# Ajeet Singh @ Muraha v. State of U.P. and others

- **Citation:** (2006) 3 ILRA 1059
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-05-10
- **Case number:** Civil Misc. Writ Petition No. 19501 of 2006
- **Bench:** Dr. B.S. Chauhan, Dilip Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ajeet-singh-muraha-v-state-of-u-p-and-others-40723
- **Pages:** 5

## Headnote

Constitution of India, Art. 226-Practice
of Procedure-grant of interim protectionwhile petition dismissed as withdrawn to
relegate the matter before competent
forun-writ court no competence to grant
interim order as the case no pending
before writ court.

Held: Para 13

Thus, it is evident from the aforesaid
judgments of the Hon'ble Apex Court
that the Court has a power to grant
interim relief so long the case is pending
before it. In a case where the writ Court
refuses to entertain a petition and
relegates the party to some other
appropriate forum or the party itself
withdraws the writ petition to approach
another forum, as the case does not
remain pending before the Court, the
writ Court has no competence to issue
any direction protecting the right of the
petitioner interregnum, for the reason
that writ does not lie for granting only an
interim relief and interim relief can be
granted provided the case is pending
before the Court and rights of the parties
are likely to be adjudicated upon on
merit.
Case law discussed:
AIR 1952 SC-12, AIR 1965 SC-745, AIR 1964
SC-685, AIR 1966 SC-1441, AIR 1971 SC-530,
AIR 1980 SC-1707, 1992 (4) SCC-363, 1993
(2) SCC-386, AIR 2002 SC-834, 2004 (2) SCC362, AIR 2005 SC-2499, 2005 (7) SCC-23

## Text

3 All] Ajeet Singh @ Muraha V. State of U.P. and others
1059
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.05.2006

BEFORE
THE HON'BLE DR. B.S. CHAUHAN, J.
THE HON'BLE DILIP GUPTA, J.

Civil Misc. Writ Petition No. 19501 of 2006

Om Prakash

...Petitioner
Versus
Dakshinanchal Vidyut Vitran Nigam Ltd.
and others

 ...Respondents

Counsel for the Petitioner:
Sri Mayank Agrawal
Seema Agrawal

Counsel for the Respondents:
Sri W.H. Khan
S.C.

Constitution of India, Art. 226-Practice
of Procedure-grant of interim protectionwhile petition dismissed as withdrawn to
relegate the matter before competent
forun-writ court no competence to grant
interim order as the case no pending
before writ court.

Held: Para 13

Thus, it is evident from the aforesaid
judgments of the Hon'ble Apex Court
that the Court has a power to grant
interim relief so long the case is pending
before it. In a case where the writ Court
refuses to entertain a petition and
relegates the party to some other
appropriate forum or the party itself
withdraws the writ petition to approach
another forum, as the case does not
remain pending before the Court, the
writ Court has no competence to issue
any direction protecting the right of the
petitioner interregnum, for the reason
that writ does not lie for granting only an
interim relief and interim relief can be
granted provided the case is pending
before the Court and rights of the parties
are likely to be adjudicated upon on
merit.
Case law discussed:
AIR 1952 SC-12, AIR 1965 SC-745, AIR 1964
SC-685, AIR 1966 SC-1441, AIR 1971 SC-530,
AIR 1980 SC-1707, 1992 (4) SCC-363, 1993
(2) SCC-386, AIR 2002 SC-834, 2004 (2) SCC362, AIR 2005 SC-2499, 2005 (7) SCC-23

(Delivered by Hon'ble Dr.B.S. Chauhan, J.)

1. This writ petition has been filed
for quashing the demand notice dated
22.03.2006 for recovery of Rs.2,54,686/-
as outstanding dues towards electricity
consumption.

2. The facts and circumstances
giving rise to this case are that on
115.02.2006, in a surprise check by
respondent Department, the petitioner was
found committing theft of electricity. He
was proceeded with under the provisions
of the Electricity Act, 2003 (hereinafter
called the 'Act'). However the offence
was compounded under sub-section (3) of
Section 152 of the Act, asking the
petitioner to deposit a sum of Rs.50,000/-.
Petitioner deposited the said amount but
he received the impugned recovery notice
dated
22.03.2006
for
a
sum
of
Rs.2,54,686/-. Hence the present petition.

