# Kamuruddin v. State of U.P. and others

- **Citation:** (2009) 2 ILRA 690
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-07-22
- **Bench:** Amitava Lala, Rajes Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kamuruddin-v-state-of-u-p-and-others-41426
- **Pages:** 6

## Headnote

Sri Vishnu Pratap, S.C.

Mines
&
Minerals
(Development
&
Regulation) Act 1957-Section 14-A (3),
15-Order passed by A.D.M.-challenged
on ground of want of delegation of
power-held misconceived under Section
14-A (3) and (4)-law itself authorities
the Asstt. Collector to act on behalf of
Collector-being subordinate to Collectorduty entrusted to him-can not be termed
as without jurisdiction.

Held: Para 7

An argument as put forth by Mr. Raj
Kumar, learned counsel appearing for
the petitioner possibly in view of Section
26 of the Act of 1957 that unless and
until notification is there Additional
District Magistrate cannot act as District
Magistrate in this regard. We are of the
view that by virtue of the power
specifically provided in this respect
under Section 14-A (3) & (4) of the Act,
the
law
itself
authorises
Additional
Collector
to
act
on
behalf
of
the
Collector.
A
notification
means
introduction of governmental circular, if
any, to be known to every one. Unless it
is
known
to
every
one
by
such
2 All] Kamuruddin V. State of U.P. and others

691
notification, one cannot be said to have
such power but when law itself says that
an Additional Collector shall exercise
such powers and discharge such duties
of a Collector in such case or class of
cases as the Collector may direct, the
power of delegation by the Collector to
the Additional Collector is inbuilt in the
statute itself. Moreover, the Act as
aforesaid and every other law for the
time being applicable to a Collector shall
also apply to Additional Collector when
exercising any powers and discharging
any duties under sub-section 3 of Section
14-A of the Act of 1957 as if he were the
Collector of the district, therefore, the
respective
orders
passed
by
the
Additional District Magistrate cannot be
said to be nonest in the eye of law and as
such the argument put forth by the
petitioner
before
this
Court
is
unsustainable in nature, hence, the writ
petition fails and is dismissed, however,
without any order as to cost.
Case law discussed:
(A.I.R. 1986 SC 2160),
(1991 A.L.J. 901),
(1999 (3) AWC 2444).

## Text

690 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

arguments has itself been given in the
above noted judgment. The Hon'ble Apex
Court has held as under in para 47 of the
judgment reported in the above said
journal.

"We, therefore, hold that while
deciding an application under section 125
of Code, a Magistrate is required to record
reasons for granting or refusing to grant
maintenance to wives, children or parents.
Such maintenance can be awarded from
the date of order, or if so orders, from the
date of the application for maintenance, as
the
case
may
be.
For
awarding
maintenance from the date of application,
express order is necessary. No special
reasons, however, are required to be
recorded by the Court. In our Judgment,
no such requirement can be read in Subsection (1) of Section 125 of the Code in
absence of express provision to that
effect."

6. It is clear from the above noted
observation that if the maintenance is
allowed from the date of application then
an express order is necessary in that
regard but no special reasons are required
to be given by the Court. In the present
case, the learned Additional Sessions
Judge has passed an express order that the
maintenance shall be given from the date
of application and thus the provisions of
section 125 Cr.P.C. have been complied
with.

7. In view of the above I feel that
there is no reason to interfere in the order
passed by the Additional Sessions Judge,
Court No.4, Jaunpur nor there is any
reason to stay the aforesaid order.

8. The application under section 482
Cr. P.C. is therefore, dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.07.2009

BEFORE
THE HON'BLE AMITAVA LALA, J.
THE HON'BLE RAJES KUMAR, J.

Civil Misc. Writ Petition No. 7776 of 2009.

Shiv Pujan Sahani.

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

Counsel for the Petitioner:
Sri Raj Kumar

Counsel for the Respondents:
Sri Vishnu Pratap, S.C.

Mines
&
Minerals
(Development
&
Regulation) Act 1957-Section 14-A (3),
15-Order passed by A.D.M.-challenged
on ground of want of delegation of
power-held misconceived under Section
14-A (3) and (4)-law itself authorities
the Asstt. Collector to act on behalf of
Collector-being subordinate to Collectorduty entrusted to him-can not be termed
as without jurisdiction.

