# Battu Lal v. State of U.P. and others

- **Citation:** (2006) 3 ILRA 1261
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-09-04
- **Case number:** Civil Misc. Writ Petition No. 47083 of 2006
- **Bench:** S.K. Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/battu-lal-v-state-of-u-p-and-others-40696
- **Pages:** 4

## Headnote

Constitution of India, Art. 226-Principle
of Natural Justice-cancellation of fair
price shop licence-after service of charge
sheet-petitioner
given
explanation
without evidence-recording the reasons
are must for adjudging the validity of
order-the appellate authority also can
not record any reason for agree on
disagreement with the finding-matter
remitted back to the lisencing authorityfresh decision within three month-till
then cancellation order be kept in
abeyance.

Held: Para 6, 7 & 8

The licensing authority was required to
mention
the
charges
and
then
explanation given by the petitioner and
then evidence and thereafter the reasons
on which the explanation given by the
petitioner is not being accepted.

Thus it is clear that it is the first concern
and the duty of first court/authority to
critically examine the evidence/record
and by assigning reason to agree or not
to agree with the submission of a party
and then to pass order. If this is not
there then exercise can be safely said to
be faulty.

Accordingly this court is of the view that
instead of keeping the matter pending
before the appellate authority this court
straightway may intervene by exercising
its extraordinary powers which will save
time of everybody and thus the order of
the
Sub
Divisional
Office/Licensing
authority dated 7th June, 2006 by which
fair price shop license has been cancelled
is to be kept in abeyance. The matter has
to go back to the concerned licensing
authority again to revive the proceedings
for cancellation of fair price shop license
and he is to proceed to deal the same by
undertaking the process of evaluation as
indicated. It is for the petitioner to
cooperate in the proceedings and in the
event
there
is
non-cooperation
the
licensing
authority
will
be
free
to
proceed without waiting for cooperation
from the petitioner.
1262 INDIAN LAW REPORT ALLAHABAD SERIES [2006

## Text

3All] Battu Lal V. State of U.P. and others 1261
the terms of the agreement which expired
on 30.4.1983. It has also found that the
tenancy
was
not
permanent
nor
irrevocable. It was a month to month
tenancy
after
expiry
of
the
term.
Reasoning given by the courts below that
since no violation was committed by the
tenant of the terms of the lease and since
the tenant was not in default in payment
of rent therefore notice under section 106
of the Transfer of Property Act was
invalid
and
illegal
is
clearly
not
sustainable. The said view of the courts
below is illegal.

10. For the aforesaid reasons, the
writ petition succeeds and is allowed. The
impugned judgment and orders dated
16.4.1990 passed by the court of Judge
Small Causes Kanpur in S.C.C. Suit No.
598 of 1983 and the judgment and orders
dated 12.4.1993 passed by the Xth
Additional District Judge Kanpur Nagar
in S.C.C. Revision No. 99 of 1990 are
hereby quashed. The suit of the petitioner
for ejectment stands decreed. No order is
passed as to costs. Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.09.2006

BEFORE
THE HON'BLE S.K. SINGH, J.

Civil Misc. Writ Petition No. 47083 of 2006

Battu Lal

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri B.K. Pandey

Counsel for the Respondents:
S.C.
Constitution of India, Art. 226-Principle
of Natural Justice-cancellation of fair
price shop licence-after service of charge
sheet-petitioner
given
explanation
without evidence-recording the reasons
are must for adjudging the validity of
order-the appellate authority also can
not record any reason for agree on
disagreement with the finding-matter
remitted back to the lisencing authorityfresh decision within three month-till
then cancellation order be kept in
abeyance.

Held: Para 6, 7 & 8

The licensing authority was required to
mention
the
charges
and
then
explanation given by the petitioner and
then evidence and thereafter the reasons
on which the explanation given by the
petitioner is not being accepted.

Thus it is clear that it is the first concern
and the duty of first court/authority to
critically examine the evidence/record
and by assigning reason to agree or not
to agree with the submission of a party
and then to pass order. If this is not
there then exercise can be safely said to
be faulty.

