# Israr Ahmad v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2024) 1 ILRA 284
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-03
- **Case number:** Application u/s 482 No. 12525 of 2023
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/israr-ahmad-v-state-of-u-p-anr-opp-parties-51143
- **Pages:** 7

## Headnote

Law
-
Code
of
Criminal
Procedure,1973 - Section Application
195(1)(a)(i) - Indian Penal Code,1860 -
Section 143, 188 & 342 - Criminal
Proceedings
Quashed
-
The
petitioner
challenged
the
charge-sheet
dated
24.11.2019,
summoning
order
dated
12.02.2020, and proceedings in Criminal Case
No. 2355 of 2020 under Sections 143, 188,
342 IPC - Held, the proceedings were
quashed due to non-compliance with Section
195(1)(a)(i) Cr.P.C. for Section 188 IPC and
because all offences formed part of the same
transaction, rendering the prosecution invalid.
(Paras 2, 11, 14)

B. Bar Under Section 195(1)(a)(i) Cr.P.C.
- Cognizance Invalid - The charge-sheet
included Section 188 IPC, but the complaint
was filed by a Sub-Inspector, not the
authorized public servant who issued the
Section 144 Cr.P.C. order - Held, as per D.K.
Rajendran Vs St. of T.N., Section 195 Cr.P.C.
mandates
a
written
complaint
by
the
concerned or superior public servant, and
non-compliance
vitiates
the
prosecution.
(Paras 4, 8, 11, 12)

C. Offences Part of Same Transaction -
No Splitting Allowed - The charge-sheet
included Sections 143 and 342 IPC alongside
Section
188
IPC
-
Held,
as
per
Sri
Rajashekharananda
Swamiji
Vs
St.
of
Karnataka
and
Merubhai
Mandanbhai
Chandera Vs St. of Gujarat, offences forming
part of the same transaction as Section 188
IPC cannot be split for prosecution, as they
are integrally linked to the violation of the
Section 144 Cr.P.C. order. (Paras 5, 7, 9, 12)

D. Disagreement with Jharkhand High
Court - The St. relied on Amitabh Choudhary
Vs St. of Jharkhand, which allowed prosecution
for Section 143 IPC despite quashing Section
188 IPC - Held, the court disagreed, finding that
the genesis of Sections 143 and 342 IPC
offences was tied to the Section 188 IPC
violation, making it impermissible to sustain
prosecution for other offences. (Paras 10, 12,
13)

E. Casual Investigation and Mechanical
Cognizance - The Investigating Officer
conducted a cursory investigation, and the
trial court took cognizance mechanically -
Held, the lack of proper investigation and
failure to adhere to Section 195 Cr.P.C.
rendered the charge-sheet and summoning
order an abuse of process, warranting
quashing under Section 482 Cr.P.C. (Paras 3,
11, 14)

Application Allowed.

List of Cases cited:

## Text

284 INDIAN LAW REPORTS ALLAHABAD SERIES

9. राज्य की िरर् से प्रस्िुि प्रधि - शपर्थ
पत्र के सार्थ सह-अधियुक्त सधचन शमाग की बहन
हवषगिा धसिंह का बयान सिंलग्न ककया र्या है
जजसमें उन्होंने यह कहा कक आठ-दस लोर्
सधचन शमाग के सार्थ मारपीर् कर रहे र्थे, जजनको
प्रार्थी ने बचाने का प्रयास ककया िब िीड दोनों
लोर्ों पर उि होकर हमलािर होने लर्ी। बचाि
का कोई रास्िा न देख और िीड को हािी होिा
देख प्रार्थी द्वारा अपनी लाइसेंसी वपस्र्ल से
आसमान में ऊपर की िरर् र्ायर कर कदया र्या
र्था िर्था इसके बाद दोनों लोर् िहािं से अपनी
जान बचाकर चले र्ये र्थे। धशकायिकिाग ने
दुव्यगिहार ककया ि अधियुक्तर्ण को मारापीर्ा
िी और घर्ना को बढा-चढाकर मुकदमा िी दजग
करा कदया। जबकक जान से मारने की नीयि से
कोई र्ायर नहीिं ककया र्या र्था।

