# Dhani Ram v. Chief Engineer, Rajghat Project & Anr

- **Citation:** (2013) 2 ILRA 772
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-05-22
- **Case number:** Second Appeal No. 1301 of 2012
- **Bench:** S.K.Singh, B.K. Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dhani-ram-v-chief-engineer-rajghat-project-anr-42592
- **Pages:** 9

## Headnote

Constitution of India, Art. 226- Alternative
Remedy-writ petition entertained in 2000after exchange of C.A. and R.A.-dismissed
on ground of alternative remedy-in absence
of Counsel-as he could not mark the caserecall application also rejected-held-once
petition entertained and remain pending for
long time ought to have decided on meritsingle Judge failed to consider this aspectorder set-a side-direction to decide writ
petition on merit given.

Held: Para-25
We are already over burdened with the
cases practically in all the Courts right
from bottom to top, and therefore, if we
keep the matter pending in this Court for
good number of years then unless there
is exceptional circumstance there has to
be a decision on merits, i.e. allow,
dismiss or remand. Technicality is not to
be permitted over the equity. Restrain in
accepting the matter is to be at the first
instance but once that is cleared there
has to be discussion on merits. It has
been throughout said that relegation on
the ground of alternative remedy is a self
imposed restriction and therefore, if one
is to be thrown out on that ground then
that is to be in the beginning so that
during long interval he may be able to
cross over the hurdles so as to reach this
court and therefore, dismissal at the
time of hearing on that very ground will
be taking away long years of the litigant
and he is to be placed at the same place
where he was.

Case Law discussed:
(2008)12 SCC 675; AIR 1969 SC 556; AIR
1971 SC 33; (1996) 2 UPLBEC 1056 ; 2009(9)
ADJ 670; (1998) 2 UPLBEC 1154; Spl. Appeal
No. 1672 of 2011

## Text

772 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

19. Coming to the facts of the instant
case, the Reference Court, presided over by
1st Additional District Judge, Muzaffarnagar,
passed its award on 15.02.1985 providing
solatium @ 15% and interest @ 6%. From a
perusal of the Reference Court's award it
cannot be inferred that the Reference Court
had intended to award solatium at the rate of
30% and interest at the rate of 9% but due to
arithmetical or clerical mistake in the
judgment/ award, arising from any accidental
slip or omission, lower rate was incorporated
in the judgment/ award. The application,
purportedly, under sections 151, 152 and 153
of the CPC, was filed, on 22.09.1986, with a
prayer that the mistake in granting lower
solatium and interest be rectified and
corrected in the original judgment and decree
with
necessary
consequences.
This
application came to be decided by a Court
presided over by the District Judge,
Muzaffarnagar, who had not passed the
original award. The Court, without recording
any finding that the Reference Court had
intended to award solatium and interest at the
higher rate but due to arithmetical or clerical
mistake, arising from an accidental slip or
omission, lower rate was provided, which
required rectification, allowed the application
and provided higher rate. Seen in light of the
settled law, the court below had no
jurisdiction to amend/ alter/ modify the
award, which had otherwise become final, in
exercise of its power under Sections 151 and
152 of the Code of Civil Procedure. Thus,
the order of the court below is liable to be set
aside.

20. The proper course for the
claimant-respondent was either to appeal
against the award or to have filed a review
application under Order 47 Rule 1 of the
Code of Civil Procedure read with section
53 of the Act, as observed by apex court
in Jaya Chandra Mohapatra's case
(supra). But, in the instant case, even if
the
application
of
the
claimantrespondent, under Sections 151 and 152
CPC, is assumed to be a review
application, the same having been filed
beyond the period of 30 days from the
date of the award of the Reference Court,
was barred by the limitation provided
under Article 124 of the Schedule of the
Limitation
Act
and,
as
such,
not
entertainable,
in
absence
of
any
application
to
condone
the
delay.
Therefore, viewed from any angle, the
court below had no jurisdiction to
entertain the application and modify the
award.

