# Collectorate Bar Association, Etah v. State of U.P. and others

- **Citation:** (2012) 3 ILRA 1600
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-10-18
- **Case number:** Civil Misc. Writ Petition (P.I.L.) No. 22757 of 2008
- **Bench:** Amitava Lala, A.C.J. Pradeep Kumar Singh Baghel
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/collectorate-bar-association-etah-v-state-of-u-p-and-others-42375
- **Pages:** 13

## Headnote

Sri H.M. Srivastava
Sri Neeraj Srivastava
Sri V.M. Srivastava
Sri Zafer Nayyer
C.S.C.

Constitution of India, Article 226-Public
Interest Litigation-by notification dated
15.04.2008-new district with name of
'Sri Kashi Ram Nagar' by carving out
tehsil Kasganj and patiyali created-but
till date no budget and infrastructure
provided-relying upon judgment of Apex
Court in Ram Milan Shukla case-relief for
quashing the notification and to proceed
further-claimed-held-not
proper
to
quash notification but direction issued to
complete the infrastructure and use
budgetary sanction within next financial
year
31.03.2014-in
case
of
failure
notification itself automatically stand
quashed.
3 All] Collectorate Bar Association, Etah V. State of U.P. and others
1601
Held: Para-15

Against this background, we are of the
view that the purpose will be subserved
if we grant a reasonable time to the
State
Government
to
complete
the
infrastructure and use the budgetary
sanction, that too not in a periodic or
phase manner but at a time considering
the case as emergent one. For such
purpose, we direct the State Government
to complete the course of action within
the next financial year, which will come
to an end by 31st March, 2014. If it is
not
completed within the
aforesaid
period, the impugned notification dated
17th April, 2008, being annexure-1 to
the writ petition, issued by the State
Government for creation
of
District
Kanshi Ram Nagar will automatically
stand quashed. We hope and trust that
all the works will be started and
completed within this period on war
footing.
Case Law discussed:
1999 JIR 453 (All) :1999 (1) AWC 723; 2008
(5) SCC 550; (2008) 5 SCC 550; 2002(2) SCC
333; 2000 (1) AWC 750; Writ Petition No.
10159 (M/B) of 2010 (PIL Civil) (Brij Kishore
Verma Vs. State of U.P. And others)

## Text

_Characters 0–39,954 of 42,275. This is a partial read: ask again with offset=39954 for what follows._

1600 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
the Chief Minister, her signature was
found
only
on
the
note-sheet
and
ultimately in the last page of note-sheet
signature of the then Chief Minister, being
competent authority, is there as if she, only
as a matter of formality, has put her
signature and sent the file which, according
to us, is not the intention of the Act. The
competent authority has to apply her/his
mind before directing or recommending
for investigation or closing the proceeding,
particularly when the charges are under the
Prevention of Corruption Act, 1988 against
a Cabinet Minister in discharging duties of
office.

11. Having considered the rival
contentions of the parties, in totality we
find that the intention of the Lokayukta
was to send the matter to the competent
authority for the purpose of getting
recommendation for investigation by an
appropriate agency of the State or the
Central Government with the concurrence
of the Government as per Section 14(3)(i)
of the Act, to which there is no bar. It may
be accepted by the competent authority or
it may be rejected. However, it is true to
say that the communication will not be
understood by the wrong recital but by the
contents of the letter when no investigation
has been made by any agency as yet in the
matter. Thus, we are of the view that the
writ petition is premature in nature and, as
such, it is liable to be dismissed.
Accordingly, the writ petition is dismissed.
Interim order, if any, stands vacated.

12. However, no order is passed as to
costs.

13. The original record, which was
produced before the Court by Mr.
Yashwant Varma, learned Chief Standing
Counsel, and which was directed to be kept
under the sealed cover, is directed to be
returned to Mr. Yashwant Varma.
---------
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.10.2012

BEFORE
THE HON'BLE AMITAVA LALA, A.C.J.
THE HON'BLE PRADEEP KUMAR SINGH
BAGHEL, J.

Civil Misc. Writ Petition (P.I.L.) No. 22757
of 2008

Collectorate Bar Association, Etah

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

Counsel for the Petitioner:
Sri Shashi Nandan, Sr. Advocate,
Sri S.P.S. Rathore.
Sri Dhiraj Srivastava
Sri S.P.S. Chauhan
Sri Satendra Pal Singh

Counsel for the Respondents:
Sri H.M. Srivastava
Sri Neeraj Srivastava
Sri V.M. Srivastava
Sri Zafer Nayyer
C.S.C.

