# Bajji v. State of U.P. & Ors

- **Citation:** (2015) 1 ILRA 281
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-11-28
- **Case number:** Civil Misc. Writ Petition No. 5206 of 2015
- **Bench:** Krishna Murari, Shashi Kant
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bajji-v-state-of-u-p-ors-43302
- **Pages:** 9

## Headnote

Constitution of India-Art.226-Notification
under Land Acquisition-challenged-after 2
decades-no
plausible
explanation-delay
having
important
note
in
acquisition
proceeding-can not be interfered under
writ jurisdiction.
Held: Para-20 & 21

## Text

1 All] Bajji Vs. State of U.P. & Ors.
281
5. Having heard the learned counsel
for the parties, we are of the opinion that
the writ petition could be decided at the
admission stage itself on the basis of the
instructions received by the learned
counsel for the respondent-bank. We find
that the Supreme Court's judgment in
Standard Chartered Bank (supra) is not at
all applicable in the instant case. The
scheme of the Act and the procedure
provided under Section-13 of the Act for
the enforcement of the security interest
requires that where the borrower is under
a liability to a secured creditor and makes
a default in repayment of the secured
debt, in which case, the secured creditor is
required to issue a notice in writing to the
borrower to discharge in full his liabilities
to the secured creditor within a stipulated
period. On receipt of the said notice, the
borrower is entitled to raise objections
which, in our opinion, is required to be
decided by the bank under Section-13(1A) of the Act. This provision, in our
opinion is mandatory and it is obligatory
to the bank to decide the objections.
Once such objection is decided and the
liability is not discharged then it
becomes open to the respondent-bank to
proceed under Section-13(4) by taking
possession
or
taking
over
the
management of the business of the
borrower. Section-14 is an additional
procedure for taking possession which
the Supreme Court has held in Standard
Chartered Bank's case.
6. In the instant case, we find that
the objection of the petitioner has not
been decided by the respondent-bank,
since no order has been brought before
the Court, nor any such order has been
communicated to the borrower, namely,
the petitioner. In the absence of deciding
any objection, we are of the opinion that
the
respondent
could
not
file
an
application under Section-14 and take an
order for possession from the Collector
without deciding the objection under
Section-13(3-A). Consequently, the order
of the Additional District Magistrate
dated 28.11.2014 is wholly illegal and is
quashed. The writ petition is allowed. It is
open to the respondent-bank to proceed
from the stage of deciding the objection
of the petitioner under Section-13(3-A) of
the Act and proceed accordingly.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.02.2015
BEFORE
THE HON'BLE KRISHNA MURARI, J.
THE HON'BLE SHASHI KANT, J.
Civil Misc. Writ Petition No. 5206 of 2015
Bajji
 ...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri C.B. Dubey, Sri S.B. Dubey
Counsel for the Respondents:
C.S.C., Sri Ramendra Pratap Singh
Constitution of India-Art.226-Notification
under Land Acquisition-challenged-after 2
decades-no
plausible
explanation-delay
having
important
note
in
acquisition
proceeding-can not be interfered under
writ jurisdiction.
Held: Para-20 & 21
20. The acquisition proceedings have
been challenged by the petitioner after
about two decades. The submissions as
made and the aspects or suggested by
learned counsel for the petitioner hardly
gives any reasonable and satisfactory
explanation for gross and inordinate
delay in filing the petition.
282
 INDIAN LAW REPORTS ALLAHABAD SERIES
21. in challenge to land acquisition
proceedings, delay plays an important
role. Petitioner cannot be allowed to sit
on the fence and wait for completion of
the land acquisition proceedings and
thereafter approach the Court.
Case Law discussed:
[2011 (11) ADJ 1]; (1998) 6 SCC 1; (2009) 10
SCC 689; (2010) 11 SCC 242; (2011) 5 SCC
607; (2008) 4 SCC 695; (1975) 4 SCC 285;
(1996) 11 SCC 501; (1996) 6 SCC 445; (2000)
2 SCC 48; (2008) 4 SCC 695.
(Delivered by Hon'ble Krishna Murari, J.)