21. Although it would be a hard case
for the claimant-respondent but, as it is
said that hard case must not make bad
law, this Court, for the reasons detailed
above, has no other option than to allow
the appeal. The appeal is, accordingly,
allowed. The judgment and order dated
16.04.1988 passed by the District Judge,
Muzaffarnagar in Misc. Case No. 243 of
1986 is hereby set aside. There shall be no
order as to costs.
---------

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.05.2013

BEFORE
THE HON'BLE S.K.SINGH, J.
THE HON'BLE B.K. SRIVASTAVA, J.

Second Appeal No. 1301 of 2012

Dhani Ram

 ...Petitioner
Versus
Chief Engineer, Rajghat Project & Anr.

 ...Respondents

Counsel for the Petitioner:
Sri
Bhoopendra
Nath
Singh
2 All] Dhani Ram Vs. Chief Engineer, Rajghat Project & Anr.
773
Counsel for the Respondents:
Sri Subodh Kumar

Constitution of India, Art. 226- Alternative
Remedy-writ petition entertained in 2000after exchange of C.A. and R.A.-dismissed
on ground of alternative remedy-in absence
of Counsel-as he could not mark the caserecall application also rejected-held-once
petition entertained and remain pending for
long time ought to have decided on meritsingle Judge failed to consider this aspectorder set-a side-direction to decide writ
petition on merit given.

Held: Para-25
We are already over burdened with the
cases practically in all the Courts right
from bottom to top, and therefore, if we
keep the matter pending in this Court for
good number of years then unless there
is exceptional circumstance there has to
be a decision on merits, i.e. allow,
dismiss or remand. Technicality is not to
be permitted over the equity. Restrain in
accepting the matter is to be at the first
instance but once that is cleared there
has to be discussion on merits. It has
been throughout said that relegation on
the ground of alternative remedy is a self
imposed restriction and therefore, if one
is to be thrown out on that ground then
that is to be in the beginning so that
during long interval he may be able to
cross over the hurdles so as to reach this
court and therefore, dismissal at the
time of hearing on that very ground will
be taking away long years of the litigant
and he is to be placed at the same place
where he was.

Case Law discussed:
(2008)12 SCC 675; AIR 1969 SC 556; AIR
1971 SC 33; (1996) 2 UPLBEC 1056 ; 2009(9)
ADJ 670; (1998) 2 UPLBEC 1154; Spl. Appeal
No. 1672 of 2011

(Delivered by Hon'ble S.K.Singh, J.)

1. Heard Sri Bhupendra Nath Singh,
learned Advocate in support of this appeal
and Sri Subodh Kumar, learned Advocate
who appeared for respondents.

2. This special appeal is directed
against the judgment of the learned Single
Judge dated 16.03.2012 passed in Civil
Misc. Writ Petition No. 28744 of 2000.

3. To appreciate the issue some
basic facts will be necessary.

4. Writ petition was filed by the
appellant against the orders of the
competent authority dated 17.5.2000 by
which he was removed from service.

5. Appellant was serving as a
Gateman in the Raj Ghat Project,Betwa
River Board, Nandanpura, Jhansi. He
applied for earned leave w.e.f. 1.4.2000 to
20.4.2000 on medical ground for his
treatment and thereafter leave was extended
by moving leave extension application
dated 20.4.2000. He having been declared
fit to resume duties, finally he joined his
duties on 26.5.2000 upon which he was
handed over with a letter dated 17.5.2000
stating his removal on the ground of
unauthorized absence from duty.

6. Writ petition was filed by the
appellant
which
was
entertained
and
respondents were called upon to file response
upon which pleadings completed. On
20.7.2009 the case was listed. On that date
office of the learned Advocate states that case
was not marked by the clerk and in absence of
counsel writ petition was dismissed on the
ground of alternative remedy.

7. On coming to know about the
order the application for recall was filed
along with application for condonation of
delay. Ground for condonation is the
mistake of the office of the learned
774 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
Advocate in not marking the case and
thus his absence but the recall has been
rejected on 16.3.2012.

8. In the appeal the sole ground is that
the writ petition having been entertained on
merits in the year 2000 and pleadings
having been completed it should not have
been dismissed after about nine year on the
ground of alternative remedy.