Constitution of India, Article 226-Public
Interest Litigation-by notification dated
15.04.2008-new district with name of
'Sri Kashi Ram Nagar' by carving out
tehsil Kasganj and patiyali created-but
till date no budget and infrastructure
provided-relying upon judgment of Apex
Court in Ram Milan Shukla case-relief for
quashing the notification and to proceed
further-claimed-held-not
proper
to
quash notification but direction issued to
complete the infrastructure and use
budgetary sanction within next financial
year
31.03.2014-in
case
of
failure
notification itself automatically stand
quashed.
3 All] Collectorate Bar Association, Etah V. State of U.P. and others
1601
Held: Para-15

Against this background, we are of the
view that the purpose will be subserved
if we grant a reasonable time to the
State
Government
to
complete
the
infrastructure and use the budgetary
sanction, that too not in a periodic or
phase manner but at a time considering
the case as emergent one. For such
purpose, we direct the State Government
to complete the course of action within
the next financial year, which will come
to an end by 31st March, 2014. If it is
not
completed within the
aforesaid
period, the impugned notification dated
17th April, 2008, being annexure-1 to
the writ petition, issued by the State
Government for creation
of
District
Kanshi Ram Nagar will automatically
stand quashed. We hope and trust that
all the works will be started and
completed within this period on war
footing.
Case Law discussed:
1999 JIR 453 (All) :1999 (1) AWC 723; 2008
(5) SCC 550; (2008) 5 SCC 550; 2002(2) SCC
333; 2000 (1) AWC 750; Writ Petition No.
10159 (M/B) of 2010 (PIL Civil) (Brij Kishore
Verma Vs. State of U.P. And others)

(Delivered by Hon'ble Amitava Lala,
A.C.J.)

Amitava Lala, ACJ.-- Both the
aforesaid writ petitions have been heard
together as the fate of the second writ
petition i.e. Writ Petition No. 46428 of
2010 depends upon the result of the first
writ petition i.e. 22757 of 2008. Therefore,
firstly we take the first writ petition for
consideration.

2. So far as first writ petition is
concerned, Collectorate Bar Association,
Etah through its President has filed this
writ petition in the form of public interest
litigation. According to the petitioner, on
15th April, 2008 the then Chief Minister of
the State of Uttar Pradesh made a public
announcement
that
henceforth
Tehsil
Kasganj will be a separate district in the
name of Sri Kanshi Ram. Pursuant to the
aforesaid public announcement, on 17th
April, 2008 notification has been issued by
the State Government creating a new
district called as Kanshi Ram Nagar by
carving out Tehsils Kasganj and Patiyali
and Block Soron from District Etah.
Challenging such notification dated 17th
April, 2008 the petitioner has filed the
present writ petition and also sought for a
direction restraining the respondents from
proceeding any further towards bifurcation
of District Etah pursuant to the impugned
notification. The ground of challenge is
that before issuance of notification by the
State Government for creation of new
revenue District Kanshi Ram Nagar
necessary budget and infrastructure was
not
provided.
In
support
of
his
submissions, the petitioner has relied upon
the judgements reported in 1999 JIR 453
(All) : 1999 (1) AWC 723 (Ram Milan
Shukla and others Vs. State of U.P. and
othres) and 2008 (5) SCC 550 (State of
Uttar
Pradesh
and
others
Vs.
Chaudhari
Ran
Beer
Singh
and
another).

3. On 15th December, 2009 a
Division Bench of this Court passed a
detailed order recording the submissions of
the parties, as follows:

"In this public interest litigation the
Collectorate Bar Association, Etah has
prayed for quashing the notification dated
17.4.2008 issued by the State Government
for creation of revenue district Kanshi Ram
Nagar on the grounds that the necessary
budget and infrastructure was not provided
before notifying the revenue district
creating serious anomalies and difficulties
1602 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
for the residents of the district. The
petitioner has relied upon Ram Milan
Shukla Vs. State of U.P., 1999 (1) AWC
723 and State of U.P. Vs. Choudhary
Ranvir Singh, (208) 5 SCC 550 in
support of their submissions.

In the supplementary counter affidavit
of
Shri
Anand
Prakash
Upadhyaya
presently
posted
as Joint
Secretary,
Revenue, Government of U.P. it is stated
that there is no violation of Art.204 and
205 of the Constitution of India. There was
specific provisions in the budget 2008-09
relating to the establishment and other
necessary expenses for the district. An
amount of Rs.263.30 crores has been
earmarked. For the essential expenditure
towards newly created district the Board of
Revenue, U.P. has sanctioned budget and
total amount of Rs.4.07 crores has been
earmarked for the year 2008-09. No
amount was initially withdrawn from the
contingency fund of the State. The other
budgetary provisions have been given in
para 7 of the counter affidavit.

