# Babban Singh v. State of U.P. And Others

- **Citation:** (2019) 1 ILRA 1145
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-07-22
- **Case number:** Writ - C No. 23689 of 2019
- **Bench:** Bala Krishna Narayana, Prakash Padia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/babban-singh-v-state-of-u-p-and-others-44420
- **Pages:** 7

## Headnote

A. Administrative Law- Natural Justice-
notice issued by senior mines officer,
Prayagraj but the order was passed by the
District magistrate, Prayagraj. Invalid.
Purpose behind serving show cause notice is
to apprise case and action to be taken against
the
delinquent-Petitioner
was
blacklisted
without mentioning the same in the show
cause notice.

Held: - The Central issue, however, pertains to
the requirement of stating the action which is
proposed to be taken. The fundamental
purpose behind the serving of show cause
notice is to make the notice understand the
precise case set up against him which he has
to meet. This would require the statement of
imputations detailing out the alleged breaches
and defaults he has committed, so that he
gets an opportunity to rebut the same.
Another requirement, according to us, is the
nature of action which is proposed to be taken
for such a breach. That should also be stated
so that the notice is able to point out that
proposed action is not warranted in the given
case,
even
if
the
defaults
/breaches
complained of are not satisfactorily explained.
When
it
comes
to
black
listing,
this
requirement becomes all the more imperative,
having regard to the fact that it is harshest
possible action. (Para 17)
Cases cited: -

1.Gorkha security Services vs. Government
(NCT of Delhi) and others(2014) 9 SCC 105

## Text

1 All. Babban Singh Vs. State of U.P. And Others
1145
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.07.2019

BEFORE
THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE PRAKASH PADIA, J.

Writ - C No. 23689 of 2019

Babban Singh ...Petitioner
Versus
State of U.P. And Others. ...Respondents

Counsel for the Petitioner:
Sri Hanuman Prasad Dube, Sri Vipul Dube

Counsel for the Respondents:
C.S.C

A. Administrative Law- Natural Justice-
notice issued by senior mines officer,
Prayagraj but the order was passed by the
District magistrate, Prayagraj. Invalid.
Purpose behind serving show cause notice is
to apprise case and action to be taken against
the
delinquent-Petitioner
was
blacklisted
without mentioning the same in the show
cause notice.

Held: - The Central issue, however, pertains to
the requirement of stating the action which is
proposed to be taken. The fundamental
purpose behind the serving of show cause
notice is to make the notice understand the
precise case set up against him which he has
to meet. This would require the statement of
imputations detailing out the alleged breaches
and defaults he has committed, so that he
gets an opportunity to rebut the same.
Another requirement, according to us, is the
nature of action which is proposed to be taken
for such a breach. That should also be stated
so that the notice is able to point out that
proposed action is not warranted in the given
case,
even
if
the
defaults
/breaches
complained of are not satisfactorily explained.
When
it
comes
to
black
listing,
this
requirement becomes all the more imperative,
having regard to the fact that it is harshest
possible action. (Para 17)
Cases cited: -

1.Gorkha security Services vs. Government
(NCT of Delhi) and others(2014) 9 SCC 105

2. Erusian Equipment and Chemical Ltd. Vs.
State of West Bengal (1975) 1 SCC 70

3. Raghunath Thakur vs. State of Bihar (1989)
1 SCC 229

4. M/s Mahabir Auto Stores and others vs. Indian
oil corporation Ltd.(1990) 3 SCC 752 (E-9)

(Delivered by Hon'ble Prakash Padia, J.)

1. Heard Sri Hanuman Prasad Dube,
learned counsel for the petitioner and
Smt. Archana Singh, learned Additional
Chief Standing Counsel representing
respondents-State.

2. The petitioner has filed the
present writ petition with the prayer to
quash the order dated 21.6.2019 passed by
respondent No.2 with a further prayer to
issue a mandamus commanding the
respondent No.2 to give effect to the
impugned dated 21.6.2019. A further
prayer is also made to issue a Mandamus
directing the respondent to determine the
contract of the petitioner with respect to
the mining lease and further to refund the
amount deposited by the petitioner under
the agreement dated 1.2.2018 including
the amount of security along with interest
at the market rate.

3. Facts in brief as contained in the
writ petition are that the petitioner is a
Class
A
category
contractor
and
registered in various departments of the
State Government. An advertisement
No.824
dated
7.9.2017
was
published/uploaded on the website of the
respondents
inviting
e-tenders
for
allotment of mining lease of various
1146 INDIAN LAW REPORTS ALLAHABAD SERIES
locations including Plot No.25 comprising
of the village Kabra to Deeha and Kakra
to Jamunipur.