3. Sri Mayank Agrawal, learned
counsel for the petitioner has submitted
that
once
the
matter
has
been
compounded and the petitioner has
deposited the entire amount, no recovery
is permissible. Therefore, the notice
impugned is liable to be quashed.

4. On the other hand, Ms. Suman
Sirohi,
learned
Standing
Counsel
appearing for respondents no.3 and 4 and
Shri
W.H.
Khan,
learned
counsel
1060 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
appearing for the respondent Corporation
have submitted that the compounding fee
was recovered as a penalty for committing
the theft and the deposit of the said
amount does not exonerate the petitioner
from civil liability, i.e. from making
payment of the outstanding dues of
electricity consumed by him. The petition
is liable to be dismissed. More so, if the
petitioner has any grievance regarding the
quantum of the amount, the only remedy
available to him is to approach the
Authority under the provisions of the U.P.
Electricity Supply Code, 2005 but the writ
petition is not maintainable.

5. In view of the submissions made
by
the
learned
counsel
for
the
respondents,
Shri
Mayank
Agrawal,
learned counsel for the petitioner prays
for withdrawal of the writ petition. His
prayer is accepted and the writ petition is
dismissed as withdrawn.

6. At this stage, Shri Mayank
Agrawal,
learned
counsel
for
the
petitioner has submitted that the recovery
is likely to be made in pursuance of the
impugned notice dated 22.03.2006 but it
may take sometime to approach the
Authority under the Code 2005 for
obtaining appropriate order, and so this
Court should grant stay of recovery of the
amount for a stipulated period and during
that period, the petitioner shall get an
appropriate order from the Authority
under the Code 2005.

7. The issue involved herein is as to
whether this Court has a power to grant
the relief sought at this stage to the
petitioner when the petition has been
dismissed as withdrawn and the matter
has neither been adjudicated upon on
merit nor examined at all.

8. The issue involved herein was
examined by a Constitution Bench of the
Hon'ble Apex Court in The State of
Orissa Vs. Madan Gopal Rungta, AIR
1952 SC 12, wherein the Orissa High
Court while dismissing the writ petition
without entering into the merit of the case,
relegated the petitioner therein to the Civil
Court as the petition raised disputed
questions of fact, had granted the interim
relief for a limited period to facilitate the
petitioner to approach the Civil Court and
obtain the interim relief. The Hon'ble
Apex Court set aside the said order of the
High Court observing that the writ was
not maintainable only for the purpose of
granting interim relief and in case the
High Court did not entertain the case on
merit and relegated the party to some
other forum, it did not have a power to
grant interim relief for the interregnum
period. The Court held as under:-

"The question which we have to
determine is whether directions in the
nature of interim relief only could be
granted under Art. 226, when the Court
expressly stated that it refrained from
determining the rights of the parties on
which a writ of mandamus or directions
of a like nature could be issued. In our
opinion, Art. 226 cannot be used for the
purpose of giving interim relief as the
only and final relief on the application as
the High Court has purported to do. The
directions have been given here only to
circumvent the provisions of S. 80 Civil
P.C., and in our opinion that it is not
within the scope of Art. 226. An interim
relief can be granted only in aid of and as
ancillary to the main relief which may be
available
to
the
party
on
final
determination of his rights in a suit or
proceeding. If the Court was of opinion
3 All] Om Prakash V. Dakshinanchal Vidyut Vitran Nigam and others
1061
that there was no other convenient or
adequate remedy open to the petitioners,
it might have proceeded to investigate the
case on its merits and come to a decision
as to whether the petitioners succeeded in
establishing
that
there
was
an
infringement of any of their legal rights
which entitled them to a writ of
mandamus or any other directions of a
like
nature;
and
pending
such
determination it might have made suitable
interim order for maintaining the status
quo ante. But when the Court declined to
decide on the rights of the parties and
expressly held that they should be
investigated more properly in a civil suit,
it could not, for the purpose of facilitating
the
institution
of
such
suit,
issue
directions in the nature of temporary
injunctions, under Art. 226 of the
Constitution. In our opinion, the language
of Art. 226 does not permit such an
action. On that short ground, the judgment
of the Orissa High Court under appeal
cannot be upheld."