9. Submission is that on adjudication
of the case on merits and on consideration
of various aspects if the court was to
record a finding that various factual issues
are to be decided it could have taken a
view to dismiss the writ petition on the
ground of availability of alternative
remedy but straightway dismissal for that
reason is not at all justified.

10. Be as it may, parties having
agreed, we are to decide the appeal on
merits.

11. At the start of the argument
learned counsel for the respondents, as
maintained in the writ petition raised a
ground of dismissal of the appeal on the
ground of alternative remedy for which
writ petition was dismissed. The argument
is that once petition is entertained and
respondents are called upon to file
response do not prohibit the court not to
dismiss the same on the ground of
alternative remedy. If this is made a rule
then it will be neither sound nor
appropriate and sometimes it may be able
of being misused. Reliance has been
placed on the judgment given by the Apex
Court in case of State of Uttar Pradesh
and another Vs. Uttar Pradesh Rajya
Khanij Vikas Nigam Sangharsh Samiti
and others reported in (2008) 12 SCC
675.

12. To the contrary, learned counsel
for the appellant placed reliance on
certain decisions of this court and that of
the Apex Court to submit that after
entertaining the petition on merits and
completion of pleadings, after such long,
unless there are serious triable factual
issue, petition is not to be dismissed on
the ground of alternative remedy.

13. In a decision given by the Apex
Court in case of M/s Baburam Prakash
Chandra Maheshwari Vs. Antarim Zila
Parishad reported in AIR 1969 SC 556
following observations were made-

"It is a well-established proposition
of law that when an alternative and
equally efficacious remedy is open to a
litigant he should be required to pursue
that remedy and not to invoke the special
jurisdiction of the High Court to issue a
prerogative writ. It is true that the
existence of a statutory remedy does not
affect the jurisdiction of the High Court to
issue a writ. But, as observed by this
Court in Rashid Ahmed v. The Municipal
Board, Kairana,1950 SCR 566==(AIR
1050 SC 163), "the existence of an
adequate legal remedy is a thing to be
taken into consideration in the matter of
granting writs" and where such a remedy
exists it will be a sound exercise of
discretion to refuse to interfere. in a writ
petition unless there are good grounds
therefore. But it should be remembered
that the rule of exhaustion of statutory
remedies before a writ is granted is a rule
of self imposed limitation, a rule of
policy, and discretion rather than a rule of
law and the court may therefore in
exceptional cases issue a writ such as a
writ of certiorari notwithstanding the fact
that the statutory remedies have not been
exhausted. In The State of Uttar Pradesh
2 All] Dhani Ram Vs. Chief Engineer, Rajghat Project & Anr.
775
v. Mohammad Nooh, 1958 SCR 595,
605= (AIR 1958 SC 86,93), S.R. Das,
C.J., speaking for the Court, observed:

"In the next place it must be borne in
mind that there is no rule, with regard to
certiorari as there is with mandamus, that
it will lie only where there is no other
equally effective remedy. It is well
established that, provided the requisite
grounds exist, certiorari will lie although
a right of appeal has been conferred by
statute. (Halsbury's Laws of England, 3rd
Ed., Vol. II, p. 130 and the cases cited
there). The fact that the aggrieved party
has another and adequate remedy may be
taken into consideration by the superior
court in ' arriving at a conclusion as to
whether it should, in exercise of its
discretion, issue a writ of certiorari to
quash the proceedings and decisions of
inferior courts subordinate to it and
ordinarily the superior court will decline
to interfere until the aggrieved party has
exhausted his other statutory remedies, if
any. But this rule requiring the exhaustion
of statutory remedies before the writ will
be granted is a rule of policy, convenience
and discretion rather than a rule of law
and instances are numerous where a writ
of certiorari has been issued in spite of the
fact that the aggrieved party. had other
adequate legal remedies. In the King v.
Postmaster-. General Ex parte Carmichael
[1928 (1) K.B. 291] a certiorari was
issued although the aggrieved party had
and alternative remedy by way of appeal.
It has been held' that the superior court
will readily issue a certiorari in a case
where there has been a denial of natural
justice before a court of summary
jurisdiction.
The
case
of
Rex
v.
Wandsworth Justices Ex parte Read [1942
(1) K.B. 281] is an authority in point. In
that case a man had been convicted in a
court of summary jurisdiction without
giving him an opportunity of being heard.
It Was held that his remedy was not by a
case stated or by an appeal before the
quarter sessions but by application to the
High Court for an order of certiorari to
remove and quash the conviction."

