# Abhishek Kumar Pandey v. State of U.P. and others

- **Citation:** (2011) 3 ILRA 1367
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-08-23
- **Case number:** Civil Misc. Writ Petition No. 58165 of 2011
- **Bench:** Dilip Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/abhishek-kumar-pandey-v-state-of-u-p-and-others-42020
- **Pages:** 8

## Headnote

Right of Children to free education Act,
2009 Section-23(1) readwith U.P. Basic
Education (Teachers) Service Rules, 1981,
Rule 4-5-Petitioners diploma holders as B.P.
Ed. And D.P.Ed-claiming appointment on
Post of Asst. Teacher for Children Education
upto class V to VIII-Rule 81 nowhere
provides Teachers for Physical Educationrelief
to
quash
notification
dated
20.08.2010
and
to
re-advertisements
permitting them to appear U.P.T.E.T.-in
absence
of
challenge
to
validity
of
Notification-such relief can not be granted
nor any direction for creation of post of
Asstt. Teachers of -under these categories
can be issued.

Held: Para 15 and 17

The relief claimed in these petitions is to
quash the Notification dated 23rd August,
2010
and
suitably
amend
the
advertisement
so
as
to
permit
the
petitioners to appear at the forthcoming
UP-TET to be held on 13th November, 2011.
There is no submission that paragraph 5(b)
of the notification is bad in law or that the
NCTE was not competent to provide the
minimum
qualifications.
As
noticed
hereinabove, Section 23(1) of the Act
confers powers on the academic authority
authorised by the Central Government to
prescribe the minimum qualification for a
person to be eligible for appointment as a
teacher and the Central Government has by
the Notification dated 31st March, 2010
authorised the NCTE to lay down the
minimum qualifications. The NCTE has,
accordingly, issued the Notifications dated
23rd August, 2011 and 29th July, 2011 and
under
paragraph
5(b),
the
minimum
qualifications
for
Physical
Education
Teachers are the qualifications contained in
2001 NCTE Regulations. These Regulations
do not provide for holding a TET. There is no
challenge to the 2001 NCTE Regulations. In
such circumstances, the relief claimed for
by the petitioners for permitting them to
appear at the UP-TET so that they can be
considered for appointment cannot be
granted.
The
petitioners
cannot,
accordingly, be permitted to assail the
advertisement to the extent it does not
permit them from appearing at the UP-TET.

This apart, a direction cannot be issued to
the respondents to create posts of Assistant
Teachers
(Physical
Education)
in
elementary schools run by the Basic
Education Board or recgonised by the Basic
Education Board so that the petitioners can
be considered for appointment. There is no
categorical averment in the petitions that
the post of Assistant Teacher (Physical
Education) in elementary school exists in
the other two categories of Institutions
referred to in Section 2(n) of the Act.
Case law discussed:
(2010) 1 SCC 756
1368 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

## Text

3 All] Abhishek Kumar Pandey V. State of U.P. and others
1367

8. In the circumstances, the writ
petition is allowed. The impugned orders
dated 31.1.1996 and 26.9.1996 passed by
respondent nos. 3 & 2 are hereby
quashed.Matter is remanded back to the
authorities to consider the question of taking
surplus land afresh.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.11.2011

BEFORE
THE HON'BLE DILIP GUPTA, J.

Civil Misc. Writ Petition No. 58165 of 2011

Abhishek Kumar Pandey
 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri Ashok Khare
Sri Pradeed Kumar Singh
Sri Pradeep Kumar Mishra

Counsel for the Respondents:
Sri R.A. Akhtar
Sri Rajeev Joshi
C.S.C.

Right of Children to free education Act,
2009 Section-23(1) readwith U.P. Basic
Education (Teachers) Service Rules, 1981,
Rule 4-5-Petitioners diploma holders as B.P.
Ed. And D.P.Ed-claiming appointment on
Post of Asst. Teacher for Children Education
upto class V to VIII-Rule 81 nowhere
provides Teachers for Physical Educationrelief
to
quash
notification
dated
20.08.2010
and
to
re-advertisements
permitting them to appear U.P.T.E.T.-in
absence
of
challenge
to
validity
of
Notification-such relief can not be granted
nor any direction for creation of post of
Asstt. Teachers of -under these categories
can be issued.