10. िारा 30 आयुि अधिधनयम, आयुि
लाइसेंस की शिों का उललिंघन करने को अपराि
घोवषि करिी है, ककिंिु लाइसेंसी आयुि से
आत्मरक्षा में र्ायर ककया जाना आयुि
अधिधनयम की ककस शिग का उललिंघन है यह न
िो आलोच्य आदेश कदनािंक 02.11.2023 में
विद्वान मजजस्रेर् ने अिंककि ककया है और न ही
विद्वान अधिररक्त शासकीय अधििक्ता न्ययालय
को बिा पाए।

11. उपरोक्त िथ्यों को दृवष्टर्ि रखिे हुए,
जबकक घर्ना में प्रार्थी िर्था सह-अधियुक्त को
कई चोर्ें आई हैं िर्था उनके द्वारा ककसी व्यवक्त
को कोई चोर् काररि नहीिं की र्ई है, प्रधि शपर्थपत्र के सार्थ सिंलग्न साक्षी के बयान के अनुसार
मारे-पीर्े जाने पर आत्मरक्षा में हिाई र्ायर
ककया र्या र्था; आयुि लाइसेंस धनरस्िीकरण
की कोई कायगिाही प्रारिंि नहीिं की र्ई है;
आत्मरक्षा में वपस्र्ल से र्ायर करना लाइसेंस
की शिग का उललिंघन नहीिं है िर्था िारा 30
आयुि अधिधनयम का अपराि होना प्रिीि नहीिं
हो रहा है, न्यायालय का मि है कक विद्वान विशेष
न्याधयक मजजस्रेर् (कस्र्म) द्वारा पाररि आदेश
कदनािंक 02.11.2023 विधि में सिंिायग नहीिं है
िर्था अपास्ि होने योग्य है।

12. िदनुसार, यह प्रार्थगना-पत्र स्िीकार
ककया जािा है, आदेश कदनािंक 02.11.2023
अपास्ि ककया जािा है िर्था प्रार्थी द्वारा विद्वान
अधिररक्त न्याधयक मजजस्रेर् के समक्ष प्रस्िुि
ककया र्या प्रार्थगना पत्र कदनािंक 22.05.2023
स्िीकार ककया जािा है िर्था यह आदेश कदया
जािा है कक प्रार्थी की वपस्र्ल सिंख्या
"S.H.N.P.B. 45 BORE PISTOL NO.
AECM-496 GLOCK 21 MADE IN USA",
चार जजन्दा कारिूस (.45 AUTO S&B) िर्था
आयुि लाइसेंस सिंख्या 565 र्थाना विकास नर्र
(336201003461562021) प्रार्थी के पक्ष में
अविलिंब अिमुक्त ककया जाए।
----------
(2024) 1 ILRA 284
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 03.01.2024

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Application u/s 482 No. 12525 of 2023
1 All. Israr Ahmad Vs. State of U.P. & Anr.
285
Israr Ahmad ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Ajmal Khan, Javed Khan

Counsel for the Opp. Parties:
G.A.

