# Court in Mani Lal Mohan Lal v. Syed

- **Citation:** (2012) 2 ILRA 972
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-08-06
- **Case number:** Writ Petition No.1034 (S/B) of 2012
- **Bench:** Rajiv Sharma, Surendra Vikram Singh Rathore
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/court-in-mani-lal-mohan-lal-v-syed-42318
- **Pages:** 6

## Text

972 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

Keeping in view the infirmity in the
auction and sale proceedings, the Division
Bench while exercising powers under Special
Appeal had upheld and affirmed the
judgment of Hon'ble Single Judge of this
Court whereby the auction and sale was setaside on account of non-compliance of
statutory provisions under the Act and Rules.

Relevant portion from the case of
Manminder Singh (supra) is reproduced as
under:-

"We agree that the view taken in
Raghunath Prasad (supra) and accordingly
held that the appellant herein acquired no
right in the property merely because he had
deposited the entire amount offered by him at
the auction sale. On merit also, the auction
sale was liable to be set-aside firstly due to
the reason that thirty days clear notice was
not given and secondly, because 25% of the
amount of the bid was not deposited
"immediately" as stipulated by Rule 285D of
the Rules of 1952 in asmuchas the deposit by
Cheque was not a valid deposit as per law
laid down by the Apex Court in Mahmood
Ahmad Khan (dead) through L.Rs V.Ranbir
Singh and others, 1995 AWC 896. We are of
the view that the auction sale was not sale at
all in the eye of law and 25% of the
purchased money had not been deposited
"immediately" on the appellant being
declared as the highest bidder. In the
circumstances, it would be deemed that no
sale had taken at all as held by the Apex
Court in Mani Lal Mohan Lal V. Syed
Ahmad, AIR 1954 SC 349."

12. In view of above, there appears to
be no room of doubt that immediately after
fall of hammer it shall be necessary for the
auction purchaser to deposit 25 per cent of
the amount of bid. Non-deposition shall
vitiate the auction and sale proceeding.
Accordingly, the writ petition deserves to be
allowed on this solitary ground.

13. In view of above, writ petition is
allowed. A writ in the nature of certiorari is
issued, quashing the impugned auction and
sale proceeding dated 15.3.2012 held in
pursuance to sale notice/proclamation, a
copy of which has been filed as Annexure-2
to the writ petition and the consequential
order dated 16.3.2012, a copy of which has
been filed as Annexure-1 to the writ petition
with consequential benefit. Respondents may
proceed a fresh with the auction and sale
proceeding keeping in view the observation
made hereinabove and in accordance with
law expeditiously.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.08.2012

BEFORE
THE HON'BLE RAJIV SHARMA, J.
THE HON'BLE SURENDRA VIKRAM SINGH
RATHORE, J.

Writ Petition No.1034 (S/B) of 2012

Amitabh Thakur

 ...Petitioner
Versus
Union of India and others

 ...Opposite parties

Constitution
of
India,
Article
226Alternative Remedy-petitioner seeking
remedy
to
from
Rules/Regulationsregarding promotion of the members of
all India Services-plea that the petitioner
not seeking any personal relief-hence
direction
to-approach
before
Central
Administrative Tribunal-can not be an
alternative forum-at most Writ Petition
be
converted
in
Public
Interest
Litigation-held-in
view
of
L.Chandra
Kumar case only Tribunal has jurisdiction
to entertain such original applicationsecond prayer for conversion into P.I.L.
2 All] Amitabh Thakur V. Union of India and others
973
also not tenable in service matterspetition dismissed.

Held: Para 13 and 14

It may be noted that when an alternative
and equally efficacious remedy is open to
a litigant, he should be required to
pursue that remedy and not invoke the
extra ordinary jurisdiction of the High
Court to issue a prerogative writ as the
writ jurisdiction is meant for doing
justice between the parties where it
cannot be done in any other forum.

During the course of arguments, learned
Counsel for the petitioner submitted that
the instant matter may be treated as
Public Interest litigation for the reason
petitioner is not seeking relief for himself
alone but for the cadre. In this regard,
we would like to point out that in service
matters Public Interest Litigation is not
maintainable [Duryodhan Sahu (Dr) v.
Jitendra Kumar Mishra (2004) 3 SCC
363, Dattaraj Nathuji Thaware vs. State
of Maharashtra and others (2005)1 SCC
590]. In Hari Bansh Lal. V Sahodar
Prasad Mahto and others (2010)9 SCC
655 the Apex Court propounded that
except for a writ of quo warranto, public
interest litigation is not maintainable in
service matters. Thus the request of the
petitioner is refused.
Case law discussed:
[1997 Supreme Court Cases (L&S) 577];
[(2002) 5 Supreme Court Cases 521]; (2010) 8
SCC 110; (2004) 3 SCC 363; (2005) 1 SCC
590; (2010) 9 SCC 655

(Delivered by Hon'ble Rajiv Sharma, J.)

