# Company v. State of U.P. and others. The

- **Citation:** High Court of Judicature at Allahabad #39549
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/company-v-state-of-u-p-and-others-the-39549
- **Pages:** 5

## Text

1ALL] M/s Chhota Bhai Munna Bhai & Co. V. State of U.P. & others
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By the Court

1. The petitioner carries on business of
manufacturing
Biri
and
is
registered
partnership firm. It has been contended in the
writ petition that the petitioner appointed
contractors for supplying Tendu leaf and
tobacco for the purpose of rolling Biri to
various persons in their residences and said
persons after having rolled Biri supply the
same to the Contractors who in turn brings
the same to the Factory of the petitioner
which is ultimately sold as finished product.
The petitioner was served with notices
contending that in survey it was found that
the petitioner/contractors had engaged child
labour in violation of provisions contained in
the
Child
Labour
(Prohibition
and
Regulation) Act, 1986. The notices were
challenged in writ petition No. 17034 of
1998, M/S Chhota Bhai Munna Bhai &
Company Vs. State of U.P. and others. The
Division Bench allowed the writ petition by
order dated 11.11.1998 and quashed the
notices challenged. In the said judgment
various findings have been arrived at
including the findings whereby survey held
was
deprecated
strongly
holding
that
Inspectors involved in the survey did not
satisfy the requirement of law and therefore
survey was bad. Observation was made
therein that demands on compensation and
notices to prosecute must be based on a
diligent and accurate survey and take into
account two orders of Hon'ble Supreme
Court.

2. Subsequent notice issued to the
petitioner again was challenged in Writ
Petition No.7601 of 1999, M/S Chhota Bhai
Munna Bhai & Company Vs. State of U.P.
and others wherein taking into consideration
the aforesaid judgment of the apex court in
the case of M.C.Mehta Vs. State of Tamil
Nadu and others reported in AIR 1997 SC
699 and aforesaid Division Bench judgment
in the case of the present petitioner and
decision of the learned Single Judge of this
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
2
court in the case of A.K. Agarwal Vs.
Assistant Labour Commissioner and others
reported in 1998 All CJ 1371, petitioner was
granted liberty to file objection against the
report
of
the
Inspector and authority
concerned was directed to decide the same.
In terms of aforesaid direction, the impugned
order dated 21.6.1999 at annexure no. 1 to
the writ petition was passed whereby the
contentions of the petitioner were rejected
and recovery was directed on the basis of
notices already issued. Challenging the same,
present writ petition has been filed.

3.
State
Respondents
filed
counter
affidavit and in view of their contentions
raised in course of earlier hearing, liberty was
granted
and
accordingly
supplementary
counter affidavit was filed. The petitioner
filed rejoinder affidavit and supplementary
rejoinder affidavit.

4. Heard Mr. V.B. Upadhyay, learned
counsel for the petitioner and the learned
S.C.

5. The contention of the petitioner is that
when survey in respect of present proceeding
was already deprecated by Division Bench
and had been found to be not in accordance
with law, the present notices issued on the
basis of self-same survey are liable to be
quashed. Learned counsel for the petitioner
refereed
to
the
counter
affidavit
and
supplementary counter affidavit for the
purpose of contending that the respondents
admitted of holding no fresh survey and on
the basis of old survey, present notices have
been issued.

6. The list annexed at annexure no. 2 to
the supplementary counter affidavit has been
relied on behalf of the petitioner for the
purpose of showing the designation of the
persons holding the survey which have
already been held to have been conducted by
persons not satisfying prescriptions and such
findings by Division Bench have not been
dislodged by any appropriate forum. With
reference to section 3 of the aforesaid Act,
contention has been made by the learned
counsel for petitioner that the proviso to said
section exempts the petitioner even if
children had been employed by the various
persons engaged by the contractors for
rolling Birj as such children being members
of family of those persons are exempted by
proviso to section 3 of the said Act.

7. With regard to impugned notice it has
been further contended that before imposing
compensation upon the petitioner, no notice
had been issued and even though there is no
provision in the said Act, the principle of
natural justice requires such opportunity.

8. The impugned order at annexure no. 1
to the writ petition has been also challenged
on the ground that in the earlier writ petition
filed by the present petitioner Hon'ble Single
Judge directed consideration of judgment of
Division Bench which in any event remains
binding and therefore on the basis of survey
which was disapproved by Division Bench,
the present notices could not have been
prepared nor the petitioner could be saddled
with compensation.