Criminal
Law
-
Code
of
Criminal
Procedure,1973 - Section Application
195(1)(a)(i) - Indian Penal Code,1860 -
Section 143, 188 & 342 - Criminal
Proceedings
Quashed
-
The
petitioner
challenged
the
charge-sheet
dated
24.11.2019,
summoning
order
dated
12.02.2020, and proceedings in Criminal Case
No. 2355 of 2020 under Sections 143, 188,
342 IPC - Held, the proceedings were
quashed due to non-compliance with Section
195(1)(a)(i) Cr.P.C. for Section 188 IPC and
because all offences formed part of the same
transaction, rendering the prosecution invalid.
(Paras 2, 11, 14)

B. Bar Under Section 195(1)(a)(i) Cr.P.C.
- Cognizance Invalid - The charge-sheet
included Section 188 IPC, but the complaint
was filed by a Sub-Inspector, not the
authorized public servant who issued the
Section 144 Cr.P.C. order - Held, as per D.K.
Rajendran Vs St. of T.N., Section 195 Cr.P.C.
mandates
a
written
complaint
by
the
concerned or superior public servant, and
non-compliance
vitiates
the
prosecution.
(Paras 4, 8, 11, 12)

C. Offences Part of Same Transaction -
No Splitting Allowed - The charge-sheet
included Sections 143 and 342 IPC alongside
Section
188
IPC
-
Held,
as
per
Sri
Rajashekharananda
Swamiji
Vs
St.
of
Karnataka
and
Merubhai
Mandanbhai
Chandera Vs St. of Gujarat, offences forming
part of the same transaction as Section 188
IPC cannot be split for prosecution, as they
are integrally linked to the violation of the
Section 144 Cr.P.C. order. (Paras 5, 7, 9, 12)

D. Disagreement with Jharkhand High
Court - The St. relied on Amitabh Choudhary
Vs St. of Jharkhand, which allowed prosecution
for Section 143 IPC despite quashing Section
188 IPC - Held, the court disagreed, finding that
the genesis of Sections 143 and 342 IPC
offences was tied to the Section 188 IPC
violation, making it impermissible to sustain
prosecution for other offences. (Paras 10, 12,
13)

E. Casual Investigation and Mechanical
Cognizance - The Investigating Officer
conducted a cursory investigation, and the
trial court took cognizance mechanically -
Held, the lack of proper investigation and
failure to adhere to Section 195 Cr.P.C.
rendered the charge-sheet and summoning
order an abuse of process, warranting
quashing under Section 482 Cr.P.C. (Paras 3,
11, 14)

Application Allowed.

List of Cases cited:

1. Sri Rajashekharananda Swamiji Vs St. of
Karn., Writ Petition No. 13328 of 2018 (GMRES), decided on 18.06.2021

2. St. of Karnataka Vs Hemareddy, (1981) 2
SCC 185

3. Merubhai Mandanbhai Chandera Vs St. of
Gujarat, Criminal Misc. Application No. 17286
of 2017, decided on 10.11.2017

4. D.K. Rajendran Vs St. of T.N., AIR 2010 SC
3718

5. St. Vs Kathi Unad, AIR 1955 Saurashtra 10

6. Bashirul Haq Vs St., AIR 1953 SC 293

7. Makaradhwaj Sahu Vs St., AIR 1954 Orissa
175

8. Amitabh Choudhary Vs St. of Jharkhand,
MANU/JH/0171/2022, decided on 25.03.2022

(Delivered by Hon'ble Hon'ble Rajesh
Singh Chauhan, J.)

1. Heard Sri Ajmal Khan, learned
counsel
for
the
petitioner
and
Sri
286 INDIAN LAW REPORTS ALLAHABAD SERIES
Aniruddha
Kumar
Singh,
learned
Additional Government Advocate-I for the
State.

2. By means of this petition filed
under Section 482 Cr.P.C., the petitioner
has prayed to quash the proceeding of
Criminal Case No. 2355 of 2020, State Vs.
Israr Ahmad and Others, arising out of
Case Crime No. 839 of 2019, under
Sections 143, 188, 342 IPC, Police Station
Kotwali
Nagar,
District
Pratapgarh,
pending in the court of learned Chief
Judicial Magistrate, Pratapgarh as well as
chargesheet
dated
24.11.2019
and
summoning order dated 12.02.2020.