Held: Para 15 and 17

The relief claimed in these petitions is to
quash the Notification dated 23rd August,
2010
and
suitably
amend
the
advertisement
so
as
to
permit
the
petitioners to appear at the forthcoming
UP-TET to be held on 13th November, 2011.
There is no submission that paragraph 5(b)
of the notification is bad in law or that the
NCTE was not competent to provide the
minimum
qualifications.
As
noticed
hereinabove, Section 23(1) of the Act
confers powers on the academic authority
authorised by the Central Government to
prescribe the minimum qualification for a
person to be eligible for appointment as a
teacher and the Central Government has by
the Notification dated 31st March, 2010
authorised the NCTE to lay down the
minimum qualifications. The NCTE has,
accordingly, issued the Notifications dated
23rd August, 2011 and 29th July, 2011 and
under
paragraph
5(b),
the
minimum
qualifications
for
Physical
Education
Teachers are the qualifications contained in
2001 NCTE Regulations. These Regulations
do not provide for holding a TET. There is no
challenge to the 2001 NCTE Regulations. In
such circumstances, the relief claimed for
by the petitioners for permitting them to
appear at the UP-TET so that they can be
considered for appointment cannot be
granted.
The
petitioners
cannot,
accordingly, be permitted to assail the
advertisement to the extent it does not
permit them from appearing at the UP-TET.

This apart, a direction cannot be issued to
the respondents to create posts of Assistant
Teachers
(Physical
Education)
in
elementary schools run by the Basic
Education Board or recgonised by the Basic
Education Board so that the petitioners can
be considered for appointment. There is no
categorical averment in the petitions that
the post of Assistant Teacher (Physical
Education) in elementary school exists in
the other two categories of Institutions
referred to in Section 2(n) of the Act.
Case law discussed:
(2010) 1 SCC 756
1368 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
(Delivered by Hon'ble Dilip Gupta, J. )

1. The petitioners, who possess
Bachelor of Physical Education Degree
(hereinafter referred to as the ''B.P.Ed') or the
Diploma in Physical Education (hereinafter
referred to as the ''D.P.Ed') have filed these
petitions for quashing the Notification dated
23rd August, 2010 issued by the National
Council for Teacher Education (hereinafter
referred to as the ''NCTE') which lays down
the minimum qualifications for a person to
be eligible for appointment as a teacher in
Class I to VIII. The petitioner have also
sought the quashing of the advertisement
dated 22nd September, 2011 issued by the
Board of High School and Intermediate
Education,
Uttar
Pradesh,
Allahabad
(hereinafter referred to as the 'Intermediate
Education Board') which has been authorised
to hold the Teachers' Eligibility Test
(hereinafter referred to as the 'TET') to the
extent it does not permit the candidates who
possess B.P.Ed./D.P.Ed. from appearing at
the said test.

2. It is stated that in exercise of the
powers conferred by Section 23(1) of the
Right of Children to Free and Compulsory
Education Act, 2009 (hereinafter referred to
as the 'Act') and in pursuance of the
Notification dated 31st March, 2010 issued
by the Government of India, the NCTE
issued the Notification dated 23rd August,
2010
laying
down
the
minimum
qualifications for a person to be eligible for
appointment as a teacher in Classes I to VIII
in a School referred to in Section 2(n) of the
Act, which amongst others, provides that the
person should pass the TET to be conducted
by
the
appropriate
Government
in
accordance with the Guidelines framed by
the NCTE for the purpose. The Intermediate
Education Board, which has been authorised
by the State Government to hold such a test,
issued
the
advertisement
dated
22nd
September, 2011 inviting applications from
the eligible candidates for appearing in the
UP-TET but persons with B.P.Ed./D.P.Ed.
have not been included. They cannot,
therefore, appear in the test. It is, therefore,
asserted that the petitioners, who have
obtained B.P.Ed./D.P.Ed., stand excluded
from appointment in Classes I to VIII since a
person who has cleared the TET is only
considered eligible for appointment. In this
connection, it is further stated that physical
education
and
games
are
essential
requirements for students and even the State
Government recognised this aspect when it
issued the Government Order dated 5th
April, 2004 by which Physical Education
and Sports was made a compulsory subject
in the State. Thus, in order to give effect to
the aforesaid requirement, it was necessary
for the State to have created posts of teachers
in Physical Education and Sports in the
Schools but the order dated 5th April, 2004
permits appointment of a sports teacher from
amongst the teaching staff of the School after
he is given the required training.