4. Numbers of e-tenders were
submitted by the desirous applicants. The
petitioner also submitted e-tender for
allotment of mining lease in respect of
sand area for the location in question. The
tender submitted by the petitioner was
found to be most suitable and, therefore,
the respondent No.2 vide its order dated
29.11.2017 sanctioned the mining lease in
respect of sand for the area in question in
favour of the petitioner. Additional
District
Magistrate
(Administration)
Allahabad issued a letter of intent in
favour of the petitioner on 30.11.2017.
Subsequently, an agreement was also
executed in favour of the petitioner on
12.1.2018.

5. After the execution of the
agreement, when the petitioner went to
sand area in the Month of January, 2018
for the purpose of operating mining lease,
the petitioner was confronted with certain
ante-social and Gunda elements who were
excavating sand from the plot in question
in an illegal manner. In this regard, the
petitioner met with the S.H.O. Police
Station Sarai Inayat, Allahabad as well as
Circle
Officer,
Phoolpur,
District
Allahabad regarding illegal excavation
and transportation of the sand from his
mining area by ante-social and Gunda
elements but nothing was done by the
aforesaid
authorities.
Thereafter
the
petitioner submitted an application dated
21.1.2018 before the respondent No.2 and
3 stated therein that necessary directions
to be issued to the SHO P.S. Sarai Inayat
and Circle Officer, Allahabad to prevent
illegal mining of sand from his mining
area. It is further contended that in spite
of the same, no action whatsoever has
been taken by the respondent Nos.2 and 3
to verify the illegal mining of sand from
the area allotted to the petitioner.

6. A demand notice dated 1.5.2018
was issued to the petitioner by respondent
No.3 requiring the petitioner to deposit the
amount specified in the demand notice as
installment of the mining lease in question
and second installment of the first year's
lease. The amount of installment as
indicated in the notice dated 1.5.2018 was
duly deposited by the petitioner but in spite
of the same, he was not allowed to operate
the mining lease. Since, the petitioner was
not permitted to run his mining operation
due to the facts as stated hereinabove, the
petitioner submitted another application
dated 9.5.2018 before respondent Nos.2
and 3 stating again that all the state
officials are required to take appropriate
action in the matter.

7. It is further contended that since
no positive response was given to the
petitioner, the petitioner gave a legal
notice dated 07.11.2018 under Section
80(1) of the C.P.C. to cancel his lease
agreement dated 12.1.2018 and amount
deposited by him may be refunded. Since
no action was taken, the petitioner had
submitted
so
many
representations
addressed to the respondent Nos.2/3 from
time to time. It is further contended that
F.I.Rs were also lodged against various
persons by the Police Authorities in this
regard. It is further contended that instead
of taking appropriate action in the matter,
a demand notice dated 26.4.2019 was
issued by the respondent No.3 requiring
the petitioner to deposit a huge amount
under different heads as specified in the
notice in question within a period of 30
days.
1 All. Babban Singh Vs. State of U.P. And Others
1147

8. In response to the same, the
petitioner submitted a detailed reply on
13.5.2019. It is contended that since no
action was taken and the petitioner was not
being allowed to operate mining operation,
the petitioner preferred a writ petition before
this Court being Writ C No.19246 of 2019
(Babban Singh Vs. State of U.P. and two
others) with the relief inter-alia to quash the
demand notice dated 26.4.2019. During the
pendency of the writ petition, order dated
21.06.2019 was passed by respondent No.2
by which the lease granted to the petitioner
was cancelled and the petitioner was
blacklisted for a period of two years. When
the petitioner came to know regarding the
aforesaid order, he withdrew Writ C
No.19246 of 2019 on 11.7.2019 with a
liberty to file a fresh petition. Now the
petitioner has preferred the present writ
petition
challenging
the
order
dated
21.6.2019 passed by the respondent No.2 by
which respondents cancelled his mining
lease and directed the petitioner to deposit a
sum of Rs.1,27,68,000/- towards installments
(Third and Fourth installments of first year
and first and second installments of second
year), Rs.3,76,960/- towards T.C.S. and
Rs.18,84,800/- towards District Mineral
Foundation Trust.

9. It is contended by learned counsel
for the petitioner that the order impugned
passed by the respondent No.2 is
arbitrary, unjust, illegal and liable to be
set aside by this Court due to following
reasons :-

(i) No opportunity of personal
hearing was given to the petitioner before
passing the order impugned by which not
only the lease of the petitioner was
cancelled, his security amount was
forfeited but he has also been blacklisted
for two years.