3. The contention of learned counsel
for the petitioner is that the Investigating
Officer has conducted the investigation in
sheer casual and cursory manner and filed
the chargesheet against the petitioner under
Sections 143, 188, 342 IPC. The court
concerned took cognizance in a mechanical
manner and has issued the summoning
order without applying its judicial mind
against the petitioner on 12.02.2020.

4. Learned counsel for the petitioner
has stated that the cognizance of the
chargesheet by the learned Chief Judicial
Magistrate, Pratapgarh in the present case
is violation of Section 195(1)(a)(i) of
Cr.P.C. He has further submitted that
Section 195(1)(a)(i) provides that no court
shall take cognizance of an offence under
Section 188 IPC except on the complaint in
writing of the public servant concerned or
of some other public servant, to whom he is
administratively subordinate.

5. Attention has been drawn towards
the judgment and order dated 18.06.2021
passed by Karnataka High Court in Writ
Petition No. 13328 of 2018(GM-RES), Sri
Rajashekharananda
Swamiji
and
Another Vs. The State of Karnataka,
referring para nos. 7, 8, 9,10 and 11 which
read as under:

"7. As rightly pointed out, Section 188
of IPC is the main offence. The other
offences flow from that. Section 195(1)(a)
of Cr.P.C. bars the Court to take
cognizance of such offence unless in
accordance with the procedure laid down
therein. Section 195(1)(a) reads as follows:

"195. Prosecution for contempt of
lawful authority of public servants, for
offences against public justice and for
offences relating to documents given in
evidence

(1) No Court shall take cognizance-

(a)(i) of any offence punishable under
sections 172 to 188 (both inclusive) of the
Indian Penal Code, 1860 (45 of 1860); or

(ii) of any abetment of, or attempt to
commit, such offence; or

(iii) of any criminal conspiracy to
commit such offence,

except on the complaint in writing of
the public servant concerned or of some
other public servant to whom he is
administratively subordinate;"

8. Reading of the above provision
makes it clear that to take cognizance there
should be a written complaint and such
complaint should be filed either by the
officer issuing such promulgation order or
the officer above his rank. In the case on
hand,
as
per
the
complaint
itself,
prohibitory order under Section 144 of IPC
was promulgated by the Commissioner of
Police and not the complainant.

9. Further Section 2(d) of Cr.P.C.
defines complaint as allegations made
orally or in writing to the Magistrate with
a view to the Magistrate taking action on
such complaint under the Code. Only on
such complaint, the Magistrate can take
1 All. Israr Ahmad Vs. State of U.P. & Anr.
287
cognizance under Section 190(1)(a) of
Cr.P.C.
Thereafter
the
procedure
prescribed under Section 200 of Cr.P.C.
has to be followed. Therefore the first
information report, charge sheet and the
order taking cognizance on such charge
sheet are without jurisdiction.

10. Then the question is AnnexuresA to D get vitiated only so far as the
offence under Section 188 of IPC. In
para 8 of the judgment in State of
Karnataka v. Hemareddy [(1981) 2 SCC
185], the Hon'ble Supreme Court held as
follows:

"8. We agree with the view expressed
by the learned Judge and hold that in
cases where in the course of the same
transaction an offence for which no
complaint by a Court is necessary under
Section 195(1)(b) of the Code of Criminal
Procedure and an offence for which a
complaint of a Court is necessary under
that sub-section, are committed, it is not
possible to split up and hold that the
prosecution of the accused for the
offences
not
mentioned
in
Section
195(1)(b) of the Code of Criminal
Procedure should be upheld."

(Emphasis supplied)

11. Reading of the above judgment
makes it clear that if the offences form
part of same transaction of the offences
contemplated under Section 195(1) of
Cr.P.C, then it is not possible to split up
and hold that prosecution of the accused
for the other offences should be upheld.
Therefore the entire complaint, first
information report, charge sheet and the
order taking cognizance are liable to be
quashed. The petition is allowed.