1. Heard learned counsel for the
petitioner, learned Standing Counsel for
respondent nos. 1 to 3 and Shri Ramendra
Pratap Singh appearing for respondent no.
4.
2. By means of this petition,
petitioner has prayed for following reliefs:
"1. issue a writ, order or direction in
the nature of certiorari quashing the
impugned Notification No. 181/ Bhau-1811-74
Bha.
93
Lucknow,
dated
05.05.1993, under section 4 of Land
Acquisition
Act
and
impugned
Notification No. 2747 Bhau/18-11-74
Bha. 93, dated 25.05.1993, under section
6 of the Land Acquisition Act 1894, in
respect of petitioner's land comprising of
the Plot No. 114, area 0-1-5, Plot No. 166,
area 1-8-0, Plot No. 167 area 1-8-0, plot
No. 168 area 1-1-0, Plot No. 169 area 013-0 mentioned in the extract of khatauni
of revenue village Brahmpur Gajraula,
Pargana and Tehsil Dadari District
Gautam Budh Nagar (Annexure no. 1 and
2 to the writ petition).
2. issue a writ, order or direction in
the nature of mandamus directing the
respondents concerned to give additional
compensation at the rate of 64% and or
avail of allotment of developed abadi land
to the extend of 10% subject to a
maximum in the light of directions issued
by this Hon'ble Court in the case of Gajraj
Singh and others Versus State of U.P. and
others reported in 2011 (11) ADJ 1 till the
disposal of the present writ petition, so
that justice may be done.
3. issue any suitable order or
direction which this Hon'ble Court may
deem fit and proper under the facts and
circumstances of the case., so that justice
may be done.
4. award the cost of the writ
petition."
3. Shri Ramendra Pratap Singh,
learned counsel for the respondents has
raised a preliminary objection regarding
the maintainability of the writ petition. He
submits that the writ petition has been
filed after more than 22 years from the
date of declaration issued under Section 6
of the Land Acquisition Act, 1894
(hereinafter referred to as the Act) and it
is highly bared by laches. He submits that
even the Full Bench judgment in Gajraj
Singh & Ors Vs. State of U.P. & Ors
[2011 (11) ADJ 1], was delivered on
21/10/2011, and more than 3 years have
elapsed from the judgment of the Full
Bench in Gajraj's case (supra), which
decided the bunch of writ petitions
including the writ petition relating to
Village Habibpur. In the entire writ
petition, the petitioners, in any paragraph,
have not given any explanation for delay
and laches in approaching this Court.
4. However, placing reliance on the
Full Bench judgment of this Court in the
case of Gajraj (supra), it has been urged
by learned counsel for the petitioner that
relief prayed is liable to be granted in
view of the said judgment.
1 All] Bajji Vs. State of U.P. & Ors.
283
5.
Full Bench in the case of Gajraj
(supra) has not entertained the petitions barred
by delay and laches in a general manner
without examining specific cases. It may be
relevant to quote following from the report.
"We, however, cannot loose sight of
the fact that the above grounds taken are
not applicable to those writ petitioners,
where the acquisition was finalised
decades ago and allotment of private
builders and colonisers which were
complained of were not applicable in the
aforesaid cases. We, now proceed to refer
to cases in which there are inordinate
delay and the aforesaid ground pleaded are
not applicable to them. These petitions with
inordinate delay relate to Noida. There are
two writ petitions of Village Nithari namely;
Writ Petition No.45933/2011, Ravindra
Sharma & Anr Vs. State of U.P. & ors,
47545/2011, Babu Ram & Ors Vs. State of
U.P. & Ors. These two writ petitions have
been filed in the year 2011, where as the
notification under Section 4 was issued on
01/6/1976 and declaration under Section 6
was issued on 16/9/1976. The possession
was taken by the respondents on 28/10/1976
and the award was also declared on
15/7/1978. The writ petitions have been filed
after more than 2 decades. There are no
grounds in the writ petitions to entertain such
highly barred writ petitions in exercise of
writ jurisdiction. Both these writ petitions
deserve to be dismissed on the ground of
laches alone."