1. The instant writ petition has been
filed in the Registry on 13.7.2012, under the
heading "Miscellaneous Bench" but the
Stamp Reporter on the basis of relief claimed
by the petitioner opined that the matter is
cognizable by the Bench dealing with
"Service Bench" matter. Accordingly, the
instant writ petition was placed by the
Registry before this Court having jurisdiction
of "Service Bench" on 17.7.2012.

2. On 17.7.2012, Sri Asok Pande,
learned Counsel for the petitioner has
submitted that though he had filed the instant
writ
petition
under
the
heading
"Miscellaneous Bench" but the Stamp
Reporter has marked the instant writ petition
as "Service Bench" and sent it to this Court.
In order to verify the facts, we summoned the
Stamp Reporter, who submitted before us
that on account of the relief so claimed by the
petitioner in the instant writ petition, it has
been marked as a matter of "Service Bench"
and as such Counsel for the petitioner was
requested in writing to correct the heading,
who declined to do so and, as such, the
Stamp Reported sent the matter to the
Computer Section for listing the same before
the Service Bench. He submits that the report
so submitted on 13.7.2012 is also on record.
Consequently, Sri Asok Pande, learned
Counsel for the petitioner prayed that he may
be granted time to file objection to the report
submitted by the Stamp Reporter and as
such, this Court, vide order dated 17.7.2012,
granted time to Sri Asok Pande to file
objection to the report of the Stamp Reporter.

3. In compliance of the order dated
17.7.2012, Sri Asok Pande, learned Counsel
for the petitioner has filed an objection to the
report of the Stamp Reporter on 19.7.2012.
Thereafter, this Court, vide order dated
19.7.2012, directed the Stamp Reporter to
submit his reply to the objection, so filed by
the petitioner's Counsel.

4. Pursuant to the order dated
19.7.2012, the Stamp Reporter has submitted
a
report
dated
23.7.2012,
which
is
reproduced as under :
974 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

"In compliance with the order dated
19.07.2012 passed in the above noted writ
petition, it is respectfully submitted that
while passing the writ petitions preferred
under Article 226/227 of the Constitution of
India, the provisions of Chapter XXII of
High Court Rules and the orders passed by
the Hon'ble the Chief Justice, time to time,
are followed to decide the forum etc. in
question. The last order dated 30.03.2010
passed by the Hon'ble Acting Chief Justice in
his regard is enclosed herewith for the kind
perusal of Hon'ble the Court, as per
directions the service matters of Class III
and Class IV employees are heard by
Hon'ble the Single Judge and of the
officers of Class I and Class II are to be
heard by the Division Bench of this
Hon'ble Court.

Further, it is respectfully submitted that
different Benches are constituted to decide
such matters, as allotted by Hon'ble the Chief
Justice, time to time. The instant writ petition
has been filed showing the group as Misc.
Bench, whereas the contents of the petition
as well as the prayer clause clearly shows
that the matter relates to the framing of
promotion rules and promotion etc. of the
officers of the All India Services, i.e. Indian
Administrative
Services,
Indian
Police
Services and Indian Forest Services, e.g., in
para 1 of the petition, it has been
categorically been stated that the petitioner is
filing the present writ petition for the writ of
mandamus against the respondents to frame
proper rules or regulations with regard to the
promotion matters of officers of the All India
Services including the Police Services to
which the petitioner belong. The prayer
clause of the writ petition also shows that the
relief has been claimed for (i) to frame
proper rules and/or regulations with regard to
promotion matters of officers of the All India
Services including Indian Police Services,
and (ii) to quash all promotion of the officers
made so far.

Keeping in view the contents of the writ
petition and the prayer clause the petition has
been passed as Service Bench matter and the
Learned Counsel for the petitioner was
requested and informed on phone to correct
the group of the case. The said fact is
mentioned in the office report dated
13.07.2012.

So far as the objection of the Learned
Counsel for the petitioner is concerned as
mentioned in para 4 of his objection dated
19.07.2012, it is respectfully submitted that
the
said
objection
appears
to
be
misconceived keeping in view the Standing
Orders of Hon'ble the Chief Justice.

Submitted for the kind perusal and
suitable orders/directions."

