# All India Transformer Manufacturers Association & Anr v. State of U.P. & Ors

- **Citation:** (2020) 2 ILRA 1803
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-11
- **Case number:** Writ C No. 20776 of 2019
- **Bench:** Ramesh Sinha, Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/all-india-transformer-manufacturers-association-anr-v-state-of-u-p-ors-45251
- **Pages:** 4

## Headnote

Government order -guidelines for quality
check of transformers-if on inspection
found
defective-actions
providedchallenged-as it amounts to modification of
the conditions under agreement -between
the parties-held-guidelines to be read in
acclamation
to
terms
and
conditions
provided under each agreement between
the parties-impugned order not arbitraryW.P. dismissed.

Cases cited:

Delhi Transport Corporation vs. D.T.C.
Mazdoor Congress & ors, (1991) Suppl )1)
Sec 600
1804 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

2 All. All India Transformer Manufacturers Association & Anr. Vs. State of U.P. & Ors.
1803
1995 by which the benefit of the
Repealing Act of 1999 has already been
provided to the petitioners. Further from
perusal of the record it is clear that against
the aforesaid order dated 17.12.2000 a
Review Petition was preferred by the State
Government before the District Judge,
Allahabad which was numbered as Misc.
Case No. 930 of 2002, the same was
rejected by the District Judge, Allahabad
vide its order dated 08.08.2008. The
aforesaid order has became final between
the parties. The entries in the Revenue
records were not corrected by the State
Authorities, a writ petition was preferred
by the petitioners before the Court being
Writ Petition No. 68554 of 2011 (Smt.
Seeta Devi and Others Supra). On the
basis of the directions given by this Court
in
the
aforesaid
writ
petition
on
06.02.2015 a decision has been taken by
the respondent no. 4 dated 23.11.2015
rejecting the claim set up by the
petitioners. The only reason given in the
aforesaid order is that the letters were
already written by the District Magistrate
to the State Government seeking their
comments in the matter. Record further
reveals that till date no order whatsoever
has been passed by the State Government
pursuant to the letters written by the
District Magistrate, Allahabad in the
matter.

25. In the facts and circumstances of the
case, we are of the opinion that the order
passed by the respondent no. 4 dated
23.11.2015 which is under challenge in the
present writ petition is liable to be quashed and
the same is hereby quashed. A mandamus is
issued to the respondents to correct the
Revenue Records accordingly pertaining to the
land in dispute by deleting the words 'State
Land' from the Revenue Records and record
the names of the petitioners in place of 'State
Land'. The aforesaid exercise shall be
completed by the respondents specially the
respondent no.2/District Magistrate, Allahabad
within a period of three months from the date
of production of certified copy of this order
before him.

26. With the aforesaid directions, the writ
petition is allowed. No order as to cost.
----------
(2020)02ILR A1803

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.11.2019

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE AJIT KUMAR, J.

Writ C No. 20776 of 2019

All
India
Transformer
Manufacturers
Association & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Vivek Saran

Counsel for the Respondents:
C.S.C., Sri Krishna Agrawal

Government order -guidelines for quality
check of transformers-if on inspection
found
defective-actions
providedchallenged-as it amounts to modification of
the conditions under agreement -between
the parties-held-guidelines to be read in
acclamation
to
terms
and
conditions
provided under each agreement between
the parties-impugned order not arbitraryW.P. dismissed.

Cases cited:

Delhi Transport Corporation vs. D.T.C.
Mazdoor Congress & ors, (1991) Suppl )1)
Sec 600
1804 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Ramesh Sinha, J. &
Hon'ble Ajit Kumar, J.)

1. Heard Sri Vivek Saran, learned
counsel for the petitioners Sri Krishna
Agrawal, learned counsel appearing for
respondent Nos.2 and 3-Corporation and
learned Standing Counsel for respondent
No.1.

2. By means of this writ petition
under Article 226 of the Constitution of
India the petitioner has challenged the
Government
Order
dated
23.05.2019
whereby certain guidelines have been
provided for qua quality check of
transformers and on inspection such
transformers, if detected be defective,
certain actions have been further provided
for.

3. Assailing the Government Order
the grievance raised by the petitioner is
that the Government Order directly affects
each individual contract entered between
the tenderer and the Corporation qua the
supply of product and, therefore, no
separate directions can be issued as they
would amount to modification of the
conditions under the agreement between
the two parties. He has taken us to the
relevant provisions of notice inviting
tender subject to which the supply has to
made and in which various stages of
inspections have been provided for. He
further submits that since under the
contract there is specific provision for
maintenance in case of supply of the
transformers and also there are certain
guarantees that stand qua the transformers
installed,
it
amounts
to
specific
precautions to check quality control. He,
therefore, submits that there was no
occasion to issue a Government Order
over and above the terms and conditions
subject to which tender was accepted and
agreement reached.

4. He has further assailed the order
on the ground that the time period
prescribed for black listing as minimum
three years is also not in public interest.
He submits that each individual case is to
be tested and if the transformer supplied
are found to be defective one and the terms
of contract have been found to be violated,
obviously it will lead to penal action.
Thus, he submits that each case should be
tested on its facts particular to that case
and then only any order should be passed.

5. Per contra, the argument advanced
by learned Standing Counsel as well as
learned
counsel
appearing
for
the
Corporation is that the Government Order
has been issued only providing guidelines
and these guidelines not in derogation to
the agreemententered into between the
parties.
He,
therefore,
submits
that
challenge to the Government Order is an
absolutely misplaced grounds. He further
submits that these are only by way of
precautionary measures that have been
adopted for by the Government and it
cannot under any circumstance be read as
eroding the principles governing privity of
contract between the parties.