6.
Thereafter, the Full Bench after
analysing the individual cases, dismissed the
petitions, which were filed with inordinate
delay and laches. Thus, the Full Bench
decision in the case of Gajraj (supra) does
not lay down an absolute proposition that
despite laches and delay, the petitions are to
be entertained.
7. The same view has been taken by
the Hon'ble Apex Court in catena of
decisions. Reference may be made to the
following pronouncements.
8. Om Prakash & Anr. Vs. State of
U.P. & Ors. (1998) 6 SCC 1, wherein it
has been observed in paragraph 30 as
under.
"30. It is also to be kept in view that
the impugned notification under Section 6
of the Act was issued for the purpose of
planned
development
of
District
Ghaziabad through NOIDA and by the
said notification, 496 acres of land spread
over hundreds of plot numbers have ben
acquired. Out of 494.26 acres of land
under
acquisition,
only
the
present
appellants owning about 50 acres, making
a grievance about acquisition of their
lands have gone to the court. Thus, almost
9/10th of the acquired lands have stood
validly
acquired
under
the
land
acquisition proceedings and only dispute
centers round 1/10th of these acquired
lands owned by the present appellants. It
is a comprehensive project for the further
planned development in the district. We
are informed by learned senior counsel
Shri Mohta for NOIDA, that a lot of
construction work has ben done on the
undisputed land under acquisition and
pipelines and other infrastructure have
been put up. That the disputed lands
belonging to the appellants may have
stray complex of lands sought to be
acquired. That if notification
under
Section 4(1) read with Section 17 (4) is
set aside qua these pockets of lands then
the entire development activity in the
complex will come to a grinding halt and
that would not be in the interest of
anyone.
...........................
284
 INDIAN LAW REPORTS ALLAHABAD SERIES
That we cannot permit upsetting the
entire apple cart of acquisition of 500
acres only at the behest of 1/10th of land
owners whose lands are sought to be
acquired. We may also keep in view the
further alien fact that all the appellants
have
filed
reference
for
additional
compensation under Section 18 of the
Act. Shri Shanti Bhushan, learned senior
counsel, was right when he contended that
the appellants could not have taken the
risk of getting their reference applications
time barred during the pendency of these
proceedings. Therefore, without prejudice
to their contentions in the present
proceedings
they
have
filed
such
references. Be that as it may., that shows
that an award is also made and reference
are pending. Under these circumstances for
enabling the appellants to have their say
regarding release of their lands on the ground
that they are having abadi and that the State
Policy helps them in this connection the
appellants can be permitted to have their
grievances voiced before the State authorities
under Section 48 rather than under Section 5A of the Act at such a late stage.
Consequently, despite our finding in favour
of the appellants on Point No. 1, we do not
think that this is a fit case to set aside the
acquisition proceedings on the plea of the
appellants
about
non-compliance
with
Section 5-A at this late stage. it is also
obvious that if on this point the notifications
are quashed for non-compliance of Section
5-A, that would open a pandora's box and
those occupants who are uptill now sitting on
the fence may also get a hint to file further
proceedings on the ground of discriminatory
treatment by the State authorities. All these
complications are required to be avoided and
hence while considering the question of
exercise of our discretionary jurisdiction
under Article 136 of the Constitution of
India, we do not think that this is a fit case
for interference in the present proceedings
with the impugned notifications. Point
No. 3, therefore, is answered in the
affirmative against the appellants and in
favour of the respondents."
9. In the case of Tika Ram & Ors.
Vs. State of U.P. & Ors., (2009) 10 SCC
689, the Court was faced with a situation
where invocation of Section 5A of the
Act, 1894 was held not to be justified.