14. In another decision given by the
Apex Court in case of L. Hirday Narain
Vs. Income Tax Officer, Bareilly
reported in AIR 1971 SC 33 following
observations were made-

" An order under Section 35 of the
Income-tax Act is not appealable. It is
true that a petition to revise the order
could be moved before the Commissioner
of Income-tax. But Hirday Narain moved
a petition in the High Court of Allahabad
and the High Court entertained that
petition. If the High Court had not
entertained his petition, Hirday Narain
could have moved the Commissioner in
revision, because at the date on which the
petition was moved the period prescribed
by s. 33A of the Act had not expired. We
are unable to hold that because a revision
application could have been moved for an
order correcting the order of the Incometax Officer under s. 35, but was not
moved, the High Court would be justified
in dismissing as not maintainable the
petition which was entertained and was
heard on the merits.

15. There is another decision of the
Apex Court given in case of Dr. Bal
Krishna Agarwal Vs. State of U.P. and
others reported in (1996) 2 UPLBEC
1056 in which following observations
were made-

"10.Having regard to the aforesaid
facts and circumstances, we are of the
776 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
view that the High Court was not right in
dismissing the writ petition of the
appellant on the ground of availability of
an alternative remedy under Section 68 of
the Act especially when the writ petition
that was filed in 1988 had already been
admitted and was pending in the High
Court for the past more than five years.
Since the question that is raised involves a
pure question of law and even if the
matter is referred to the Chancellor under
Section 68 of the Act it is bound to be
agitated in the court by the party
aggrieved by the order of the Chancellor,
we are of the view that this was not a case
where the High Court should have nonsuited the appellant on the ground of
availability of an alternative remedy. We,
therefore, propose to go into the merits of
the question regarding inter se seniority of
the appellant and Respondents 4 and 5.
We may, in this context, mention that
Respondent 4 has already retired in
January 1994."

16. After considering several Apex
Court decisions the Division Bench of this
Court in case of Roshan Lal Vs. State of
U.P. and others reported in 2009(9)
ADJ 670 made following observations-

"7. It is well settled that existence of
alternative remedy does not bar the
jurisdiction of this Court. It is a matter of
discretion and not jurisdiction. It is self
imposed discipline, wherein when an Act
provides for a complete machinery for
seeking redress, the writ Court declines to
interfere in the matter and relegate a
litigant to the remedy provided under the
Statute. Power under Article 226 of the
Constitution is not intended to circumvent
statutory procedure but it is not an
absolute bar and merely a factor, which
requires consideration while exercising
the power. Dismissal of the writ petition
on the ground of alternative remedy long
after its filing and exchange of pleadings,
may lead to shutting the door of
alternative remedy itself. Provisions of
alternative remedy in many of the cases
provide for limitation and in case writ
petitions are dismissed after exchange of
pleadings after a long time, the damage
cannot be countenanced.

`8. In the present case, we proceed
on an assumption that the petitioner has
alternative remedy, but the question
which falls for determination is as to
whether in the facts of the present case,
wherein the writ petition filed on
27.11.2001
was
entertained
and
respondents and petitioner granted time to
file counter affidavit and rejoinder and
they having exchanged the pleadings, the
learned Judge was right in dismissing the
writ petition on 24.07.2009 on the ground
of alternative-remedy.