5. For proper adjudication of the
matter, we think it appropriate to reproduce
the reliefs claimed by the petitioner in the
instant writ petition as well as the Standing
Order dated 30.3.2010 of the Hon'ble Chief
Justice, which are as under :

PRAYER

"Wherefore, it is most respectfully
prayed that this Hon'ble Court may be
pleased to -

(a) Issue a writ of Mandamus directing
the concerned respondents to immediately
frame proper Rules and/or Regulations as
regards promotion related matters of the
officers of the All India Services (including
the Indian Police Service) in accordance with
the provisions contained in section 3 of the
All India Services Act 1951.
2 All] Amitabh Thakur V. Union of India and others
975

(b) Issue a writ of Mandamus directing
the concerned respondents to cancel/quash
all the promotions of the officers of the All
India Services (including the Indian Police
Service) made so far in the absence of such
proper Rules and/or Regulations."

"Standing Order dated 30.3.2010

O R D E R

In modification of earlier orders in this
regard, passed in exercise of the powers
under proviso (a) to Rule 2- Chapter V of the
Rules of the Court, 1952, Volume-I and all
other powers enabling in this behalf, I hereby
order and direct that with immediate effect :-

A. Writ petitions relating to services of
the following categories shall also be heard
and disposed of by an Hon'ble Judge sitting
singly :-

i. Teachers upto Intermediate College

ii. Employees of Class-III and IV,
including those of educational institutions,
armed forces and employees of the High
Court.

Provided that if the relief claimed in the
writ petition relates to a service which
matter is cognizable by Division Bench,
then that writ petition shall also be heard and
disposed of by a Bench of two Hon'ble
Judges.

and all other writ petitions relating to
services shall be heard and disposed of by a
Bench of two Hon'ble Judges.

B. Writ Petition challenging the orders
of the Chancellor relating to service or
otherwise shall be heard and disposed of by a
Bench of two Hon'ble Judges."

6. From the perusal of the reliefs,
reproduced hereinabove, claimed by the
petitioner through the instant writ petition
and the report of the Stamp Reporter dated
23.7.2012 as well as Standing Order dated
30.3.2010 of Hon'ble Chief Justice, we are of
the view that the Stamp Reporter has rightly
placed the matter before this Bench having
jurisdiction of "Service Bench" matter.
Therefore, the plea of the petitioner's
Counsel that the instant writ petition is
cognizable by a Bench dealing with
"Miscellaneous Bench", is hereby rejected.

7. Now, we have heard Sri Asok
Pande, learned Counsel for the petitioner and
Sri Neeraj Chaturvanshi, learned Counsel for
the Union of India on merit.

8. Sri Neeraj Chaturvanshi, learned
Counsel for the Union of India has raised a
preliminary objection that the petitioner has
got equally efficacious alternative remedy by
filing Original Application before the Central
Administrative Tribunal, to which learned
counsel for the petitioner instead of
advancing any submission on the ground of
alternative remedy has started arguing the
matter on merit, saying that through the
instant writ petition, the petitioner did not
seek any relief for himself but it has been
filed in the nature of Public Interest
Litigation
so
as
to
frame
proper
rules/regulations
as
regards
promotion
related matters of the officers of the All India
Services including the Indian Police Service
in accordance with the provisions contained
in Section 3 of the All India Services Act,
1951. Moreso, the Central Administrative
Tribunal is not a competent authority to issue
a writ in the nature of Mandamus directing
the Union of India to frame such
Rules/Regulations.
976 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

9. The Apex Court in the case of L.
Chandra Kumar Versus Union of India
and others [1997 Supreme Court Cases
(L&S) 577 has held that the Tribunals are
competent to hear the matters where the vires
of statutory provisions are questioned and
also have power to test the vires of
subordinate legislations and rules and as
such, the Tribunal would very well look into
the illegality of the Government Orders,
which are being assailed in the instant writ
petition.

10. The Apex Court in the case of
Secretary, Minor Irrigation & Rural
Engineering Services, U.P. and others
Versus Sahngoo Ram Arya and another
[(2002) 5 Supreme Court Cases 521], has
held that when the statute has provided for
the constitution of a Tribunal for adjudicating
the disputes of a government servant, the fact
that the Tribunal has no authority to grant an
interim order is no ground to bypass the said
Tribunal. It was also held that in an
appropriate case after entertaining the
petitions by an aggrieved party, if the
Tribunal declines an interim order on the
ground that it has no such power then it is
possible that such aggrieved party can seek
remedy under Article 226 of the Constitution
but that is no ground to bypass the said
Tribunal in the first instance itself.

