# Committee of Management v. State of U.P. and others

- **Citation:** (2004) 1 ILRA 134
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-09-25
- **Case number:** Civil Misc. Writ Petition No. 43597 of 2003
- **Bench:** Dr. B.S. Chauhan, D.P. Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/committee-of-management-v-state-of-u-p-and-others-40244
- **Pages:** 5

## Headnote

Explosives Act, 1884-Explosive Rules,
1983-R, 165-Renewal of licence for fire
arms-direction by D.M. to shift place of
business outside from residential area of
city-show cause notice-cancellation of
licence-No attempt made by licencees to
shift their business of fire works outside
thickly populated area to safer placepublic interest higher than individual
interest-Public interest is supreme-Held,
Courts should not come to rescne of such
an individual, if public interest demands
for a particular action petition dismissed.

Held-Para 17

Undoubtedly, in the instant case the
petitioner is being asked for the last 3
years to shift his business outside the
thickly populated area and the order is
being passed in the larger public interest
and it is settled legal proposition that the
public interest is much higher than the
interest of the individual. We fail to
understand how the petitioner has not
yet made an appropriate arrangement
for shifting his business outside the
thickly populated area. There is nothing
on record to show that during the last 3
years, any attempt has been made by the
petitioner to shift his business outside
the densely populated area.
Case discussed:
1995 (i) Civil & Revenue Cases 732
AIR 1992 SC 96
AIR 1994 SC 1
AIR 1940 PC 167
AIR 1953 SC 333
AIR 1955 SC 661
AIR 1998 SC 1057
AIR 1999 SC 1195
AIR 1999 SC 1271
(1999) 8 SCC 744

## Text

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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
134
3. Heard Sri P.N. Saksena, learned
counsel appearing on behalf of the
petitioner and the learned Standing
Counsel for the Respondents.

Learned counsel appearing on behalf
of the petitioner argued that in view of the
decisions
appended
along
with
the
supplementary affidavit passed in writ
petition no. 6090 of 1992 (Committee of
Management,
Sarvodaya
Madhyamik
Vidyalaya, Sawaipur Dharna Buzurg,
District
Kanpur
Dehat,
through
its
Manager Versus The State of UP and
others), decided on 25th November, 1992
and the writ petition no. 4112 of 1992
(Committee
of
Management,
Ashok
Vidya
mandir
Junior
High
School,
Rastpur, district Kanpur Dehat Versus
State
of
U.P.
through
Secretary
Department
of
Education
(Basic),
Secretariate,
Lucknow
and
others),
decided on 2nd February, 1993, the
petitioner's institution is also entitled for
the grant of the grants-in-aid. Learned
counsel for the petitioner though relied
upon the provision of U.P. Act No. 6 of
1978, but according to my reading no
provision of U.P. Act No. 6 of 1978
provides that an institution is, in law,
entitled to receive the grants-in-aid from
the
State
Government.
The
State
Government from time to time has issued
Government
orders
prescribing
the
standard and norms of allowing g rantsin-aid to the recognised institution, but
learned counsel for the petitioner has not
referred to, nor brought to my notice any
statutory provisions under which the
petitioner can claim, as of right, the
grants-in-aid. In this view of the matter, in
my opinion, the petitioner has no right,
much less statutory right for which a
mandamus has been sought for, nor there
is any corresponding statutory duty cast
upon the State Government that it must
provide grants-in-aid to the institution
even though the same may be a
recognised institution. So far as two
judgements referred to above, relied upon
by learned counsel appearing on behalf of
the petitioner, though the facts of the
aforesaid two judgements, do not apply to
the facts of the present case. In this view
of the matter, in my opinion, the
petitioner
has
miserably
failed
to
demonstrate either the malafides or
breach of any statutory provision, which
might affect the petitioner's statutory
right, which can be enforced by means of
this writ petition under Article 226 of the
Constitution of India.