Shri
H.M.
Srivastava,
Advocate
appearing for the Kasganj Bar Association
and Democratic Bar Association, Kasganj
states that the new building of the district
judiciary was inaugurated after Shri Aditya
Nath Mittal was appointed as officer on
special duty, Kanshi Ram Nagar by the
Hon'ble Judge of the High Court and has
annexed
various
photograph
of
the
building and the inauguration ceremony.
The officers and staff have been appointed
and that district judiciary functioning from
new district with the officer on special
duty, two Addl. Civil Judges and a Chief
Judicial Magistrate, a Judicial Magistrate
and Civil Judge (JD).

The
petitioner
insists
that
the
necessary infrastructure has not been
created. The District Magistrate and the
Superintendent of Police are still sitting in
the office of Nagar Palika. There are no
residence provided and that all the senior
officers are still residing in Distt. Etah. The
District Judge and officers are working in
the hurriedly renovated and old court
building
without
any
proper
accommodation. About 1 1/2 years has
passed but there is no infrastructure and
arrangement for the office and staff of the
officers and employees.

Shri Jafar Naiyer, learned Addl.
Advocate General states that he will file an
affidavit giving the entire status of the
budget,
number
of
officers,
offices
constructed and the residences and also
inform the Court about the steps taken for
acquiring the land and construction of
building.

List this case on 15.1.2010. We feel
constrained to observe that if the State
Government has not taken any effective
steps for creating infrastructure and
establishment of district office and Court
rooms, suitable to the status and function
of the office of the District Judge and other
judicial officers so far, the Court may
consider to stay the notification on the next
date.

A copy of the order be given to the
Chief Standing Counsel."

4. On 05th September, 2012, when the
matter was placed before this Bench,
following order was passed:

"Rejoinder filed today be kept with
the record.
3 All] Collectorate Bar Association, Etah V. State of U.P. and others
1603

In a surprise situation this public
interest litigation has come before us. It is
in respect of creation of a district namely
Kanshi Ram Nagar, which has now been
named as Kasganj, carving out the same
from the district Etah. Several affidavits
and photographs were filed before this
Court
from
which
it
appears
that
insufficiency is there in respect of
infrastructure. This has also been observed
by a Division Bench of this Court at the
time of hearing the matter, vide an order
passed on 15.12.2009.

We have gone through the Division
Bench judgment of this Court reported in
[1999 JIR 453 (All)] (Ram Milan Shukla
& Ors. Versus State of U.P. & Ors.),
wherein it has been held that creation of a
new district is an administrative act under
Section 11 of the U. P. Land Revenue Act
yet such administrative powers must be
exercised on relevant considerations and
not arbitrarily. It was further held that
before creating a district a serious exercise
must be carried out about the available
financial resources and an infrastructure
must be created otherwise it will be putting
the cart before the horse. Till the
infrastructure facilities have been arranged
and worked out, the decision to create a
new district cannot and ought not to be
implemented, and the notification under
Section 11 of the U. P. Land Revenue Act
should not be issued. Further to bring
about transparency in administration, the
Government must disclose the compelling
administrative, political and economic
compulsions for taking such a decision.

According to us a recent trend is there
to get a political mileage by carving out
and creating a new district without any
infrastructure as it has been pointed out in
this writ petition. Therefore, we want to
know by further affidavits on the part of
the respondents as to what is the present
situation in connection with the financial
resources available and infrastructure and
also transparency in administration and
what was the compelling circumstances to
create such district.

We also find that in this State not only
this district but several other have also
been carved out. The public interest
litigation cannot be restricted only in
isolation,
therefore,
there
is
every
possibility that in case of any insufficiency
in reply on the part of the Government, it
may extend the scope of this public interest
litigation to all the districts carved out in
the similar manner. Presently, we are of the
view that there should be a report of the
concerned District Judge before this Court
under a sealed cover in respect of the
aforesaid issue. However, further orders
likely to be passed will be passed on the
next date considering all the pros and cons.

In any event, neither of the parties are
estopped from filing their affidavits, if any,
to apprise us about the present scenario.

The matter will appear once again on
19th September, 2012. A copy of the order
will be given to the Registrar General of
this Court to send a copy of the same to the
concerned District Judge to file such
report, as aforesaid."