3. It is submitted by Sri Ashok Khare,
learned Senior Counsel appearing for the
petitioners that the Notification dated 23rd
August, 2010 provides for minimum
qualifications for a person to be eligible for
appointment as a teacher in Classes I to VIII
and passing TET is considered to be an
essential requirement but in respect of
teachers for physical education, such
requirement has been waived under Clause
5(b) of the Notification dated 23rd August,
2010 as amended by the Notification dated
29th July, 2011 and it is provided that the
minimum qualification norms for physical
education teachers shall be such as provided
in National Council for Teacher Education
(Determination of Minimum Qualifications
for Recruitment of Teachers in Schools)
3 All] Abhishek Kumar Pandey V. State of U.P. and others
1369
Regulation, 2001 (hereinafter referred to as
the ''2001 NCTE Regulations') as amended
from time to time. It is his submission that
when under the aforesaid 2001 NCTE
Regulations,
it
is
provided
that
for
recruitment of teachers of physical education,
the minimum academic and professional
qualification for elementary schools shall be
Senior Secondary School Certificate or
Intermediate or its equivalent and Certificate
in Physical Education (C.P.Ed.) of a duration
of not less than two years or its equivalent, it
was incumbent upon the State to have
created posts of physical education in the
Schools so that the teachers with such
qualifications could be appointed but the
Government Order dated 5th April, 2004
permits appointment of sports teacher from
amongst the teaching staff of the school after
he is given training for a certain period. It is
also his contention that persons possessing
B.P.Ed./D.P.Ed. should be permitted to
appear at the forthcoming UP-TET to be held
on 13th November, 2011 so that they can be
considered for appointment as teachers.

4. Sri K.S. Kushwaha, learned
Standing Counsel appearing for the State and
the Intermediate Education Board and Sri
R.A. Akhtar and Sri Rajiv Joshi, learned
counsel appearing for the NCTE have
contended that the reliefs claimed in these
petitions cannot be granted to the petitioners.
It is their submission that in terms of
paragraph 5(b) of the Notification dated 23rd
August, 2010, the petitioners are not required
to appear at the UP-TET and for them the
2001 NCTE Regulations shall apply which
prescribe
the
minimum
academic
qualification as Senior Secondary School
Certificate or Intermediate and Certificate of
Physical
Education
(C.P.Ed.)
or
its
equivalent. It is also pointed out by Sri K.S.
Kushwaha that in the Schools run by the
Basic Education Board or recognised by the
Basic Education Board, post of teacher in
physical education has not been created in
the State. In this connection he has also
placed Regulation I of Chapter II of the U.P.
Intermediate Education Act, 1921 which
provides that B.P. Ed. Degree holders are
eligible for appointment on the post of
Assistant Teacher (Physical Education) in
Intermediate Colleges (Class XI to XII) and
has, therefore, submitted that the petitioners
can be considered for appointment on this
post. It is also his submission that it is for this
reason that Rule 8 of the U.P. Basic
Education (Teachers) Service Rules, 1981
and Rules 4 and 5 of the U.P. Recognised
Basic Schools (Junior High Schools)
(Recruitment and Condition of Service of
Teachers) Rules, 1978 do not provide for
qualification for the said post of Assistant
Teacher in Physical Education in elementary
schools. It is also his contention that the
petitioners have not assailed the 2001 NCTE
Regulations and, therefore, the writ petitions
challenging the consequential Notification
dated
23rd
August,
2010
and
the
advertisement dated 22nd September, 2011
is not maintainable in view of the decision of
the Supreme Court in Edukanti Kistamma
(Dead) through LRs. & Ors. Vs. S.
Venkatareddy (Dead) through LRs. &
Ors., (2010) 1 SCC 756.

5. I have considered the submissions
advanced by the learned counsel for the
parties.

6. The petitioners, who claim to be
B.P.Ed./D.P.Ed., are desirous of appearing at
the UP-TET conducted by the Intermediate
Education Board so that they possess the
minimum qualification for a person to be
considered eligible for appointment as a
teacher in Classes I to VIII in a school
referred to in Section 2(n) of the Act.
1370 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

7. In order to appreciate the
controversy involved in these petitions, it
will be necessary to refer to various
provisions of the Act and the Notifications.

8. Section 23(1) of the Act deals with
the qualification for appointment and terms
and conditions of service of teachers and is
as follows:-

"23. Qualification for appointment
and terms and conditions of service of
teachers.--(1) Any person possessing such
minimum qualifications, as laid down by an
academic authority, authorised by the Central
Government, by notification, shall be eligible
for appointment as a teacher."