9.
Having
given
our
anxious
consideration to the question involved, we
are of the opinion that the learned Judge
erred in dismissing the writ petition on the
ground of existence of alternative remedy
at such a distance of time. The point in
issue is no more res integra, as the
Supreme Court had the occasion to
consider the same in the case of L. Hirday
Narain Vs. Income-Tax Officer, Bareilly,
AIR 1971 SC 33, in which it has been
held as follows:-

"12. An order under Section 35 of
the Income-tax Act is not appealable. It is
true that a petition to revise the order
could be moved before the Commissioner
of Income-tax. But Hirday Narain moved
a petition in the High Court of Allahabad
and the High Court entertained that
petition. If the High Court had not
2 All] Dhani Ram Vs. Chief Engineer, Rajghat Project & Anr.
777
entertained his petition, Hirday Narain
could have moved the Commissioner in
revision, because at the date on which the
petition was moved the period prescribed
by Section 33-A of the Act had not
expired. We are unable to hold that
because a revision application could have
been moved for an order correcting the
order of the Income-tax Officer under
Section 35, but was not moved, the High
Court would be justified in dismissing as
not maintainable the petition, which was
entertained and was heard on the.merits."

(Underlining ours)

10. The Supreme Court had also
considered this issue in the case of Durga
Enterprises (P) Ltd. & Anr. Vs. Principal
Secretary, Govt. of U.P. & Ors., (2004) 13
SCC 665 in which, in categorical terms, it
has been held that the High Court having
entertained the writ petition in which
pleadings were also complete, ought to have
decided the case on merits instead of
relegating the parties to a civil suit. Relevant
portion of the judgment of the Supreme
Court in this regard, reads as follows:-

"2. By the impugned order the writ
petition, which was pending for a long
period of thirteen years, has been
summarily dismissed on the ground that
there is remedy of civil suit. The dispute
between the parties was concerning
exercise of the respondents' alleged right
of re-entry on the disputed property in
accordance with sub-rules (2) and (3) of
Rule
5
of
the
Land
Acquisition
(Companies) Rules, 1963. The aforesaid
Rules
contain
a
mechanism
for
adjudication of a dispute relating to the
alleged breach of terms of the agreement
and the manner in which it is to be
resolved.

3.
The
High
Court,
having
entertained the writ petition, in which
pleadings were also complete, ought to
have decided the case on merits instead of
relegating the parties to a civil suit.

4.We,
therefore,
set
aside
the
impugned order of the High Court and
remit the matter to it for taking a decision
on merits, after hearing the parties, within
the earliest possible period." (Underlining
ours).

17. A Division Bench of this Court had
also the occasion to consider this question in
the case of Diwakar Dutt Bhatt Vs. Life
Insurance Corporation of India & Anr.,
(1998) 2 UPLBEC 1154, in which it has
been held that the bar of alternative remedy
is nothing but a matter of self-imposed
discipline and in a case in which the petition
was entertained and pleadings have been
exchanged, it would be inexpedient to
dismiss the writ petition on the ground of
alternative remedy. Paragraph 12 of the
judgment, which is relevant for the purpose,
reads as follows:-

18. As far as the first ground is
concerned the writ-petition was filed on
29.10.1997. The petition was entertained
and the respondents were directed to file the
counter-affidavit. The counter affidavit has
been filed. The rejoinder affidavit has also
been filed. The case was heard today. No
doubt
the
administrative
instructions
provide for filing of an appeal but the
question which remains to be decided is, as
to whether, on the ground of availability of
an alternative remedy the writ-petition,
which has been entertained can be thrown
out and the petitioner be relegated to the
appellate authority. The bar of the
alternative remedy is nothing but a matter of
self-imposed discipline which the Courts
778 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
have imposed upon themselves for the
reason that the jurisdiction of Article 226 of
the Constitution of India, should be invoked
after exhausting the alternative remedies
available to an aggrieved person."