(ii) The show cause notice was
issued to the petitioner by Senior Mines
Officer but the order impugned has been
passed by the District Magistrate.

(iii) Nothing has been stated in
the
show
cause
notice
regarding
blacklisting of the petitioner but in the
impugned order, the petitioner was also
blacklisted
without
giving
any
opportunity of hearing as such the order
of
blacklisting
passed
against
the
petitioner is in complete violation of
principles of natural justice.

10. On the other hand, it is
contended by Smt. Archana Singh,
learned
Additional
Chief
Standing
Counsel, that since terms and conditions
contained in the lease deed were violated
by the petitioner, therefore, the action was
rightly taken by the respondent No.2. It is
further contended by her that the order
impugned in the present writ petition is
absolutely perfect and valid order does
not warrant any interference specially
under Article 226 of the Constitution of
India.

11. Heard learned counsel for the
parties and perused the record. With the
consent of learned counsel for the parties,
this writ petition is disposed of finally at
the admission stage itself.

12. The petitioner has assailed the
order
dated
21.06.2019
passed
by
respondent No.2, i.e. District Magistrate,
Prayagraj by which reply submitted by the
petitioner was rejected and an order was
passed directing the petitioner to deposit a
sum
of
Rs.1,27,68,000/-
towards
installments
(Third
and
Fourth
installments of first year and first and
second installments of second year),
Rs.3,76,960/-
towards
T.C.S.
and
1148 INDIAN LAW REPORTS ALLAHABAD SERIES
Rs.18,84,800/- as contribution to District
Mineral Foundation Trust. Apart from the
same, the petitioner was also black listed
for a period of two years.

13. From perusal of the record it is
clear that before passing the impugned
order no opportunity of personal hearing
was given to the petitioner. It is also clear
from perusal of the record that notices
were issued by the Senior Mines Officer
but the impugned order was passed by the
respondent No.2, i.e. District Magistrate
Prayagraj. Apart from the same, it is also
clear that although nothing is contained in
the show cause notice regarding factum of
blacklisting of the petitioner but while
passing the order impugned, the petitioner
was also blacklisted for a period of two
years.

14. The order impugned is in two
parts:-

(i)
recovery
against
the
petitioner

ii) blacklisting of the petitioner
for two years.

15. Insofar as the first part is
concerned, it is clear from the record that
the notices were issued to the petitioner
by the Senior Mines Officer, Prayagraj
but the order was passed by District
Magistrate Prayagraj, in this view of the
matter, we are of the opinion that the
order passed by the District Magistrate
Prayagraj is in complete violation of
principles of natural justice.

16. Insofar as the blacklisting of the
petitioner is concerned, From perusal of
the impugned order, we find that the
respondents have proceeded on the basis
of a show cause notice. Nothing has been
stated in the show cause notice regarding
blacklisting of the petitioner. Learned
Standing Counsel has not been able to
refute this fact on record. In our opinion,
the issue which was not raised even in the
show cause notice, therefore, could not be
made the basis for blacklisting of the
petitioner.

17. The central issue, however, pertains
to the requirement of stating the action which
is proposed to be taken. The fundamental
purpose behind the serving of show cause
notice is to make the noticee understand the
precise case set up against him which he has
to meet. This would require the statement of
imputations
detailing
out
the
alleged
breaches and defaults he has committed, so
that he gets an opportunity to rebut the same.
Another requirement, according to us, is the
nature of action which is proposed to be
taken for such a breach. That should also be
stated so that the noticee is able to point out
that proposed action is not warranted in the
given case, even if the defaults/ breaches
complained
of
are
not
satisfactorily
explained. When it comes to black listing,
this requirement becomes all the more
imperative, having regard to the fact that it is
harshest possible action. In the case of
Gorkha Security Services Vs. Government
(NCT of Delhi) and others (2014) 9 SCC
105, the Supreme Court was pleased to hold
that it is incumbent on the part of the
department to state in show cause notice that
the competent authority intended to impose
such a penalty of blacklisting, so as to
provide
adequate
and
meaningful
opportunity to show cause against the same.
Relevant paragraph namely paragraph 27 of
the aforesaid judgement is quoted below:-

"27. We are, therefore, of the
opinion that it was incumbent on the part
of the Department to state in the show
1 All. Babban Singh Vs. State of U.P. And Others
1149
cause notice that the competent authority
intended to impose such a penalty of
blacklisting, so as to provide adequate
and
meaningful
opportunity
to
the
appellant to show cause against the same.
However, we may also add that even if it
is not mentioned specifically but from the
reading of the show cause notice, it can
be clearly inferred that such an action
was proposed, that would fulfill this
requirement.
In
the
present
case,
however, reading of the show cause
notice does not suggest that noticee could
find out that such an action could also be
taken. We say so for the reasons that are
recorded hereinafter."

