# Arjun Prem Kumar Mitra v. U.P. State M.S.M.E. Facilitation Council & Ors. 190 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2016) 4 ILRA 189
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-03-10
- **Bench:** Ran Vijai Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/arjun-prem-kumar-mitra-v-u-p-state-m-s-m-e-facilitation-council-ors-190-indian-43568
- **Pages:** 8

## Text

4 All. Arjun Prem Kumar Mitra Vs U.P. State M.S.M.E. Facilitation Council & Ors.
189
they whisked away the deceased on the motorcycle from there by force. Further submission is that soon
thereafter at about 7.30 P.M., it was discovered that the aforesaid deceased has been done to death. It was
also submitted that there is no reason available to doubt or look suspiciously to the statements of these
witnesses; and if the aforesaid fact of forcible abduction is proved then it is the onus of the applicant to
explain as to what happened to the deceased after their abduction. The accused were under burden to
discharge the onus that has been saddled on them by way of Section 106 of the Indian Evidence Act. The
very fact that thereafter he was found killed, would also be sufficient to raise presumption under Section 114
of the Indian Evidence Act that the accused persons in all probability are the killers of the deceased. Even
otherwise also, reading together the fact of forcible abduction of the deceased by the accused and the
discovery of the dead body of the deceased soon thereafter, would also give rise to the logical and necessary
inference against the applicant for being the author of the crime in absence of any explanation of theaccused.
Submission is that it has not been suggested on behalf of the accused that after the said abduction of the
deceased by the accused, they parted ways and were no more in the company of each other and the murder
might have been perpetrated by someone else. The case of the applicant is of denial and not of explaining the
aforesaid fact. It has also been submitted by learned A.G.A. that so far as the first informant's testimony and
the corroborative value of the F.I.R. is concerned, he never claimed to be a witness of the occurrence and so
even otherwise the version given in the F.I.R. was the version based on the information given by some other
person and was thus having no great evidentiary value. So far as the motive part is concerned, the first
informant has reiterated the same before the Investigating Officer. It was also submitted that it is a normal
public tendency not to embroil oneself in any controversy and therefore it is no surprise that the owner of the
coaching centre, who is a professional, preferred to keep distance and denied the incident related to his
coaching. Contention is that the evidence available is sufficient to make out a strong prima facie case against
the accused and he does not deserve bail.

6. Looking to the nature of offence, its gravity and the evidence in support of it and the overall
circumstances of this case, this Court is of the view that the applicant has not made out a case for bail.
Therefore, the prayer for bail of the applicant is rejected.

7. It is clarified that the observations, if any, made in this order are strictly confined to the disposal of the
bail application and must not be construed to have any reflection on the ultimate merits of the case.
----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.03.2016

BEFORE

THE HON'BLE RAN VIJAI SINGH, J.

Writ C No.- 10963 Of 2016

Arjun Prem Kumar Mitra ...Petitioner
Versus
U.P. State M.S.M.E. Facilitation Council & Ors. ...Respondents
190 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for Petitioner:
Nishant Mishra

Counsel for Respondents:
C.S.C.

Held :

Availability of an alternative statutory remedy is not an absolute bar to the exercise of writ jurisdiction under
Article 226 of the Constitution where the impugned order is passed in flagrant violation of the principles of
natural justice or without jurisdiction. Where the grievance arises from a procedural defect resulting in an ex
parte award, the authority passing the order possesses inherent power to undertake a procedural review even
in absence of an express statutory provision. In such circumstances, the appropriate course is to direct the
aggrieved party to avail the remedy of review.

Case Law Cited :

Union of India & Ors. Vs. Tantia Construction Pvt. Ltd., (2011) 5 SCC 697

Agriculture Finance Co. Ltd. Vs. Micro and Small Enterprises Facilitation Council, Kolkata High Court

State Water and Sanitation Vs. A.P. MSME Facilitation Council, Andhra Pradesh High Court

Whirlpool Corporation Vs. Registrar of Trade Marks, (1998) 8 SCC 1

Grindlays Bank Ltd. Vs. Central Government Industrial Tribunal, AIR 1981 SC 608

Kapra Mazdoor Ekta Union Vs. Management of Birla Cotton Spinning & Weaving Mills Ltd., AIR 2005 SC 1782

(Delivered by Hon'ble Ran Vijai Singh, J.)

1. Heard Sri S.D. Singh, learned Senior Counsel assisted by Sri Nishant Mishra, learned
counsel for the petitioner and learned Standing Counsel appearing for the State-respondents.