The
Court
thereafter
proceeded
to
consider as to whether the notification
deserves to be quashed or not. Following
was laid down in paragraph 116:-
"116. In a reported decision in
Kishan Das & Ors. v. State of UP & Ors.
this Court has taken a view that where the
acquisition has been completed by taking
the
possession
of
the
land
under
acquisition and the constructions have
been made and completed, the question of
urgency and the exercise of power under
Section 17(4) would not arise. We must
notice that acquisitions in this case are of
1984-1985 and two decades have passed
thereafter. The whole township has come
up, the houses and the lands have been
allotted, sold and re-sold, awards have
been passed and overwhelming majority
of land owners have also accepted the
compensation, this includes even some of
the appellants. In such circumstances we
do not think that the High Court was in
any way wrong in not interfering with the
exercise of power under Section 17 (4) of
the Act. At any rate, after the considered
findings on the factual questions recorded
by the High Court, we would not go into
that question."
10. In the case of Anand Singh &
Anr. Vs. State of U.P. & Ors., (2010) 11
SCC 242, appeal was filed against the
1 All] Bajji Vs. State of U.P. & Ors.
285
judgment of the High Court dismissing
the writ petitions filed by land holders.
One of the submission made before the
High Court and the Apex Court was that
the State Government wrongly exercised
its
power
under
Section
17(4)
in
dispensing with the inquiry. The Apex
Court after considering all relevant cases
came
to
the
conclusion
that
the
dispensation of inquiry under Section 5A
was unsustainable. The Apex Court after
taking the view that notification in so far as
the dispensation of inquiry under Section
5A, was unsustainable, proceeded to
consider
as
to
whether
acquisition
proceedings were liable to be declared
invalid and illegal. The Apex Court noticing
the
submission
of
the
Gorakhpur
Development Authority, which had invested
huge amount in the development, did not
grant relief to the petitioners for quashing
the acquisition/notification. Following was
laid down in paragraphs 55 and 56 which
are reproduced hereunder:-
"55.In the facts and circumstances of
the
present
case,
therefore,
the
Government has completely failed to
justify the dispensation of an enquiry
under Section 5A by invoking Section
17(4). For this reason, the impugned
notifications to the extent they state that
Section 5A shall not apply suffer from
legal infirmity. The question, then, arises
whether at this distance of time, the
acquisition proceedings must be declared
invalid and illegal.
56. In the written submissions of the
GDA, it is stated that subsequent to the
declaration made under Section 6 of the
Act in the month of December, 2004,
award has been made and out of the 400
land owners more than 370 have already
received compensation. It is also stated
that out of the total cost of Rs.
8,85,14,000/- for development of the
acquired
land,
an
amount
of
Rs.
5,28,00,000/- has already been spent by
the GDA and more than 60% of work has
been completed. It, thus, seems that
barring the appellants and few others all
other tenure holders/land owners have
accepted the `takings' of their land. It is
too late in the day to undo what has
already been done. We are of the opinion,
therefore, that in the peculiar facts and
circumstances of the case, the appellants
are not entitled to any relief although
dispensation of enquiry under Section 5A
was not justified."
11. Reference may also be made to
the judgment of the Hon'ble Apex Court
rendered in the case of Shankara
Cooperative Housing Society Ltd. Vs. M.
Prabhakar & Ors., (2011) 5 SCC 607
laying down principles for granting or
refusing relief on the ground of delay and
laches.
In paragraphs 54 and 68 of the
reports, it was held as under.
"54. The relevant considerations, in
determining whether delay or laches
should be put against a person who
approaches the writ court under Article
226 of the Constitution is now well
settled. They are:
(1)There is no inviolable rule of law
that whenever there is a delay, the court
must necessarily refuse to entertain the
petition; it is a rule of practice based on
sound and proper exercise of discretion,
and each case must be dealt with on its
own facts.