Held: Para 7

An argument as put forth by Mr. Raj
Kumar, learned counsel appearing for
the petitioner possibly in view of Section
26 of the Act of 1957 that unless and
until notification is there Additional
District Magistrate cannot act as District
Magistrate in this regard. We are of the
view that by virtue of the power
specifically provided in this respect
under Section 14-A (3) & (4) of the Act,
the
law
itself
authorises
Additional
Collector
to
act
on
behalf
of
the
Collector.
A
notification
means
introduction of governmental circular, if
any, to be known to every one. Unless it
is
known
to
every
one
by
such
2 All] Kamuruddin V. State of U.P. and others

691
notification, one cannot be said to have
such power but when law itself says that
an Additional Collector shall exercise
such powers and discharge such duties
of a Collector in such case or class of
cases as the Collector may direct, the
power of delegation by the Collector to
the Additional Collector is inbuilt in the
statute itself. Moreover, the Act as
aforesaid and every other law for the
time being applicable to a Collector shall
also apply to Additional Collector when
exercising any powers and discharging
any duties under sub-section 3 of Section
14-A of the Act of 1957 as if he were the
Collector of the district, therefore, the
respective
orders
passed
by
the
Additional District Magistrate cannot be
said to be nonest in the eye of law and as
such the argument put forth by the
petitioner
before
this
Court
is
unsustainable in nature, hence, the writ
petition fails and is dismissed, however,
without any order as to cost.
Case law discussed:
(A.I.R. 1986 SC 2160),
(1991 A.L.J. 901),
(1999 (3) AWC 2444).

(Delivered by Hon'ble Amitava Lala, J.)

1. This writ petition has been filed
by the petitioner to get a writ or direction
issued in the nature of Certiorari to quash
the impugned notice dated 16th January,
2009 as well as order dated 22nd
November,
2008
issued/passed
by
Additional District Magistrate (Finance &
Revenue), Kushinagar.

2. It appears that vide an order dated
9th March, 2005 a mining lease was
granted to the petitioner for excavating
sand over an area of 5 acres for a period
of 3 years, which was operated by the
petitioner satisfactorily and thereafter the
lease was renewed vide order dated 28th
April, 2008 for a further period of 3 years.
Pursuant to the order dated 28th April,
2008, the area was demarcated by a
committee
of
three
persons
and
demarcation report was submitted on 8th
May, 2008. Ultimately, upon completion
of formalities, the mining lease was
executed on 14th May, 2008 and the
petitioner started mining operation over
the area demarcated. According to the
petitioner, in the mean time some antisocial elements started illegal mining in
the adjoining area, so he made an
application to the District Magistrate,
Kushinagar on 13th June, 2008 intimating
about the same whereupon the Additional
District Magistrate directed concerned
Inspector in-charge of police to enquire
into the matter and in case it is found that
illegal mining is going on, penal action be
taken
against
the
guilty
person.
Thereafter, vide impugned notice dated
22nd November, 2008, petitioner was
asked to show cause within a fortnight as
to why the lease deed granted in his
favour be not cancelled for excavation of
sand illegally beyond the area allotted to
him and to stop mining operation till
disposal of the matter. The petitioner
submitted reply to the said notice on 25th
November, 2008 denying the allegations
made against him and ultimately vide
impugned order dated 16th January, 2009
it has been held that the explanation
furnished by the petitioner was not found
satisfactory and the allegations levelled
against him in the notice have been
proved, therefore, for illegal mining of
1,700 cubic meter sand, he has been
directed to deposit Rs.34,000/- as royalty
and Rs.1,70,000/- as cost of mineral (total
Rs.2,04,000/-). Hence, the writ petition.

3. Mr. Raj Kumar, learned counsel
appearing for the petitioner contended
before this Court that the impugned order
was passed by the Additional District
692 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

Magistrate who has no authority or
jurisdiction to pass such order. In
accordance with Uttar Pradesh Minor
Minerals (Concession) Rules, 1963, the
District Magistrate is empowered to
discharge such duties. He has no power of
delegation. In support of his contention,
he has relied upon a judgement reported
in (A.I.R. 1986 SC 2160), A.K.Roy and
another vs. State of Punjab and others,
and contended before this Court that
where a power has been given to do a
certain thing in a certain way, the thing
must be done in that way or not at all.
Other
modes
of
performance
are
necessarily forbidden. When the power of
delegation is given by the Central
Government or the State Government by
general or special order, must be for a
specific purpose, to authorise a designated
person, which cannot be sub-delegated.
On the other hand Mr. Vishnu Pratap,
learned standing counsel has relied upon
two judgements of this High Court to
establish his contention. Firstly, he relied
upon a Division Bench judgement of this
Court reported in (1991 A.L.J. 901)
Ghanshyam
and
others
vs.
Sub
Divisional Officer Salon and another, to
establish that the word "Collector" means
an officer appointed as Collector under
the provisions of Uttar Pradesh Land
Revenue Act, 1901 (for short the Act)
and includes an Assistant Collector of Ist
class
empowered
by
the
State
Government by a Notification in the
Gazette to discharge all or any of the
functions of the Collector under the Act.
The Collector is appointed under Section
14 of the Act, which provides that the
State Government shall appoint in each
district an officer who shall throughout
his district, exercise all the powers and
discharge all the duties conferred and
imposed on a Collector by the Act or any
other law for the time being in force. The
Assistant Collector, whether of the first
class or second class, is appointed under
Section 15 of the Act and it is provided
under Section 18(1) of the Act that the
State
Government
may
place
any
Assistant Collector of the first class incharge of one or more sub-divisions of a
district, and may remove him therefrom.
Section 18(2) provides that such Assistant
Collector
shall
be
called
Assistant
Collector in-charge of sub-division of a
district or a Sub Divisional Officer and
shall
exercise
all
the
powers
and
discharge all the duties conferred and
imposed upon him by the Act or by any
other law for the time being in force,
subject to the control of the Collector. It
may be mentioned that various revenue
courts have been constituted under the
Act and by virtue of Section 4 (8) thereof,
Collector and Sub Divisional Officer,
both are revenue courts. He has further
relied upon a judgement reported in (1999
(3) AWC 2444) Naveen Chandra Seth
and
others
vs.
Commissioner
Allahabad and others, though a single
Bench judgement but to persuade this
Court on the strength of such judgment
that the petitioner has not come with clean
hands, therefore, he is not entitled to any
discretionary relief. We are aware of well
settled principles of law and there is no
necessity to discuss any thing more in this
regard.