9. Elementary Education has been
defined under Section 2(f) of the Act while a
School has been defined under Section 2(n)
of the Act and the definitions are as follows:-

"2(f). "elementary education" means
the education from first class to eight class;"

................

(n) "school" means any recognised
school imparting elementary education and
includes--

(i) a school established owned or
controlled by the appropriate Government or
a local authority;

(ii) an aided school receiving aid or
grants to meet whole or part of its expenses
from the appropriate Government or the local
authority;

(iii) a school belonging to specified
ategory; and

(iv) an unaided school not receiving any
kind of aid or grants to meet its expenses
from the appropriate Government or the local
authority;"

10. The Central Government, by means
of the Notification dated 31st March, 2010
which was published in the Official Gazette
dated 5th April, 2010, has authorised the
NCTE as the ''academic authority' to
prescribe the minimum qualifications which
notification is as follows:-

"NOTIFICATION
New Delhi, the 31st March, 2010

S.O. 750(E).--In exercise of the powers
conferred by sub-section (1) of Section 23 of
the Right of Children to Free and
Compulsory Education Act, 2009, the
Central Government hereby authorises the
National Council for Teacher Education as
the academic authority to lay down the
minimum qualifications for a person to be
eligible for appointment as a teacher."

11. The NCTE, accordingly, issued the
Notification dated 23rd August, 2010 which
was published in the Gazette of India dated
25th August, 2010. The said Notification
lays down the minimum qualification for a
person to be eligible for appointment as a
teacher in Classes I to VIII in a school
referred to in Section 2(n) of the Act with
effect from the date of the notification.
However, another Notification dated 29th
July, 2011 was published in the Gazette of
India dated 2nd August, 2011. This
Notification made certain amendments to the
Notification dated 23rd August, 2010
published in the Gazette of India dated 25th
August, 2010. The minimum qualifications
prescribed in the Notification after the
amendment for a person to be considered
3 All] Abhishek Kumar Pandey V. State of U.P. and others
1371
eligible for appointment as a teacher are as
follows:-

1. Minimum Qualifications.-

(i) Classes I-V

(a) Senior Secondary (or its equivalent)
with at least 50% marks and 2-year Diploma
in Elementary Education (by whatever name
known).
OR

Senior Secondary (or its equivalent)
with at least 45% marks and 2-year Diploma
in Elementary Education (by whatever name
known), in accordance with the NCTE
(Recognition
Norms
and
Procedure),
Regulations 2002.
OR

Senior Secondary (or its equivalent)
with at least 50% marks and 4-year Bachelor
of Elementary Education (B.El. Ed.).
OR

Senior Secondary (or its equivalent)
with at least 50% marks and 2-year Diploma
in Education (Special Education).
OR

Graduation and two year Diploma in
Elementary Education (by whatever name
known)
AND

(b) Pass in the Teacher Eligibility Test
(TET), to be conducted by the appropriate
Government
in
accordance
with
the
Guidelines framed by the NCTE for the
purpose.

(ii) Classes VI-VIII

(a) Graduation and 2-year Diploma in
Elementary Education (by whatever name
known)
OR

Graduation with at least 50% marks and
1-year Bachelor in Education (B.Ed.)
OR

Graduation with at least 45% marks and
1-year Bachelor in Education (B.Ed.), in
accordance with the NCTE (Recognition
Norms and Procedure) Regulations issued
from time to time in this regard.
OR

Senior Secondary (or its equivalent)
with at least 50% marks and 4-year Bachelor
in Elementary Education (B.EI.Ed)
OR

Senior Secondary (or its equivalent)
with at least 50% marks and 4-year BA/B.Sc.
Ed. or B.A. Ed./B.Sc. Ed.
OR

Graduation with at least 50% marks and
1-year B.Ed. (Special Education)
AND

(b) Pass in the Teacher Eligibility Test
(TET), to be conducted by the appropriate
Government
in
accordance
with
the
Guidelines framed by the NCTE for the
purpose.

2.
Diploma/Degree
Course
in
Teacher Education.- For the purprose of
this Notification, a diploma/degree course in
teacher education recognised by the National
Council for Teacher Education (NCTE) only
shall be considered. However, in case of
Diploma in Education (Special Education)
and B.Ed. (Special Education), a course
recognised by the Rehabilitation Council of
India (RCI) only shall be considered.