(2)The principle on which the court
refuses relief on the ground of laches or
delay is that the rights accrued to others
286
 INDIAN LAW REPORTS ALLAHABAD SERIES
by the delay in filing the petition should
not be disturbed, unless there is a
reasonable explanation for the delay,
because court should not harm innocent
parties if their rights had emerged by the
delay on the part of the petitioners.
(3)The satisfactory way of explaining
delay in making an application under
Article 226 is for the petitioner to show
that he had been seeking relief elsewhere
in a manner provided by law. If he runs
after a remedy not provided in the Statute
or the statutory rules, it is not desirable
for the High Court to condone the delay.
It is immaterial what the petitioner
chooses to believe in regard to the
remedy.
(4)No hard and fast rule, can be laid
down in this regard. Every case shall have
to be decided on its own facts.
(5)That representations would not be
adequate explanation to take care of the
delay.
68. The other factor the High Court
should have taken into consideration that
during the period of delay, interest has
accrued in favour of the third party and
the condonatoin of unexplained delay
would affect the rights of third parties.
We are also of the view that reliance
placed by Shri Ranjit Kumar on certain
observations made by this Court would
not
assist
him
in
the
facts
and
circumstances
of
this
case.
While
concluding on this issue, it would be
useful to refer the observations made by
the Court in the case of Municipal
Council, Ahmednagar Vs. Shah Hyder
Beig, wherein it is stated that:
delay defeats equity and that the
discretionary relief of condonation can be
had, provided one has not given by his
conduct, given a go by to his rights'."
12. The Apex Court in Swaika
Properties (P) Ltd. & Anr. Vs. State of
Rajasthan & Ors. reported in (2008) 4
SCC 695, has held that writ petition
challenging
the
land
acquisition
proceedings with delay and laches be not
entertained. The Apex Court in Aflatoon
& Ors. Vs. Lt. Governor of Delhi & Ors.,
(1975) 4 SCC 285, has laid down
following in paragraph 11 of the reports:
"11. There was apparently no reason
why the writ petitioners should have
waited till 1972 to come to this Court for
challenging the validity of the notification
issued in 1959 on the ground that the
particulars of the public purpose were not
specified. A valid notification under
Section 4 is a sine qua non for initiation
of proceedings for acquisition of property.
To have sat on the fence and allowed the
Government to complete the acquisition
proceedings on the basis that the
notification under Section 4 and the
declaration under Section 6 were valid
and then to attack the notification on
grounds which were available to them at
the time when the notification was
published would be putting a premium on
dilatory tactics. The writ petitions are
liable to be dismissed on the ground of
laches and delay on the part of the
petitioners (see Tilokchand Motichand v.
H.B. Munshi and Rabindranath Bose v.
Union of India)."
13. Coming to the facts of the case
in hand, notification under Section 4 of
the Act was published in official gazette
on 05.05.1993 and declaration under
Section 6 of the Act on 25.06.1993. Total
area of land acquired was 136 bigha, 8
biswa, 19 biswansi. The purpose of
1 All] Bajji Vs. State of U.P. & Ors.
287
acquisition
was
planned
industrial
development
in
district
Ghaziabad
through
Greater
Noida
Industrial
Development Authority. Enquiry under
Section 5-A was dispensed invoking
provisions of Section 17 (4) of the Act.
Award was made and published on
16.12.1996. Possession of the land
acquired has admittedly been taken.
14. In identical circumstance, the
Hon'ble Apex Court in the case of
Municipal Corpn. Of Greater Bombay Vs.
Industrial Development Investment Co.
(P) Ltd., (1996) 11 SCC 501, upheld the
judgment of the High Court dismissing
the writ petition filed by land holders on
the ground of delay and laches. Hon'ble
Mr. Justice K. Ramaswamy speaking for
the Bench, observed as under.