4. The Act, as amended up to date is
made to consolidate and amend the law
relating to Land Revenue and the
jurisdiction of Revenue Officers in Uttar
Pradesh. Certain sums for such mines and
minerals and fees for grant of such
licences etc. on account of mines and
minerals are to be recovered as arrears of
land revenue by virtue of Section 25 of
2 All] Shiv Pujan Sahani V. State of U.P. and others

693
the Mines and Minerals (Development
and Regulation) Act, 1957 (herein after
referred to as the Act of 1957) which is
quoted hereunder:

"25. Recovery of certain sums as
arrears of land revenue.- Any rent,
royalty, tax, fee or other sum due to the
Government under this Act or the rules
made thereunder or under the terms and
conditions of any reconnaissance permit,
prospecting licence or mining lease may,
on a certificate of such officer as may be
specified by the State Government in this
behalf by general or special order, be
recovered in the same manner as an arrear
of land revenue.

(2) Any rent, royalty, tax, fee or
other sum due to the Government either
under this Act or any rule made
thereunder or under the terms and
conditions of any reconnaissance permit,
prospecting licence or mining lease may,
on a certificate of such officer as may be
specified by the State Government in this
behalf by general or special order, be
recovered in the same manner as if it were
an arrear of land revenue and every such
sum
which
becomes
due
to
the
Government after the commencement of
the Mines and Minerals (Regulation and
Development) Amendment Act, 1972,
together with the interest due thereon
shall be a first charge on the assets of the
holder of the reconnaissance permit,
prospecting licence or mining lease, as the
case may be."

5. As per Section 25 of the Act of
1957, power of delegation to an officer is
also there. Section 26 of the Act of 1957
is also quoted hereunder:

"26. Delegation of powers.-(1) The
Central Government may, by notification
in the Official Gazette, direct that any
power exercisable by it under this Act
may, in relation to such matters and
subject to such conditions, if any, as may
be specified in the notification be
exercisable also by-

(a)
such
officer
or
authority
subordinate to the Central Government; or
(b) such State Government or such
officer or authority subordinate to a State
Government,
as may be specified in the notification.

(2) The State Government may, by
notification in the Official Gazette, direct
that any power exercisable by it under this
Act may, in relation to such matters and
subject to such conditions, if any, as may
be specified in the notification, be
exercisable also by such officer or
authority
subordinate
to
the
State
Government as may be specified in the
notification.

(3) Any rules made by the Central
Government under this Act may confer
powers and impose duties or authorise the
conferring of powers and imposition of
duties upon any State Government or any
officer or authority subordinate thereto."

6. Since the recovery of any sum
as aforesaid is to be made as land
revenue, the Act will be applicable for
the purpose. Sections 14, 14-A and 15 of
the Act give clear answer in this respect
that an Additional Collector includes the
Collector. Sections 14, 14-A and 15 of the
Act being respective sections are quoted
below:
694 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

"14. Collector of the district.- The
State Government shall appoint in each
district an officer who shall be the
Collector of the district, and who shall
throughout his district, exercise all the
powers and discharge all the duties
conferred and imposed on a Collector by
this Act or any other law for the time
being in force.

14-A. Appointment powers and
duties of Additional Collectors.- (1) The
State
Government
may
appoint
an
Additional Collector in a district or in two
or more districts combined.

(2) An Additional Collector shall hold
his office during the pleasure of the State
Government.