4. For the reasons stated above, this
writ petition has no force and is
accordingly dismissed. The interim order,
if any, stands vacated. However, on the
facts and circumstances of the case, there
will be no order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.9.2003

BEFORE
THE HON'BLE DR. B.S. CHAUHAN, J.
THE HON'BLE D.P. GUPTA, J.

Civil Misc. Writ Petition No. 43597 of 2003

Sanjay Kumar

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

Counsel for the Petitioner:
Sri V.P. Srivastava
Sri Divyesh Singh

Counsel for the Respondents:
S.C.
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1 All] Committee of Management V. State of U.P. and others
135
Explosives Act, 1884-Explosive Rules,
1983-R, 165-Renewal of licence for fire
arms-direction by D.M. to shift place of
business outside from residential area of
city-show cause notice-cancellation of
licence-No attempt made by licencees to
shift their business of fire works outside
thickly populated area to safer placepublic interest higher than individual
interest-Public interest is supreme-Held,
Courts should not come to rescne of such
an individual, if public interest demands
for a particular action petition dismissed.

Held-Para 17

Undoubtedly, in the instant case the
petitioner is being asked for the last 3
years to shift his business outside the
thickly populated area and the order is
being passed in the larger public interest
and it is settled legal proposition that the
public interest is much higher than the
interest of the individual. We fail to
understand how the petitioner has not
yet made an appropriate arrangement
for shifting his business outside the
thickly populated area. There is nothing
on record to show that during the last 3
years, any attempt has been made by the
petitioner to shift his business outside
the densely populated area.
Case discussed:
1995 (i) Civil & Revenue Cases 732
AIR 1992 SC 96
AIR 1994 SC 1
AIR 1940 PC 167
AIR 1953 SC 333
AIR 1955 SC 661
AIR 1998 SC 1057
AIR 1999 SC 1195
AIR 1999 SC 1271
(1999) 8 SCC 744

(Delivered by Hon'ble B.S. Chauhan, J.)

1. This writ petition has been filed
for quashing order dated 12.9.2003
(Annx-17),
by
which
the
District
Magistrate, Ghaziabad has issued a
direction to the petitioner to shift his
premises for carrying on the business of
the fireworks out of the residential area,
otherwise his license shall be deemed not
to have been renewed and further to issue
a direction to the respondents not to
interfere with his business inside the city.

2. Facts and circumstances giving
rise to this case are that petitioner is a
licence holder for fireworks and it was
valid only upto 31st March 2003. In June
2000, need was felt that the licence under
the provisions of the Explosive Act, 1884,
should
be
shifted
outside
the
residential/congested area and they should
not be permitted to have their business
within the densely populated area for the
purpose of security and in larger public
interest. Show cause notice was issued to
the petitioner along with other similarly
situated persons and after giving an
opportunity of hearing to him vide order
dated 21.6.2000, (Annx. 1), the licence of
the petitioner was cancelled.

3. However, it was made clear that
within a period of 5 days, the license
holders should clear off their stock and
after shifting their business outside the
congested area, then they will be entitled
to apply for the license afresh . Being
aggrieved and dissatisfied, some of the
licensees approached the appellate court
i.e. Divisional Commissioner, Meerut and
the matter was disposed of vide order
dated 13.11.2000, issuing a direction that
in case licensees are willing to shift their
business outside the congested area, they
may be entitled for having a fresh license,
but to examine their grievances, it was
directed to have a committee of officers
including the City Magistrate, Police
Officers and Fire Officer, and to examine
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
136
as to whether it was in public interest to
permit them to have their business on the
places outside the residential area and
then to consider their application for
license.