"29. It is thus well-settled law that
when there is inordinate delay in filing the
writ petition and when all steps taken in
the acquisition proceedings have become
final, the Court should be loath to quash
the notifications. The High Court has, no
doubt, discretionary powers under Article
226 of the Constitution to quash the
notification under Section 4(1) and
declaration under Section 6. But it should
be exercised taking all relevant factors
into pragmatic consideration. When the
award was passed and possession was
taken,
the
Court
should
not
have
exercised its power to quash the award
which is a material factor to be taken into
consideration before exercising the power
under Article 226. The fact that no third
party rights were created in the case is
hardly a ground for interference. The
Division Bench of the High Court was not
right in interfering with the discretion
exercised by the learned Single Judge
dismissing the writ petition on the ground
of laches."
15. In the concurring judgment,
Hon'ble S.B. Majmudar, J. held as under :
"35 ..... Such a belated writ petition,
therefore, was rightly rejected by the
learned Single Judge on the ground of
gross delay and laches. The respondentwrit petitioners can be said to have
waived their objections to the acquisition
on the ground of extinction of public
purpose by their own inaction, lethargy
and indolent conduct. The Division Bench
of the High Court had taken the view that
because of their inaction no vested rights
of third parties are created. That finding is
obviously incorrect for the simple reason
that because of the indolent conduct of the
writ petitioners land got acquired, award
was passed, compensation was handed
over to various claimants including the
landlord. Reference applications came to
be filed for larger compensation by
claimants
including
writ
petitioners
themselves. The acquired land got vested
in
the
State
Government
and
the
Municipal
Corporation free from all
encumbrances as enjoined by Section 16
of the Land Acquisition Act. Thus right to
get more compensation got vested in
diverse claimants by passing of the award,
as well as vested right was created in
favour
of
the
Bombay
Municipal
Corporation by virtue of the vesting of the
land in the State Government for being
handed over to the Corporation. All these
events could not be wished away by
observing that no third party rights were
created by them. The writ petition came to
be filed after all these events had taken
place. Such a writ petition was clearly
stillborn due to gross delay and laches."
288
 INDIAN LAW REPORTS ALLAHABAD SERIES
16. Similarly, in the case of State of
Rajasthan & Ors. Vs. D.R. Laxmi &
Ors.,(1996) 6 SCC 445, it was held :
"9. ... When the award was passed
and possession was taken, the Court
should not have exercised its power to
quash the award which is a material factor
to be taken into consideration before
exercising the power under Article 226.
The fact that no third party rights were
created in the case, is hardly a ground for
interference. The Division Bench of the
High Court was not right in interfering
with the discretion exercised by the
learned Single Judge dismissing the writ
petition on the ground of laches."
17. To the similar effect is the
judgment of Hon'ble Apex Court in
Municipal Council, Ahmednagar & Anr.
Vs. Shah Hyder Beig & Ors., (2000) 2
SCC 48, it was held as under:
"In any event, after the award is
passed no writ petition can be filed
challenging the acquisition notice or
against any proceeding thereunder. This
has been the consistent view taken by
Hon'ble Apex Court and in one of the
recent cases (C. Padma Vs. Dy. Secy. to
the Govt. of T.N., (1997) 2 SCC 627)".
18. In a more recent decision in the
case of Swaika Properties (P) Ltd. & Anr.
Vs. State of Rajasthan & Ors. reported in
(2008) 4 SCC 695, while dismissing the
challenge to land acquisition proceedings
made after possession was taken and
award was made in Hon'ble Apex Court
held as under.
"In the present case also, the writ
petition having been filed after taking
over the possession and the award having
become final, the same deserves to be
dismissed on the ground of delay and
laches. Accordingly, the order of the
learned Single Judge and that of the
Division Bench are affirmed to the extent
of dismissal of the writ petition and the
special appeal without going into the
merits thereof. This appeal also deserves
to be dismissed without going into the
merits of the case and is dismissed as
such. No costs."