9.

The said judgment stood
approved by a Seven Judges' Bench of
the Hon'ble Apex Court in Special
Reference No. 1 of 1964 under Article
143 of the Constitution of India, AIR
1965 SC 745, further placing reliance on
Maxwel wherein it had been observed that
when an Act confers a jurisdiction, it
impliedly also grants the power of doing
of such acts or applying such means as are
essentially necessary to its execution.

10. The ratio of the said judgment in
Madan Gopal (supra) has consistently
been approved and followed by the
Hon'ble Apex Court as is evident from
the Constitution Benches decisions in
Amarsarjit Singh Vs. State of Punjab,
AIR 1962 SC 1305; and State of Orissa
Vs Ram Chandra Dev, AIR 1964 SC 685.

11. In State of Bihar Vs. Rambalak
Singh "Balak" & Ors., AIR 1966 SC
1441, the Hon'ble Apex Court has made a
similar
observation
observing
that
granting interim relief is permissible
when the case is pending before the Court
and if jurisdiction is conferred by the
Statute upon a Court, the conferment of
jurisdiction implies the conferment of
power of doing all such acts or applying
such means.

12. In The Premier Automobiles
Ltd. Vs. Kamlakar Shantaram Wadke &
Ors., AIR 1975 SC 2238, a similar view
has been reiterated.

13. Thus, it is evident from the
aforesaid judgments of the Hon'ble Apex
Court that the Court has a power to grant
interim relief so long the case is pending
before it. In a case where the writ Court
refuses to entertain a petition and
relegates
the
party
to
some
other
appropriate forum or the party itself
withdraws the writ petition to approach
another forum, as the case does not
remain pending before the Court, the writ
Court has no competence to issue any
direction protecting the right of the
petitioner interregnum, for the reason that
writ does not lie for granting only an
interim relief and interim relief can be
granted provided the case is pending
before the Court and rights of the parties
are likely to be adjudicated upon on merit.

14. A Constitution Bench of the
Hon'ble Apex Court in Maharaj Umeg
Singh & Ors. Vs. State of Bombay &
Ors., AIR 1955 SC 540, entertained a writ
petition
under
Article
32
of
the
Constitution of India and the question
1062 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
involved therein had been as to whether
the Moti Moree held by the petitioner and
his ancestors under a Grant was part of
Jagir within the meaning of The Bombay
Merged Territories and Areas (Jagir
Abolition) Act, 1954. The vires of the
provisions
of
the
Act
had
been
challenged. The Hon'ble Apex Court
subsequently came to the conclusion that
the petitioner therein had to establish
satisfactorily that the Moti Moree was not
a Jagir within the definition given under
the Act 1954 and the question required to
be completely trashed out and adjudicated
upon by the Civil Court. The Court
relegated the parties to the Civil Court
and adjourned the case till that issue was
decided by the Civil Court. However, the
Court further granted the following
interim relief:-

"We,
therefore,
order
that
the
petitioner do file the necessary Suit within
three months on this date and the petition
do stand adjourned till after the hearing
and final disposal of that Suit. The stay
granted by this Court in this petition will
continue in the meanwhile. We may
record here that the learned Advocate
General on behalf of State of Bombay has
also given his undertaking not to take any
steps against the petitioner in the
meanwhile."

15. In the said case, though the
parties therein where relegated to the
Civil Court for adjudication of their rights
by adducing evidence on facts but granted
the interim relief till the disposal of the
Suit for the reason that the matter
remained pending before the Court to be
decided after disposal of the Suit. More
so, it contained an undertaking given by
the Advocate General of the State of
Bombay not to take any step adversely
affecting the petitioner.

16. Even if it is assumed for the sake
of argument that in Maharaj Umeg Singh
(Supra) the Hon'ble Apex Court has
expressed the contrary opinion, the said
judgment does not have any binding
effect for the reason that the issue
involved herein was not involved therein.
On the other hand, in Madan Gopal
Rungta (supra), exactly a similar issue
was involved and had been replied.