18. In the case of Erusian
Equipment & Chemicals Ltd. Vs. State of
West Bengal (1975) 1 SCC 70, it was
held
by
the
Supreme
Court
that
blacklisting has the affect of preventing a
person from the privilege and advantage
of name into relationship with the
Government for purpose of aim. It was
held by the Supreme Court in the
aforesaid case that the fundamentals of
fair play require that a person concerned
should be given an opportunity to
represent his case. Paragraphs 12 and 20
of the said judgment is quoted below :-

"12. Under Article 298 of the
Constitution the executive power of the
Union and the State shall extend to the
carrying on of any trade and to the
acquisition, holding and disposal of
property and the making of contracts for
any purpose. The State can carry on
executive function by making a law or
without making a law. The exercise of
such powers and functions in trade by the
State is subject to Part III of the
Constitution. Article 14 speaks of equality
before the law and equal protection of the
laws. Equality of opportunity should
apply to matters of public contracts. The
State has the right to trade. The State has
there the duty to observe equality. An
ordinary individual can choose not to
deal with any person. The Government
cannot choose to exclude persons by
discrimination. The order of blacklisting
has the effect of depriving a person of
equality of opportunity in the matter of
public contract. A person who is on the
approved list is unable to enter into
advantageous
relations
with
the
Government because of the order of
blacklisting. A person who has been
dealing with the Government in the matter
of sale and purchase of materials has a
legitimate interest or expectation. When
the State acts to the prejudice of a person
it has to be supported by legality.

20. Blacklisting has the effect of
preventing a person from the privilege and
advantage
of
entering
into
lawful
relationship with the Government for
purposes of gains. The fact that a disability is
created by the order of blacklisting indicates
that the relevant authority is to have an
objective satisfaction. Fundamentals of fair
play require that the person concerned
should be given an opportunity to represent
his case before he is put on the blacklist."

19. Again in the case of Raghunath
Thakur Vs. State of Bihar [(1989) 1 SCC
229] the aforesaid principles was reiterated in
the following manner: (SCC p. 230, para 4).

"4. ........ But it is an implied
principle of the rule of law that any order
having civil consequence should be
passed only after following the principles
of natural justice. It has to be realised
that blacklisting any person in respect of
business ventures has civil consequence
for the future business of the person
1150 INDIAN LAW REPORTS ALLAHABAD SERIES
concerned in any event. Even if the rules
do not express so, it is an elementary
principle of natural justice that parties
affected by any order should have right of
being heard and making representations
against the order. In that view of the
matter, the last portion of the order
insofar as it directs blacklisting of the
appellant in respect of future contracts,
cannot be sustained in law.........."

20. Thus, there is no dispute
about the requirement of serving showcause notice. We may also hasten to add
that once the show-cause notice is given
and opportunity to reply to the showcause notice is afforded, it is not even
necessary to give an oral hearing. The
High Court has rightly repudiated the
appellant's attempt in finding foul with the
impugned order on this ground. Such a
contention was specifically repelled in
Patel Engg. [Patel Engg. Ltd. v. Union of
India, (2012) 11 SCC 257 : (2013) 1 SCC
(Civ) 445]."

20. In the case of M/s Mahabir Auto
Stores &Ors. Vs. Indian Oil Corporation
Ltd. (1990) 3 SCC 752 it was held by the
Supreme Court that arbitrariness and
discrimination in every matter is subject
to judicial review. Paragraph 11 of the
aforesaid judgement is quoted below :-