The
impugned
first
information
report, complaint, the charge sheet and the
proceedings in C.C.No. 3660/2016 are
hereby quashed."

(Emphasis supplied)

6. Learned counsel for the petitioner
has stated that the facts and circumstances
of the present case are similar to the case
dealt by the Karnataka High Court,
inasmuch as in the present case, the
complaint has not been lodged by the
authority who has issued the promulgation
order under Section 144 Cr.P.C. but by one
Sub Inspector. Further, in the case decided
by the Karnataka High Court Re: Sri
Rajashekharananda Swamiji (supra), the
FIR was lodged under Sections 143, 144,
145, 147, 148, 153, 188, 332, 353 of IPC
and Sections 2(a) and 2(b) of the Karnataka
Prevention of Destruction and Loss of
Property Act, 1981 and in the present case
the FIR was lodged against the petitioner
under Sections 143, 188 and 342 of IPC.

7. Further attention has been drawn
by learned counsel for the petitioner
towards the judgment and order dated
10.11.2017 passed by Gujarat High Court
rendered in Criminal Misc. Application
(For Quashing & Set Aside Fir/order)
No.
17286
of
2017,
Merubhai
Mandanbhai Chandera and 1 others Vs.
State of Gujarat and 1 others, referring
Para nos. 45 and 46 which read as under:

"45. In State v. Kathi Unad, AIR 1955
Saurashtra 10: (1955 Cri LJ 52), the
learned Judge relying on the Supreme
Court case of Bashirul Haq AIR 1953
Supreme Court 293:(1953 Cri LJ 1232)
said that the very act of obstruction lay in
the assault and the hurt to complainant and
that the offence primarily committed was
under Section 186, I.P.C. and to convict the
accused for the offence under Section 332,
I.P.C. would be tantamount to holding them
guilty under Section 186, I.P.C. and then
convicting them for the offence under
Section 332, I.P.C. They came to the
conclusion that the prosecution could not
288 INDIAN LAW REPORTS ALLAHABAD SERIES
circumvent the provisions of Section 195 by
a dubious method. (See also Makaradhwaj
Sahu vs. State AIR 1954 Orissa 175: (1954
Cri LJ 950). The decision in AIR 1953 Nag
290 : (1953 Cri LJ 1573) is also pertinent.
46. In some of the applications before me,
the only offence is either section 186 or 188
of the IPC. In such type of cases, there
should not be any difficulty in quashing the
prosecution in view of the bar of Section
195 of the Cr.P.C., 1973 However, there are
few cases on hand, in which, over and
above sections 186 or 188 of the I.P.C., the
other offences are also there which are not
covered under section 195 of the Cr.P.C.,
1973. It is only in such cases, the court has
to be careful. I have noticed that in some of
the cases, there is a charge of section 353
of the IPC along with section 186 of the
IPC. I am of the view that the very act of
obstruction lies in the alleged assault and
use of criminal force. In truth and
substance, such an offence would fall in the
category of sections mentioned in section
195 of the Code and it is not open to bye
pass its provisions even by choosing to
prosecute under section 353 of the IPC
only. There is no scope, in any of the
matters on hand, having regard to the
materials on record, to split up the offences
so as to avoid the bar of section 195 of the
Cr.P.C. 1973 as all the offences can be said
to have been committed in the course of
one transaction. All the offences can be
said to have been an integral part of one
transaction."

