# Anwar v. State of U.P. and others

- **Citation:** (2011) 3 ILRA 1374
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-11-04
- **Case number:** Civil Misc. Writ Petition No. 63022 of 2011
- **Bench:** A.P. Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anwar-v-state-of-u-p-and-others-42023
- **Pages:** 3

## Headnote

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

## Text

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
3 All] Anwar V. State of U.P. and others
1375
was the encroachment situate. An objection
was filed indicating the same. The Lekhpal
who had submitted the report against the
petitioner was also examined and cross
examined and who admitted in his statement
that the petitioner has his constructions over
the Plot No. 545. Learned counsel submits
that the statement of the Lekhpal also
indicated in sum and substance that there was
no
actual
encroachment.
The
cross
examination dated 23.11.2010 has been filed
as Annexure 9 to the writ petition. Several
other objections have also been taken in the
statement. The Tehsildar after considering
the same came to the conclusion that there
was an encroachment of a lesser area,
inasmuch as the notice reflected an
encroachment of 168 square meters whereas
the ultimate finding is that the encroachment
is of 68 square meters only.

5. Learned counsel submits that this
reduction in area is also an indicator of the
incorrect report of the Lekhpal therefore the
order is vitiated. He further submits that this
was taken as a specific ground before the
Collector.

6. It appears that the revision filed
against the order of the Tehsildar was time
barred and therefore an application under
Section 5 along with an affidavit was
submitted stating therein that the petitioner
had fallen ill due to a slip disc. He also relied
on a medical report of one Dr. Neeraj
Kumar. The affidavit which runs in 11
paragraphs, and a copy whereof has been
filed on record, avers about the details of the
delay caused on account of the ailment and
also on account of the incorrect information
given by the lawyer. The revision of the
petitioner has been dismissed only on the
ground of no valid explanation having been
given for delay, and further the affidavit in
support of the delay condonation being
defective, the plea for condoning the delay
deserved to be rejected. While doing so the
learned Collector has relied on a Division
Bench judgment of this Court in the case of
Rai Prem Chandra and others Vs.
Obeetee Pvt. Ltd., 1991 AWC Pg. 238
paragraph 6 in particular.

7. The delay in filing of the revision
has been explained in the affidavit filed in
support of Section 5 application. The learned
Collector while disposing of the revision has
considered the said affidavit to be defective
on the ground that each paragraph of the
affidavit has not been sworn separately and
since the verification clause is defective
therefore in view of the Division Bench
judgment aforesaid the same did not inspire
confidence.

8. 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.

9. 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.

10. Accordingly, the impugned
order of the Collector dated 13.10.2011 is
set aside and the matter is remitted back
1376 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
for decision on merits in accordance with
law within a period of three months from
the date of presentation of a certified copy
of this order before the Collector.

11. The writ petition is allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.11.2011

BEFORE
THE HON'BLE SUDHIR AGARWAL,J.

Civil Misc. Writ Petition No. 65322 of 2011

Brajesh Chandra Awasthi
 ...Petitioner
Versus
State of U.P. Thru Chief Secy. and others

 ...Respondents

Counsel for the Petitioner:
Sri Jyotish Awasthi
Sri Prabhakar Dubey

Counsel for the Respondents:
C.S.C.

Arms Act-Section13-Grant of fire arm
license-petitioner a Practicing Advocatealready possess 315 bore rifle-no material
placed either before authority or before
writ court-justifying need of another fire
Arm-and relied-No Prohibition of Second
License-but not as a matter of right-case
law cited already overruled by Full Benchreally unfortunate.

Held: Para 5

The decisions cited before this Court only
stress upon that there is no prohibition
under the statute for possessing more
than one firearm licence by a person. Lack
of prohibition and entitlement of a person
to claim more than one firearm licence are
two different things. Though there is no
prohibition and a person in a given
circumstance may be allowed more than
one firearm licence but that is not a matter
of right and not also as a matter of course.
Case law discussed:
2002(1) SCC 633; AIR 1993 Alld 291; 2010 (1)
ACR 417; 2010(1) ACR 1078; 1995 (1) All CJ 200

(Delivered by Hon'ble Sudhir Agarwal, J. )

1. Heard learned counsel for the
petitioner and perused the record.

2. This writ petition is directed against
the order passed by District Magistrate,
Etawah rejecting petitioner's application for
grant of firearm licence.

3. Learned counsel for the petitioner
stressed that petitioner is an Advocate and
also a political activist. He does not dispute
that he already possess a firearm licence
whereupon he possess 315 bore rifle but
contends that under law a person can have
three firearm licences and, therefore, the
authorities below have committed patent
error by depriving and denying firearm
licence to petitioner only on the ground that
petitioner already possessed a firearm
licence and weapon with him. He placed
reliance on Apex Court's decision in
Commissioner of Income Tax, Mumbai
Vs. Anjum M.H. Ghaswala and others,
2002(1) SCC 633 and contended that where
a statute vests certain power in an authority
to be exercised in a particular manner, the
power has to be exercised only in that
manner and not otherwise. He also placed
reliance on this Court's decisions in Ganesh
Chandra Bhatt Vs. District Magistrate,
Almora, AIR 1993 Alld 291; Sunil
Shukla, Advocate Vs. State of U.P. and
others, 2010(1) ACR 417; and, Ram
Chandra Yadav Vs. State of U.P. and
another, 2010(1) ACR 1078.

4. In my view none of the aforesaid
decisions have application to the facts of