"It is well settled that every
action of the State or an instrumentality of
the State in exercise of its executive
power, must be informed by reason. In
appropriate cases, actions uninformed by
reason may be questioned as arbitrary in
proceedings under Article 226 or Article 32 of
the Constitution. Reliance in this connection
may be placed on the observations of this
Court in M/s Radha Krishna Agarwal &Ors. v.
State of Bihar &Ors., [1977] 3 SCC 457.1t
appears to us, at the outset, that in the facts and
circumstances of the case, the respondentcompany IOC is an organ of the State or an
instrumentality of the State as contemplated
under Article 12 of the Constitution. The State
acts in its executive power under Article 298 of
the Constitution in entering or not entering in
contracts with individual par- ties. Article 14 of
the Constitution would be applicable to those
exercises of power. Therefore, the action of
State organ under Article 14 can be checked.
M/s Radha Krishna Agarwal v. State of Bihar,
(supra) at p. 462, but Article 14 of the
Constitution cannot and has not been
construed as a charter for judicial review of
State action after the contract has been entered
into, to call upon the State to account for its
actions in its manifold activities by stating
reasons for such actions. In a situation of this
nature certain activities of the respondent
company which constituted State under Article
12 of the Constitution may be in certain
circumstances subject to Article 14 of the
Constitu- tion in entering or not entering into
contracts and must be reasonable and taken
only upon lawful and relevant consideration, it
depends upon facts and circumstances of a
particular transaction whether heating is
necessary and reasons have to be stated. In
case any right conferred on the citizens which
is sought to be interfered, such action is subject
to Article 14 of the Constitution, and must be
reasonable and can be taken only upon lawful
and relevant grounds of public interest. Where
there is arbitrariness in State action of this type
of entering or not entering into contracts,
Article 14 springs up and judicial review
strikes such an action down. Every action of
the(1975) 1 SCC 70. State executive authority
must be subject to rule of law and must be
informed by reason. So, whatever be the
activity of the public authority, in such
monopoly or semi-monopoly dealings, it should
meet the test of Article 14 of the Constitution. If
a Governmental action even in the matters of
entering or not entering into contracts, fails to
1 All. Pramod Kumar Vs. Commissioner, Varanasi Division And Others
1151
satisfy the test of reasonableness, the same
would be unrea- sonable. In this connection
reference may be made to E.P. Royappa v.
State of Tamil Nadu &Anr., [1974] 4 SCC 3;
Maneka Gandhi v. Union of India &Anr.,
[1976] 1 SCC 248; Ajay Hasia &Ors. v.
Khalid Mujib Sehravardi &Ors., [1981] 1
SCC 722; R.D. Shetry v. InternationalAirport
Authority of India &Ors., [1979] 3 SCC 1 and
also Dwarkadas Marlaria and sons v. Board
of Trustees of the Port of Bombay, [1989] 3
SCC 293. It appears to us that rule of reason
and
rule
against
arbitrariness
and
discrimination, rules of fair play and natural
justice are part of the rule of law applicable in
situation or action by State instrumentality in
dealing with citizens in a situation like the
present one. Even though the rights of the
citizens are in the nature of contractual rights,
the manner, the method and motive of a
decision of entering or not entering into a
contract, are subject to judicial review on the
touchstone of relevance and reasonableness,
fair play, natural justice, equality and nondiscrimination in the type of the transactions
and nature of the dealing as in the present
case."

21. Since in the facts of the present
case, there is a complete failure to follow
due process, we find ourselves unable to
sustain the order dated 21.06 .2019 passed
by the respondent No.2.

22. We accordingly allow the writ
petition and quash the the order dated
21.06.2019. We further clarify that in
case the respondents do choose to initiate
fresh proceedings for blacklisting the
firm of the petitioner, we leave it open to
them to do so subject to the observation
that the proceedings if initiated shall be
undertaken in accordance with law and
the observations appearing herein above.
----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.07.2019

BEFORE
THE HON'BLE AJIT KUMAR, J.

Writ - C No. 19771 of 2019

Pramod Kumar ...Petitioner
Versus
Commissioner, Varanasi Division And
Others ...Respondents

Counsel for the Petitioner:
Sri Kailash Nath Singh

Counsel for the Respondents:
C.S.C., Sri Manoj Kumar Yadav

A. U.P. Zamindari Abolition and Land
Reform Act, 1950 - Section 198(4)-
proceedings initiated u/s 198 (4). Held:-
exparte and void ab initio as proceeding
not
instituted
against
the
original
bhumidhar despite being alive. Violation
of natural justice-impugned order held
bad.
That the authorities have manifestly erred in
passing the order without giving notice to
recorded tenure holder. Further in the present
case, since the proceedings initially instituted
against the person who was recorded as
tenure holder, the proceedings are liable to be
held void ab initio and the order deserves to
be held as non est.(Para 12)

Cases cited: -

Olga Tellis and others v. Bombay Municipal
Corporation and others, 1985 (3) SCC 545
Hinch Lal tiwari's case (E-9)

(Delivered by Hon'ble Ajit Kumar, J.)

1. By means of the present writ
petition
under
Article
226
of
the
Constitution the petitioner has challenged
the order dated 28th June, 2006 passed by
the Additional District Magistrate (Land-