4. A similar order was passed in
another connected appeal on 6th July,
2001, however, on 12.11.2001, the appeal
was
considered
by
the
Divisional
Commissioner,
imposing
certain
conditions including the condition that the
licensees shall shift out of the congested
area. The issue was again considered by
the District Collector in respect of 23
licensees, it was held that under certain
circumstances the order of the Divisional
Commissioner, that the licence of the
licensees are being renewed only upto
31.3.2002, and it pointed out that there
will be committee of officials consisting
of the Additional City Magistrate, Circle
Officer, Police Station Ghaziabad and
Fire Officers and they were directed to
submit a report.

5. The Divisional Commissioner
again passed an order dated 8.8.2003
directing the District Collector to decide
the applications for renewal within a
period of 30 days, on the basis of the
report submitted by the committee and in
case no order is passed, the licenses shall
be deemed to be automatically renewed.
In pursuance of the order, the impugned
order dated 12/15.9.2003, has been passed
by the District Magistrate directing the
petitioner and others not to run the
business in the congested area which is
thickly populated and in case they are
willing
to
shift
outside
the
city,
applications for their renewal shall be
considered, otherwise it will be deemed to
have been rejected. Hence this petition.

6. Learned counsel for the petitioner
Sri V.P. Srivastava, has submitted that the
petitioner cannot be asked to close his
business at the festival times i.e. Dussehra
and Diwali, which is the most conducive
period for the business and more so, it is
difficult for the petitioner to get an
alternative accommodation outside the
thickly populated area within such a short
period. The order is neither rejecting the
application for renewal nor renewing the
application and the Act does not envisage
for passing such an order, therefore the
order is liable to be quashed.

7. On the contrary, the learned
standing Counsel has submitted that the
order is appellable before the Divisional
Commissioner.
Petitioner
has
earlier
approached several authorities several
times, and no explanation can be made in
this regard. Petition has been filed without
exhausting
the
statutory
remedies.
Petitioner is being asked for the last 3
years to shift his business outside the
thickly populated area. Order is being
passed in the larger public interest,
therefore, this Court should not grant any
indulgence whatsoever.

8. We have considered the rival
submissions made by the learned counsel
for the parties and perused the record. It is
not a case of utter surprise, but shocking
that the statutory authorities are not
passing the order having strict adherence
to
the
statutory
requirement.
The
Appellate Authority had earlier passed the
order that in case certain action is not
taken by the Licensing Authority, the
license would be deemed to have been
renewed automatically.

9. Similarly in the impugned order,
the licensing authority has passed the
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1 All] Sanjay Kumar V. State of U.P. and others
137
order that in case the petitioner does not
shift his business outside the thickly
populated area his application for renewal
of license shall be deemed to have been
rejected.

10. It is settled legal proposition of
law that unless that statute provides for a
deeming clause, the Court should be very
slow in accepting such a contention, as
laid down by a Constitution Bench of the
Allahabad High Court in Rana Pratap
Singh vs. State of U.P., 1995 (1) Civil &
Revenue Cases 732. The court held that
had
the
intention
fiction/deeming
sanction/refusal, specific in the Act or the
Rules. In absence of any statutory
provision/rule, it should not be construed
as to provide for a fiction in such an
eventuality.

11. More so, creating a fiction by
Judicial interpretation may amount to
legislation a field exclusively within the
domain of the legislature. (vide State of
Jammu & Kashmir Vs. Triloki Nath
Khosa, AIR 1994 SC 1, and Ajaib Singh
Vs.
Sirhind
Coop.
Marketing-cumProcessing Service Society Ltd. (1999) 6
SCC 82.

In Union of India Vs. Deoki Nandan
Agarwal, AIR 1992 SC 96, the Hon'ble
Apex Court observed as under :

"It is not the duty of the Court either
to enlarge the scope of the legislation or
the intention of the legislature when the
language of the provision is plain and
unambiguous. The Court cannot rewrite,
recast or reframe that legislation for the
very good reason that it has no power to
legislate. The power to legislate has not
been conferred on the Court."