19. This question also fell for
consideration before a learned Single
Judge of this Court in the case of Indra
Narain Tripathi Vs. Union of India &
Ors., (2006) 1 UPLBEC 1012, in which it
has been held that after exchange of
pleadings and four years of presentation
of the writ petition, it would not be
appropriate to throw out the petition on
the
ground
of
alternative
remedy.
Relevant portion of the said judgment
reads as follows:-

"3.
Learned
Counsel
for
the
respondent has raised a preliminary
objection that a statutory revision lies
against the impugned orders and in fact
the petitioner has alleged that he had
preferred the revision on 24.5.2001,
therefore, the petition is not maintainable.
The respondents in their counter affidavit
have denied that any memo of revision
was received by the Competent Authority.
The appeal of the petitioner was decided
after about a decade of the removal order.
This petition has remained pending for the
last about 4 years and pleadings have
been exchanged between the parties.
Thus, on these facts it would not be
appropriate to throw out the petition on
the ground of alternative remedy."

20. Same view has been taken by
this Court in the case of Lokman Singh
Vs.
Deputy
General
Manager
U.P.S.R.T.C. Meerut & Ors., 2006 (8)
ADJ 646, in which dismissal of the writ
petition after exchange of pleadings after
long distance of time on the ground of
alternative remedy under the Industrial
Disputes
Act,
was
found
to
be
unsustainable.
Paragraph
4
of
the
judgment, which is relevant for the
purpose, reads as follows:-

"4. No doubt, the petitioner has a
remedy of raising a dispute under the U.P.
Industrial Disputes Act. However, since
the petition was entertained in the year
1997 and counter and rejoinder affidavits
have been exchanged, it would not be
proper for the Court to relegate the
petitioner to an alternative remedy under
the Industrial Disputes Act at this stage,
and that too, after a period of almost 10
years. Consequently, the preliminary
objection made by the learned Counsel for
the respondents is rejected."

21. Bearing in mind the aforesaid
principle, when we consider the facts of
the case, we are of the opinion that the
learned Judge, after having entertained the
writ petition, directed the parties to file
counter and rejoinder affidavits and that
having already been done, at such a
distance of time, ought not to have
dismissed the writ petition on the ground
of alternative remedy.

We hasten to add that after exchange
of pleadings, the Court may not be in a
position to decide the disputed question of
fact, for the reason that for deciding the
same, evidence may be required to be
laid, and in such circumstance the writ
petition cannot be dismissed on the
ground of alternative remedy but on the
ground that the issue of fact cannot be
decided in a writ petition."

22. After following the decision
given by this Court in case of Roshan Lal
(Supra) , recently Special Appeal No.
1672 of 2011 was allowed by this Court
2 All] Dhani Ram Vs. Chief Engineer, Rajghat Project & Anr.
779
on 10.1.2013. The order passed in the
Special Appeal, referred above, is hereby
quoted-

"We have heard learned counsel for
the appellant, learned counsel for the
State and the learned counsel representing
the respondent no. 5 and the legal
representatives
of
the
deceased
respondent-no.4.

The case is squarely covered by the
decision of a Division Bench of this Court
in the case of Roshan Lal Vs. State of
U.P. & others, reported in 2009(9) ADJ670.

Following the said Division Bench
decision the impugned order of the
learned Single Judge passed in the writ
petition is set aside.

The matter is remitted back to the
learned Single Judge for reconsideration
on merits.

The appeal is accordingly allowed as
above."

23. The decision given in the case of
State of U.P. (Supra) as relied by learned
counsel for the respondents has no
application to the facts of the present case.

24. We are here to observe that
litigation that may be of any nature takes
usually long time in its maturity and then
its disposal from stage to stage. If there is
a stage prior to this Court then that is to
be certainly exhausted. But here in the
writ we exercise extraordinary powers
where in the interest of justice, in the
fitness of things, on finding apparent error
in the impugned order, on finding
violation of Principle of Natural Justice,
we
can
always
entertain
petition
straightway
without
feeling
any
impediment and thus if the Court was
satisfied to entertain then the same Court
if after ten years on completion of
everything at the time of final hearing
instead of deciding the claim on merits,
proposes to dismiss the petition by
relegating the litigant to a lower stage
then one may feel answerable to the loss
of ten years time which the litigant counts
day to day. That can certainly embrass the
Court besides feeling it to be unjust,
inequitable for variety of reasons.