3. Training to be undergone.- A
person -

(a) with Graduation with at least 50%
marks and B.Ed. qualification or with at least
45% marks and 1-year Bachelor in
Education (B.Ed.), in accordance with the
NCTE (Recognition Norms and Procedure)
Regulations issued from time to time in this
regard shall also be eligible for appointment
1372 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
for Class I to V upto 1st January, 2012,
provided
he/she
undergoes,
after
appointment, an NCTE recognised 6-month
Special
Programme
in
Elementary
Education.

(b) with D.Ed. (Special Education) or
B.Ed. (Special Education) qualification shall
undergo, after appointment, an NCTE
recognised 6-month Special Programme in
Elementary Education.

4. Teacher appointed before the date
of
this
Notification.-
The
following
categories of teachers appointed for classes I
to VIII prior to date of this Notification need
not acquire the minimum qualifications
specified in Para (1) above,

(a) A teacher appointed on or after the
3rd September, 2001, i.e. the date on which
the NCTE (Determination of Minimum
Qualifications for Recruitment of Teachers in
School) Regulation, 2001 (as amended from
time to time) came into force, in accordance
with that Regulation.

Provided that a teacher of class I to V
possessing B.Ed. qualification, or a teacher
possessing B.Ed. (Special Education) or
D.Ed. (Special Education) qualification shall
undergo an NCTE recognised 6-month
special programme on elementary education.

(b) A teacher of class I to V with B.Ed.
qualification who has completed a 6-month
Special Basic Teacher Course (Special BTC)
approved by the NCTE;

(c) A teacher appointed before the 3rd
September, 2001, in accordance with the
prevalent Recruitment Rules.

5.(a) Teacher appointed after the
date of this notification in certain cases:
Where an appropriate Government or local
authority or a school has issued an
advertisement to initiate the process of
appointment of teachers prior to the date of
this Notification such appointments may be
made in accordance with the NCTE
(Determination of Minimum Qualifications
for Recruitment of Teachers in Schools)
Regulations, 2001 (as amended from time to
time).

(b) The minimum qualification norms
referred to in this notification apply to
teachers of Languages, Social Studies,
Mathematics, Science, etc. In respect of
teachers
for
Physical
Education,
the
minimum qualification norms for Physical
Education teachers referred to in NCTE
Regulation dated 3rd November, 2001 (as
amended from time to time) shall be
applicable. For teachers of Art Education,
Craft Education, Home Science, Work
Education, etc. the existing eligibility norms
prescribed by the State Governments and
other
school
managements
shall
be
applicable till such time the NCTE lays
down the minimum qualifications in respect
of such teachers.

12. It is stated by learned counsel for
the NCTE that 3rd November, 2001 in
paragraph 5(b) of the said notification had
been wrongly mentioned and the date should
be 3rd September, 2001.

13. It is, therefore, clear that in respect
of teachers for physical education, the
minimum qualification norms which will be
applicable are the 2001 NCTE Regulations
dated
3rd
September,
2001.
These
Regulations do not provide for clearing the
TET. In fact for elementary schools, all that
is provided is that the persons should have
3 All] Abhishek Kumar Pandey V. State of U.P. and others
1373
the minimum academic and professional
qualification as Senior Secondary School
Certificate or Intermediate or its equivalent
and Certificate in Physical Education
(C.P.Ed.) of a duration of not less than two
years or its equivalent. It is, however, stated
by Sri Kushwaha, learned counsel appearing
for the State that Certificate of C.P.Ed. is not
being awarded in the State after 1997.

14. According to Sri Kushwaha,
learned Standing Counsel appearing for the
State and the Board, not a single post of
Assistant Teacher (Physical Education) has
been created in the Basic Education
Department till date and it is for this reason
that 1981 Rules or 1978 Rules do not
provide for the qualification of the said post
of Assistant Teacher (Physical Education).
The petitioners, at best, can be considered for
appointment in Intermediate Colleges as they
claim to be possessing graduation degree
with
Bachelor
of
Physical Education
(B.P.Ed.) Degree.

