# Dharamvir Agrawal v. State of U.P. and others

- **Citation:** (2001) 1 ILRA 172
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000-03-27
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dharamvir-agrawal-v-state-of-u-p-and-others-39589
- **Pages:** 6

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2001
172
DFWLQJ RQ EHKDOI RI OLFHQVHH ± FRXQWHU
VLJQDWXUH QRW UHTXLUHG
+HOG 3DUD
7KH SHWLWLRQHU LV QRW D OLFHQVHH RU DQ\
RWKHU SHUVRQ DFWLQJ RQ EHKDOI RI WKH
OLFHQVHH XQGHU FODXVH RI 83 &RDO
&RQWURO 2UGHU DQG DV VXFK LQ RXU
YLHZ WKHUH LV QR UHTXLUHPHQW RI FRXQWHU
VLJQDWXUH

By the Court

1. We have heard Sri Rakesh Kumar
Garg, learned Advocate for the writ
petitioner and Sri Shitla Sahai, learned
Advocate for the respondents.

2. The petitioner is not a licensee or
any other person acting on behalf of the
licensee under clause (11) if U.P. Coal
Control Order, 1977 and as such, in our
view, there is no requirement of counter
signature. The view which, we have
taken, is supported by the decision of
unreported judgment of a Division Bench
of this Court in the case of S.R. Glass
Industries, Mainpuri Gate, Firozabad and
others Vs Station Master, Firozabad,
Northern Railway and others (Writ
Petition no. Nil of 1989) decided on
13.12.1989. In the aforesaid decision, it
was held that since the petitioners are
neither licensees nor persons acting on
behalf of any licensee within the meaning
of Clause (11) of U.P. Control Order,
1977, the opposite- parties are not
justified
in
insisting
that
the
coal
consignment of the petitioners can be
released only after they obtain the
endorsement
from
the
Director
of
Industries. Another Division Bench of this
Court has also followed the same view in
the case of Atul Glass Industries,
Mahalarpur,
and
others
Vs
Station
Master, Firozabad, Shikohabad, Northern
Railway and others (Writ Petition no.
13612 of 2000) decided on 27.3.2000. we
do not find any reason to take a different
view in the instant case. Considering all
aspects of the matter, we are of the view
that the petitioner should succeed in the
writ petition.

The writ petition is, accordingly,
allowed.

Accordingly direction is issued to
respondent No. 1 to give the delivery of
coal consignment without insisting the
petitioner for obtaining counter signature
from respondent No. 3.
Petition Allowed.

25,*,1$/ -85,6',
25,*,1$/ -85,6',&7,21
&7,21
&,9,/ 6,'(
&,9,/ 6,'(
'$7(' $//$+$%$'
'$7(' $//$+$%$'
%()25(
%()25(
7+( +21·%/( 6.6(1 &-
7+( +21·%/( 6.6(1 &-
7+( +21·%/( 68'+,5 1$5$,1 -
7+( +21·%/( 68'+,5 1$5$,1 -

&LYLO 0LVF :ULW 3HWLWLRQ QR RI

'KDUDPYLU $JDUZDO
«3HWLWLRQHU
9HUVXV
6WDWH RI 83 RWKHUV
«5HVSRQGHQWV
&RXQVHO IRU WKH 3HWLWLRQHUV
6UL %% 3DQGH\
6UL 5DYLQGUD 6LQJK
6UL $PDU 6DUDQ
&RXQVHO IRU WKH 5HVSRQGHQWV
6UL 53*RHO $GYRFDWH *HQHUDO
6UL $GLW\D 1DUDLQ
6UL %'0DQGK\DQ
83 0XQLFLSDOLWLHV $FW $JH OLPLW IRU
3UHVLGHQW IL[LQJ \HDUV ZKHWKHU LV XOWUD
YLUHV EHLQJ FRQWUDU\ WR $UWLFOH 9 RI
WKH &RQVWLWXWLRQ RI ,QGLD" +HOG μ1R¶
IL[LQJ DJH OLPLW LV ZLWKLQ WKH FRPSHWHQFH
1All] Dharamvir Agrawal V. State of U.P. and others 173
RI WKH OHJLVODWXUH &RXUW FDQ QRW VLW RYHU
WKH OHJLVODWXUH
+HOG ± 3DUD
,Q YLHZ RI WKH SURYLVLRQV RI ODZ DV QRWHG
DERYH ZH DUH RI WKH YLHZ WKDW WKH 6WDWH
OHJLVODWXH ZDV FRPSHWHQW WR OHJLVODWH IRU
IL[LQJ WKH DJH RI 3UHVLGHQW IRU FRQWHVWLQJ
WKH HOHFWLRQ DQG WKH SURYLVLRQV XQGHU WKH
0XQLFLSDOLWLHV $FW IL[LQJ WKH DJH OLPLW DW
 \HDUV IRU WKH SRVW RI 3UHVLGHQW LV QRW
YLRODWLYH RI DQ\ IXQGDPHQWDO ULJKW RI WKH
SHWLWLRQHU
&DVH ODZ GLVFXVVHG
 6HF DW SDJH

By the Court

1. We have heard Sri B.B. Pandey,
Sri Ravindra Singh, learned Advocates for
the petitioner and Sri R.P. Goel, learned
Advocate General for the State and Sri
Aditya Narayan. Learned counsel for the
State Election Commission.

2. Learned Counsel for the petitioner
has urged that nomination paper of the
petitioner for the post of President has
been wrongly rejected on the ground that
he has not reached the age of 30 years
which is prescribed age for the post of
President. He has also referred to Article
243 V of the Constitution of India which
provides as follows:-
"243
V.
Disqualification
for
membership -(1) A person shall be
disqualified for being chosen as, and for
being a member of a Municipality-

(a) If he is so disqualified by or under
any law for the time being in force for the
purpose of elections to the Legislature of
the State concerned:

Provided
that
no
person
shall
be
disqualified on the ground that he is less
than twenty-five years of age; if he has
attained the age of twenty one years;

(b) If he is so disqualified by or under
any law made by the Legislature of the
State.

(2) If any question arises as to whether a
member of a Municipality has become
subject to any of the disqualification
mentioned in Clause (1), the question
shall be referred for the decision of such
authority and in such manner as the
Legislature of a State may, by law,
provide"

3. Relying upon the said Article he
has submitted that since he has attained
the age 21 years, the disqualification on
the ground of age cannot be applicable to
him. He has also referred to Article 243
ZF which provides as follows:-

"243ZF. Continuance of existing laws
and Municipalities - Notwithstanding in
this part, any provision of any law relating
to Municipalities in force in a State
immediately before the commencement of
the
Constitution
(seventy-fourth
Amendment)
Act,
1992,
which
is
inconsistent with the provisions of this
part, shall continue to be in force until
amended or repealed by a competent
Legislature or other competent authority
or until the expiration of one year from
such
commencement,
whichever
is
earlier:

Provided that all the Municipalities
existing
immediately
before
such
commencement shall continue till the
expiration of their duration, unless sooner
dissolved by a resolution passed to that
effect by the Legislative Assembly of that
Sate or, in the case of a State having a
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
174
Legislative Council, by each House of the
Legislature of the State."

4. Relying on the said Article 243ZF
he has urged that since there is no
amendment for the age limit of President,
his nomination should have been accepted
and the age limit prescribed is 21 years in
terms of Article 243V.

5. We are unable to accept both the
contentions of Mr. Pandey. So far Article
243 V is concerned in our view it has no
application for the post of President. The
said Article 243 V is applicable for the
person who is going to contest for the
election of a Member. Since the election
of President is a direct election, the said
Article is not attracted.

6. In that view of the matter the
contentions made by learned Advocate for
the petitioner appear to us to be not
applicable for the post of President.

7.

Apart
from the aforesaid
questions, the question ultra of virus has
also been taken by learned Advocates for
the petitioner. It has been argued by them
that the President of the Municipality is
elected directly in direct election. The age
prescribed under the Constitution is less
than 25 years. Therefore the provision of
U.P. Municipalities Act fixing the age of
the President at 30 years is contrary to the
provisions of the- Constitution. The said
fixation of age for the post of President is
arbitrary and discriminatory and therefore
has to be struck down.

8. It has further been contended by
the learned advocates for the petitioner
that in view of Article 243 ZF provisions
relating to election of Panchayat or
president has been amended in U.P.
Kshetriya Evem Panchayat Act, 1961. No
such amendment however has been made
in the U.P. Municipalities Act and as such
the provision in the U,P. Municipalities
Act fixing the age limit at 30 years is
contrary
to
the
provisions
of
the
Constitution and should be struck down.
It has also been argued that this is
violative of Article 14 of the Constitution
inasmuch as for the purpose of election of
Member of Legislative Assembly and
Member of Parliament, the age limit
prescribed is only 25 years for the direct
election.

9. Sri R.P. Goel, learned Advocate
General on behalf of the State has argued
that it is not open to the Court to go into
the question of reasonableness of the
statute. The Court can only look into the
question of competence of the legislature
with regard to the violation of any of the
fundamental rights guaranteed under the
Constitution of India. That apart the Court
has no power to go into the question of
arbitrariness
and
reasonableness.
In
support of his said contention, the learned
Advocate
General
relied
upon
the
decision in the case of State of A.P. &
others Vs. Mcdowell & Co., and others
(1996)3
Supreme
Court
cases
709
paragraph 43 at page 737 & 738)

10. Sri Aditya Narain, learned
counsel
for
the
State
Election
Commission apart from adopting the
submission of the learned Advocate
General has submitted before us that
constitution itself authorizes the State
Legislature to pass law with regard to the
State Municipalities. In support of the
said contention he referred Article 243 R
(2) (iv) of the Constitution.
1All] Dharamvir Agrawal V. State of U.P. and others 175
We have considered the submissions
of the learned counsel for the writ
petitioner and learned counsel for the
respondents.

11. It appears to us that the question
of virus of the provisions of the U.P.
Municipalities Act should be judged in
the light of the competence of the State
Legislature as well of the violation of the
fundamental rights. In the case of State of
A.P.(Supra),
the
Supreme Court at
paragraph 43 (page 737 & 738) has held
as follows:-

"43.
Shri
Rohinton
Nariman
submitted that inasmuch as a large
number of persons falling within the
exempted
categories
are
allowed to
consume intoxicating liquors in the State
of Andhra Pradesh, the total prohibition
of manufacture and production of these
liquors is arbitrary' and the amending Act
is liable to be struck down on this ground
alone. Support for this proposition is
sought from a judgement of this Court in
State of T.N. vs. Ananthi Ammal (1995) I
SCC 519). Before, however, we refer to
the holding in the said decision, it would
be appropriate to remind ourselves of
certain basic propositions in this behalf.
In the United Kingdom, Parliament is
supreme. There are no limitations upon
the power of Parliament No. Court in the
United Kingdom can strike down an Act
made by Parliament on any ground. As
against this, the United States of America
has a Federal Constitution where the
power of the Congress and the State
Legislatures to make laws is limited in
two ways, Viz., the division of legislative
powers between the States and the Federal
Government and the fundamental right
(Bill of Rights) incorporated in the
Constitution. In India, the position is
similar to the United of America. The
power of Parliament or for that matter, the
State Legislatures is restricted in two
ways. A law made by Parliament or the
legislature can be struck down by courts
on two grounds and two grounds alone,
viz., (1) lack of legislative competence
and
(2)
violation
of
any
of
the
fundamental rights guaranteed in Part III
of the Constitution or of any other
constitutional provision. There is no third
ground. We do not wish to enter into a
discussion of the concepts of procedural
unreasonableness
and
substantive
unreasonableness concepts inspired by the
decisions of United States Supreme Court.
Even in U.S.A., these concepts and in
particular the concept of substantive due
process have proved to be of unending
controversy, the latest thinking tending
towards a severe curtailment of this
ground (substantive due process). The
main criticism against the ground of
substantive due process being that it seeks
to set up the courts as arbiters of the
wisdom of the legislature in enacting the
particular piece of legislation. It is enough
for us to say that by whatever name it is
characterised, the ground of invalidation
must fall within the four corners of the
two grounds mentioned above. In other
words, say, if an enactment is challenged
as violative of Article 14, it can be struck
down only if it is found that it is violative
of the equality clause/equal protection
clause enshrined therein. Similarly, if an
enactment is challenged as violative of
any of the fundamental rights guaranteed
by clauses (a) to (g) of Article 19 (I), it
can be struck down only if it is found not
saved by any of the clauses (2) to (6) of
Article 19 and so on. No enactment can
be struck down by just saying that it is
arbitrary or unreasonable. Some or other
constitutional infirmity has to be found
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
176
before invalidating an Act.. An enactment
cannot be struck down on the ground that
court thinks it unjustified. Parliament and
the legislatures, composed as they are of
the representatives of the people, are
supposed to know and be aware of the
needs of the people and what is good and
bad for them. The court cannot its in
judgement over their wisdom. In this
connection, it should be remembered that
even in the case of administrative action,
the scope of judicial review is limited to
three grounds, viz.,(i) unreasonableness,
which can more appropriately be called
irrationality,
(ii)
illegality
and
(iii)
procedural impropriety (see Council of
Civil Service Unions vs. Minister for
Civil Service ( 1985 AC 374: (1984) 3
ALL ER 935/1984) 3 WLR 1174) which
decision has been accepted by this Court
as well). The applicability of doctrine of
proportionality even in administrative law
sphere is yet a debatable issue. (See the
opinions of Lords Lowry and Ackner in
R.V. Secy. of State for Home Deptt. Exp
Brind (1991 AC 696: (1991) I ALL ER
720) AC at 766-67 and 762). It would be
rather odd if an enactment were to be
struck
down by applying the said
principle when its applicability even in
administrative law sphere is not fully and
finally settled. It is one thing to say that a
restriction imposed upon a fundamental
right can be struck down if it is
disproportionate,
excessive
or
unreasonable and quite another thing to
say that the court can strike down
enactment if it things it unreasonable,
unnecessary
or
unwarranted.
Now,
coming to the decision in Ananthi ammal,
we are of the opinion that it does not lay
down a different proposition. It was an
appeal from the decision of the Madras
High Court striking down he Tamil Nadu
Acquisition of Land for Harijan Welfare
Schemes Act, 1978 as violative of
Articles
14,19
and
300-A
of
the
constitution. On a review of he provisions
of the Act, this Court found that it
provided
a
procedure
which
was
substantially unfair to the owners of the
land as compared to the procedure
prescribed by the Land Acquisition Act,
1894, insofar as Section 11 of the Act
provided for payment of compensation in
installments if it exceeded rupees two
thousand. After noticing the several
features of the Act including the one
mentioned above, this Court observed:
(SCC p 526,para 7)

"7.When a statute is impugned under
Article 14 what the court has to decide is
whether the statute is so arbitrary or
unreasonable that it must be struck down.
At best, a statute upon a similar subject
which derives its authority from another
source can be referred to, if its provisions
have been held to be reasonable or have
stood the test of time, only for the purpose
of indicating what may be said to be
reasonable in the context. We proceed to
examine the provisions of the said Act
upon this basis."

12. The principle for determination
of the question of virus is therefore now
settled by the aforesaid decision of the
Supreme Court. In the instant case there is
no question that the State Legislature was
not
competent
to
pass
appropriate
legislation relating to the age and in fact
the Constitution itself has authorised the
State Legislature, as appears from Article
243 R (2) (iv), which provides as follows:

"243 R Composition of Municipalities-
(1)....
1All] M/s Prasad Industries, Shahjahanpur & others V. .D.M./Collector and others 177
(2) The Legislature of a State may, by
law, provide-

(a) for
the
representation
in
a
municipality of-

(i) Persons having special knowledge or
experience in Municipal administration;
(ii) The members of the House of the
People and the members of he Legislative
Assembly
of
the
State
representing
constituencies which comprise wholly or
partly the Municipal area;
(iii) The members of the Counsel of
States and the members of the Legislature
of the State registered as electors within
the Municipal area;
(iv) The Chairpersons of the committees
constituted under Clause (5) of Article
243 S."

Provided that the persons referred to
in paragraph (I) shall not have the right to
vote in the meetings of the Municipality
(b) the manner of election of the
Chairperson of a Municipality"

13. In view of the provisions of law
as noted above, we are of the view that
the Stat Legislature was competent to
legislate for fixing the age of President for
contesting the election and the provisions
under the Municipalities Act fixing the
age limit at 30 years for the post of
President
is
not
violative
of
any
fundamental right of the petitioner.

14. That apart the other arguments
advanced on behalf of the petitioner also
we do not find any substance.

There is no merit in the Writ Petition
and it is, accordingly, dismissed.
Petition Dismissed.

25,*,1$/ -85,6',&7,21
25,*,1$/ -85,6',&7,21
&,9,/ 6,'(
&,9,/ 6,'(
'$7(' $//$+$%$' 129(0%(5
'$7(' $//$+$%$' 129(0%(5
%()25(
%()25(
7+( +21·%/( %,12' .80$5 52<
7+( +21·%/( %,12' .80$5 52< -
-
7+( +21·%/( 6. -$,1 -
7+( +21·%/( 6. -$,1 -

&LYLO 0LVF :ULW 3HWLWLRQ 1R RI

06
3UDVDG
,QGXVWULHV
$OODKJDQM
6KDKMDKDQSXU RWKHUV 3HWLWLRQHUV
9HUVXV
'LVWULFW
0DJLVWUDWH
&ROOHFWRU
6KDKMDKDQSXU RWKHUV
«2SS 3DUWLHV

&RXQVHO IRU WKH 3HWLWLRQHUV
6UL .0/ +DMHOD
&RXQVHO IRU WKH 5HVSRQGHQWV
6PW 6DULWD 6LQJK
6&

&RGH RI &LYLO 3URFHGXUH 6;, 5HV
-XGLFDWD&RQVWUXFWLYH
UHV
-XGLFDWD
$SSOLFDELOLW\ WR ZULW SHWLWLRQV (VWRSSDO
:DLYHU $FTXLHVFHQFH
+HOG 3DUD
$SSDUHQWO\ WKH SUD\HUV PDGH E\ WKH
SHWLWLRQHUV LQ WKLV ZULW SHWLWLRQ ZKLFK
ZHUH
DOVR
PDGH
LQ
WKH
HDUOLHU
ZULW
SHWLWLRQ ZHUH QRW JUDQWHG 7KXV WKLV
ZULW SHWLWLRQ IRU WKH VDPH UHOLHI¶V ZKLFK
LV VHFRQG RQH LQ WKH DEVHQFH RI JUDQW RI
OHDYH
WR
WKH
SHWLWLRQHUV
WR WKH VXH
DIUHVK EDUUHG E\ WKH SULQFLSOH RI UHV
MXGLFDWD FRQVWUXFWLYH UHV MXGLFDWD LQ YLHZ
RI WKH UDWLR GHFLGHQGL ODLG GRZQ E\ WKH
+RQ¶EOH
6XSUHPH
&RXUW
LQ
6DUJXMD
7UDQVSRUW 6HUYLFH 9V 6WDWH 7UDQVSRUW
$SSHOODWH 7ULEXQDO ZDOLRU DQG RWKHUV
$,5 6XSUHPH &RXUW EHVLGHV RQ
WKH
JURXQGV
RI
HVWRSSHO
ZDLYHU
DFTXLHVFHQFH
DQG
DEDQGRQPHQW
DQG
WKXV WKLV ZULW SHWLWLRQ LV GLVPLVVHG EXW
ZLWKRXW FRVW
&DVH UHIHUUHG
$,5 6&