Accordingly this court is of the view that
instead of keeping the matter pending
before the appellate authority this court
straightway may intervene by exercising
its extraordinary powers which will save
time of everybody and thus the order of
the
Sub
Divisional
Office/Licensing
authority dated 7th June, 2006 by which
fair price shop license has been cancelled
is to be kept in abeyance. The matter has
to go back to the concerned licensing
authority again to revive the proceedings
for cancellation of fair price shop license
and he is to proceed to deal the same by
undertaking the process of evaluation as
indicated. It is for the petitioner to
cooperate in the proceedings and in the
event
there
is
non-cooperation
the
licensing
authority
will
be
free
to
proceed without waiting for cooperation
from the petitioner.
1262 INDIAN LAW REPORT ALLAHABAD SERIES [2006
(Delivered by Hon'ble S.K. Singh, J.)

1. Heard learned counsel for the
petitioner and learned Standing Counsel.

2. Challenge in this petition is the
order passed by the appellate authority
dated 10.8.2006 by which appeal filed by
the petitioner against the cancellation of
the fair price shop license was admitted
but prayer for grant of stay has been
rejected.

3. Learned counsel for the petitioner
submits that appellate authority in not
granting stay to the petitioner has
committed a manifest error as licensing
authority
while
passing
order
of
cancellation has not examined the merits
in the explanation so given by the
petitioner
against
the
show
cause
notice/charge sheet and in a cryptic and
arbitrary manner order has been passed.
Submission is that petitioner by giving
details and by placing documents before
licensing authority has fully proved that
charges against him are false, motivated
and superfluous and therefore, as that was
not considered, it was for appellate
authority to have applied his mind to the
facts and detail and then he should have
rejected/allowed petitioner's application.

4. Learned Standing Counsel in
response to above, submits that it was in
discretion of appellate authority to grant
stay or not and therefore, if on facts he
was not satisfied that it is case for stay
then no exception can be taken to
rejection of stay application.

5. In view of the aforesaid the matter
was examined in presence of the learned
Standing Counsel and order of the
licensing authority was also read in
presence of all concerned besides the
impugned order of appellate authority.

6. On perusal of the order of
licensing authority this court finds that
there is mention of service of the charge
sheet on the petitioner and thereafter his
reply dated 18.5.2006 and then there is
just a mention that "matter was examined
and explanation has not been found to be
satisfactory" and thereafter all kind of
irregularities i.e. non opening of shop in
time, unfair distribution, charging the
higher rate and unsatisfactory behavior of
the petitioner has been just mentioned.
Thus it is clear that no reason has been
given and no analysis has been made not
to accept the explanation which is said to
have been filed by the petitioner.
Needless to say that satisfaction of the
court/authority is to be judged on perusal
of
the
analysis
of
the
explanation/arguments, the record and
then reasons so given in the order to
accept/not to accept the same. Higher
forum may not be in position to go into
the reasons which remains recorded in the
mind of the concerned authority unless it
comes out in writing in the order. Here is
the case in which this court finds that
satisfaction so recorded by the licensing
authority for holding explanation given by
the petitioner not to be satisfactory
remains his personal satisfaction as no
analysis and reason appears in the order.
The licensing authority was required to
mention the charges and then explanation
given by the petitioner and then evidence
and thereafter the reasons on which the
explanation given by the petitioner is not
being accepted.

7. As this has not been done, this
court is of the view that keeping matter
pending
even
before
the
appellate
3All] Battu Lal V. State of U.P. and others 1263
authority may be just a futile exercise as
appellate authority may not be in a
position to record findings in detail in
respect to factual aspects which was
required to be recorded by the first
authority first and it is only thereafter
appellate authority can be in a position to
examine the merits in those findings in
the light of the record and straightly
proceed to record findings as that may
cause prejudice to either of the two sides.
A party has a right to get a finding on
question of facts in his favour first by first
court/authority and then by second
court/authority so that if matter goes to
higher forum there may be concurrent
finding of two courts in his favour, if it is
in his favour. It is in exceptional cases,
the appellate authority is to be permitted
to act like a first court for the purpose of
recording of finding by going into record
and
evidence.
Power
of
appellate
court/authority may be the same as of trial
court but that do not mean that trial
court/first authority will not discharge his
job/part and deprive a party of getting a
finding in his favour by that court. Thus it
is clear that it is the first concern and the
duty of first court/authority to critically
examine the evidence/record and by
assigning reason to agree or not to agree
with the submission of a party and then to
pass order. If this is not there then
exercise can be safely said to be faulty.