19. Dispute in the present case is
confined only to Plot Nos. 114, area 0-15, Plot No. 166, area 1-8-0, Plot No. 167,
area 1-8-0, plot No. 168 area 1-1-0 and
Plot No. 169 area 0-13-0 belonging to the
petitioner. Thus, the dispute is confined
only in respect of a very small fraction of
total land under acquisition. It is not
disputed or denied that after acquisition,
land was transferred by the Greater
NOIDA to certain private builders and a
lot of development work has been
undertaken bringing about a substantial
change in the nature of the land.
20. The acquisition proceedings
have been challenged by the petitioner
after about two decades. The submissions
as made and the aspects or suggested by
learned counsel for the petitioner hardly
gives any reasonable and satisfactory
explanation for gross and inordinate delay
in filing the petition.
21. In challenge to land acquisition
proceedings, delay plays an important
role. Petitioner cannot be allowed to sit on
the fence and wait for completion of the
land
acquisition
proceedings
and
thereafter approach the Court.
22. In view of the facts and discussions
made above, the writ petition is liable to be
1 All] Vaibhav Jain Vs. State of U.P. & Ors.
289
dismissed on the ground of delay and laches
and the same, accordingly, stands dismissed.
23. However, there shall be no order
as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.02.2015
BEFORE
THE HON'BLE DR. DHANANJAYA YESHWANT
CHANDRACHUD, C.J.
THE HON'BLE DILIP GUPTA, J.
THE HON'BLE SUNEET KUMAR, J.
Civil Misc. Writ Petition No. 7241 of 2011
Vaibhav Jain
 ...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri P.N.Saxena, Sri Pramod Narayan
Shahi, Sri Amit Saxena
Counsel for the Respondents:
C.S.C., Sri C.B. Yadav, Addl. Advocate
General, Sri Shashank Shekhar Singh,
Addl. Chief Standing Counsel.
Constitution of India, Art.-226-Election of
Committee of Management-as per by
laws-7 of the institution-3 years apart
from one month-question the term of
newly management when start ?-either
from date of declaration of result or the
date of taking actual charge-held-if any
legal impediment or dispute-the relevant
date would be the date on which taken
charge-if newly elected person fails to take
charge-the period shall start from the date
of declaration of result of election.
Held: Para-13
Clause 7 of the amended scheme of
administration provides for a term of three
years for the committee of management. A
further period of grace of one month is
provided.
If
the
new
committee
of
management does not take over charge on
the expiry of a period of three years and
one month, the term of the earlier
committee would ipso facto come to an
end. Thereupon, the Joint Director of
Education is authorised to appoint a
Prabandh
Sanchalak.
The
Prabandh
Sanchalak, in turn, is duty bound to conduct
elections as expeditiously as possible, so
that the newly elected committee of
management can be handed over charge.
The actual handing over of charge is what
merits emphasis. In the event of a dispute,
a provision has been made for its resolution
by the Deputy Director of Education. A
newly elected committee of management
may be unable to take charge in a given
case despite the election which has been
conducted by the Prabandh Sanchalak for a
reason not bearing on its own default. In
such a case, the term of office of the
committee
of
management
would
commence with effect from the date on
which it has taken over charge. However,
where despite the absence of any hurdle,
the
newly
elected
committee
of
management fails to take over charge due
to its own default, its term of office of three
years would commence with effect from the
date of declaration of the result of the
election and would not be postponed to the
date on which it takes over charge. The
judgment of the Division Bench in Vaibhav
Jain (supra) lays down a principle contrary
to what has been explained above in the
earlier judgments of the Division Benches in
Jangali Baba and in Ratan Singh Solanki.
The decision in Vaibhav Jain (supra) would
not be construed as laying down the correct
principle of law.
Case Law discussed:
Spl. Appeal No. 1283 of 2008; (1991) 2
UPLBEC 1183; 2010 (1) ADJ 262.
(Delivered by Hon'ble Dr. Dhananjaya
Yeshwant Chandrachud, C.J.)
1. This reference to the Full Bench
has been occasioned by a referring order
dated 9 February 2011.