2. Through this writ petition, the petitioner has prayed for issuing a writ of certiorari quashing
the award dated 22.9.2014 passed by the U.P. State Micro and Small Enterprises Facilitation
Council, Kanpur in Claim Petition No. 14 of 2012 (M/s Agra Pulp and Papers Vs. Lakhani Apparel
Pvt. Ltd. and Another) and order dated 28.2.2014 (signed on 26.6.2014) passed by the same
authority. Further prayer has been made to issue a writ of mandamus directing the respondents to
entertain and decide the application of the petitioner for recall of the ex parte award dated
22.9.2014.

3. While assailing the impugned order, learned counsel for the petitioner submits that the
award is ex parte against the petitioner as at no point of time, any notice was served upon him.
Learned standing counsel appearing for the State - respondents submitted that the petitioner has got
an alternative remedy of appeal under section 34 before the Civil Court, therefore, the writ petition
is not maintainable.
4 All. Arjun Prem Kumar Mitra Vs U.P. State M.S.M.E. Facilitation Council & Ors.
191

4. The facts of the case, in brief, are that the Agra Pulp & Papers (hereinafter referred to as,
'APP') filed a claim petition claiming Rs. 21,66,738/- before the U.P. State Micro and Small
Enterprises Facilitation Council, Kanpur (hereinafter referred to as, 'the council') on the ground of
non-payment of sale consideration in respect of goods supplied by the APP to Lakhani Apparel Pvt.
Ltd. (hereinafter referred to as, 'the LAPL') impleading LAPL and the petitioner designating him as
Managing Director. The claim petition was registered by the Council as Claim Petition No. 14 of
2012 and notices were issued to the respondents.

5. It appears, the notices were not served upon the respondents and the Council required the
correct address of LAPL and the petitioner. The APP provided the correct addresses of the
respondents mentioning "Plot No. 136, Sector - 24, Faridabad & 896, Sector - A, Pocket - C, IIIrd
Floor, Vasant Kunj, New Delhi." Thereafter, the representative of the APP requested the Council
for appointment of Special Messenger for effecting service upon the respondents. From the perusal
of the papers, which have been brought on record, it transpires that the Council has prepared notice
for service only to LAPL and one Sri R.K. Nigam, Additional Statistical Officer was appointed as
Special Messenger to serve notice upon LAPL. From the perusal of other papers brought on record,
it transpires that the special messenger prepared the notice for Managing Director, LAPL at the
address of LAPL, i.e., Plot No. 136, Sector - 24, Faridabad and not on the correct address provided
by the claimant - respondent of the petitioner, i.e., 896, Sector - A, Pocket - C, IIIrd Floor, Vasant
Kunj, New Delhi. It is stated in paras 4 & 5 of the writ petition that the petitioner was never
appointed as Managing Director and has also no share in the LAPL. It is stated that the petitioner
was appointed as President of LAPL on 18.9.2009 and resigned from the post of President on
20.4.2011. In para 46 of the writ petition, it is stated that after resignation, the petitioner was
appointed as Chief Executive Officer in M/s Strange Exports Pvt. Ltd., Noida on 14.6.2011.

6. On 18.2.2014, the APP requested the Council to proceed ex parte on the ground of nonappearance of LAPL despite service of notice by the special messenger in its premises. On
19.2.2014, the Office of the Council issued another letter to LAPL through its Managing Director
directing the LAPL either to settle the matter with APP or file written submissions / objection
before the Council within a period of two weeks. Thereafter, the Council passed an award on
22.9.2014 against the respondent for payment of Rs. 37,09,744.47.

7. The award dated 22.9.2014 thereafter was put for execution before the learned Additional
District Judge, Faridabad in the State of Haryana. From there, summons has also been issued to the
petitioner to appear on 4.9.2015 for execution of the award. At this time, the summons has been
issued to the petitioner only on his correct address, i.e., 896, Sector - A, Pocket - C, IIIrd Floor,
Vasant Kunj, New Delhi.