15. The relief claimed in these petitions
is to quash the Notification dated 23rd
August, 2010 and suitably amend the
advertisement so as to permit the petitioners
to appear at the forthcoming UP-TET to be
held on 13th November, 2011. There is no
submission that paragraph 5(b) of the
notification is bad in law or that the NCTE
was not competent to provide the minimum
qualifications. As noticed hereinabove,
Section 23(1) of the Act confers powers on
the academic authority authorised by the
Central
Government
to
prescribe
the
minimum qualification for a person to be
eligible for appointment as a teacher and the
Central Government has by the Notification
dated 31st March, 2010 authorised the
NCTE
to
lay
down
the
minimum
qualifications. The NCTE has, accordingly,
issued the Notifications dated 23rd August,
2011 and 29th July, 2011 and under
paragraph 5(b), the minimum qualifications
for Physical Education Teachers are the
qualifications contained in 2001 NCTE
Regulations. These Regulations do not
provide for holding a TET. There is no
challenge to the 2001 NCTE Regulations. In
such circumstances, the relief claimed for by
the petitioners for permitting them to appear
at the UP-TET so that they can be considered
for appointment cannot be granted. The
petitioners cannot, accordingly, be permitted
to assail the advertisement to the extent it
does not permit them from appearing at the
UP-TET.

16. The NCTE 2001 Regulations may
provide for the minimum qualifications for
teachers in elementary schools as the post of
Physical Education Teacher may be existing
in other States but merely because such
minimum
qualifications
have
been
prescribed by the NCTE does not mean that
it is obligatory for the State to create posts of
Assistant Teachers (Physical Education) in
the Schools run by the Basic Education
Board or recognised by the Basic Education
Board. The State may have realised the
importance of physical education and for that
purpose has made it a compulsory subject in
Classes I to VIII but as pointed out by Sri
K.S. Kushwaha, such training is imparted to
candidates undergoing the BTC Training
Course so that when they are appointed to
teach other subjects, they can also teach this
compulsory subject for which the only
requirement is to pass and the marks are not
added to the final result.

17. This apart, a direction cannot be
issued to the respondents to create posts of
Assistant Teachers (Physical Education) in
elementary schools run by the Basic
Education Board or recgonised by the Basic
Education Board so that the petitioners can
1374 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
be considered for appointment. There is no
categorical averment in the petitions that the
post
of
Assistant
Teacher
(Physical
Education) in elementary school exists in the
other two categories of Institutions referred
to in Section 2(n) of the Act.

18. The petitioners are, therefore, not
entitled to any relief.

19. The writ petitions are, accordingly,
dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.11.2011

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

Civil Misc. Writ Petition No. 63022 of 2011

Anwar

 ...Petitioner
Versus
State of U.P. and others ...Respondnets

Counsel for the Petitioner
Sri Shiv Sagar Singh

Counsel for the Respondents:
Sri Anuj Kumar (Addl. S.C.)
C.S.C.

Indian Limitation Act-Section 5-delay in
filing Revision-duly explained with medical
certificate-rejection on ground of swaring
with separate Paragraph-highly technicalall averments of affidavit appears to be on
basis
of
personal
knowledge-rejection
order-held-not sustainable-matter remitted
back for consideration on merit

Held: Para 8 and 9

In my opinion the entire affidavit is only in
relation to the personal knowledge of the
petitioner. No other factor has been
indicated and as such the swearing clause
and its verification in paragraph 11 does not
appear to be defective. On facts the
affidavit therefore being not defective, the
Division Bench judgement would not be
attracted in the present case. The Collector
therefore erred in rejecting the affidavit for
no valid reason.

In view of the nature of the dispute and the
pendency of the proceedings this court
accepts the explanation for delay in filing of
the revision and condones the same. The
Section 5 application as well as the plea in
respect thereof is allowed and the revision
shall be treated to be within time.
Case law discussed:
1991 AWC Pg. 238

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

1. Heard Sri Shiv Sagar Singh for the
petitioner and the learned Standing Counsel
and the learned counsel for the Gaon Sabha
for the respondents. Learned counsel for the
respondents submit that they do not propose
to file any counter affidavit as the material on
the basis whereof the impugned order has
been passed is already on record and
therefore the matter be disposed of finally at
this stage.

2. This petition arises out proceedings
initiated against the petitioner for an alleged
encroachment over Gaon Sabha land under
Section 122-B of the U.P. Z.A. & L.R. Act,
1950.

3. The allegation is that the petitioner
has encroached partly over Plot No. 554
which is recorded in the name of Gaon
Sabha, and as such he was liable to be
evicted and also liable to pay the fine
imposed.

4. Learned counsel Sri Shiv Sagar
Singh for the petitioner submits that the
notice which was served on the petitioner did
not indicate as to on which side and where