(3) An
additional
Collector
shall
exercise such powers and discharge such
duties of a Collector in such cases or
classes
of
cases
as
the
Collector
concerned may direct.

(4) This Act and every other law for the
time being applicable to a Collector shall
apply to every Additional Collector, when
exercising any powers or discharging any
duties under sub-section (3), as if he were
the Collector of the district.

15. Assistant Collectors.- (1) The
State Government may appoint to each
district as many other persons as it thinks
fit to be Assistant Collector of the first or
second class.

(2) All such Assistant Collectors and all
other revenue officers in the district, shall
be subordinate to the Collector."

7. An argument as put forth by Mr.
Raj Kumar, learned counsel appearing for
the petitioner possibly in view of Section
26 of the Act of 1957 that unless and until
notification is there Additional District
Magistrate
cannot
act
as
District
Magistrate in this regard. We are of the
view that by virtue of the power
specifically provided in this respect under
Section 14-A (3) & (4) of the Act, the law
itself authorises Additional Collector to
act on behalf of the Collector. A
notification
means
introduction
of
governmental circular, if any, to be
known to every one. Unless it is known to
every one by such notification, one cannot
be said to have such power but when law
itself says that an Additional Collector
shall
exercise
such
powers
and
discharge such duties of a Collector in
such case or class of cases as the
Collector may direct, the power of
delegation by the Collector to the
Additional Collector is inbuilt in the
statute itself. Moreover, the Act as
aforesaid and every other law for the
time being applicable to a Collector
shall also apply to Additional Collector
when
exercising
any
powers
and
discharging any duties under sub-section
3 of Section 14-A of the Act of 1957 as if
he were the Collector of the district,
therefore, the respective orders passed by
the Additional District Magistrate cannot
be said to be nonest in the eye of law and
as such the argument put forth by the
petitioner
before
this
Court
is
unsustainable in nature, hence, the writ
petition fails and is dismissed, however,
without any order as to cost.
---------
2 All] Shiv Pujan Sahani V. State of U.P. and others

695

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.08.2009

BEFORE
THE HON'BLE SHRI KANT TRIPATHI, J.

Criminal Appeal No. - 3838 of 2009

Raj Pal Singh and another

...Applicants./Appellants
Versus
State Of U.P.

...Opposite Party

Counsel for the Appellants:
A.K. Mishra

Counsel for the Opposite Parties:
A.G.A.

Code of Criminal Procedure Section S446-Recovery of the amount of bail
bond-prior to order of recovery no show
cause notice or calling the applicant to
deposit
certain
amount-straightway
recovery order contrary to provision of
section 446-can not sustained.

Held: Para 8

In the instant case, the learned lower
court forfeited the bail bonds furnished
by the appellants, by the impugned order
dated 21.4.2009 but instead of giving
the appellants the notices as required by
section 446 Cr.P.C. either to pay penalty
or to show cause as to why it should not
be paid, straightway issued warrants for
recovery of the amount, which was not
legal and contrary to the import of
section 446 Cr.P.C. It was obligatory on
the learned court to give notices calling
upon the appellants to pay the penalty or
show cause as to why it should not be
paid. Without doing so, it was not open
to the learned lower court to impose
penalty and recover the same. In view of
these
reasons,
the
impugned
order
which has been passed in utter disregard
to the provisions of section 446 Cr.P.C.,
can not be sustained.
(Delivered by Hon'ble Shri Kant Tripathi, J.)

The appellants Raj Pal Singh and Raj
Kumar, who stood as sureties for the
accused Fauran Singh in the sessions trial
no. 173 of 2008 pending in the court of
Additional Sessions Judge, Fast Track
Court No.1, Firozabad, have preferred this
appeal against the order dated 21.4.2009
passed by the learned Additional Sessions
Judge, whereby the learned Additional
Sessions Judge forfeited the bail bonds
furnished by the appellants and issued
warrants for recovery of the amount of
their bail bonds.

2. With the consent of the learned
counsel for the appellant and the learned
A.G.A. the instant appeal is being finally
disposed of at the stage of admission.

3. Heard the learned counsel for the
appellants and the learned AGA and
perused the lower court record.

4. The learned counsel for the
appellants submitted that appellants were
not given any notice as required by
section 446 Cr.P.C. after forfeiture of
their bail bonds and as such the recovery
proceeding is illegal. It was further
submitted that the accused Fauran Singh
had been appearing in the court concerned
and had lastly appeared on 13.2.2009 but
remained absent on 20.2.2009 and also on
subsequent dates. The accused Fauran
Singh, however, appeared on 15.5.2009
and moved application for recall of the
warrant
but
the
learned
Additional
Sessions Judge rejected the application
for recall of warrant and committed the
accused to custody and since then the