8. Accordingly this court is of the
view that instead of keeping the matter
pending before the appellate authority this
court straightway may intervene by
exercising its extraordinary powers which
will save time of everybody and thus the
order
of
the
Sub
Divisional
Office/Licensing authority dated 7th June,
2006 by which fair price shop license has
been cancelled is to be kept in abeyance.
The matter has to go back to the
concerned licensing authority again to
revive the proceedings for cancellation of
fair price shop license and he is to
proceed to deal the same by undertaking
the process of evaluation as indicated. It is
for the petitioner to cooperate in the
proceedings and in the event there is noncooperation the licensing authority will be
free to proceed without waiting for
cooperation from the petitioner. The
proceeding is to be concluded within a
period of three months from the date of
receipt of certified copy of this order
which petitioner undertakes to produce
before the licensing authority within a
period of two weeks from today. In case
the copy of order is not produced within
two weeks then the effect of this order
will remain in abeyance and the order of
the licensing authority will become
operative. As and when final order is
passed by concerned authority that will
prevail and it will be for the party feeling
aggrieved to take recourse as permissible
in law.

9. In view of the direction as given
in this order the appeal filed before
appellate authority becomes infructuous
and thus now that is not to be proceeded
any more.

10. With the aforesaid, this writ
petition stands allowed/disposed of.
---------
1264 INDIAN LAW REPORT ALLAHABAD SERIES [2006
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.11.2006

BEFORE
THE HON'BLE S.N. SRIVASTAVA, J.

Civil Misc. Writ Petitioner No.48242 of
2006

Shresth Shiksha Sanstha
...Petitioner
Versus
State of U.P. and another ...Respondents

Counsel for the Petitioner:
Sri Anoop Trivedi
Sri Shashi Nandan

Counsel for the Respondents:
Sri C.B. Yadav
S.C.

Indraprastha
University
Act,
1998Section 26 (2)-No objection grant by
State
of
U.P.-for
establishment
of
National University-withdrawn by state
on pretext that the certificate granted by
Secretary Medical Education and not by
Higher Education-order passed without
application of mind-can not sustainmatter requires re-consideration.

Held: Para 18 & 19

In the facts .of the case where the State
of
Uttar
Pradesh
has
granted
'No
Objection Certificate' mentioned above
to petitioner, it was incumbent upon the
State to apply mind in the matter of,
granting/withdrawing
'No
Objection
Certificate'
for
establishing
an
Institution
in
the
National
Capital
Region. 'No Objection Certificate' once
granted to the petitioner cannot be
withdrawn by the State only on the
ground that the State of U.P. through
Secretary, Medication Educations and
Special Secretary to the Chancellor of
U.P.
State
Universities
granted
'No
Objection Certificate' and not the Higher
. Education Department.
Considering the facts mentioned above,
this Court is of the view that the
impugned orders suffer from error of law
apparent on the face of record and was
passed without application of mind and
on non-consideration of relevant facts
stated
above
and
as
such
matter
requires
reconsideration
afresh
in
accordance with law.

(Delivered by Hon'ble S.N. Srivastava. J.)

1.

Petitioner-Shresth
Shiksha
Sanstha has preferred this writ petition
challenging
orders
dated
19.8.2004,
17.5.2006 and 31. 7 .2006, passed by the
State of U.P. in the matter of cancellation
of 'No Objection Certificate' for imparting
higher education course by the petitioner
in Ghaziabad with affiliation to Guru
Gobind Singh Indraprastha University,
Delhi
(hereinafter
referred
to
as
Indraprastha University).

2. Heard learned counsel for the
petitioner and learned Standing Counsel.

3. Sri Shashi Nandan, learned Senior
Advocate, assisted by Sri Anoop Trivedi,
learned counsel for petitioner, urged that
the Indraprastha Vishwavidyalaya Act,
1998 'was enacted by the Legislative
Assembly of Delhi and the jurisdiction of
the University is defined under Section 4
of the Act. The University is competent to
exercise powers within the area of
National Capital Region as defined in the
National Capital Region Planning Board
Act, 1985, which is an Act of Parliament.
National Capital Region has been defined
under Section 2(f) of the National Capital
Region Planning Board Act, 1985 which
comprises
whole
of
District
of
Bulandshahr comprising the Tehsils of
Anupshahr,
Bulandshahr,
Khurja,
Sikanderbad, whole of District of Meerut