# Court in Samir Sobhan Sanyal v. Tracks - **Citation:** (2002) 3 ILRA 713 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2002-10-01 - **Case number:** Habeas Corpus Petition No. 14932 of 2002 - **Bench:** M. Katju, Rakesh Tiwari - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/court-in-samir-sobhan-sanyal-v-tracks-39916 - **Pages:** 3 ## Headnote 714 INDIAN LAW REPORTS ALLAHABAD SERIES [2002 A.G.A. Constitution of India, Article 226, Detention Order- passed under National Security Act- District Magistrate without considering the representation, rejected on the ground that the State Government has approved it- held- illegal- although the allegations are very serious in nature but with heavy hearted the court is bound quash the detention order on technical ground. Held- para 5 Although we are allowing this petition, we are doing it with a heavy heart because the allegations against the petitioner are serious as he is involved in dealing with fake currency notes which is adversely affecting the economy system of our country. However, since the law of Habeas Corpus is a technical law we have to allow this petition. Case law discussed. 2002 UP Crl. Rulings 718 1995 SCC (Crl) 643 ## Text http://www.allahabadhighcourt.nic.in 3 All] Devkinandan V. Civil Judge (Sr. Division) and others 713 of the 1/4th share. It is denied that there is any collusion. In paragraph 9 of the rejoinder affidavit it is stated that the possession of the shop is with the petitioner but the respondents had placed their lock over the shop in possession of the petitioner and thus had taken the law into their own hands. 8. On the facts of the case we are satisfied that the petitioner version is correct and that the respondents 5 and 7 illegality placed their lock on the shop in possession of the petitioner. Thus the respondents have taken the law into their own hands. We do not believe the version of the respondent that the possession of the shop was taken by the respondents 5 and 7 on 5.3.2001. In fact the electricity registration certificate was issued by the electricity Department in favour of the petitioner on 3.7.2001 vide Annexure-6 to the writ petition. If the possession had been taken by the respondent no. 5 and 7 on 5.3.2001 there would have been no occasion for the petitioner to obtain the electricity registration certificate or to file an FIR dated 23.6.2002 Annexure 7 to the writ petition in which it is stated that the respondents are threatening to take possession of the shop. There was also no occasion for the petitioner to have filed the injunction suit. In the plaint of the suit copy of which is Annexure-8 to the writ petition it is mentioned that the respondents came to the petitioners shop on 17.6.2001 and 30.6.2001 armed with lathis and dandas and tried to evict the petitioner but were unsuccessful on those occasions. It was prayed that the respondents be restrained from evicting the petitioner from the shop in dispute. 9. On the facts of the case we are satisfied that the possession was with the petitioner and the respondents have illegally put their lock in the said shop in order to deprive the petitioner. 10. It has been held by the Supreme Court in Samir Sobhan Sanyal vs. Tracks Trade Pvt. Limited A.I.R. 1996 SC 2102 that a tenant cannot be dispossessed without due process of law. Even assuming that the period of tenancy has expired, one cannot take law into ones own hand and forcibly throw out the erstwhile tenant but may file a suit for eviction. Instead of filing the suit the respondents 5 and 7 placed their lock in the shop in question which in our opinion was wholly illegal. 11. In the circumstances, we allow this writ petition and direct that the lock placed by the respondents be removed immediately by the police and the petitioner be allowed to continue in possession of that shop in question. No order as to costs. --------- ORIGINAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 1.10.2002 BEFORE THE HON'BLE M. KATJU, J. THE HON'BLE RAKESH TIWARI, J. Habeas Corpus Petition No. 14932 of 2002 Dinesh Yadav ...Petitioner Versus State of UP and others ...Respondents Counsel for the Petitioner: K.D. Tiwari Sri Vijendra Singh Counsel for the Respondents: Sri A.K. Singh http://www.allahabadhighcourt.nic.in 714 INDIAN LAW REPORTS ALLAHABAD SERIES [2002 A.G.A. Constitution of India, Article 226, Detention Order- passed under National Security Act- District Magistrate without considering the representation, rejected on the ground that the State Government has approved it- held- illegal- although the allegations are very serious in nature but with heavy hearted the court is bound quash the detention order on technical ground. Held- para 5 Although we are allowing this petition, we are doing it with a heavy heart because the allegations against the petitioner are serious as he is involved in dealing with fake currency notes which is adversely affecting the economy system of our country. However, since the law of Habeas Corpus is a technical law we have to allow this petition. Case law discussed. 