5. From the supplementary affidavit
dated 23rd January, 2010 filed by Sri
Anand
Prakash
Upadhyaya,
Joint
Secretary, Revenue, Government of U.P.,
Civil Secretariat, Lucknow, on behalf of
the State-respondents, we find that such
affidavit has been filed giving the entire
status of the budget, number of officers,
offices constructed and the residences and
1604 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
also the steps taken for acquiring the land
and construction of building, as was
directed in the order dated 15th December,
2009 passed by this Court. In that regard, it
has been categorically stated in such
affidavit as follows:

"1) Judiciary:-

A. That at present in the district total
11 posts have been created for District and
Session Judge and 10 posts have been
created for Civil Judge (Senior Division).
Six posts have been created for Chief
Judicial Magistrate and for Judicial
Magistrate 6 posts have been created. For
the Civil Judge (Junior Division) total 9
posts have been created and for the
administrative
work
in
the
district
Judgeship 51 posts have been created total
93 posts are sanctioned at present for the
newly created district the Govt. order dated
18 Sept. 2008 would clearly reflected that
total 93 posts have been sanctioned in this
regard. A photocopy of the order dated 18
Sept. 2008 is being filed herewith and
marked as Annexure No. SCA-1 to this
affidavit.

B. It is relevant to mention here that
for the regular establishment of residential
houses total 49.71 acre land is earmarked
at Tehsil- Kashganj, Pargana Vilram
Mauza Mamo. The acquisition proceeding
has already commenced, whereas the State
Govt. vide Govt. order dated 12.01.2010
had already sanctioned the amount of
Rs.42,69,529/- 10% acquisition charges
and another 10% acquisition amount of
Rs.42,69,529/-
total
amount
of
Rs.85,39,058/-
had
sanctioned.
A
photocopy of the Govt. Order dated
12.01.2010 is being filed herewith and
marked as Annexure No. SCA-2 to this
affidavit.

C. That the counsel of the petitioner
had heavily relied that no necessary
infrastructure had been created at the
district level and the District Judge and
Judicial Officers are working in the
hurriedly renovated and old Court building
without any proper accommodation. In
response it is respectfully submitted that
before creation of the new district there
was already inexistence of Additional and
Session
Judge,
Court
and
other
4
subordinate Courts. In addition on 10th
March 2000 Hon'ble Mr. Justice Vashisht
Kumar Chaturvedi (then Administrative
Judge) had inaugurated the said building
the total area of the Court Campus is
approximately 9320 Square meter (2.30
acre) and total covered area is 3047 Square
meter and at present in the said campus 10
Courts are working in separate Courts each
Court room is approximately 92.16 Square
meter. In the same premises there is also
Jail for the prisoner those are brought for
an appearance the same is approximately
52 Square meter. It is respectfully
submitted that there is also room for Senior
Prosecuting
Officer,
Retiring
Room,
Accounts Office, Central Nazarath Room,
Library, Model Bar Association Room,
there is also computer room these are all in
very
good
condition
there
is
also
residential Houses for the Judicial Officers
in the same campus which consist of 6
residences for Type IV, 3 residences for
Type-II and 3 residences for Type-I, in
which the Judicial Officers are residing.
And at present the District and Session
Judge are residing in the P.W.D. Guest
House. For the security purpose of the
campus 24 hours P.A.C. is also stationed,
there is also very high wall around the
campus.

It is highly important to mention here
that on 19 Sept. 2008 Sri Aditya Nath
3 All] Collectorate Bar Association, Etah V. State of U.P. and others
1605
Mittal was appointed as Officer on Special
Duty. Thereafter, after getting the complete
infrastructure for smooth running of the
District Court, the then District Judge and
Session Judge on 24 December 2008 had
given permission for running the Court in
the said premises. For the smooth
functioning of the newly created District
Court the Hon'ble High Court vide letter
dated 02.02.2009 and 06 October, 2009
had transferred the total 116 employees
and all the employees had joined their
duty. Therefore, it is respectfully submitted
before this Hon'ble Court that the entire
facilities as well as infrastructure is fully
being provided at the District Judgeship
and is no hardship to any judicial officers.
The relevant photographs and also would
clearly reveal to this Hon'ble Court that all
the Court rooms are sufficiently big and is
good conditions and judicial work is being
conducted smooth manner and also to any
litigants. The original copy of the
photographs are being filed herewith and
marked as Annexure No. SCA-3 to this
affidavit.

3. Revenue Department:-

The office of the District Magistrate,
at present is running from the office of
Nagar Palika Parishad, Kashganj, whereas
two storey newly constructed Houses is
situated in area of 20,173.23 square foot
from the said building the work of the
District Magistrate, Additional District
Magistrate
and
other
Administrative
Officers are continuing from the said
building and it is further relevant to
mention here that the office of Chief
Development Officer, Project Officer,
District Development Officer, District
Election Officer, District Panchasthani
Election Office, District Board Office,
Assistant Regional Transport Officer,
Stamp Commissioner etc. are also running
in very smooth manner from the newly
created District.