6. Having heard learned counsel for
the parties and having perused the records
and
having
gone
through
specific
provisions of the Government Order, we
find that the Government Order lays down
certain conditions for the purposes of
testing and inspection of the transformers
and provides certain measures to be
adopted so that the transformers supplied
are
qualitative
one.
In
fact,
the
Government Order is only by way of a
measure for quality control.
2 All. All India Transformer Manufacturers Association & Anr. Vs. State of U.P. & Ors.
1805

7. There is always presemption of
legislative action being valid and lawful
and so also in respect of a Government
Order if it is issued in the field not already
covered by any legislation.

8. A Government Order providing
law in a field not already occupied by any
Act or Rule would fall in the category of
primary legistation (Nawal Kishor Mishra
Vs. High Court of Judicature at Allahabad,
(2015) 5 SCC 479).

9. Constitution too vide Article
13(3)(a) defines laws as an Ordinance
Order, by-laws, regulation, notification
etc. If legislature has not enacted law and
executive
government
issues
any
Government Order, it raises presumption
of its validity. In the case of Delhi
Transport
Corporation
Vs.
D.T.C.
Mazdoor Congress and others, (1991)
Suppl (1) Sec 600 the Apex Court laid
down a very broad test qua judicial review
of
a
legislative
action
while
its
constitutional validity is under challenge
vide para 255 thus:

"255. It is thus clear that the
doctrine of reading down or of recasting
the statute can be applied in limited
situations. It is essentially used, firstly, for
saving a statute from being struck down on
account of its unconstitutionality. It is an
extension of the principle that when two
interpretations are possible ? one rendering
it constitutional and the other making it
unconstitutional, the former should be
preferred. The unconstitutionality may
spring from either the incompetence of the
legislature to enact the statute or from its
violation of any of the provisions of the
Constitution. The second situation which
summons its aid is where the provisions of
the statute are vague and ambiguous and it
is possible to gather the intentions of the
legislature from the object of the statute,
the context in which the provision occurs
and the purpose for which it is made.
However, when the provision is cast in a
definite and unambiguous language and its
intention is clear, it is not permissible
either to mend or bend it even if such
recasting is in accord with good reason
and conscience. In such circumstances, it
is not possible for the court to remake the
statute. Its only duty is to strike it down
and leave it to the legislature if it so
desires, to amend it. What is further, if the
remaking of the statute by the courts is to
lead to its distortion that course is to be
scrupulously
avoided.
One
of
the
situations further where the doctrine can
never be called into play is where the
statute requires extensive additions and
deletions. Not only it is no part of the
court's duty to undertake such exercise, but
it is beyond its jurisdiction to do so."

10. Applying the above test to the
provisions contained under the Government
Order, we do not find any ambiguity in the
language and the intention behind it.

11. On pointed query being made to
learned counsel for the petitioner as to what
malice in law can be detected if the
Government Order is to be tested on the testing
anvil of Article 14 of the Constitution, learned
counsel for the petitioner only submitted that it
is encroaching upon the field of an agreement
which is governed by the principles of privity
of contract between the two parties and thus,
Government Order virtually amounts to
modifying the terms of contract.

12. Under the Government Order in
its very first paragraph it indicates that it is
in the form of guidelines and so we would
be holding that these guidelines are to be
1806 INDIAN LAW REPORTS ALLAHABAD SERIES
read
in
acclamation
to
terms
and
conditions provided under each agreement
between the parties.

13. Thus, we do not find any merit in the
arguments advanced by learned counsel for the
petitioner that the Government Orders suffers
from an illegality as such so as to hold it bad.
Neither
the
exercise
in
issuing
such
Government Order is found arbitrary nor
content thereof in any manner are found to be
against the public policy and/or public interest.
We do not find it to be in any manner vitiated
for any bias or perversity in providing for a
period black listing. Thus, we decline to
interfere in the present writ petition.

14. However, we hastened to add that
every agreement has its own sanctity which
is to be maintained and in case if the terms
and conditions are violated and during
inspection the transformers are found to be
defective the action shall be taken strictly in
accordance with law within the four corners
of the terms and conditions entered between
the parties qua the contract. And we may
further observe that in case, if the individual
has been visited with the penalty of black
listing, it is always open for such individual
to approach this Court against the order of
the black listing and each case is to be tested
on its own facts.

15. The writ petition, with the
aforesaid observations, is consigned to
records.
----------
(2020)02ILR A1806

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.12.2019

BEFORE

THE HON'BLE AJAY BHANOT, J.
Writ C No. 26755 of 2019

Mohammad Ghayas ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Sri Arvind Kumar Upadhyay, Sri Sanjay
Pathak

Counsel for the Respondents:
C.S.C., Sri Shashank Shekhar Singh, Sri
Abrar Ahmad, Sri Rizwan Ali, Sri Vinod
Kumar Shukla

Petitioner
debarred
over
an
alleged
incidence
of
voilence-debarred
by
University-order debarring bad-passed in
mechanical
manner-prospects
of
reformation
of
young
adult
to
be
considered-W.P. partly allowed.

Cases Cited

1. Rattan Chand Hira Chand v. Askar Nawaz Jung,
reported at (1991) 3 SCC 67

2. Vishaka Vs. State of Rajasthan, reported at 1997 (6)
SCC 241

3. Avinash Negara vs. Navodaya Vidyalaya Samiti and
others (1997) 2 SCC 534

4. Ajay Singh Vs. Union of India and Others

5. Sajjan Singh v. State of Rajasthan, reported at AIR
1965 SC 845

6. Kesavananda Bharati v. State of Kerala, reported at
(1973) 4 SCC 225.

7. Maneka Gandhi v. Union of India, (1978) 1 SCC 248

8. Olga Tellis v. Bombay Municipal Corpn. Reported at
(1985) 3 SCC 545)