# Hazi Abdul Hakim v. State of U.P. & Ors - **Citation:** (2014) 2 ILRA 1007 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2012-01-16 - **Case number:** Civil Misc. Writ Petition No. 27132 of 2014 - **Bench:** Amreshwar Pratap Sahi, Vivek Kumar Birla - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hazi-abdul-hakim-v-state-of-u-p-ors-42919 - **Pages:** 2 ## Headnote Indian Stamp Act, 1899-Art.-35-Schedule IB-as amended by U.P. Act No. 9 of 2001adding clause (c)-lease of shop granted for premium of Rs. 19,000/- with monthly rent of Rs. 200/-without fixing any time limitshall be governed by explanation (2) and not by Section 35(c)(i)-collector to find out ## Text 2 All]. Hazi Abdul Hakim Vs. State of U.P. & Ors. 1007 before us. The earlier decision dated 29.06.2011 was in accordance with Kumari Madhuri Patil's case (supra). 38. In the peculiar facts and circumstances of this case, it is accordingly ordered that the caste certificate of the petitioner as issued in the year 2007 and as affirmed by the decision of the State Level Scrutiny Committee dated 29.06.2011 and consequential order of the Tehsildar, Farenda dated 16.01.2012, shall stand restored and the petitioner shall be treated as belonging to the scheduled tribe. Consequently, the U.P. Public Service Commission is directed to consider the candidature of the petitioner in the Uttar Pradesh Combined Upper Subordinate Services Examination, 2010 under the category of scheduled tribe by holding an interview for the said purpose and assigning appropriate marks accordingly. If after calculating marks obtained by the petitioner, in the said examination, it is found that he has secured more marks than the last selected candidate under the scheduled tribe category or under the general category, then suitable recommendation shall be made, accordingly, to the State Government for the purpose of appointment and the latter shall offer appointment to the petitioner, either against an existing available vacancy relating to the selection of 2010 or against future vacancy, within a reasonable time. The consequences shall follow in accordance with law. 39. Before parting with the case, it may also be clarified that during the course of arguments a letter dated 18th June, 2014 of National Commission for Scheduled Tribes was placed before us by the learned Additional Chief Standing Counsel, which refers to certain caste certificates of scheduled tribes having been issued to Brahmins, Nayaks & Brahmin Ojha community of Uttar Pradesh and based thereon, he submitted that the State Government is seized with the matter and an enquiry is required to be made with regard to the same. The said letter does not refer specifically to the case of the petitioner. In any event, it is always open for the State Government to conduct such enquiries and during such enquiry, if some clinching and conclusive evidence is found to the effect that the petitioner does not belong to scheduled tribe, then it shall be open for it to take consequential actions and in that eventuality, the appointment offered to the petitioner, as directed above, shall be treated to be provisional. 40. It is made clear that these directions have been issued in the peculiar facts and circumstances of the instant case and will not be treated as a precedent. 41. The writ petition is accordingly allowed. -------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 10.07.2014 BEFORE THE HON'BLE AMRESHWAR PRATAP SAHI, J. THE HON'BLE VIVEK KUMAR BIRLA, J. Civil Misc. Writ Petition No. 27132 of 2014 Hazi Abdul Hakim ...Petitioner Versus State of U.P. & Ors. ...Respondents Counsel for the Petitioner: Sri Umesh Narain Shrma, Sri Prabhat Kumar, Srivastava, Sri Anand Prakash Srivastava Counsel for the Respondents: C.S.C.. Sri S.P. Singh 1008 INDIAN LAW REPORTS ALLAHABAD SERIES Constitution of India, Art.-226-Writ Petition-maintainability-once Civil suit got dismissed as withdrawn with liberty to file fresh suit-Writ Petition for same cause of action-held-not maintainable. Held: Para-5 Once, the petitioner had filed a suit and was permitted to withdraw the same with liberty to file a fresh suit, this does not entitle him to file a writ petition for the same cause of action. This issue has been squarely settled by a Division Bench of this Court in the case of M/S Akay Organics Pvt. Ltd. Vs. ONGC and Ors. reported in 1992 AWC pg. 792 (paras 5 to 7) that relies on the ratio of Sheonath Dubey Vs. DIOS Mainpuri as reported in 1985 UPLBEC pg. 1374 (paras 11 to 14). Case Law discussed: 1992 AWC pg. 792; 1985 UPLBEC pg 1374. (Delivered by Hon'ble Amreshwar Pratap Sahi, J.) 1. Heard Sri Prabhat Kumar Srivastava, learned counsel for the petitioner. 2. Sri Srivastava has filed two supplementary affidavits today which are taken on record. 3. However, before proceeding on the merits of the case, the Court finds that the petitioner had filed Original Suit No. 1293 of 2013 on 10th March, 2014. The said suit was dismissed as withdrawn with liberty to file a fresh suit on the ground that the petitioner had failed to serve the notice under Section 80 of the C.P.C. on the defendant. 4. This writ petition has been filed for the same cause of action. Sri Srivastava states that this was done in an urgency. The matter was entertained and the learned counsel was granted time to file supplementary affidavits. 5. Once, the petitioner had filed a suit and was permitted to withdraw the same with liberty to file a fresh suit, this does not entitle him to file a writ petition for the same cause of action. This issue has been squarely settled by a Division Bench of this Court in the case of M/S Akay Organics Pvt. Ltd. Vs. ONGC and Ors. reported in 1992 AWC pg. 792 (paras 5 to 7) that relies on the ratio of Sheonath Dubey Vs. DIOS Mainpuri as reported in 1985 UPLBEC pg. 1374 (paras 11 to 14). 6. The writ petition is, accordingly, dismissed. -------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 01.08.2014 BEFORE THE HON'BLE SUDHIR AGARWAL, J. Civil Misc. Writ Petition No. 33595 of 2010 Mohd. Sageer ...Petitioner Versus State of U.P. & Ors. ...Respondents Counsel for the Petitioner: Sri R.P.S. Chauhan Counsel for the Respondents: C.S.C. Indian Stamp Act, 1899-Art.-35-Schedule IB-as amended by U.P. Act No. 9 of 2001adding clause (c)-lease of shop granted for premium of Rs. 19,000/- with monthly rent of Rs. 200/-without fixing any time limitshall be governed by explanation (2) and not by Section 35(c)(i)-collector to find out whether stamp paid is sufficient or notpetition partly allowed.