9. Learned standing counsel for the
respondents contended that the list at
annexure no. 3 to the supplementary counter
affidavit shows that a number of notices had
been issued by the Labour Enforcement
Officer and such notices can not be
challenged on the ground of irregularity in
survey as Labour Enforcement Officers are
duly
authorized
Officers
in
terms
of
prescription of law. Learned SC also
contended with reference to sections 16 and
17 of the said Act that inspector duly
appointed rightly held survey and this could
not have been questioned by the petitioner.

10. It has been further contended on
behalf of the respondents that certain notices
have been challenged in duplicate and a list
1ALL] M/s Chhota Bhai Munna Bhai & Co. V. State of U.P. & others
3
of such notices had been supplied at the time
of hearing.

11. After hearing learned counsel for
parties and perusing the materials on record,
it appears that presently the impugned
notices have been issued on the basis of a
survey which came up for consideration
before the Division Bench in writ petition
No. 17034 of 1998, M/S Chhota Bhai Munna
Bhai and Company Vs. State of U.P. and
others
and
considering
the
entire
circumstances in detail the Division bench
made its observation with regard to the said
survey as follows:

"Before the court, documents have been
placed to show to tenor of the Survey work.
The example chosen by the State respondents
is from the survey conducted in the district of
Allahabad. The court notices from the
information which has been given by the
record that the survey teams were constituted
to
represent
Inspector,
were
in
fact,
Chaprasis, Nayab Moharrir, Skilled Fitters,
Section Record Clerks, Asstt. Teachers,
Vaccinators and Urdu Translators etc. The
court is weeding out persons bearing the
nomenclatures as principals of Schools or
revenue officials, but of those which the
court has mentioned between Chaprasis and
Translators only one aspect is relevant;
whether they were officials as Gazetted
Government Officers. A Specific enquiry
was made from learned CSC to take
instructions and give an answer, in the
affirmative or negative, on the status of these
officers. It was stated before the Court that
these
persons
were
neither
gazetted
government staff nor officers. The court is
mentioning this aspect of the matter as the
Secretary to the Government of India himself
expressed concern in the lack of quality in
the contents of survey. The Secretary,
Government of India, has already observed
that a head counting exercise would yield no
result. He has virtually labeled the survey as
an exercise in mediocrity. The Labour
Commissioner, U.P. was already sending out
a caution that the samples, which are coming
in from the field officers on the survey, were
not satisfactory.
 xxx xxx xxx
"All these circumstances, put together,
render the state of the record in such a state
that it does not inspire confidence, regard
being had to the circumstances that the
survey was being conducted on the directions
of the Supreme Court, which, under the
Constitution (re: Article 144) obliges all
authorities, civil and judicial, in the territory
of India to act in aid of the Supreme Court,
when the exercise was put into execution, it
was one of mediocrity."

12. Upon observation as aforesaid, the
final conclusion was reached by the Division
Bench as follows:

"In reference to these cases, it is now
acknowledged by learned CSC that the
survey
were
not
conducted
with
due
diligence and regard being had to these cases
if the subsequent order of the Supreme Court
is taken into account, in some cases the
notice need to be modulated, more so, in the
matter of non-hazardous processes. If that be
the case, then, the notice so issued in these
cases, qua the petitioner, will need to be
quashed.
Hereinafter,
the
demands
on
compensation and notices to persecute must
be based on a diligent and accurate survey,
and take into account the two orders of the
Supreme Court, of 10 December 1996 and 18
December, 1996. The survey must take into
consideration the concern which has been
expressed by the Secretary, Ministry of
Labour, Government of India, and the Labour
Commissioner, U.P.. The notices, thus, are
quashed."

13. After the aforesaid judgment recovery
certificate was issued against the petitioner
and they were compelled to move the writ
petition no. 7601 of 1999, M/S Chhota Bhai
Munna Bhai and Company vs. State of U.P.
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
4
and others. Taking note of the decision of
Division Bench and the judgment of the apex
court in the case of M.C. Mehta (supra) as
also the judgment in Civil Misc. Writ
Petition No. 26373 of 1998, learned single
judge of this court disposed of the writ
petition grating liberty to the petitioner to file
objection against the report of the Inspector
with a direction upon the authority competent
to dispose of the same by a speaking order
after giving an opportunity of hearing to the
petitioner.

