# Dr. Raksha Goswami v. State of U.P. and others

- **Citation:** (2010) 3 ILRA 1314
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-12-02
- **Bench:** Devi Prasad Singh, B.K. Narayana
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-raksha-goswami-v-state-of-u-p-and-others-41784
- **Pages:** 9

## Headnote

Constitution of India Art. 226-Right to
work-Petitioner being selected on post of
Director Ayurvedic-not allowed to workinstead of that Govt. Deputed Senior
P.C.S. Officer-no reason disclosed-heldpetitioner having bright Service carriercan not be deprived from her promotional
avenues-such action suffer from malice in
law-in view of law laid down by Apex
Court in Salem Advocate Bar association
case exemplary cost of Rs. 50000/-to
petitioner and Rs. 50000 be deposited
with Mediation Center imposed.

Held: Para 23 and 24

We
constraint
to
observe
that
government employee who possessed
bright service career should not be
deprived
from
his/her
promotional
avenues in case he or she is entitled in
accordance with rule. The denial of
promotional avenues with intention to
adjust other shall be demoralizing effect
on the government employee. Moreover
once a person belonging to a cadre
entitled for promotional avenues and for
the said post he or she is selected in
accordance to rules then such person can
not be divested to enjoy the fruit of
3 All] Dr. Raksha Goswami V. State of U.P. and others
1315
promotional avenues with intention to
accommodate other that too a person
who does not belong to same cadre. It
does not borne out from the record as to
why government is interested to place a
person belonging to outside cadre on the
post of Director Ayurved (PCS officer)
divesting a selectee to work as Head of
the Department. Action of the State
Government seems to suffer from malice
in law and may be for extraneous
reasons and considerations. It is a fit
case where exemplary cost should be
imposed while allowing the writ petition.

In view of above, writ petition is liable to
be allowed with exemplary cost keeping
in view the principle emerges from a
case reported in (2005) 6 Supreme Court
Cases
344,
Salem
Advocate
Bar
Association (II), Vs. Union of India.
Case law discussed:
AIR 1972 SC 1546, (1980) 3 SCC 245, 2007
(10) SCC 528, (2005) 6 Supreme Court Cases
344, Salem Advocate Bar Association (II), Vs.
Union of India

## Text

1314 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
version in her statement recorded under
section 164 Cr.P.C. in which she has
clearly stated that she has performed
physical relationship with her free will
and consent and she has performed the
marriage. In such circumstances, the
chargesheet
submitted
against
the
applicant may be quashed.

4. In reply of the above contention it
is submitted by learned counsel for O.P
No. 2 that he has not objection in
quashing the proceedings of the above
mentioned case but it is submitted by
learned A.GA. that such plea may be
taken by the applicant at the time of
framing of the charge or by way of
moving the discharge application.

5.

Considering
the
facts,
circumstances of the case submissions
made by learned counsel for the applicant
and O.P. No. 2, it is directed that
applicant shall appear before the court
concerned within 30 days from today, his
appearance shall be noted in his present
and he shall furnish his personal bonds,
thereafter the matter will be committed to
the court of sessions, after committal, in
case the applicant moves discharge
application through his counsel within 30
days thereafter, the trial court shall pass
the appropriate order on the discharge
application expeditiously in accordance
with law.

6.

With
this
direction,
this
application is finally disposed of.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 02.12.2010

BEFORE
THE HON'BLE DEVI PRASAD SINGH, J.
THE HON'BLE B.K. NARAYANA, J.

Service Bench No.-1680 of 2009

Dr. Raksha Goswami

 ...Petitioner
Versus
State Of U.P. Thru Chief Secy. and others

 ...Respondents

Counsel for the Petitioner:
Sri Sanjay Kumar

Counsel for the Respondent:
C.S.C.

Constitution of India Art. 226-Right to
work-Petitioner being selected on post of
Director Ayurvedic-not allowed to workinstead of that Govt. Deputed Senior
P.C.S. Officer-no reason disclosed-heldpetitioner having bright Service carriercan not be deprived from her promotional
avenues-such action suffer from malice in
law-in view of law laid down by Apex
Court in Salem Advocate Bar association
case exemplary cost of Rs. 50000/-to
petitioner and Rs. 50000 be deposited
with Mediation Center imposed.

Held: Para 23 and 24

We
constraint
to
observe
that
government employee who possessed
bright service career should not be
deprived
from
his/her
promotional
avenues in case he or she is entitled in
accordance with rule. The denial of
promotional avenues with intention to
adjust other shall be demoralizing effect
on the government employee. Moreover
once a person belonging to a cadre
entitled for promotional avenues and for
the said post he or she is selected in
accordance to rules then such person can
not be divested to enjoy the fruit of
3 All] Dr. Raksha Goswami V. State of U.P. and others
1315
promotional avenues with intention to
accommodate other that too a person
who does not belong to same cadre. It
does not borne out from the record as to
why government is interested to place a
person belonging to outside cadre on the
post of Director Ayurved (PCS officer)
divesting a selectee to work as Head of
the Department. Action of the State
Government seems to suffer from malice
in law and may be for extraneous
reasons and considerations. It is a fit
case where exemplary cost should be
imposed while allowing the writ petition.

In view of above, writ petition is liable to
be allowed with exemplary cost keeping
in view the principle emerges from a
case reported in (2005) 6 Supreme Court
Cases
344,
Salem
Advocate
Bar
Association (II), Vs. Union of India.
Case law discussed:
AIR 1972 SC 1546, (1980) 3 SCC 245, 2007
(10) SCC 528, (2005) 6 Supreme Court Cases
344, Salem Advocate Bar Association (II), Vs.
Union of India

(Delivered by Hon'ble Devi Prasad Singh, J.)

1. Heard Shri S.K.Kalia learned
Senior Advocate assisted by Shri Sanjay
Kumar learned counsel appearing on
behalf
of
the
petitioner
and
Shri
D.K.Upadhayay learned Chief Standing
Counsel.

2. Controversy in question seems to
be an instance where for one or other
reason State Government had deprived
the petitioner to discharge duty as
Director
Ayurved,
though
she
was
selected and appointed in accordance to
rules. Government for the reasons best
known to it seems not interested to assign
the duty to the petitioner for the post of
Director Ayurved rather it wants to place
a person of its choice as the head of the
Department.

3. The petitioner was promoted to
officiate on the post of Director Ayurved
by order dated 23.9.2005 contained in
Annexure No. 13 to the writ petition. It
appears that certain adverse entries were
given to the petitioner de hors the Rules,
which according to Shri S.K.Kalia learned
Senior Advocate, was done in order to
create obstacle in petitioner' career. In
consequence thereof, the petitioner had
filed a Writ Petition No. 335 (SB) of 2006
in which by an order dated 22.8.2006,
contained in Annexure-20 to the writ
petition, a Division Bench of this Court
had directed to provide opportunity of
hearing with regard to entries granted by
the respondents. According to petitioner's
counsel, in pursuance of the order of this
Court, representation was considered and
the entries were corrected and thereafter, a
selection committee was constituted to
select a person for regular promotion and
appointment on the post of the Director,
Ayurved in accordance with Rules
namely, "The Uttar Pradesh State Medical
(Ayurvedic and Unani) Services Rules,
1990" (in short, the Rules). The petitioner
was selected for the post of Director
Ayurved and appointed by the Office
Memorandum
dated
6.8.2007
as
contained in Annexure No.26 to the writ
petition.

4. In pursuance of the said order
dated 6.8.2007, the petitioner resumed
charge of the post of Director of
Ayurvedic. However, it appears that the
State Government was not in a mood to
permit the petitioner to continue on the
post of Director, Ayurvedic in spite of the
fact that she was selected for the said
post. According to petitioner's counsel,
with intention to give way to other and
divest the petitioner from the post of
Director for extraneous reasons, by order
1316 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
dated
23.9.2009,
as
contained
in
Annexure No. 28 to the writ petition, the
petitioner was suspended.

5. The order of suspension was
subject matter of dispute before this Court
in a Writ petition No.1419 (SB) of 2009
as contained in Annexure No. 45 to the
writ petition. The order of suspension was
stayed by order dated 12.10.2009. Since,
order
of
suspension
was
stayed
respondents State should have permit the
petitioner to resume duty on the post of
Director
Ayurvedic
but
instead
of
restoring the petitioner on the said post by
the impugned order dated 23.10.2009 as
contained in Annexure-1 to the writ
petition, the post of Director Ayurved
(Pathyakram Evam Mulyankan) was
created and by the impugned order dated
29.10.2009, as contained in Annexure-2
to the writ petition, the petitioner has been
appointed on the said post. Feeling
aggrieved, the present writ petition was
filed.

6. While assailing the impugned
order, learned counsel for the petitioner
has invited attention of this Court towards
the overwhelming material on record
which
prima
facie,
indicates
that
respondents had tried to shift the
petitioner to work on the post of the
Director, Ayurved (Pathyakram Evam
Mulyankan) for extraneous reasons. Once
she
was
appointed
vide
office
memorandum
dated
6.8.2007
in
pursuance to selection held in accordance
to rules respondent seems to be not
justified in shifting the petitioner to other
newly created post. It has not been
disputed that instead of permitting the
petitioner to work on the post of Director
Ayurvedic, a PCS Officer has been
permitted to discharge duties on the said
post. While appointing PCS Officer on
the post of Director Ayurved respondents
had not assigned any reason. Meaning
thereby petitioner who belong to same
cadre i.e. Directorate of Ayurved has been
deprived from her right to work as Head
of the Department. The submission of
petitioner's counsel carries weight that it
has been done by the State authorities for
some extraneous reasons otherwise there
would have been no justification to direct
the PCS officer to officiate on the post of
Director Ayurved. For any reason, in
case, State was of the view that the
petitioner
should
be
permitted
to
discharge duty on the post of newly
constituted post and then regular selection
should have been done from person
amongst the same cadre for the post of
Director Ayurved instead of directing a
PCS Officer to officiate on said post.

7. Attention of this Court has been
invited towards the Rules, a copy of
which has been annexed as Annexure-18
to the writ petition. Under Rule 5 of the
said Rules, various cadre posts have been
provided namely, Director Ayurvedic and
Unani Uttar Pradesh, Additional Director,
Ayurvedic and Unani (Administration and
Planning), Additional Director, Ayurvedic
and Unani (Education) and so on. For
convenience, Rule 4 and Rule 5 of the
Service Rule namely "The Uttar Pradesh
State Medical (Ayurvedic and Unani)
Services
Rules,
1990"
admittedly
applicable to present case, are reproduced
as under:-

4. Cadre of the Service-(1) The
strength of the service and of each
category of posts therein shall be such as
may be determined by the Government
from time to time.
3 All] Dr. Raksha Goswami V. State of U.P. and others
1317

(2) The strength of the service and of
each category of posts therein shall, until
order varying the same are passed be as
given in Appendix "A":

Provided that---

(a) the appointing authority may
leave unfilled, or the Governor may hold
in abeyance any vacant post without
thereby
entitling
any
person
to
compensation.

(b) The Governor may create such
additional permanent or temporary posts
as he may consider proper.

5.
Source
of
recruitment---
Recruitment to the various categories of
posts in the service shall be made from
the following sources:-

(1) Director, Ayurvedic and Unani,
Uttar
Pradesh--By
promotion
from
amongst
the
substantively
appointed
Principals of State Ayurvedic and Unani
Colleges in Uttar Pradesh and the
Additional Director who have completed
two
years
service
as
Principal
of
Additional Director on the first day of the
year of recruitment.

(2)
(a)
Additional
Director,
Ayurvedic and Unani (Administration and
Planning)--By promotion from amongst
the
substantively
appointed
Deputy
Directors who have completed two years
of service as Deputy Director on the first
day of the year of recruitment.

(b) Additional Director, Ayurvedic
and Unani (Education)-By promotion
from amongst the substantively appointed
Professors of State Ayurvedic and Unani
Colleges and Deputy Directors who have
completed two years' service as Professor
or Deputy Director on the first day of the
year of recruitment.

(3) (a) Deputy Director, Ayurvedic
(Administration),
Deputy
Director,
Ayurvedic (Education), Deputy Director
(Planning) -By promotion from amongst
the substantively appointed Regional
Ayurvedic Officers who have complete
two years service as Regional Ayurvedic
Officers on the first day ofte year of
recruitment.

b) Deputy Director (Unani)--By
promotion from amongst the substantively
appointed Regional Unani Officers who
have completed two years of service as
Regional Unani Officers on the first day
of the year of recruitment.

(4) Assistant Drug Controller--By
promotion from amongst the substantively
appointed Drug Inspectors who have put
in seven years of service on the first day
of the year of recruitment.

(5) Regional Ayurvedic and Unani
Officers--By promotion from amongst the
substantively appointed. Ayurvedic and
Unani Chikitsa Adhikari who have
competed ten years service as chikitasa
Adhikari Adhikari on the first day of the
year of recruitment.

(6)
Superintendent,
State
Pharmacies--By
direct
recruitment
through the commission.

(7) Ayurvedic and unani chikitsa
Adhikari, Manager State Pharmacy and
Assistant Manager, State Pharmacy--By
direct
recruitment
through
the
commission."
1318 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

8. Under Service Rules framed
under Article 309 of the Constitution of
India, there is no post of Director,
Ayurved (Pathyakram Evam Mulyankan).
In the absence of any post created under
the Rule respondent seems to be acted in a
highhandedness manner by directing to
take work on a post which does not found
place in the service Rule of the cadre. The
rule (supra) apply to Ayurved Department
even after its bifurcation from Unani.

9. Shri D.K.Upadhayay learned
Chief Standing counsel submits that State
Government has right to create a post
since both the posts in question are of
equal status, hence, the Government has
right to direct the petitioner to work on
the
post
of
Director,
Ayurved
(Pathyakram Evam Mulyankan).

10. So far as the question of status is
concerned, under sub-rule (2) of Rule 15
of the Rules, the Director Ayurvedic, has
got
different
duties
with
wide
administrative and statutory powers. He is
the member of Committee with regard to
selection for the post of the Additional
Directors. For convenience Sub-rule (2)
of Rule 15 of the Rule is reproduced as
under:-

"Sub-Rule
2
of
Rule
15
Recruitment to the posts of Additional
Director, Ayurvedic and Unani, Deputy
Director shall be made on the basis of
seniority subject to the rejection of unfit
and Assistant Drug Controller. Regional
Ayurvedic and Unani Officers shall be
made on the basis of merit through a
Selection Committee, compromising:

(1) Secretary to the Government of
Uttar Pradesh in Medical Education
Department.

(ii) Secretary to the Government of
Uttar Pradesh in personnel Department.

(iii) Director, Ayurvedic and Unani,
Uttar Pradesh, Senior Secretary shall
preside over the Committee."

11. In the present case, the post of
Director, Ayurved (Pathyakram Evam
Mulyankan) created by the impugned
government order has got no nexus with
regard to statutory duty assigned by the
Rules. The post of Director Ayurved
possess much higher status and statutory
functions and belong to same cadre than
the
post
of
Director,
Ayurved
(Pathyakram Evam Mulyankan).

12. Learned counsel for the
petitioner has relied upon a judgement of
Hon'ble Supreme Court reported in AIR
1972 SC 1546, State of Haryana Vs.
Shamsher Jang Shukla and (1980) 3
SCC 245, Katyani Dayal and others Vs.
Union of India and others.

13. In the case of Shamsher Jang
Shukla (supra) Hon'ble Supreme Court
held that in case, there is Act or Rules, it
will have got primacy over the executive
instruction over the government orders.

14. In the case of Katyani Dayal
(supra),
their
Lordship
of
Hon'ble
Supreme Court held that if there is an Act
of Parliament or a Rule under the proviso
to Article 309 on the matter, the executive
power, under Article 53 and 73, may not
be exercised in a manner inconsistent with
or contrary to such Act or Rule.

Relevant portion from the judgement
of Katyani Dayal (supra) is reproduced as
under:-
3 All] Dr. Raksha Goswami V. State of U.P. and others
1319

"39. The inevitable sequitur from
these constitutional provision is that the
President, acting directly or through
officers subordinate to him, is free to
constitute a service (with as many cadres
as he chooses), to create posts without
constituting a service or to create posts
outside (the cadres of) the constituted
service. The President (or the person
directed by him) may, or, again, if he so
chooses
he
may
not,
make
rules
regulating the recruitment and conditions
of service of persons appointed to such
service or posts. He is also free to make or
not to make appointments to such services
or posts. Nor is it obligatory for him to
make rules of recruitment etc. before a
service may be constituted or a post
created or filled. But, if there is an Act of
Parliament or a rule under the proviso to
Article 309 on the matter, the executive
power, under Articles 53 and 73, may not
be exercised in a manner inconsistent with
or contrary to such Act or rule (vide B.N.
Nagarjan v. State of Mysore (1966) 3
SCR 682, 668; AIR 1966 SC 1942; (1967
1 LLJ 698 : State of Kerala vs. M. K.
Krishan Nair (1978 2 SCR 864; (1978 1
SCC 552; 1978 SCC (L&S) 76."

15. Though the record indicates that
process was initiated for the post of
Director, Ayurved (Pathyakram Evam
Mulyankan) in the year 2007 but it is
admitted fact that the Rules in question
have not been amended till date. Though,
Sri
D.K.
Upadhyay,
learned
Chief
Standing
Counsel
submits
that
the
Government has not taken any steps to
frustrate the Rules but it appears that
since under the Rules the post of Director,
Ayurved (Pathyakram Evam Mulyankan)
is not provided, government should not
have appointed the petitioner on the said
post and more so when she was selected
for the post of Director Ayurved by
Office Memorandum dated 6.8.2007 as
contained in Annexure-6 to the writ
petition in accordance to rules. The
respondents do not seem to be justified in
not giving the fruits of her long standing
career in the Department of Ayurved.
Even if, for the shake of argument, it is
accepted that the Government has acted
rightly to create the post of the Director
Ayurved (Pathyakram Evam Mulyankan)
by the executive instructions that too,
could have been done by adjusting other
person
instead
of
frustrating
the
petitioner's selection on the post of the
Director Ayurvedic in terms of Rules
referred to hereinabove. Action of the
State Government seems to frustrate the
petitioner's rightful claim to work on the
post of Director Ayurved.

16. The statutory right is available to
the petitioner to continue on the post of
Director Ayurved in view of selection
done for the said post in accordance with
rules. It appears that State Government
has taken decision to deprive the
petitioner from the post of the Director
Ayurvedic from time to time and also to
frustrate the various orders passed by this
Court.

17. It has been argued by Shri
D.K.Upadhayay learned Chief Standing
counsel that under Rules 25 government
has got power to issue an order for
relaxation of service condition. For
convenience Rule 25 of the Rule is
reproduced as under:-

"25. Relaxation from the conditions
of service--Where the State Government
is satisfied that the operation of any rule
regulating the conditions of service of
persons appointed to the service causes
1320 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
undue hardship in any particular case. It
may, notwithstanding any thing contained
in the rules applicable to the case, by
order,
dispense
with
or
relax
the
requirements of that rule to such extent
and subject to such conditions as it may
consider necessary for dealing with the
case in just and equitable manner:-

Provided that where a rule has been
framed
in
consultation
with
the
Commission, that body shall be consulted
before the requirements of the rule are
dispensed with or relaxed."

18. Government possess certain
power under Rule, which is not disputed,
but by issuing executive instructions
government does not seem to has got
power to do a thing which is not conform
by the Rules. Rule 25 or any provision
contained in the Rule should not be read
in a piecemeal but entire rule should be
considered collectively.

19. It is settled law that while
interpreting statutory provisions statute
should be read line by line, section by
section and whole of the statue not in a
piecemeal. According to Maxwell, a
construction which would leave without
effect any part of the language of a statute
will normally be rejected. Relevant
portion
from
Maxwell
on
the
Interpretation of Statutes (12th edition
page 36) is reproduced as under:-

17."A construction which would
leave without effect any part of the
language of a statute will normally be
rejected. Thus, where an Act plainly gave
an appeal from one quarter sessions to
another, it was observed that such a
provision,
though
extraordinary
and
perhaps an oversight, could not be
eliminated."

20. Hon'ble Supreme Court by
catena of judgment held that while
interpreting any section of a statute, every
word and provision should be looked into
in context to which it is used and not in
isolation vide 2002 (4) SCC 297 Grasim
Industries
Limited
v.
Collector
of
Customs; 2003 SCC (1) 410 Easland
Combines v. CCE; 2006 (5) SCC 745 A.
N. Roy v. Suresh Sham Singh and 2007
(10) SCC 528 Deewan Singh v. Rajendra
Prasad Ardevi.

21. In view of above, submission
made by learned Chief Standing counsel
seems
to
be
misconceived.
Power
possessed by the State Government is to
enforce the Rules in its letter and spirit
not to do a thing which is not provided by
the Rule. Government may take a
decision or issue executive instructions in
conformity of the Rule. A person cannot
be compel to discharge duty on a post
which does not found place in the Rule
itself.
Unless
Rule
is
amended
appropriately and a decision is taken
thereon petitioner cannot be divested to
discharge duty on the post of Director
Ayurved keeping in view the selection
and appointment made by the Committee
(supra).

22. The other submission that
government has got power to create post
under Rule 4 (2) (b) also show that the
creation of posts should be confined to
various post designated by the rule itself.
It speaks for creation of number and
strength of the post under the Rule and
not to create entirely different post which
has got no reference in the rule itself.
3 All] Dr. Raksha Goswami V. State of U.P. and others
1321

Rule 4 of the Service Rules, 1990
provides the strength of the service and of
each category of posts therein shall be
such as may be determined by the
Government from time to time and
according to Sub-rule (2) of Rule 4 the
strength of the Service and of each
category of posts therein shall until
ordered varying the same are passed, be
as given in Appendix "A". The said
Appendix "A" provide the sanctioned
strength of the service and there is only
one post of Director Ayurvedic and Unani
Services, Uttar Pradesh, one post of
Additional Director, Ayurvedic and Unani
(Administration and Planning) and one
post of Additional Director Ayurvedic
and Unani (Education) does not include
Director Ayurved (Pathyakram Evam
Mulyankan).

23. We constraint to observe that
government employee who possessed
bright service career should not be
deprived
from
his/her
promotional
avenues in case he or she is entitled in
accordance with rule. The denial of
promotional avenues with intention to
adjust other shall be demoralizing effect
on the government employee. Moreover
once a person belonging to a cadre
entitled for promotional avenues and for
the said post he or she is selected in
accordance to rules then such person can
not be divested to enjoy the fruit of
promotional avenues with intention to
accommodate other that too a person who
does not belong to same cadre. It does not
borne out from the record as to why
government is interested to place a person
belonging to outside cadre on the post of
Director Ayurved (PCS officer) divesting
a selectee to work as Head of the
Department.
Action
of
the
State
Government seems to suffer from malice
in law and may be for extraneous reasons
and considerations. It is a fit case where
exemplary cost should be imposed while
allowing the writ petition.

24. In view of above, writ petition is
liable to be allowed with exemplary cost
keeping in view the principle emerges
from a case reported in (2005) 6 Supreme
Court Cases 344, Salem Advocate Bar
Association (II), Vs. Union of India.

25. Writ petition is allowed to the
extent of petitioner's appointment on
excadre post. A writ in the nature of
certiorari is issued quashing the impugned
order dated 29.10.2009 as contained in
Annexure-2 to the writ petition with
consequential benefit and costs quantifies
to Rs. 1,00000/- (one lac). Respondents
are directed to deposit the cost in this
court within a month from today out of
which Rs. 50,000/- shall be remitted to
the Mediation Center Lucknow. Petitioner
shall be entitled to withdrawn rest of the
amount of Rs. 50,000/-.

26. A writ in the nature of
mandamus is issued directing the opposite
parties to permit and restore the petitioner
to resume duty on the post of Director
Ayurved
forthwith
in
terms
of
appointment letter dated 6.8.2007, as
contained in Annexure no. 26 to the writ
petition, with all consequential benefits.

Writ petition is allowed accordingly.
---------
1322 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.12.2010

BEFORE
THE HON'BLE DEVENDRA PRATAP SINGH, J.
THE HON'BLE MRS. JAYASHREE TIWARI, J.

Civil Misc. Writ Petition No. 2110 of 2005

State Of U.P. Thru' Secy. Avas and
another

 ...Petitioner
Versus
A.D.J. Allahabad and another ...Respondents

Counsel for the Petitioner:
Sri S.P. Kesharwani (S.C.)

Counsel for the Respondents:
Sri Kailash Chand Srivastava

U.P. Urban Land (Ceiling and Regulation)
Repeal
Act
1999-Section
4
and
5abatement
of
proceedings-without
Notice opportunity-in proceeding under
Section 10 (1) declared surplus land-by
order 22.02.1985-possession not taken
within prescribed period-delay in filling
appeal condemned-appeal allowed on
merit
examining
this
issued-heldjustified warrant no interference-petition
dismissed.

Held: Para 7

A perusal of the alleged possession
memo
dated
26.12.1996,
which
is
Annexure-2 to the writ petition, shows
that it is only a notice to the land holder
to handover possession of the vacant
land to the Collector with a note to the
Collector to take possession of the said
land. This is, in fact, not a possession
memo but only a notice under section 10
(5) of the Act and there is no material on
record
to
show
that
in
pursuance
thereof, either the land holder had given
vacant possession to the Collector or the
Collector had taken over possession of
the vacant land. In fact, the Governor
exercising powers under section 35 of
the Act, has framed Uttar Pradesh Urban
Land Ceiling (Taking of Possession,
Payment of Amount and Allied Matters)
Directions, 1983 providing procedure for
taking over possession of vacant land
and keeping that in view, this Court vide
order dated 2.2.2010 had given an
opportunity to the petitioner to produce
the Form ULC I, II and II to show that
the possession was taken over by the
petitioner. Even those records were not
produced
before
this
Court.
It
is
apparent that proceedings under section
10 (6) by which the authorities are
entitled to take forcible possession of the
vacant
land
were
never
initiated,
therefore, the appellate court was fully
justified in holding that the possession of
the vacant land was never taken over by
the State. This Court in several cases
including in the case of State of U.P. Vs.
Hari Ram and another Vs. [2005 (60)
ALR] 535 and also in the case of
Mukkaram Ali Khan Vs. State of U.P. and
others [AIR 2007 SC (Suppl) 985] has
held
that
where
actual
physical
possession has not been taken over, all
proceedings under the Act would abate
in view of section 3 and 4 of the Repeal
Act.
Case law discussed:
[2005 (60) ALR], [AIR 2007 SC (Suppl) 985]

(Delivered by Hon'ble. Mrs. Jayashree Tiwari, J.)

1. Heard learned learned counsel for
the parties.

2. This petition arising out of
proceedings under the Urban Land
Ceiling Act, 1976 (here-in-after referred
to as the Act) has been filed challenging
the order dated 20.12.2000 by which
delay in filing the appeal has been
condoned and the order dated 22.10.2002
by which the appeal itself has been
allowed.

3. It appears that upon enforcement
of the Act, notice under section 8 of the