25. We are already over burdened with
the cases practically in all the Courts right
from bottom to top, and therefore, if we keep
the matter pending in this Court for good
number of years then unless there is
exceptional circumstance there has to be a
decision on merits, i.e. allow, dismiss or
remand. Technicality is not to be permitted
over the equity. Restrain in accepting the
matter is to be at the first instance but once
that is cleared there has to be discussion on
merits. It has been throughout said that
relegation on the ground of alternative
remedy is a self imposed restriction and
therefore, if one is to be thrown out on that
ground then that is to be in the beginning so
that during long interval he may be able to
cross over the hurdles so as to reach this
court and therefore, dismissal at the time of
hearing on that very ground will be taking
away long years of the litigant and he is to be
placed at the same place where he was.

26. It can be a situation where this
court in the light of the pleadings is not
able to reach to a conclusion giving a final
shape to the issue then having no option
remittal will be a need.

27. At this stage, we are to notice that
one of ground taken is that writ petition was
780 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
decided ex-parte and therefore, arguments
were on the restoration application on the
grounds given therein but learned Single
Judge maintained the order by dismissing the
application without considering that aspect.

28. Be as it may, it happens to be a
case of poor litigant who was engaged as
Gateman in a project and for the alleged
authorized/unauthorized
absence
of
hardly two months he was removed from
service and his writ was entertained in
2000 and was dismissed on the ground of
alternative remedy in the year 2009 in
absence of his counsel and thus we are
satisfied that it is a fit case where order of
learned Single Judge is to be set aside.

29.

Accordingly,
the
appeal
succeeds and is allowed. The order of the
learned Single Judge dated 16.03.2012 is
hereby set aside. The matter is remitted
back to the learned Single Judge for
reconsideration of the claim of parties on
merits.

30. Office is to list the writ petition
before
appropriate
Court
under
appropriate Head in the first week of July,
2013.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.05.2013

BEFORE
THE HON'BLE RAKESH TEWARI, J.
THE HON'BLE ANIL KUMAR SHARMA, J.

First Appeal from Order No. 1334 of 2011

Northern Coalfields Ltd.
 Petitioner
Versus
The Aluminium Industries Ltd.Respondent

Counsel for the Appellant:
Sri Greeshm Jain, Sri Shakti Dhar Dubey
Sri Neeraj Dubey

Counsel for the Respondents:
Sri Hari Ram Mishra, Sri Ashok Srivastava
Sri R.P. Mishra

Arbitration and Conciliation Act, 1996Section 2 (1)(e)-Court means-Principal
Civil Court e.g. Distt. Judge and not the
A.D.J.-order passed under section 34 of
the
Act
by
the
A.D.J.-held-without
jurisdiction-set-a-side-Distt.
Judge
to
decide the case within 3 month.

Held: Para-19
In view of the aforestated discussion we
are in full agreement with ratio given by
an Hon'ble Single Judge of this Court in
the case of M/s I.T.I., Allahabad (supra)
and hold that the Court of Additional
District Judge is not the Principal Civil
Court for the purpose of Section 2(1)(e)
of the Act and the District Judge can not
transfer the case under the Arbitration
and Conciliation Act, 1996 to the Court of
Additional District Judge by invoking the
provisions of either Section 8(2) of
Bengal, Agra and Assam Civil Courts Act
or Section 24 of Code of Civil Procedure,
therefore, the court of Additional District
Judge no jurisdiction to dispose of
objections u/s 34 of the Act. The
impugned
order
thus
being
without
jurisdiction cannot be sustained. The
appeal succeeds and is allowed. The
impugned order is set aside and the
matter is remitted back to the District
Judge, Sonebhadra with the request to
dispose
of
the
case
expeditiously
preferably within three months from the
date of receipt of certified copy of this
order. The interim order dated 3.5.2011 is
vacated. The parties would bear their own
costs.

Case Law discussed:
AIR 1998 Allahabad 313; 2002(1) Arb. L.R. 530
(Karnataka); 2002(2) Arb. L.R. 246(SC); C.O. No.
2285 of 2002; 2004(1) Arb. L.R. 560; 2007(2)
Arb. L.R. 363; A.P. A.I.R. 1989 SC 335.

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