8. Learned counsel for the petitioner contends that in the earlier part of the award, the word
"respondents" has been mentioned, whereas in the later part of the award after service of notice at
the LAPL premises only the word "respondent" has been mentioned, therefore, this award cannot
be executed against the petitioner as the Arbitrator consciously used the word "respondent" and not
"respondents" in the later part of the award including the operative portion of the award.
192 INDIAN LAW REPORTS ALLAHABAD SERIES

9. The further argument of the learned counsel for the petitioner is that the order impugned has
been passed in palpable breach of principles of natural justice, therefore, it deserves to be quashed
under Article 226 of the Constitution of India, instead of relegating the petitioner to avail
alternative remedy where before filing the appeal, the appellant would be required to deposit 75%
of the awarded amount. In his submissions, it will be nothing, except abuse of process and such
abuse can effectively be corrected only under Article 226 of the Constitution of India without
relegating the petitioner to avail the remedy of appeal. In support of his submissions, he has placed
reliance upon the judgement of the Hon'ble Apex Court in Union of India and Others Vs. Tantia
Construction Pvt. Ltd. (2011 (5) SCC 697), Agriculture Finance Com. Ltd. Vs. Micro and Small
Enterprises Facilitation Council and Another (W.P. No. 18318 (W) 2012, Kolkata High Court)
and State Water and Sanitation Vs. The A.P. Micro and Small Enterprises Facilitation Council
(W.P. No. 13639 of 2014, Andhra High Court).

10. He has further contended that where the award has been passed in breach of flagrant
violation of principles of natural justice, that can also be corrected by exercising powers of the
review. In this regard, he has placed reliance upon the judgment of the Hon'ble Apex Court in
Grindlays Bank Ltd. Vs. Central Government Industrial Tribunal and Others (AIR 1981 SC 608)
and Kapra Mazdoor Ekta Union Vs. Management of Birla Cotton Spinning and Weaving Mills
Ltd. and Another (AIR 2005 SC 1782).

11. In view of the aforesaid submissions, it is to be examined as to whether under the facts and
circumstances of the case the petition can be entertained under Article 226 of the Constitution of
India or the petitioner is to be relegated to avail the remedy of appeal.

12. Learned counsel for the petitioner has placed reliance upon the case of Tantia
Construction (supra), wherein in para 27, the Hon'ble Apex Court has observed as under:

"27. Apart from the above, even on the question of maintainability of the writ petition on
account of the Arbitration Clause included in the agreement between the parties, it is now wellestablished that an alternative remedy is not an absolute bar to the invocation of the writ
jurisdiction of the High Court or the Supreme Court and that without exhausting such alternative
remedy, a writ petition would not be maintainable. The various decisions cited by Mr. Chakraborty
would clearly indicate that the constitutional powers vested in the High Court or the Supreme
Court cannot be fettered by any alternative remedy available to the authorities. Injustice, whenever
and wherever it takes place, has to be struck down as an anathema to the rule of law and the
provisions of the Constitution. We endorse the view of the High Court that notwithstanding the
provisions relating to the Arbitration Clause contained in the agreement, the High Court was fully
within its competence to entertain and dispose of the Writ Petition filed on behalf of the Respondent
Company."

13. Reliance has also been placed upon the judgment in the case of Agriculture Finance Com.
Ltd. (supra); wherein the Kolkata High Court, dealing with the same fact, has made following
observations:
4 All. Arjun Prem Kumar Mitra Vs U.P. State M.S.M.E. Facilitation Council & Ors.
193

"An issue as to the remedy available under Section 19 of the said Act has also been
raised. Section 19 provides for a party aggrieved by a decree or award or order of the Council to
apply for setting aside the same. Ordinarily, if the reference is concluded upon arbitration taking
place, Section 34 of the Act of 1996 would be available to a party aggrieved by the award.
However, when the issue that is raised is one of gross or palpable violation of the principles of
natural justice, the availability of an alternative remedy is no bar to the court exercising its
authority under Article 226 of the Constitution if the body rendering the award is amenable to the
writ jurisdiction of the court as being a State or other authority within the meaning of Article 12 of
the Constitution."

14. Likewise, the Andhra Pradesh High Court in the case of State Water and Sanitation
(supra), has intervened in such kind of matter and set aside the award itself laying down following
principles:

"It is important to notice that the provisions contained in Sections 15 to 23 of the Act
have been given overriding effect by the Parliament, notwithstanding anything inconsistent
therewith contained in any other law for the time being in force. It is, undoubtedly, true that by
providing for such an overriding effect to the provisions contained in Sections 15 to 23 of the Act,
the Parliament intended to protect the interests of Micro, Small and Medium Enterprises and
promote the competitiveness of theirs, so that they can stay afloat with other industries. But these
provisions, in my opinion, cannot be read as excluding the judicial review power of the High Court
under Article 226 of the Constitution. For the present, I am not pronouncing any final opinion on
such an issue, in view of the conclusion to which I have arrived, as set out herein below. Judicial
review power vested with the constitutional Courts springs from the very Constitution. Therefore,
even by a statutory exercise, no Legislature can seek to curtail or diminish that power totally. It
may be a different aspect as to when the Court should really be called upon to exercise such power.
However, where principles of natural justice are breached, it is only appropriate that the error
should be set right immediately. Lest, the very exercise of power carried out in flagrant violation of
the principles of natural justice would hold the field unjustly. This is one major reason that is
weighing with my mind when I generated a debate in this regard at the Bar. I have also suggested
that the matter should be sent back to the Council for a proper consideration duly hearing the
petitioner herein. This apart, the Award has not assigned any specific reasons. As is too wellknown, reasons are the live links, which bring out the application of mind by the decision-maker.
The reasons offer clarity and fairness of approach adopted while deciding the issue. It is one thing
to say that very exhaustive reasons may not have been required to be spelt out like a well-trained
Court would have while adjudicating a lis brought before it, but however, the 1st respondent
Council, which has been clothed with the power to adjudicate and pronounce upon an order
relating to payment of arrears and its recovery, it is essentially required of it to assign reasons as
to why it has reached the conclusion to which it did. Lest, whole exercise would turn itself into an
arbitrary fiat. Therefore, for sheer violation of the principles of natural justice in providing a fair
and effective opportunity to the petitioner to meet the case set up by the 2nd respondent in the form
of a revised claim, the Award passed by the 1st respondent on 05.10.2013 deserves to be set aside.
"
194 INDIAN LAW REPORTS ALLAHABAD SERIES

15. Apart from the aforesaid judgments cited by the learned counsel for the petitioner in
general applicability too where the order has been passed in breach of principles of natural justice,
which leads to civil consequence, the alternative remedy cannot be absolute bar. The Hon'ble Apex
Court in the case of Whirlpool Corporation vs. Registrar of Trade Marks (1998 (8) SCC 1) has
carved out two exceptions for entertaining the writ petition under Article 226 of the Constitution of
India, i.e., (a) where the order impugned has been passed in flagrant violation of principles of
natural justice; and (b) where the order has been passed without jurisdiction.

16. In view of the factual position of the case, as mentioned herein above, that no notice, at
any point of time was served upon the petitioner, which, upto some extent from the perusal of the
present papers brought on record, has a strength of truth and considering the rigour of depositing
75% of the awarded amount before preferring the appeal, in case the petitioner is relegated to file
appeal without there being any adjudication against him, he would unnecessarily be harassed by
depositing 75% of the awarded amount and if in this type of matter, the power under Article 226 of
the Constitution of India is not invoked, to my mind, it would lead to failure of justice, therefore,
the writ petition is being entertained.

17. Here again before proceeding with the matter on merit, I want to consider the another
submission of the learned counsel for the petitioner regarding availability of the remedy of review.
In this regard, the petitioner has placed reliance upon the judgment of the Hon'ble Apex Court in
Grindlays Bank Ltd. (supra); wherein the Hon'ble Apex Court has observed as under:

"13. We are unable to appreciate the contention that merely because the ex parte award
was based on the statement of the manager of the appellant, the order setting aside the ex parte
award, in fact, amounts to review. The decision in Narshi Thakershi v. Pradyumansinghji
AIR1970SC1273 is distinguishable. It is an authority for the proposition that the power of review is
not an inherent power, it must be conferred either specifically or by necessary implication. Subsections (1) and (3) of Section 11 of the Act themselves make a distinction between procedure and
powers of the Tribunal under the Act. While the procedure is left to be devised by the Tribunal to
suit carrying out its functions under the Act, the powers of civil court conferred upon it are clearly
defined. The question whether a party must be heard before it is proceeded against is one of
procedure and not of power in the sense in which the words are used in Section 11. The answer to
the question is, therefore, to be found in Sub-section (1) of Section 11 and not in Sub-section (3) of
Section 11. Furthermore, different considerations arise on review. The expression 'review' is used
in two distinct senses, namely (1) a procedural review which is either inherent or implied in a court
or Tribunal to set aside a palpably erroneous order passed under a misapprehension by it, and (2)
a review on merits when the error sought to be corrected is one of law and is apparent on the face
of the record. It is in the latter sense that the Court in Narshi Thakershi's case held that no review
lies on merits unless a status specifically provides for it. Obviously when a review is sought due to
a procedural defect, the inadvertent error committed by the Tribunal must be corrected ex debito
justitiae to prevent the abuse of its process, and such power inheres in every court or Tribunal."
4 All. Arjun Prem Kumar Mitra Vs U.P. State M.S.M.E. Facilitation Council & Ors.
195