11. Recently, the Apex Court in
United Bank of India v. Satyawati Tondon
(2010)8 SCC 110 observed as under:-

"It is true that the rule of exhaustion of
alternative remedy is a rule of discretion and
not one of compulsion, but there can be no
reason why the High Court should entertain a
petition filed under Article 226 of the
Constitution and pass interim order ignoring
the fact that the petitioner can avail effective
alternative remedy by filing application,
appeal, revision, etc and that the particular
legislation contains a detailed mechanism for
redressal of his grievance."

12. Thus by a series of decisions it has
been settled that the remedy of writ is an
absolutely discretionary remedy and the
High Court has always the discretion to
refuse to grant any writ, if it is satisfied that
the aggrieved party can have an adequate or
suitable relief elsewhere. The Court, in
extraordinary circumstances, may exercise
the power if it comes to the conclusion that
there has been a breach of principles of
natural justice or procedure required for
decision has not been adopted.

13. It may be noted that when an
alternative and equally efficacious remedy is
open to a litigant, he should be required to
pursue that remedy and not invoke the extra
ordinary jurisdiction of the High Court to
issue a prerogative writ as the writ
jurisdiction is meant for doing justice
between the parties where it cannot be done
in any other forum.

14. During the course of arguments,
learned Counsel for the petitioner submitted
that the instant matter may be treated as
Public Interest litigation for the reason
petitioner is not seeking relief for himself
alone but for the cadre. In this regard, we
would like to point out that in service matters
Public Interest Litigation is not maintainable
[Duryodhan Sahu (Dr) v. Jitendra Kumar
Mishra (2004) 3 SCC 363, Dattaraj
Nathuji
Thaware
vs.
State
of
Maharashtra and others (2005)1 SCC
590]. In Hari Bansh Lal. V Sahodar
Prasad Mahto and others (2010)9 SCC
655 the Apex Court propounded that except
for a writ of quo warranto, public interest
litigation is not maintainable in service
2 All] C/M Evergreen Higher Secondary School Badhuwa Mau V. State of U.P & others
977
matters. Thus the request of the petitioner is
refused.

15. For the reasons aforesaid, the writ
petition is dismissed on the ground of
availability of alternative remedy before the
Tribunal.

16. Lastly, learned Counsel for the
petitioner also requested for granting
permission to approach the Apex Court,
which is refused as there is no substantial
question of law involved in the matter. The
issue raised in the writ petition is already
settled by number of decisions.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.08.2012

BEFORE
THE HON'BLE ANIL KUMAR, J.

Misc. Single No. - 7028 of 2011

C/M Evergreen Higher Secondary School
Badhuwa Mau

 ...Petitioner
Versus
State of U.P. Thru. Secy. Revenue and
others

 ...Respondents

Counsel for the Petitioner:
Mohd. Babar Khan

Counsel for the Respondents:
C.S.C.
Sri R.N. Gupta

U.P. Zamindari Abolition & Land Reform
Act 1950, Section-122-B-cancellation of
Patta-petitioner running school over the
plot in question-moved application with
offer
to
hand
over
land
of
equal
valuation-under provisions of Section
161-plots in question are Banjar Landhaving no public utility-direction given to
the
authority
concern
to
take
appropriate decision-till final decision no
coercive method be adopted.
Held: Para 11

Thus, in view of the aforesaid facts and
also taking into consideration that the
land in question is a banzar/barren land
of Gaon Sabha, which is not of public
utility, so in the interest of justice writ
petition is disposed of with a direction
that the petitioner shall offer a land
equal to the area of land which is the
subject matter of the present case on
which the petitioner's school is running
at the same circle rate as per the
provisions provided under Section 161 of
the U.P. Z.A. & L.R.Act, 1950 within a
period of four weeks from today to the
opposite
party
no.3/Sub-Divisional
Officer, Tehsil Sandila, District-Hardoi
and
the
said
authority
shall
pass
appropriate order within a further period
of four weeks and if the Sub-Divisional
Officer,
Tehsil
Sandila,
DistrictHardoi/opposite party no.3 accepts the
proposal in question, land in dispute will
be vested with the petitioner.
Case law discussed:
2010 (28) LCD 1343; (1993) 1 SCC 645

(Delivered by Hon'ble Anil Kumar, J.)

1. Heard Mohd. Babar Khan,
learned counsel for the petitioner, learned
State Counsel as well as Shri R. N. Gupta,
learned counsel appearing on behalf of
opposite party no.5 and perused the
record.

2. The controversy in the present
case relates to land recorded as plot
no.384 area 0.253 hectares and plot
no.434 area 0.253 hectares situated at
village Badhuwa Mau, post Raison,
Tehsil Sandila, District Hardoi.

3. As per version of the petitioner,
the same has been allotted to the
petitioner by means of the resolution
dated 20.11.2003 (Annexure No.3) passed
by opposite party no.5/Pradhan, Gram