17. More so, the order passed in
Maharaja Umeg Singh (supra) can be held
to be an order passed under Article 142 of
the Constitution of India in the facts and
circumstances of the case to do complete
justice between the parties.

18. It is settled proposition of law
that an issue, which has not bee
considered by the Court while delivering
a judgment, cannot be said to be binding
as a decision of the Court takes its colour
from the questions involved in the case in
which it is rendered and while applying
the decision to a later case, the Court must
carefully try to ascertain the true principle
laid down by the decision of the Court.
The Court should not place reliance upon
a discussion without discussing as to how
the factual situation fits in with a fact
situation of the decision on which reliance
is placed, as it has to be ascertained by
analyzing all the material facts and the
issues involved in the case and argued on
both sides. The judgment has to be read
with reference to and in context with a
particular statutory provisions interpreted
by the Court as the Court has to examine
as what principle of law has been decided
and the decision cannot be relied upon in
support of a proposition that it did not
3 All] Om Prakash V. Dakshinanchal Vidyut Vitran Nigam and others
1063
decide
(Vide
H.H.
Maharajadhiraja
Madhav Rao Jivaji Rao Scindia Bahadur
& Ors. Vs. Union of India, AIR 1971 SC
530; M/s Amar Nath Om Prakash & Ors.
Vs. State of Punjab & Ors., AIR 1985 SC
218; Rajpur Rude Meha Vs. State of
Gujarat, AIR 1980 SC 1707; C.I.T. Vs.
Sun Engineering Works (P) Ltd., (1992) 4
SCC 363; Sarva Shramik Sangh, Bombay
Vs. Indian Hume Pipe Co. Ltd. & Anr.,
(1993) 2 SCC 386; Haryana Financial
Corporation & Anr. Vs. M/s Jagdamba
Oil Mills & Anr., AIR 2002 SC 834;
Mehboob Dawood Shaikh Vs. State of
Maharastra, (2004) 2 SCC 362; M/s
Makhija Construction and Enggr. Pvt.
Ltd. Vs. Indore Development Authority &
Ors., AIR 2005 SC 2499; and Shin-Etsu
Chemical Co. Ltd. Vs. Aksh Optifibre
Ltd. (2005) 7 SCC 23.

19. In Jawahal Lal Sazawal & Ors.
Vs. State of Jammu & Kashmir & Ors.,
AIR 2002 SC 1187, Hon'ble Supreme
Court held that a judgment may not be
followed in a given case if it has some
distinguishing features.

20. In Bhavnagar University Vs.
Palitana Sugar Mill (P) Ltd., AIR 2003
SC 511, the Hon'ble Supreme Court held
that a decision is an authority for which it
is decided and not what can logically be
deducted therefrom. A little difference in
facts or additional facts may make a lot of
difference in the presidential value of a
decision. While deciding the said case the
Court placed reliance upon its earlier
judgment in Delhi Administration Vs.
Manohar Lal, AIR 2002 SC 3088.

21. In Union of India Vs. Chajju
Ram, AIR 2003 SC 2339, a Constitution
Bench of the Hon'ble Supreme Court held
as under:-

"It is now well settled that a decision
is an authority for what it decides and not
what can logically be deduced therefrom.
It is equally well settled that a little
difference in facts may lead to a different
conclusion."

22. In Ashwani Kumar Singh Vs.
U.P. Public Service Commission & Ors.,
AIR 2003 SC 2661, the Apex court held
that a judgment of the Court is not to be
read as a statute as it is to be remembered
that judicial utterances have been made in
setting of the facts of a particular case.
Substantial flexibility; one additional or
different fact may make a world of
difference between the conclusions in two
cases. Disposal of cases by blindly
placing reliance upon a decision is not
proper.

23. There is another possibility that
after obtaining an interim relief from the
Court, the party may not approach any
other forum and cause prejudice to the
rights of the other parties.

24. Thus, in view of the above, the
relief sought by the petitioner at this stage
after withdrawing the writ petition cannot
be granted and prayer so made stands
rejected.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.05.2006

BEFORE
THE HON'BLE S.N. SRIVASTAVA, J.

Civil Misc. Writ Petition No.25739 of 2006

Suraj Bhan and others ...Petitioners
Versus