12. Even if the Statute provides for a
legal fiction/deeming provision, it must be
limited to the purposes indicated by the
context and cannot be given a larger
effect. (Vide Radhakissen Chamria & ors.
Vs. Durga Prosad Chamria & Anr. AIR
1940 PC 167, State of Travancore-Cochin
Vs. S.V. Cashewnut factory Quilon, AIR
1953 SC 333 and Bengal Immuity Co.
Ltd. Vs. State of Bihar & ors. AIR 1995
SC 661). In Modi Cement Ltd. Vs. Kuchil
Kumar Nandi, AIR 1998 SC 1057, the
Hon'ble Apex Court explained the
distinction between the deeming provision
and presumption and held that the
distinction was well discernible.

13. Similar view has been taken by
the Hon'ble Apex Court in State of
Kerala & ors. Vs. Dr. S.G. Sarvothama
Prabhu,
AIR
1999
SC
1195,
Commissioner
of
Income
Tax
Vs.
Mysodet (P) Ltd., AIR 1999 SC 1271, and
Garden Silk Mills Ltd. & Anr. Vs. Union
of India and ors. (1999) 8 SCC 744.

14. Rule 165 of the Explosive Rules
1983, provides that if an application for
renewal has been filed within time and it
is not being disposed of by the licensing
authority, the license shall be deemed to
be in force until such date as the licensing
authority renews the license or until an
intimation that the renewal of the license
is refused and is communicated to the
applicant. The rules provide for a fiction
only for the transitory period, but neither
the Explosive Act nor the rules framed
there under envisage deemed cancellation
or deemed renewal of a license, thus the
authorities have been passing the order
without complying with the requirement
of the statutory provisions which cannot
be held to be a sign of good governance.
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
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15. The Divisional Commissioner
i.e. Appellate Authority in his order dated
12th Nov. 2001, had imposed large
number of conditions and one of them
contained in Clause 5 has been that the
application of the licenses for a renewal
shall be considered only if they shift from
the present premises to a safer place and
close their business in the existing
premises.

16. The said order had never been
challenged by any of the licensees and
attained finality. We fail to understand as
on what basis the petitioner can claim any
relief at subsequent stage and how he can
be permitted to agitate the issue that the
said condition was not binding upon him.

17. Undoubtedly, in the instant case
the petitioner is being asked for the last 3
years to shift his business outside the
thickly populated area and the order is
being passed in the larger public interest
and it is settled legal proposition that the
public interest is much higher than the
interest of the individual. We fail to
understand how the petitioner has not yet
made an appropriate arrangement for
shifting his business outside the thickly
populated area. There is nothing on record
to show that during the last 3 years, any
attempt has been made by the petitioner to
shift his business outside the densely
populated area.

18. Undoubtedly, orders are being
passed time and again only in larger
public interest and the public interest is
the supreme law and Court's should not
come to rescue such an individual, if the
public interest demands for a particular
action on the part of the statutory
authority.

Thus, in view of the above, we are of
the considered opinion that the impugned
order does not require any interference by
this Court.

19. Needless to say, that if petitioner
makes an alternative arrangement and
shifts his businesses outside the densely
populated area and satisfies the licensing
authority that he would fulfill all the
conditions for grant of license and his
application
shall
be
considered
for
renewal strictly in accordance with law.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.10.2003.

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No.4028 of 1999

Lochan Prasad

...Petitioner
Versus
Executive
Engineer
Public
Works
Department

 ...Respondent

Counsel for the Petitioner:
Sri Bhoopendra Nath Singh

Counsel for the Respondents:
S.C.

U.P.
industrial
Disputes
act
1947,
sections 2 (s), 6-N-daily wager not
appointed against any post not entitled
for
regularisation-even
if
has
continuously worked for 240 days in
previous
year-he
entitled
to
retrenchment
compensation,
with
interest, but can not for regularisation.

Held- Para 11

The petitioner was engaged on daily
wage and was not appointed against any
post, he has no right to be regularized in
service as he failed to prove before the