14.
Following
such
direction
when
objection was filed, the impugned order was
passed deciding and ultimately rejecting the
said objection.

15. A categorical statement was made in
paragraph no. 28 of the writ petition that the
impugned notices have been issued without
holding any fresh survey and in paragraph 21
of the counter affidavit the said paragraph no
28 has been dealt with as follows:

"That the contentions of paragraph no. 28
of the writ petition are misconceived and
false, and as such, are denied. It is stated in
reply that so far the impugned notices are
concerned, this Hon'ble Court has not
examined the same in the earlier writ petition
which has to be examined by this Hon'ble
Court on merits."

16.

At the stage of hearing a
supplementary counter affidavit was filed.
Therein nothing has been disclosed as
regards fresh survey. With regard to earlier
survey, which came up for consideration
before Division Bench, justification has been
adduced in paragraph nos. 3 and 4 of the said
supplementary counter affidavit.

17. At the time of hearing on behalf of
petitioner instances have been shown from
the record indicating that findings of the
Division Bench were correct on facts. It is
contended on behalf of petitioner that the
Division bench in its judgment was rather
mild in observation and said survey requires
deprecation in a very strong language.

18. In view of aforesaid circumstance, it
is
apparent
that
the
respondents
are
frustrating the direction of the apex court. A
survey, which has been already held, to be
irregular, is still being relied on and is
attempted to be justified by the respondents
when admittedly, the findings of the Division
Bench have not been altered or quashed by
any superior forum. Therefore, it is not
proper for the authority concerned to further
justify the said survey and to take action on
the basis of findings in such survey.
Apparently, any action including the notice
and the recovery proceeding on the basis of
imposition of penalty following the said
survey can not stand.

19. Technical contention that all the
persons participating in the survey were
Labour Enforcement Officers and therefore
such survey is fit and proper, can also not be
accepted after findings of the Division
Bench.

20. In the result, the writ petition is
allowed. The impugned notices and the order
dated 21.06.1999 at annexure no. 1 to the
writ
petition
are
hereby
quashed.
Respondents are directed to take steps strictly
in accordance with the judgment of the apex
court in the case of M.C. Mehta (supra) and
the judgment and order dated 11.11.1998 in
writ petition no. 17034 of 1998 (M/S Chhota
Bhai Munna Bhai & Co. Vs. State of U.P.
1ALL] Hari Narain V. IV A.D.J., Azamgarh & others. 5
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By the Court

1. The petitioner had filed Suit No. 1230
of 1986 for permanent injunction against the
present respondents, Kamala and others. It
was his case that he was the sole owner of
certain agricultural plot and was in possession
thereof. It was stated that previously he was
having only one-third share in the suit
property, a second one-third belonged to one
Rampat Rai and the rest one-third belonged to
the respondent Kamala and his brother
Subedar . The plaintiff purchased the share of
Rampat through a registered instrument and
there had been a family settlement through
which Kamala and Subedar transferred their
share in the suit property in favour of the
petitioner through a written instrument dated
24.12.1971. Subsequently, however, kamala
and Subedar transferred their land to other
defendants on the basis of which they were
trying to interfere in the land in dispute and
that gave the cause of action to the plaintiffpetitioner for permanent injunction. The
petitioner asserted that for the Fasli year 1389
khatauni was prepared in his name for certain
plots and for the Fasli years 1390 and 1395
khatauni was prepared in his name for some
other plots. The defendants, however, denied
that title of the petitioner on the suit property.
The defendant Kamala also contested the suit
and asserted that the plaintiff had not been the
bhumidhar for one -third share in the suit
property and the suit was really one for a
relief for a declaration of his right and title to
the extent of that one-third share and only the
shape of an injunction suit was given although
the real relief was of a declaration of title.

2. The trial judge framed several issues
including one touching the jurisdiction of the
civil court to take up the matter. The issue
was decided by the trial judge on 1.9.1992 in
the affirmative, holding that the civil court
had a jurisdiction to entertain the suit as the
relief sought for was for permanent injunction
that could have been granted only by the civil
court. A revision application, however, was