It is highly important to mention here
that the full-fledged establishment of the
District Headquarters (Collectorate), total
area of 7.854 Hect. is identified of the
Energy Department, the meeting was
headed by Chief Secretary on 14.12.2009
by which the Energy Department was
agreed to transfer the land to the Revenue
Department. It is highly important to
mention here that on 05.01.2010 the
Energy Department had also handed over
the actual physical possession to the
Revenue Department for establishment of
full-fledged District Collectorate and for
the establishment of residential and office
purpose, the demand has also been
submitted for coming budged. It is further
submitted that for the establishment of
Headquarter Collectorate another land of
20.833 Hect. land is also under process to
acquire at Mauza Jakharudrapur from the
farmers. The transfer of the possession
letter of Energy Department is being filed
herewith and marked as Annexure No.
SCA-4 to this affidavit.

It is categorically submitted that at
present there is no scarcity of any
residences accommodation for officials
and at present the State Govt. had already
sanctioned 28 posts for the District
Headquarter. The photocopies of the Govt.
Orders dated 3 July, 2008 and 11.01.2010
are being filed herewith and marked as
Annexure No. SCA 5 & 6 to this affidavit.

4. Home Department:-

A) At present after the creation of the new
District the State Govt. vide Govt. order
1606 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
dated
23.01.2009
had
provided
the
following Prosecution Officer:-

1. Senior Prosecuting Officer
 1 Post.

2. Prosecuting Officer

 1 Post.

3. Senior Assistant

1 Post.

4. Class-IV

1 Post.

In addition 6 Assistant Prosecuting
Officer had also been transferred from
District Etah to the newly created
Kanshiram Nagar.

B) For the establishment of Police
Line at the District level the process has
also for acquisition of the land from
Fishery Department and at present the
Police Line is working through District
Govt. Polytechnic.

C) It is relevant to mention here that
the Office of the Superintendent of Police
is also running from the two storey
building from Nagar Palika Parishad which
constructed in total area of 324 Square
Meter.

D) It is highly important to mention
here that total 28 Police Stations were
inexistence at District Etah out of which 10
Police Station are now situated in newly
created District Kanshi Ram Nagar,
therefore, there was no requirement of any
creation of new police station. After the
creation of the new district one woman
Police Station had also been created and at
present the Superintendent of Police is also
provided residence at Forest Department
Guest House.

5. Prisoner (Jail) Department:-

It is highly important to mention here
that the 50 Acre land is also identified for
the establishment of new prison at newly
created District for which the land of the
Veterinary Department at Village Puchlana
had been identified for the proposal of the
said prison, the Hon'ble Minister of the
concerned department had already given
the consent.

6. Health Department:-

That at present the District Hospital is
running from the newly built Community
Health Center, Kashganj in which the
Chief Development Officer is running his
office. It is relevant to mention here that 7
subordinate posts in the office of Chief
Medical Officer had also been created. At
present the State Govt. has already
sanctioned 100 Bed Hospital at the District
level for which 5 crore budged has also
been earmarked for the purpose. As per the
National Village Health Mission 2009-10,
the total amount of Rs. 637.57 Lakhs had
also been distributed at the District level.
And at present for the better infrastructure
for the establishment of District Hospital
Govt. has also initiated for acquiring the
land."

6. From the aforesaid statements
made on behalf of the State in the
supplementary affidavit, it appears that
even after two years of creation of district
in 2008, the newly created district is
neither financially nor infrastructurally
equipped. Only recent sanction of budget
has been shown. Therefore, according to
us, no case has been made out on the part
of the State.

7. We have also gone through the
counter
affidavit
and
supplementary
counter affidavit filed on behalf of the
3 All] Collectorate Bar Association, Etah V. State of U.P. and others
1607
State respondents on 20th August, 2008
and 18th April, 2009 respectively. In the
counter affidavit it has been stated that no
abrupt decision has been taken by the State
by issuing the impugned notification.
Creation and abolition of District/s or
Division/s is nothing but a kind of
reorganization of territorial administration
and/or management of the area of the State
for performance of its functions and duties.
No body can have any legal right to seek
for judicial review in connection with
reorganization of the district. It has further
been submitted that in 2002 (2) SCC 333
(Balco Employees Union Vs. Union of
India) the Supreme Court has held that the
Courts should not embark upon the public
policy. So far as supplementary counter
affidavit filed on 18th April, 2009 is
concerned, the State wanted to clarify
about the budgetary sanction for creation
of district. From Annexure-2 to such
supplementary counter affidavit, we find
that calculations have been given under the
signature of the authority concerned dated
04th March, 2009, according to which the
total allocated fund for the financial year
2008-09 is Rs.4,07,22,393.00. Therefore, it
can be understood from any common
parlance that whether the amount, which
has been stated to be allocated in the
financial year 2008-09 for such newly
created district, is sufficient for the purpose
of creation and establishment of new
district or not. However, from 2008 to
2010 several statements have been made
periodically but no drastic change in
respect
of
budgetary
sanction
and
providing infrastructure has been made to
form such district.

