# Gopi Kumar Singhania v. State of U.P. and others

- **Citation:** (2010) 3 ILRA 989
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-07-28
- **Case number:** Civil Misc. Writ Petition No. 48664 of 2003
- **Bench:** Sheo Kumar Singh, Rajesh Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gopi-kumar-singhania-v-state-of-u-p-and-others-41767
- **Pages:** 6

## Headnote

Sri A.K. Gaur
Sri Alok Kumar Singh
Sri P.S. Baghel
Sri Rajeev Misra
C.S.C.

U.P. Public Money (Recovery of Dues)
Act, 1972 or any other Act-Constitution
of
India
Article
226-The
recovery
proceeding under the 1972 Act found
invalid quashed by the Apex Court-The
Apex Court set aside the impugned order
and directed to take such action under
the Act or the financial Act as is legally
available.

Request
to
restore
immediately
possession-held-entitled for all relief so
claimed.

Held: Para 32, 33

As the recovery proceedings/citation and
the entire proceedings under the Act has
been found to be invalid and were
quashed by the Apex Court, we are of
the view that the petitioners are entitled
for all the reliefs so claimed in this
petition.

So far as the Private respondent who
claims to be the auction purchaser, he is
entitled to get the bid amount returned
with a simple interest to be calculated at
the rate of 7% from the date of deposit.
Case law discussed:
AIR 1970 SC 1717,AIR 1967 SC 1440, (1887)
15 Ind. App. 97, (1885) 12 Ind App. 171,
(1897) 24 Ind App. 170 (PC), 2000 SC Cases
Vol. 8, 395, AIR 1995 SC 1071.

## Text

3 All] Gopi Kumar Singhania V. State of U.P. and others
989
it has been held that the estate of the
deceased was fully represented by the heirs,
who had been brought on record and these
heirs represented the absent heirs also, who
could be equally bound by the result.

6. In view of the law laid down by the
Hon'ble Apex Court, the application filed by
the petitioners under Order IX Rule 13
C.P.C. for recall of the ex parte decree on the
ground that they were also the heirs of the
deceased
defendant,
who
were
not
impleaded, would not be maintainable and
has rightly been rejected by the two courts
below.

7. The writ petition being devoid of
merit, stands dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.07.2010

BEFORE
THE HON'BLE SHEO KUMAR SINGH, J.
THE HON'BLE RAJESH CHANDRA, J.

Civil Misc. Writ Petition No. 48664 of 2003

Gopi Kumar Singhania ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri R.N. Singh
Sri V.K. Singh
Sri G.K. Singh

Counsel for the Respondents:
Sri A.K. Gaur
Sri Alok Kumar Singh
Sri P.S. Baghel
Sri Rajeev Misra
C.S.C.

U.P. Public Money (Recovery of Dues)
Act, 1972 or any other Act-Constitution
of
India
Article
226-The
recovery
proceeding under the 1972 Act found
invalid quashed by the Apex Court-The
Apex Court set aside the impugned order
and directed to take such action under
the Act or the financial Act as is legally
available.

Request
to
restore
immediately
possession-held-entitled for all relief so
claimed.

Held: Para 32, 33

As the recovery proceedings/citation and
the entire proceedings under the Act has
been found to be invalid and were
quashed by the Apex Court, we are of
the view that the petitioners are entitled
for all the reliefs so claimed in this
petition.

So far as the Private respondent who
claims to be the auction purchaser, he is
entitled to get the bid amount returned
with a simple interest to be calculated at
the rate of 7% from the date of deposit.
Case law discussed:
AIR 1970 SC 1717,AIR 1967 SC 1440, (1887)
15 Ind. App. 97, (1885) 12 Ind App. 171,
(1897) 24 Ind App. 170 (PC), 2000 SC Cases
Vol. 8, 395, AIR 1995 SC 1071.

(Delivered by Hon'ble Sheo Kumar Singh, J.)

1. By means of the present writ
petition, the petitioner has prayed for
quashing tha auction proceedings conducted
pursuant to the recovery certicicate and
recovery citation dated 06.01.2001 and
14.04.2001 (Annexures No. 6 and 7)
respectively.

2. There is further prayer for a
direction
to
the
District
Collector,
Varanasi(Respondent No. 2) to restore back
the possession over the properties, which
were illegally auctioned pursuant to the
recovery certificate/citation referred above.
990 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

3. Heard Sri R.N.Singh, learned
Senior counsel assisted by Sri V.K. Singh
who appeared in support of the petitioner.

4. Sri Rajeev Mishra has filed
appearance on behalf of respondent No.5
and he states that he has not filed the
counter affidavit as nobody turned up after
filing the vakalatnama. On the asking of the
Court he augued the matter in the light of
the facts so available on record.

5. The State Officials are represented
by the learned Standing Counsel.

6. After hearing the learned counsel
for the parties, it is clear that the facts are
not in dispute and, therefore, on a brief
notice the writ petition can be conveniently
disposed of.

7. Proceeding for recovery of certain
dues from the petitioner started pursuant to
the issuance of recovery certificate/citation
under the provisions of U.P. Public Money
(Recovery of Dues)Act, 1972 (hereinafter
referred to as 'Act').

8. Recovery certificate/citation as
noted above is dated 06.01.2001 and
14.02.2001.

9. Challenging the aforesaid move of
the U.P. Financial Corporation (respondent
No.4), petitioners filed the writ petition in
this Court i.e. Civil Misc. Writ Petition No.
27141 of 2001 which was dismissed on
27.04.2001.
Although,
Special
Leave
Petition was filed in May, 2001 but before
any relief could be granted, the properties in
question was auctioned on 26.11.2002. the
Special Leave Petition filed by the
petitioner was finally decided by the Apex
Court vide judgment dated 20.12.2002
which is reported in 2003 Local Bodies
Education Cases, 901.

10. The Apex Court white allowing
the
Special
Leave
Petition,
in
the
concluding paragraph gave a clear direction
that the impugned order is set aside and the
proceedings under the U.P. Act are quashed.
It was left open for the Corporation to take
action under the Act or the financial Act as
is legally available to it.

11. The observation as made by the
Apex Court in paragraph 16 of the
judgement noted above is quoted here for
convenience:

"The impugned order is set aside and
the proceedings under the U.P. Act are
quashed. It shall be, however, open to the
Corporation to take such action under the
Act or the Financial Act, as is legally
available to it. The appeal is allowed
without any costs."

12. There is no dispute that the
judgment of the Apex Court has become
final between the parties.

13. After the judgment of the Apex
Court, the petitioner moved an application
before the District Magistrate and served a
copy of the order of the Apex court on
27.01.2003 with a request that possession of
the properties in question which was so
auctioned on 26.11.2002 be restored to
them. As there was inaction on the part of
the District Officials, the writ petition was
files before this court (the present writ
petition). In this writ petition, a direction
was given by the Bench on 31.10.2003 that
tha District Magistrate is to pass appropriate
orders in accordance with law.
3 All] Gopi Kumar Singhania V. State of U.P. and others
991

14. After the directions of this court,
the District Collector, Varanasi rejected the
petitioners' application by order dated 061/2-2006. it is mainly observed that as
matter is pending in the court, unless there
is clear direction nothing is possible.

15. By means of the amendment
application, the petitioner has challenged
the order of the District Magistrate dated 61/2-2006 also.

16. Thus, in addition to the prayers in
the petition, there is a prayer for quashing
the order of the District Collector by which
the petitioner's claim for restoration has
been rejected.

17. Submission of the learned counsel
for the petitioner is that although the
recovery proceedings initiated by the
respondent No.4 was upheld by this Court
by dismissing the writ petition but
ultimately the Apex Court allowed the
Special Leave Petition and the order of this
court was set aside and at the liberty to the
Corporation to take any action which may
be permissible in law and thus the claim is
that as the recovery proceeding under the
Act has been quashed, petitioners are
entitled
for
restoration
of
the
status/possession which stood before start of
the recovery proceeding.

18. Further submission is that it is not
a case where only intervening proceeding
has been quashed rather it is a case where
entire proceedings started under the Act
stood quashed and, therefore, when no
recovery process started pursuant to the
recovery certificate/citation remained in
existence, consequential steps will have to
be treated as annulled and thus petitioners
are entitled to get the relief.

19. In support of the submission of
applicability of principle of lis pendens in
respect to court sale also reliance has been
placed on a decision given by the Apex
Court
in
the
case
of
Kedarnath
Vs.Sheonarain reported in AIR 1970 SC
1717. The observation as made by the Apex
Court in the aforementioned case as is
contained in para 17 is quoted hereunder:

"Lastly it was contended that the sale
was by the court auction and the doctrine of
lis pendens would not apply to such a sale.
This point was considered in Samarendra
Nath Sinha V. Krishna Kumar Nag, 19722 SCR 18=(AIR 1967 SC 1440) by one of
ou (shelat J.) and it was observed as
follows:

"The purchaser pendent elite under
this doctrine is bound by the result of the
litigation on the principle that since the
result must bind the party to it so must it
bind the person deriving from his right, tile
and interest from or through him. This
principle
is
well
illustrated
in
Radhamadhub
Holder
V.
Suresh
Chandra, (1885) 12 Ind App 171 and
(1897) 24 Ind App 170 (PC)."This ground
also has no validity."

20. In support of the submission that if
very imitiatiion of proceeding is found to be
nullity/faulty then all consequential action is
to fall though releance has been places on a
decision given by the Apex Court in the
case of Badrinath V. Govt. of Tamilnadu
& Ors. Reported in 2000 SC Cases Vol 8,
395.

The observation as made by the Apex
Court in the aforesaid cae as is contained in
para 27 of the judgment is quoted
hereunder:
992 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

"This flows from the general principle
applicable to "consequential order" Once
the basis of a proceeding is gone, may be at
a later point of time by order of a superior
authority, any intermediate action taken in
the meantime-like the recommendation of
the State and by the UPSC and the action
taken thereon-would fall to the ground. This
principle of consequential orders which is
applicable to judicial and quasi-judicial
proceedings is equally applicable to
administrative orders. In other words,
where an order is passed by an authority
and its validity is bein reconsidered by the
superior authority(like the Governor in this
case) and if before the superior authority
has given its decision, some further action
has been taken on the basis of the initial
order of the primary authority, then such
further action will fall to the ground the
mement the supetior authority has set aside
the primary order."

21. In response to the aforesaid, Sri
Rajeev Mishra submits that although by the
judgement of the Apex Court, order of this
court dismissing the writ petition was set
aside and the proceedings under the Act
itself was quashed but as the auction took
place on 26.11.2002 it was open for the
petitioners to have informed the Apex Court
about this development while the Special
Leave Petition was being decided on 20th
December, 2002. On the aforesaid premise,
Sri Rajeev Mishra submits that the
petitioners are not entitled to get any relief.

22. In view of the aforesaid fact, this
Court has to deal with the matter.

23. As noticed above, there is no
dispute about the fact that not only the order
of this Court was set aside by the Apex
Court rather the entire proceedings under
the U.P. Act was quashed. The question
before tha Apex court was that whether the
recovery proceeding initiated by the
Financial Corporation under the U.P. Public
Money (Recovery of Dues) Act, 1972 can
be said to be justified and within
jurisdiction.

24. This issue was answered by the
Apex court in favour of the petitioner and it
was found that proceeding initiated by the
Corporation under the Act referred above
were not permissible and it is on this groung
entire proceedings were quashed and at the
same time the Corporation was given the
liberty to take recourse as permitted in law.

25. This being the situation, tha
auction pursuant to recovery citation as has
taken place being a result/consequence of
the recovery certificate/citation which has
been found to be not permissible, this Court
is convinced that petitioners are entitled to
get
the
relief.
Once
the
recovery
certificate/citation itself stood quashed,
there can not be any valid auction.

26. A similar situation arose in a
matter before this Court in the case of
Mohan Lal Baghla V. Board of Revenue
& Ors. (W.P. No. 4450 of 1986) in which
against the petitioners the dues were found
to be of lessor amount and for the higher
amount, the recovery proceedings were
started and auction of property took place.

27. On examination of propriety of
sale proceeding, having found the same be
not in accordance with law, this Court set
aside the auction proceedings and as a
consequence restoration of possession was
also directed.

28. The judgment of this Court was
appealed in the Apex Court but the Special
Leave Petition i.e. Appeal No. 8624 of 2002
3 All] Gopi Kumar Singhania V. State of U.P. and others
993
was finally dismissed. The order of this
Court for restoration of possession and for
refund of amount with a reasonable interest
was approved by the Apex Court.

29. At this stage, we may refer to a
decision given by the Apex Court in the
case of Nani Gopal Paul Vs. T. Prasad
Singh reported in AIR 1995 SC 1071.
Where the Apex court observed that if sale
proceedings are vitiated then the courts are
not to remain a mute or helpless spectator to
permit
the
illegality
committed
in
conduction
the
courts
sale.
Unless
aggrieved party by his own conduct permits
the effect of the auction to become
operative, that cannot be legalized only by
passage of time.

30. Here is a case where the
petitioners having succeded from the Apex
Court, immediately approached the District
Collector for restoration of possession and
thus there being no lapses on the part of the
petitioners and having promptly moved for
giving effect to the final decision of the
Apex Court nullifying the entire thing, the
court will have to come to rescue of the
petitioners.

31. The observation as made by the
Apex Court in the decision given in the case
of Nani Gopal Paul Vs. T. Prasad
Singh(Supra) is quoted hereunder:

"We are of the view that we can take suo
motu judicial notice of the illegality pointed
out by the Divison Bench, committed by the
Single Judge of the High Court in bringing
the properties to sale. Accordingly, we are
of the view that the Court Receiver as
approved by the learned Single Judge.
Confirmation of sale was illegal. Though,
as contended by Sri Ganesh that normally
an application under Order XXI Rule 89 or
90 under Section 48 C.P.C. need to be filed
within limitation to have the sale conducted
by the Court set aside and that procedure
need to be insisted upon. We are of the view
that this Court or appellate Court would not
remain a mute or helpless spectator to
obvious and manifest illegality committed in
conduction court sales. We are informed
and it is not disputed that the appellate had
deposited only Rs. 5lakhs and balance
amount was assured to be deposited only
after delivery of possession. That also
would be illegal."

32.

As
the
recovery
proceedings/citation
and
the
entire
proceedings under the Act has been found
to be invalid and were quashed by the Apex
Court, we are of the view that the
petitioners are entitled for all the reliefs so
claimed in this petition.

33. So far as the Private respondent
who claims to be the auction purchaser, he
is entitled to get the bid amount returned
with a simple interest to be calculated at the
rate of 7% from the date of deposit.

34. As the money is lying with the
respondent No. 4, we give a direction to that
respondent that on moving appropriate
application by respondent No.5 for refund
of the amount that will be refunded within a
period of six weeks from the date of receipt
of the move.

35. So far as the petitioners are
concerned, this Court directs that the
District Collector, Varanasi will ensure
possession of the property restored with the
petitioners within a period of two months
from the date of receipt of the certified copy
of this order Under immediate/proper notice
to Respondent No. 5.
---------
994 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.08.2010

BEFORE
THE HON'BLE DILIP GUPTA, J.

Civil Misc. Writ Petition No. 51448 of 2010

Harendra Singh Recruit Constable 45 Bn.
P.A.C. Aligarh

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Sanjay Kumar

Counsel for the Respondents:
C.S.C.

Constitution of India Art. 226-Principle
of
Natural
Justice-petitioner
got
appointment on production of forged
High
School
certificate-when
fact
admitted-departmental
enquiry-futile
exercise-petitioner unable to disclose on
denial of opportunity what prejudice
caused to him-court declined to interfere
.

Held: Para 12 and 16

It is clear from the aforesaid decisions of
the Supreme Court that the application
of the principles of natural justice
depend upon the relevant facts and
circumstances of the case and whenever
a complaint is made about its violation,
the Court has to decide whether the
observance of that Rule was necessary
for a just decision on the facts of the
case. It has also been observed that
there can be a situation where an order
need not be aside even if it is passed in
violation of natural justice like where no
prejudice
is
caused
to
the
person
concerned
and
in
such
a
case
interference under Article 226 of the
Constitution
is
not
necessary.
The
decisions also hold that where facts are
admitted, an enquiry will be an empty
formality.

In
the
present
case,
as
noticed
hereinabove, the case of the respondent
is that the actual date of birth of the
petitioner is 15th December, 1986 and
this fact is admitted to the petitioner. It
is not his case that his date of birth is
15th December, 1984. The further case
of the respondents is that while seeking
employment
the
petitioner
had
submitted a forged marksheet which
mentioned his date of birth as 15th
December, 1984. The petitioner has not
denied in the entire petition that such a
marksheet was not submitted by him
The entire thrust of the writ petition and
the contention advanced by the learned
counsel for the petitioner is that it was
absolutely necessary for the respondents
to hold an enquiry before cancelling his
selection. In view of the decisions of the
Supreme Court referred to above and
when the facts are admitted, it cannot be
said that prejudice has been caused to
the petitioner. It will, therefore, not be
appropriate to quash the impugned order
dated 7th September, 2007 only on the
ground that opportunity had not been
given to the petitioner.
Case law discussed:
2010 (6) ADJ 161, AIR 1984 SC 273, (2004) 6
SCC 299, (2004) 8 SCC 129, (2005) 3 SCC
409, (2005) 5 SCC 337, AIR 1981 SC 136, AIR
1994 SC 1074, AIR 2000 SC 2783, 2006 AIR
SCW 399

(Delivered by Hon'ble Dilip Gupta, J.)

1. The petitioner, who was appointed
as a Constable in the U.P. Police, has sought
the quashing of the order dated 7th
September,
2007
passed
by
the
Commandant, 45th Bn. P.A.C. Aligarh by
which his selection has been set aside on the
ground that he had furnished a forged High
School marksheet and, accordingly, his
name has also been struck off from the rolls.