2002 UP Crl. Rulings 718 1995 SCC (Crl) 643 (Delivered by Hon'ble M. Katju, J.) 1. Heard learned counsel for the parties. 2. The petitioner has challenged the impugned detention order dated 9.1.2000 Annexure-1 to the petition, passed under the National Security Act. 3. In our opinion this petition deserves to be allowed on the ground that the District Magistrate did not apply his mind independently while rejecting the representation of the petitioner. He rejected it only on the ground that after approval of the detention order by the State Government the District Magistrate was not empowered to consider the said representation. This has been stated in paragraph 4 of the counter affidavit of the then District Magistrate. 4. It has been held by this court in Idrish vs. Secretary, Ministry of Home Affairs, 2002 UP Crl. Rulings 718 (para 4) that the District Magistrate must independently apply his mind while deciding the representation, and he cannot reject it only on the ground that the State Government has approved the detention order. This court in Lallan Goswami vs. Superintendent, Central Jail, Naini has also taken this view. vide Habeas Corpus Petition No. 32229 of 2002 decided on 30.9.2002, following the decision of the Supreme Court in Kamlesh Kumar v. Union of India 1995 SCC (Crl.) 643 where it has been held that the right of the detenue to make a representation to the District Magistrate is in addition to his right to make representation to the State Government and the Central Government. 5. Although we are allowing this petition, we are doing it with a heavy heart because the allegations against the petitioner are serious as he is allegedly involved in dealing with fake currency notes which is adversely affecting the economy system of our country. However, since the law of Habeas Corpus is a technical law we have to allow this petition. 6. It is, therefore, not necessary to go into other submission. The petition is allowed. The petitioner shall be released forthwith unless required in some other criminal or preventive detention case. --------- http://www.allahabadhighcourt.nic.in 3 All] Laxmi Shanker Misra V. D.I.O.S. and others 715 APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 27.9.2002 BEFORE THE HON'BLE S.K. SEN, C.J. THE HON'BLE ASHOK BHUSHAN, J. Special Appeal No. 32 of 1998 Laxmi Shanker Misra ...Appellant Versus District Inspector of Schools and others ...Respondents Counsel for the Appellant: Sri Ch.N.A.Khan Sri M.K. Tiwari Counsel for the Respondents: Sri Ranvijay Singh Sri A.K. Misra Sri D.N. Misra Sri S.N. Misra S.C. U.P. Intermediate Education Act 1921- chapter II- Regulations, read with UP Secondary Education Service Commission Rules- 1983 rule 9- Adhoc promotion on the post of lecturer Sanskrit- petitioner/Appellant's promotion - Disapproved by the DIOS on the ground of beyond 40% quota- subsequent approval of the Respondent no. 4 by Direct appointment- held- illegal- Neither the Management, nor the Respondent no. 4. Nor the DIOS disputed the eligibility of the appellant. Held- Para 15 In view of the law laid down by Full Bench of this Court in Km. Radha Raizada's case (supra), if a qualified teacher is available for promotion, the post cannot be filled up by direct recruitment on adhoc basis. It is not suggested that petitioner was not qualified for promotion rather his claim was resisted on the ground that 40% quota being filled up, the petitioner is not entitled for promotion and on that basis management proceeded to make adhoc appointment. Management proceeded to make adhoc appointment . Management's clear stand in its counter affidavit to the writ petitioin was that resolution passed in favour of the petitioner- appellant on 4th September, 1993 giving him promotion as lecturer in Sanskrit was under mistake since 40% promotion quota was already filled up. In view of the aforesaid, the adhoc appointment of respondent no. 4 by direct recruitment was void and contrary to provisions of Removal of difficulties order, 1981 and the law laid down by Full Bench in Km. Radha Raizada's case (supra). The District Inspector of Schools who was requested to approve appellants promotion on adhoc basis was under misconception that approval cannot be granted since 40% promotion quota has been filled and in that premises he proceeded to fill the post by direct recruitment. The order of District Inspector of Schools dated 24 May, 1988 approving the appointment by direct recruitment of respondent no. 4 cannot be sustained and is hereby quashed. (Delivered by Hon'ble Ashok Bhushan,J.) 1. Heard Chaudhary N.A. Khan, Advocate appearing for the appellant and Sri Ranvijay Singh, learned standing counsel appearing for respondent no. 1. 2. This special appeal has been filed by the appellant against the judgment and order dated 16 December, 1997 passed by learned single judge in writ petition no. 15741 of 1988 (Laxmi Shanker Misra vs. District Inspector of Schools, Allahabad and others) by which judgment the writ petition filed by the appellant was dismissed.