8. Mainly the writ petition has been
opposed by two Bar Associations i.e.
Kasganj Bar Association, Kasganj, District
Kanshi Ram Nagar and Democratic Bar
Association, Kasganj, District Kanshi Ram
Nagar to protect their interest about
creation of the Court. Similar comments
can be made in respect of the petitioner
also, but at this belated stage when the
affidavits are exchanged, we cannot ignore
the affidavits of the parties and their
submissions in connection with creation of
the
district.
The
respondents-Bar
Associations
have
relied
upon
the
judgement of Chaudhari Ran Beer Singh
(supra), wherein a three Judges' Bench of
the Supreme Court observed that in Ram
Milan
Shukla
(supra)
this
Court
(Supreme Court) did not interfere because
there was a direction for reconsideration,
and distinguishing such case i.e. Ram
Milan Shukla (supra) the Supreme Court
held that Cabinet's decision was taken
nearly eight years back and appears to be
operative. Therefore, in matters of policy
decisions, the scope of interference of the
Court is extremely limited. It must be left
to the Government. Lastly, it has been held
that in assessing the propriety of a decision
of the Government the Court cannot
interfere even if a second view is possible
from that of the Government. However, a
Division Bench judgement of this Court
reported in 2000 (1) AWC 750 (Brijendra
Kumar Gupta and others Vs. State of
U.P. and others) has been cited by such
respondents
to
show
that
in
such
judgement Ram Milan Shukla (supra)
has been treated to be not binding
precedent so as to refer the case to the
larger Bench. It was also held therein that
in creation of new district, the Government
has already spent lot of money.

9. Against this background, now let
us go through the Full Bench judgement of
the Lucknow Bench of this Court dated
21st September, 2012 delivered in Writ
Petition No. 10159 (M/B) of 2010 (PIL
1608 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
Civil) (Brij Kishore Verma Vs. State of
U.P. and others) and other connected
matters.
In
paragraph-148
of
such
judgement the Full Bench has summed up
the entire issue. Paragraph-148 is as
follows:

"148. To sum up:-

(1) Every order passed by the State
Government in pursuance of power
conferred by Articles 154, 162 read with
Article 166 of the Constitution, may not be
administrative. It shall depend upon the
facts and circumstances of each case.
Similarly, every order passed by the State
Government in pursuance of power
conferred by statute, may either be
legislative or administrative and shall
depend upon the facts and circumstances
of each case.

(2) The order passed under statutory
provisions or in pursuance of powers
conferred under Articles 154, 162 read
with Article 166 of the Constitution, may
be administrative or legislative or quasilegislative and quasi-administrative, will
depend upon the facts and circumstances
of each case. The decision taken by the
State
Government
while
deciding
representation in pursuance of the order
passed by the Court or on its own, keeping
in view the 1992, regulatory Government
order
(supra)
ordinarily,
shall
be
administrative in nature.

(3) The impugned notification has
been issued while deciding representation
in compliance of the judgment and order
passed by the Division Bench of this Court
based on factual matrix of past and present
hence administrative in nature, but it has
legislative trapping. However, in case, the
State Government took a decision in
compliance of different constitutional
provisions dealt with (supra) followed by
notification under Section 11 of the Act
and the Rules of Business, then in such a
situation, decision may be of legislative
character.

(4) Though, there is no conflict
between the Census Act and Census Rules,
1990 with Section 11 of U.P. Land
Revenue Act since both deal with the
different sphere but once a notification is
issued
under
Census
Rule
by
the
Government of India as well as the State
Government, then direction under Census
Rule, shall prevail over and above the State
action under Section 11 of the U.P. Land
Revenue Act. Since both are irreconcilable
during the operation of a notification
issued under Rule 8 (4) of Census Rules,
1990, no notification could have been
issued under the U.P. Land Revenue Act.

(5) The jurisdiction exercised by the
Government during census operation and
continuance of notification issued under
Section 8 (4) of Census Rules, the power
exercised by the Government under
Section 11 of the U.P. Land Revenue Act,
shall be illegal and void hence all
consequential action therein shall also not
survive. Of course, it shall be open for the
Government to issue a notification to meet
out exigency of services within the
constitutional frame and four corners of the
law after census operation.

(6). In the event of order passed under
Rule 1990 during the continuance of
census operation, the State Government
may not exercise power conferred by
Section 11 of the U.P. Land Revenue Act
in a manner which may amount to change
of boundaries of district or local bodies.
Power under the Census Act and the Rules
3 All] Collectorate Bar Association, Etah V. State of U.P. and others
1609
framed thereunder, as well as power
conferred under Section 11 of the U.P.
Land Revenue Act cannot be exercised
simultaneously,
because
there
is
irreconcilable conflict between the two
legislative action of the State Government
and the Central Government.

(7) Moreover, the SLP filed against
the judgment in the case of Ram Milan
Shukla (supra) was consciously dismissed
by Hon'ble Supreme Court hence it is
binding in view of Article 141 of the
Constitution of India. No contrary finding
may be recorded by the High Court in view
of binding precedent. Otherwise also,
judgment in Ram Milan Shukla's case
(supra) lays down correct law.

(8) Section 11 of the Act does not lay
down the grounds or criteria for creation of
districts. Government has rightly issued the
Government order 1992 (supra) to fill up
the gap, providing grounds for the creation
of District. Government order 1992 (supra)
supplements
the
statutory
provision
(Section
11)
conferring
power
on
Chairman, Board of Revenue (supra), for
compliance, hence binding."

10. Out of the aforesaid summed up
points, Point No. 7 is very relevant,
whereunder it has been held that the
special leave petition filed against the
judgement in the case of Ram Milan
Shukla (supra) was consciously dismissed
by the Supreme Court, hence it is binding
in view of Article 141 of the Constitution
of India. No contrary finding may be
recorded by the High Court in view of the
binding precedent. Otherwise also, the
judgement in Ram Milan Shukla (supra)
lays down correct law.

11. So far as Ram Milan Shukla
(supra) is concerned, we find that in
Paragraph-18 thereof the Division Bench
of this Court has allowed the writ petition,
quashed the order dated 09th November,
1998 and directed the State Government to
reconsider the matter and decide whether
there was any good administrative and
financial ground to issue the notification
dated 05th September, 1997 for creation of
District Sant Kabir Nagar or not. From
such
judgement,
we
find
that
the
judgement was delivered on 15th January,
1999 as against the notifications dated 05th
September, 1997 and 09th November,
1998.

12. Therefore, two very pertinent
questions are under consideration before
this Court:

(a) Whether the Court will interfere
with a policy decision of the State
Government following the notification
dated 17th April, 2008 having binding
effect of the Full Bench judgement of this
Court in Brij Kishore Verma (supra)
holding Ram Milan Shukla (supra),
whereunder the notification in respect of
creation of new District carving out old
district has been quashed by the Division
Bench, as correct law, or not?

(b) Whether delay is one of the
parameters for not passing any order in
respect of the policy decision of carving
out and forming of new district in view of
the three Judges' Bench judgement of the
Supreme Court in Chaudhari Ran Beer
Singh (supra)?

13. According to us, both the three
Judges' Bench judgements of the Supreme
Court and this Court i.e. Chaudhari Ran
Beer Singh (supra) and Brij Kishore
1610 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
Verma (supra) respectively have a
binding effect upon us. It is true to say that
in a policy decision, like creation of
district, normally the Courts should not
interfere. But the ratio of Ram Milan
Shukla (supra) says that such creation
will be done only when necessary budget
will be provided and infrastructure will be
made before notifying the revenue district,
otherwise it will create serious anomaly
and difficulty to the residents of the
district. On the other hand, three Judges'
Bench
of
the
Supreme
Court
in
Chaudhari Ran Beer Singh (supra) has
held that after long lapse of eight years'
period from the date of notification, it will
not be proper to quash the notification and
also indicated about Ram Milan Shukla
(supra) that there is a distinguishing
feature between these two and, therefore,
in such matter the notification was not
quashed. However, the larger Bench of this
High Court has sent the matter back to the
concerned Bench for consideration of the
issue.

14. In the present case, though there is
lapse of four years' period from the date of
issuance of notification but we are not
satisfied as yet with regard to allocation and
use of necessary budget and providing of
infrastructure. So far as budget is concerned,
it has been stated on behalf of the State that
such budget is sanctioned but we do not find
any answer as to whether the budgetary
allocation has reached to the district for the
purpose of proper use or not. So far as
infrastructure is concerned, only the process
for acquisition of land has been started. None
of the references as given in the counter
affidavit or other affidavits of the State can
be construed as a very happy situation for the
purpose of creation of new district.

15. Against this background, we are of
the view that the purpose will be subserved if
we grant a reasonable time to the State
Government to complete the infrastructure
and use the budgetary sanction, that too not
in a periodic or phase manner but at a time
considering the case as emergent one. For
such
purpose,
we
direct
the
State
Government to complete the course of action
within the next financial year, which will
come to an end by 31st March, 2014. If it is
not completed within the aforesaid period,
the impugned notification dated 17th April,
2008, being annexure-1 to the writ petition,
issued by the State Government for creation
of District Kanshi Ram Nagar
will
automatically stand quashed. We hope and
trust that all the works will be started and
completed within this period on war footing.

16. Accordingly, the first writ petition
is disposed of, however, without any order as
to costs.

17. So far as second writ petition i.e.
Writ Petition No. 46428 of 2010 is
concerned, this writ petition has been
preferred seeking issuance of writ of
certiorari for quashing the notification dated
17th April, 2008, whereby a new district has
been created in the name of Kanshi Ram
Nagar. A further direction has also been
sought for upon the Election Commissioner
not to interfere with the functions of the Zila
Panchayat, Etah.

18. A brief reference of the facts would
suffice. In the elections for Zila Panchayat,
Etah held sometimes in October, 2005, the
petitioner in this writ petition was elected as
Chairman of the Zila Panchayat, Etah. He
was administered oath of the office on 18th
February, 2006 and after assuming the office
on the same day, the petitioner was
functioning on such post. On 17th April,
3 All] Collectorate Bar Association, Etah V. State of U.P. and others
1611
2008 the State Government issued a
notification, whereby a new district, namely,
Kanshi Ram Nagar has been carved out of
district Etah. Against this background, the
petitioner filed this writ petition for the
aforementioned reliefs. When the writ
petition was entertained by this Court on
06th August, 2010, an order of status quo
was passed as regards the office of
Chairman, Zila Panchayat, Etah on the
ground that the aforesaid notification dated
17th April, 2008 has been challenged by way
of Public Interest Litigation (P.I.L.) No.
22757 of 2008 (Collectorate Bar Association
Vs. State of U.P. and others), and further this
writ petition was connected with such public
interest litigation. Said interim order was
modified on 19th August, 2010, however,
the status quo order was continued.

19. So far as the aforesaid connected
public interest litigation i.e. first writ petition
is concerned, we have disposed of the same
with the certain directions as given hereinabove.

20. In this writ petition, a counter
affidavit has been filed on behalf of the State
respondents i.e. respondent nos. 1, 2 and 3.
The stand taken in the counter affidavit is
that the present writ petition is not
maintainable being second one as the
petitioner has already got the process of
election stayed in another writ petition filed
before the Lucknow Bench of this Court,
being Writ Petition No. 6739 (M/B) of 2008
(Joginder Singh Yadav Vs. State of U.P. and
others). It is stated that the last election of the
Chairman, Zila Panchayat, Etah was held in
the year 2006 and the tenure of such election
came to an end on 14th January, 2011. Two
separate notifications dated 21st May, 2008
each have been issued showing the Gram
Panchayats of each district. The Joint
Commissioner, State Election Commission
vide communication dated 23rd August,
2010 has informed the Principal Secretary,
Department of Panchayati Raj, Government
of U.P., Lucknow regarding the proposed
schedule of the elections of Pradhans of
Gram Panchayats, Members of the Gram
Panchayats, Kshettra Panchayats and Zila
Panchayats. Copy of such communication
regarding proposed scheduled elections has
been placed on record by the respondents as
Annexure-1
to
the
counter
affidavit.
Attention of the Court has been drawn to
Article 243 E of the Constitution of India,
which provides that the term of every
panchayat shall continue for five years from
the date appointed for the first meeting and
no longer. The said provision has also been
incorporated and adopted under Section
12(3)(a) of the U.P. Panchayat Raj Act, 1947
for Gram Panchayats.

21. Against this background, we are of
the view that in view of the aforesaid factual
and legal submissions and also the directions
issued by this Court in the first writ petition
i.e. Public Interest Litigation (PIL) No.
22757 of 2008 (supra), as above, no relief
can be granted in this writ petition. Hence,
this writ petition is dismissed. Interim order
dated 06th August, 2010, as modified on
19th August, 2010, stands vacated. The State
Government
and
the
State
Election
Commission are directed to take appropriate
steps in accordance with law and in the light
of the directions issued in the aforesaid
public interest litigation.

22. No order is passed as to costs.
---------
1612 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.12.2012

BEFORE
THE HON'BLE SHEO KUMAR SINGH, J.
THE HON'BLE VIRENDRA VIKRAM SINGH, J.

Civil Misc. Writ Petition No. 30002 of 2010

Ajit Kumar Singh

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