18. In Kapra Mazdoor Ekta Union (supra), the Hon'ble Apex Court in para 19 has observed
as under:

"Applying these principles it is apparent that where a Court or quasi judicial authority
having jurisdiction to adjudicate on merit proceeds to do so, its judgment or order can be reviewed
on merit only if the Court or the quasi judicial authority is vested with power of review by express
provision or by necessary implication. The procedural review belongs to a different category. In
such a review, the Court or quasi judicial authority having jurisdiction to adjudicate proceeds to
do so, but in doing so commits a procedural illegality which goes to the root of the matter and
invalidates the proceeding itself, and consequently the order passed therein. Cases where a
decision is rendered by the Court or quasi judicial authority without notice to the opposite party or
under a mistaken impression that the notice had been served upon the opposite party, or where a
matter is taken up for hearing and decision on a date other than the date fixed for its hearing, are
some illustrative cases in which the power of procedural review may be invoked. In such a case the
party seeking review or recall of the order does not have to substantiate the ground that the order
passed suffers from an error apparent on the face of the record or any other ground which may
justify a review. He has to establish that the procedure followed by the Court or the quasi judicial
authority suffered from such illegality that it vitiated the proceeding and invalidated the order
made therein, inasmuch the opposite party concerned was not heard for no fault of his, or that the
matter was heard and decided on a date other than the one fixed for hearing of the matter which he
could not attend for no fault of his. In such cases, therefore, the matter has to be re-heard in
accordance with law without going into the merit of the order passed. The order passed is liable to
be recalled and reviewed not because it is found to be erroneous, but because it was passed in a
proceeding which was itself vitiated by an error of procedure or mistake which went to the root of
the matter and invalidated the entire proceeding. In Grindlays Bank Ltd. vs. Central Government
Industrial Tribunal and others (supra), it was held that once it is established that the respondents
were prevented from appearing at the hearing due to sufficient cause, it followed that the matter
must be re-heard and decided again. "

19. From the perusal of the law laid down by the Hon'ble Apex Court in the aforesaid two
cases, it is clear that where there is a procedural lapse in passing the order, in that circumstances,
even in absence of statutory power of review, the courts have inherent power to correct the
procedural defect and correct the consequential order too.

20. In view of the law laid down by the Hon'ble Apex Court in Grindlays Bank Ltd. (supra)
and Kapra Mazdoor Ekta Union (supra), I do not find it appropriate to issue notice to the
respondents and call for counter affidavits and decide the matter thereafter, as ultimately, the
factual status of the case has also to be examined, therefore, without issuing any notice and inviting
counter affidavits in this case, I find it appropriate to direct the petitioner to avail the remedy of
review in view of the law laid down by the Hon'ble Apex Court in Grindlays Bank Ltd. (supra) and
Kapra Mazdoor Ekta Union (supra).
196 INDIAN LAW REPORTS ALLAHABAD SERIES

21. In case such review is filed by the petitioner within a period of four weeks from today
along with certified copy of the order of this Court, the U.P. State Micro and Small Enterprises
Facilitation Council, Kanpur shall consider and decide the petitioner's review application on merit
in accordance with law without being influenced by any of the observations made hereinabove in
this judgment touching the merit of the case, expeditiously, preferably, within a period of three
months from the date of filing of the review application.

22. With the aforesaid observations / directions, this writ petition is disposed of.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.03.2016

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.

Writ C No.- 13221 Of 2016

C/M Subhash Inter College & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Narendra Kumar Chaturvedi, Akhilesh Chandra Mishra

Counsel for the Respondents:
C.S.C., Arun Kumar Singh

HELD:

1. Both rival elections of 2012 were discarded earlier; fresh elections were directed and upheld by the High
Court.
2. Fresh elections could not be conducted as the Assistant Registrar could not provide a valid general body
due to a pending dispute.
3. A clear management dispute existed, justifying action under Clause 21 of the Scheme of Administration for
appointment of an Authorised Controller.
4. Wrong mention of Section 14 of the Payment of Salaries Act does not invalidate the order since power
flows from Clause 21.
5. Clause 8 cannot be interpreted to allow indefinite continuance, especially when the later election was
invalid.
6. Interpretation aligns with Section 16-CC and the Third Schedule requiring periodic elections.
7. Case law cited by petitioners was distinguishable since their Schemes lacked a provision like Clause 21.
8. Petitioners' term expired in 2012; no legal right remained to claim continuation.
9. Appointment of Authorised Controller was valid and necessary.
10. Writ petition dismissed.

Case Law Discussed: