# Hira Prasad v. State of U.P. and another

- **Citation:** (2004) 2 ILRA 553
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-08-06
- **Case number:** Special Appeal No. 921 of 2004
- **Bench:** M. Katju, U. Pandey
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hira-prasad-v-state-of-u-p-and-another-40425
- **Pages:** 3

## Headnote

Constitution
of
India-
Article
226-
Service Law- Transfer order- writ court
granted interim order- special appeal-
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
554
held- transfer is an exigency of service-
Interim order of writ court staying
transfer illegal-Special Appeal against
interim order held maintainable.

Held-Para 3

In Special Appeal No. 555 of 2004, State
of U.P. vs. Smt. Mera Sankhwar decided
on 12.7.2004 this court has in great
detail discussed which interim orders are
appeallable and which are not. The
entire case law has been discussed in
that decision, and hence we are not
referring to the same.
Case law discussed:
Spl. Appeal 555 of 2004, decided on 12.7.2004
Spl. Appeal 860 of 2004, decided on 26.7.2004
Spl. Appeal 855 of 2004, decided on 21.7.2004
Spl. Appeal 911 of 2004, decided on 5.8.2004
AIR 1993 SC 2444
AIR 1991 SC 532
AIR 1991 SC 1605
AIR 1995 SC 813
(Suppl.) 3 SCC 214
(1994) 6 SCC 98
AIR 2001 SC 1748
(2003) 4 SCC 104

## Text

http://www.allahabadhighcourt.nic.in
2 All] Hira Prasad V. State of U.P. and another
553
Applicability-Notice
under-
validityPetitioner preparing plants of certain
fruits, trees and selling them-This cannot
be called selling, exporting or importing
seeds under R. 3 (1)-Impugned notice
quashed.

Held: Para 5

In our opinion, this cannot be called
selling, exporting or importing the seeds.
Hence the petitioner cannot be required
to take licence under the Seeds (Control)
Order. He has already obtained a licence
under the Fruit Nursery (Regulation) Act,
1976, as stated in paras 8 and 10 of the
writ
petition.
The
writ
petition
is,
therefore, allowed and the impugned
notice dated 26.7.1999 is quashed.

(Delivered by Hon'ble M. Katju, J.)

1. Heard counsel for the parties.

2. This petition has been filed for
quashing the impugned notice 26.7.1999,
annexure 1 to the writ petition by which
the petitioner has been directed to obtain a
licence under the Seeds (Control) Order,
1983 which was issued under the
Essential Commodities Act.

Rule 3 (1) of the Seeds (Control)
Order states that:

"No person shall carry on business of
selling, importing and exporting seeds on
any place except under and in accordance
with the terms and condition of licence
granted to him under this order."

3. Shri Ajay Kumar Singh, learned
counsel for the petitioner has stated that
the petitioner does not sell, import or
export seeds as stated in para 10 (1) of the
writ petition. Hence his business is not
covered by the Seeds (Control) Order
1983.

4. Learned Standing counsel has
invited our attention to annexure CA 1 to
the counter affidavit which is a copy of
the petitioner's application dated 4.8.1999
to
the
addressed
to
the
District
Agricultural Officer, Varanasi. In this
application, the petitioner has stated that
he prepares plants of certain fruit, trees
and sells them.

5. In our opinion, this cannot be
called selling, exporting or importing the
seeds. Hence the petitioner cannot be
required to take licence under the Seeds
(Control) Order. He has already obtained
a licence under the Fruit Nursery
(Regulation) Act, 1976, as stated in paras
8 and 10 of the writ petition. The writ
petition is, therefore, allowed and the
impugned notice dated 26.7.1999 is
quashed.
Petition Allowed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 6.8.2004

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE U. PANDEY, J.

Special Appeal No. 921 of 2004

Brijpal Sharma

...Appellant
Versus
The State of U.P. & others ...Respondents

Counsel for the Appellant:
Sri S.K. Srivastava
Sri A.K. Srivastava

Counsel for the Respondents:
Sri I.P. Singh
S.C.

Constitution
of
India-
Article
226-
Service Law- Transfer order- writ court
granted interim order- special appeal-
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
554
held- transfer is an exigency of service-
Interim order of writ court staying
transfer illegal-Special Appeal against
interim order held maintainable.

Held-Para 3

In Special Appeal No. 555 of 2004, State
of U.P. vs. Smt. Mera Sankhwar decided
on 12.7.2004 this court has in great
detail discussed which interim orders are
appeallable and which are not. The
entire case law has been discussed in
that decision, and hence we are not
referring to the same.
Case law discussed:
Spl. Appeal 555 of 2004, decided on 12.7.2004
Spl. Appeal 860 of 2004, decided on 26.7.2004
Spl. Appeal 855 of 2004, decided on 21.7.2004
Spl. Appeal 911 of 2004, decided on 5.8.2004
AIR 1993 SC 2444
AIR 1991 SC 532
AIR 1991 SC 1605
AIR 1995 SC 813
(Suppl.) 3 SCC 214
(1994) 6 SCC 98
AIR 2001 SC 1748
(2003) 4 SCC 104

(Delivered by Hon'ble M. Katju, A.C.J).

1. Heard Sri A.K. Srivastava,
learned counsel for the appellant and Sri
I.P. Singh and learned standing counsel
for the respondents.

2. This special appeal has been filed
against the interim order of the learned
Single Judge dated 22.7.2004 staying the
transfer order of the writ petitioner and
directing that he shall continue to work as
Junior
Engineer
Vikas
Khand-
Sikandarabad, District Bulandshahar and
be paid his salary.

3. In Special Appeal No. 555 of
2004, State of U.P. vs. Smt. Mera
Sankhwar decided on 12.7.2004 this court
has in great detail discussed which interim
orders are appeallable and which are not.
The entire case law has been discussed in
that decision, and hence we are not
referring to the same.

4. Subsequently in Special Appeal
No. 860 of 2004, Shesh Nath Singh vs.
Mukesh Singh and others, decided on
26.7.2004 and in Special Appeal No. 855
of 2004, Union of India vs. Raghubir
Prasad decided on 21.7.2004 and Special
Appeal No. 911 of 2004, Sandeep Kumar
Singh vs. State of U.P. Decided on
5.8.2004, we have held that a special
appeal lies against an interim order a
learned Single Judge staying the transfer
order because transfer is an exigency of
service, and hence this Court should not
ordinarily interfere with the transfer
orders. In this decision also the case has
been considered e.g. The decision of the
Supreme Court in Union of India vs. S.I.
Abbas, AIR 1993 SC 2444, Shilpi Bose vs.
State of Bihar, AIR 1991 SC 532, Union
of India vs. N.P. Tomas, AIR 1991 SC
1605, Chief Manager (Tel) NE Telecome
Circle vs. Rajendra Ch. Bhattacharjee,
AIR 1995 SC 813, State of U.P. vs. Dr.
R.N. Prasad (suppl.) 3 SCC 214, N.K.
Singh vs. Union of India and others
(1994) 6 SCC 98, Abani Kante Ray vs.
State Bank of India vs. Anjan Sanyal &
others AIR 2001 SCC 1748, and Public
Services Tribunal Bar Association vs.
State of U.P. and others (2003) 4 SCC
104.

For the reasons given above this
appeal is allowed. The impugned order is
set aside.
---------
http://www.allahabadhighcourt.nic.in
2 All] Committee of Management and another V. Amar Nath Gupta and others
555
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.08.2004

BEFORE
THE HON'BLE M. KATJU, J.

Special Appeal No. 941 of 2004

Committee of Management, and another

...Appellants
Versus
Amar Nath Gupta & others ...Respondents

Counsel for the Appellants:
Miss Anuradha Sundaram

Counsel for the Respondents:
Sri Shailesh Srivastava
Sri M.L. Jain
S.C.

Service
Law-House
rent
allowanceEntitlement to-If both husband and wife
are in Service, only one who is getting
higher H.R.A., held, entitled to get such
benefit.

Held: Para 4

Hence we are of the opinion that if both
the husband and wife are in service then
both are not entitled to house rent
allowance unless it is clearly established
that they are divorced or otherwise
separated. Only one of them can claim
for house rent allowance. If they are
getting different amounts of house rent
allowance then the spouse, who is
getting higher house rent allowance will
continue to get the house rent allowance
but the other will not get it.

(Delivered by Hon'ble M. Katju, A.C.J.)

1. This Special Appeal has been
filed against the impugned judgment of
learned Single Judge dated 30.7.2004.

2. We have heard the learned
counsel for the parties and have perused
the impugned order.

3. The question in this case that both
husband and wife are in service whether
they both are entitled to get house rent
allowances? We are of the firm opinion
that they are not. The reason for our
opinion is that the house rent allowance is
given for compensation for the house rent
which an employee has to pay to his
landlord.

4. Ordinarily a husband and wife are
presumed to live together in the same
house and if they are paying say
Rs.1000/- to the landlord then obviously
both husband as well as wife cannot get
house rent allowances of Rs.1,000 each
because they will then be getting
Rs.2000/- as house rent allowance. Hence
we are of the opinion that if both the
husband and wife are in service then both
are not entitled to house rent allowance
unless it is clearly established that they
are divorced or otherwise separated. Only
one of them can claim for house rent
allowance. If they are getting different
amounts of house rent allowance then the
spouse, who is getting higher house rent
allowance will continue to get the house
rent allowance but the other will not get
it.

5. With these observations, the
appeal is allowed and the impugned order
is set aside.
Appeal allowed.
---------