar in district Shahjahanpur and hewas not aware of the proceeding pendingin court below, therefore, in absence ofrebuttal of his statement made in affidaviton oath and in absence of contrarymaterial brought on record, thecorrectness of his statement could not bedoubted by the court below. In my

opinion, the view taken contrary to itcannot be sustained. In given facts andcircumstances of the case, the causeshown in moving the belated substitutionapplication by the petitioner appears to besufficient and, therefore, the delay causedin moving such application ought to have

been condoned. Accordingly, the delaycaused in moving substitution application

by the petitioner is hereby condoned. Theimpugned order dated 8.11.2002 passed

by the court below is hereby quashed. The

court below is directed to decide thesubstitution application moved by the

petitioner on merit by restoring theaforesaid reference proceeding on file.

19. Before parting with the judgement, it is necessary to point out thatvide impugned order dated 8.11.2002

passed by the reference court, since the

delay condonation application movedalongwith the substitution application ofthe petitioner has been rejected, therefore,it shall be tentamounted to be an orderunder Rule 9 of Order XXII C.P.C.refusing to set aside the abatement ordismissal of a suit which is appealableunder Order 43 Rule 1(k) of the Code.But since I have heard and decided thecase on merit as indicated herein before,as the writ petition is pending since theyear 2003, therefore, I do not think it

proper either to reject the petition on theground of alternative remedy or to directthe office to register and convert the sameas F.A.F.O. at this stage. However, thesame should be treated to be decided asF.A.F.O..

20. In view of the aforesaidobservation and direction, writ petitionsucceeds and is allowed to the extentindicated herein before.

-----------

ORIGINAL JURISDICTIONCIVIL SIDEDATED: ALLAHABAD 22.07.2008

BEFORETHE HONBLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 37901of 2003

Prem Prasad Gupta Petitioner Versus

The State of U.P. & others Respondents

Counsel for the Petitioner:Sri Arvind Kumar Srivastava


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3 All] Prem Prasad Gupta V. The State of U.P. and others 713

Counsel for the Respondents:Sri Satish Chandra RaiSri M.H. ChauhanS.C.

Constitution of India Article 226-Regularisation-petitioner working on thepost of driver mechanic since 1980-

junior to petitioner regularised-whenclaimed for regularisation and regularsalary-the principal of institution putcondition to withdraw the petition andforgo the salary of previous time-onlythen be appointed on class 4 th post-heldworking of long period of 20 yearscannot be ignored-authorities to createpost and regularise the petitioner withinthree months-keeping it open to takeaction against erring Officer.

Held: Para 6 & 7

Admittedly, the petitioner has beenworking since 1980 and there is arequirement of work which has not beendenied by the respondents.Consequently, it is not open to therespondents to allege that the petitioneris not entitled for the regular salary orfor the minimum pay-scale on the post ofDriver-cum-Mechanic on the ground thatthere is no sanctioned post. The fault isnot of the petitioner and lies solely withthe Principal of the College and itsinstitution. The State Government in itscounter affidavit has categorically statedthat the appointment was made by theinstitution without there being asanctioned post.

Be that as it may. The petitioner havingworked for more than 20 years since1980 continuously, cannot be deprivedof his employment on the sole groundthat there does not exist a sanctionedpost. The respondents have neveralleged that the work of a Driver-cum-Mechanic is not required in theinstitution. If there is requirement ofwork, the respondents are required tocreate a post of a Driver-cum-Mechanic.Simultaneously, the service of the

petitioner cannot be dispensed with atthis stage and he is liable to beregularised and be paid the regularsalary on the post of Driver-cum-Mechanic.

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

1. Heard Shri Arvind KumarSrivastava, the learned counsel for the

petitioner and Shri M.H. Chauhan, thelearned counsel, holding the brief of ShriSatish Chandra Rai, the learned counselfor respondent nos. 3, 4 and 5 and thelearned Standing Counsel for theremaining respondents.

2. The petitioner was appointed as aDriver-cum-Mechanic on 1st of August,1980, as is clear from paragraph 3 of thewrit petition and Annexure '1' to the writ

petition. The petitioner contends that he isworking on that post, since then, withoutany break in service. The petitioneralleged that from 7 th March, 1998onwards, the respondents stopped hissalary and that juniors to the petitionerwere also regularised in service and thatthe same benefit was not extended to the

petitioner. Accordingly, the petitionerfiled a writ petition, which was disposedof with a direction to the authorities toconsider and decide his representation.Based on the said order, the authoritiesrejected the claim of the petitioner forregularisation of his service and paymentof regular salary on the post of Driver-cum-Mechanic, by an order dated 28 th September, 1999, on the ground that therewas no sanctioned post of Driver-cum-Mechanic. The petitioner, being aggrieved

by the said order, filed Writ Petition No.29999 of 2000. During the pendency ofthe said writ petition, the respondents

passed another order dated 4 th March,2002 stating therein that the petitioner


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would be absorbed as a Class IVemployee, provided he gives up his claimon the post of Driver-cum-Mechanic andwithdraws his earlier writ petition. The

petitioner, being aggrieved by the saidorder, filed the present Writ Petition No.37901 of 2003.