(Emphasis supplied)

8. Learned counsel for the petitioner
has also drawn attention of this Court
towards judgment of Apex Court rendered
in the case of D.K. Rajendran and Ors.
etc. etc. Vs. State of T.N., reported in AIR
2010 SC 3718, referring Para 25 which
reads as under:

"25. Thus, in view of the above, the
law can be summarized to the effect that
there must be a complaint by the pubic
servant whose lawful order has not been
complied with. The complaint must be in
writing. The provisions of Section 195
Cr.PC are mandatory. Non-compliance of it
would vitiate the prosecution and all other
consequential orders. The Court cannot
assume the cognizance of the case without
such complaint. In the absence of such a
complaint, the trial and conviction will be
void ab initio being without jurisdiction."
(Emphasis supplied)

9. Learned counsel for the petitioner
has stated that the Karnataka High Court as
well as Gujarat High Court, in the aforesaid
judgments, have held that if the offences
form part of same transaction of the
offences
contemplated
under
Section
195(1) of Cr.P.C., then it is not possible to
split up and hold that prosecution of the
accused for the other offences should be
upheld, therefore, learned counsel has
stated that in view of the bar under Section
195 of Cr.P.C., the prosecution under
Section 188 IPC may fall against the
petitioner and since the offences form part
of
same
transaction,
therefore,
the
chargesheet consisting Section 188 IPC and
other Sections and further proceedings are
liable to be quashed.

10. Per contra, Sri Aniruddha Kumar
Singh, learned AGA-I has submitted that so
far as the chargesheet under Section 188
IPC is concerned, he has nothing to say
against the contention of learned counsel
for the petitioner in view of the specific bar
to that effect under Section 195 of Cr.P.C.
He has also stated that the complainant of
the said FIR is not the authority who has
issued the proclamation but the same has
been
lodged
by
one
police
officer.
1 All. Israr Ahmad Vs. State of U.P. & Anr.
289
However, so far as the applicability of
Sections 143 and 342 IPC is concerned, the
chargesheet has been filed against the
petitioner and knowing fully well about the
proclamation,
so
issued
by
the
Administrative Authority, under Section
144 of Cr.P.C., the petitioner and others
have
breached
such
proclamation,
therefore, he may be prosecuted under
Sections 143 and 342 IPC. In support of his
argument, Sri Aniruddha Kumar Singh has
placed
reliance
of
the
decision
of
Jharkhand High Court dated 25.03.2022
rendered
in
the
case
of
Amitabh
Choudhary Vs. The State of Jharkhand
and
Ors,
reported
in
MANU/JH/0171/2022, referring Para nos.
43, 44 and 45 which read as under:

"43. Accordingly, the impugned order
taking
cognizance
dated
03.09.2014/09.05.2014
passed
by
the
learned Judicial Magistrate, Ranchi arising
out of Angara P.S. Case No. 23 of 2014
dated 11.03.2014 corresponding to G.R.
Case No. 1449 of 2014 is set aside to the
extent it relates to offence under Section
126 of the Representation of People Act,
1951 and offence under Section 188 IPC.
Since cognizance under section 188 IPC
has been set-aside on technical grounds,
the concerned authorities may proceed in
accordance with law as already indicated
above. As a result, the present criminal
miscellaneous petition is partly allowed.

44. So far as the offence under section
143 of IPC is concerned, the impugned
order taking cognizance does not call for
any interference and accordingly, the
learned court below is directed to proceed
with the matter expeditiously.

45. It is made clear that dismissal of
this petition with regards to offence under
Section 143 IPC and any observation made
in this order will not prejudice the case of
the respective parties before the learned
court below in any manner."

(Emphasis supplied)

11. Having heard learned counsel for
the parties, having perused the material
available on record and having regard the
decisions of Apex Court and various High
Courts, I am also of the considered opinion
that no Court can take cognizance of any
offence indicated in the chargesheet under
Section 188 of IPC in absence of written
complaint by the officer authorized for that
purpose in view of the specific bar of
Section 195 Cr.P.C. The provisions of
Section 195 Cr.P.C. are mandatory and noncompliance
of
it
would
vitiate
the
prosecution and other consequential orders.