3. The learned counsel for therespondents submitted that there is nosanctioned post of Driver-cum-Mechanic,and therefore, his services cannot beregularised on a non-existing post, norcan he be paid the salary of a Driver-cum-Mechanic. The learned counsel submittedthat the management had rightly issuedthe order of 4 th March, 2002 offering the

petitioner for the regularisation of hisservice on a class IV post. The

respondents in the counter affidavit haveadmitted that the petitioner was appointedas Driver-cum-Mechanic even thoughthere was no sanctioned post, andtherefore, the appointment letter should betreated to be a void appointment letter.The State Government in their counteraffidavit have admitted that the petitionerwas appointed as a Driver-cum-Mechanicon a non-existing post.

4. Having considered the

submissions of the learned counsel for the parties, this Court is appalled by theissuance of the letter dated 4th March,2002, issued by the Principal of the TownPolytechnic, Ballia (respondent no. 5).The audacity of the authority inthreatening the petitioner to withdraw hiswrit petition and withdraw his claim forthe post of Driver-cum-Mechanic, andonly then he would be absorbed on a classIV post, is writ large and speaks volumeof the arbitrariness and feudal approach of

the authorities in matters of publicemployment.

5. Admittedly, the petitioner wasappointed in the year 1980 as a Driver-cum-Mechanic and his services wereutilised by the respondent no. 5continuously for 20 long years, andduring this period, the respondents never

batted their eyelids even for a single

second in permitting the petitioner towork on a non-existing post, and nowwhen the petitioner asked forregularisation of his services and paymentof regular salary, the authorities stoppedhis salary and further promised to appointhim on a class IV post, provided the

petitioner withdraws his claim on the postof driver. This attitude of the respondentis nothing but an unfair labour practice,which is violative of Articles 14 and 16 ofthe Constitution of India.

6. Admittedly, the petitioner has been working since 1980 and there is arequirement of work which has not beendenied by the respondents. Consequently,it is not open to the respondents to allegethat the petitioner is not entitled for theregular salary or for the minimum pay-scale on the post of Driver-cum-Mechanicon the ground that there is no sanctioned

post. The fault is not of the petitioner andlies solely with the Principal of the

College and its institution. The StateGovernment in its counter affidavit hascategorically stated that the appointmentwas made by the institution without there

being a sanctioned post.

7. Be that as it may. The petitionerhaving worked for more than 20 yearssince 1980 continuously cannot bedeprived of his employment on the soleground that there does not exist asanctioned post. The respondents have

never alleged that the work of a Driver-cum-Mechanic is not required in the


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3 All] Phool Chand Tewari V. A.D.J., Jaunpur and others 715

institution. If there is requirement ofwork, the respondents are required tocreate a post of a Driver-cum-Mechanic.Simultaneously, the service of the

petitioner cannot be dispensed with at thisstage and he is liable to be regularised and

be paid the regular salary on the post of

Driver-cum-Mechanic.

8. In view of the aforesaid, the WritPetition No. 29999 of 2000 is allowed.The order dated 28 th November, 1999,

passed by the respondent no. 2 is quashed.The respondents are directed to pay thesalary to the petitioner since March, 1998on the post of Driver-cum-Mechanic.

9. Consequently, the Writ Petition No. 37901 of 2003 is also allowed. The

impugned order dated 4th

March, 2002,issued by the respondent no. 5 is quashed.

10. A writ of mandamus is issued tothe respondents to create a post of Driver-cum-Mechanic within three months fromthe date of the production of a certifiedcopy of this order and regularise theservices of the petitioner on that post. Inthe mean while, the petitioner would be

paid the regular salary payable on the postof Driver-cum-Mechanic. It would be

open to the State Government to initiatean enquiry against the erringofficer/official and recover the amountvis-a-vis the wrongful appointmentinitially made in favour of the petitioneron the post of Driver-cum-Mechanic.

Petition allowed. ---------

ORIGINAL JURISDICTIONCIVIL SIDE

DATED: ALLAHABAD 15.07.2008

BEFORETHE HONBLE BHARTI SAPRU, J.

Civil Misc. Writ Petition No. 3374 of 1988

Phool Chand Tewari Petitioner Versus

A.D.J., Jaunpur & others Respondents

Counsel for the Petitioner:Sri D.S.M. Tripathi

Counsel for the Respondents:Sri H.S.N. TripathiS.C.

Code of Civil Procedure Section 151-Inherent Power of the Court-can beexercised for doing substantial justice-where no appeal or revision lie-it cannotbe invoked simultaneously-appeal understatutory provision.

Held: Para 27

Taking into consideration the entire factsand circumstances of the case, I am ofthe opinion that the inherent powers asconferred under section 151 C.P.C. mayonly be invoked in certain situations butnot in a case where the party has a rightof filing an appeal or of revision underthe Code itself.Case law discussed:

AIR 1973 Madras 135,.AIR 1987 Karnataka264, AIR 1966 SC 1899, 2002 ACJ 1092 SC,1999 ACJ 1462 SC, 2000 ACJ 51, 1998 RD607.

(Delivered by Hon'ble Bharati Sapru, J.)

1. Heard Sri. D.S.M. Tripathi for the petitioner and Sri H.S.N. Tripathi for therespondents.


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2. This writ petition has been filed by the petitioner seeking writ of certiorarito quash the impugned order dated5.1.1988 passed by the respondent no.1and to quash

indian law report - allahabad series - sep2008

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