12. In the present case, notably, the
complaint has not been filed by the officer
who has issued proclamation under Section
144 of Cr.P.C., therefore, the trial court
could have not taken cognizance of the
chargesheet indicating the offence under
Section 188 IPC. Besides other offences i.e.
Section 143 IPC: Punishment of unlawful
assembly and Section 342: Punishment for
wrongful confinement since form part of
the same transaction of the offence
contemplated under Section 195(1) of
Cr.P.C., so it is not possible to split up and
hold that prosecution of the accused for the
other offences, inasmuch as the genesis of
other offences depends under Section 188
IPC. To me, had it not been any
proclamation under Section 144 Cr.P.C.
there would have been no offence of the
petitioner under Section 188 IPC. Further,
the offence of unlawful assembly is also
part and parcel of Section 188 IPC. On
account of the promulgation order, the
offence of wrongful confinement in the
present case is said to have been committed
by the petitioner alongwith so many
290 INDIAN LAW REPORTS ALLAHABAD SERIES
persons
who
have
gathered
when
promulgation order was in operation and
due to that some persons of public and
vehicles thereof stucked in jam.

13. In view of the above and having
regard to the dictum of Apex Court in re:
D.K. Rajendran (supra), I am in
agreement
with
the
decisions
of
Karnataka High Court and Gujarat High
Court and to that extent I am respectfully
disagreeing
with
the
decision
of
Jharkhand High Court in Re: Amitabh
Choudhary (supra).

14. In view of the above, the present
petition under Section 482 Cr.P.C. is
allowed.
The
impugned
complaint,
chargesheet
dated
24.11.2019,
summoning order dated 12.02.2020 and
the proceedings of Criminal Case No.
2355 of 2020, State Vs. Israr Ahmad and
Others, arising out of Case Crime No.
839 of 2019, under Sections 143, 188,
342 IPC, Police Station Kotwali Nagar,
District Pratapgarh, pending in the court
of learned Chief Judicial Magistrate,
Pratapgarh, are hereby quashed.

15. No order as to costs.
----------
(2024) 1 ILRA 290
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.12.2023

BEFORE

THE HON'BLE JASPREET SINGH, J.

Appeal U/s 37 of Arbitration & Conciliation Act
1996 No. 58 of 2022

Harish Tripathi ...Appellant
Versus
Competent Auth., N.H. & Ors.
 ...Respondents
Counsel for the Appellant:
Sharad Pathak, Piyush Pathak

Counsel for the Respondents:
Vimlesh Kumar

A. Civil Law-Arbitration and Conciliation
Act, 1996-Section 37-National Highway
Act, 1956-Section 3-G(5)-Right to Fair
Compensation and Transparency in Land
Acquisition
Rehabilitation
and
Resettlement Act, 2013-Section 26-In the
instant
case,
land
was
used
for
commercial purpose-compensation of the
land has been denied at the commercial
rates-the petrol pump being commercial
enterprise, the constructions raised by the
appellant was of a commercial nature and
the
calculation
for
the
aforesaid
construction
ought
to
have
been
considered as per the Collector's rate list
and on the basis of cogent material on
record-The authorities below ought to
have
considered
the
parameters
enumerated in Section 3-G (7) (b) (c), (d)
r/w sections 28, 29 of the Act, 2013 in the
light of the evidence led by the appellant
in
respect
of
the
constructions
as
applicable to the commercial building and
shall
also
determine
whether
the
appellant is entitled to damages-Matter be
decided afresh within a period of six
months.(Para 5 to 57)

The appeal is allowed. (E-6)

List of Cases cited:

1. NHAI Vs P. Nagaraju @ Cheluvaiah & anr.
(2022) SCC Online SC 864

2. Reddy Veerana Vs St. of U.P & ors.(2022)
SCC Online SC 562 UOI Vs Parimal Singh &
ors.(2009) 1 SCC 618

3. Gajanan &Ors VS St. of Mah. & anr.. (2011)
12 SCC 286

4. Chandra Kishori Vs U.O.I. & ors.(2023) AHCLKO 69836

5. NHAI Vs Pankaj Singh Arbtn. Appeal No. 1 of
2019