# M/s Nadeem Apartment Private Ltd. and another v. State of U.P. and others

- **Citation:** (2004) 2 ILRA 501
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-04-15
- **Case number:** First Appeal No. 319 of 1997
- **Bench:** M. Katju, R.S.Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-nadeem-apartment-private-ltd-and-another-v-state-of-u-p-and-others-40411
- **Pages:** 9

## Headnote

Sri Ravi Sinha
Sri U.N. Sharma
Sri Nitin Sharma,
Sri M.A. Zaidi, S.C.
Sri P.K. Jain
Sri A.K. Gupta,
Sri A.K. Gaur

Code of Civil Procedure, 1908- 0.39 R.
(2) proviso (as amended by U.P. Act 57
of 1976)-Permanent injunction- Grant of
under said proviso no injunction shall be
granted to stay proceedings for recovery
of any dues recoverable as arrears of
land revenue unless adequate- Relief of
permanent
injunction-sought
without
complying with said provision- Hence
civil court has no jurisdiction to grant
such relief.

In this connection when we go through
the provisions of the Civil Procedure
Code we find that in the State of U.P. in
Rule 2 (2) of Order 39 the following
provision has been added by U.P. Act no.
57 of 1976:- "provided that no such
injunction shall be granted ...(g) to stay
the proceedings for the recovery of any
dues recoverable as land revenue unless
adequate security is furnished. Para 19

In the instant case there is absolutely no
material to show that any security was
furnished by the appellants in connection
with the recovery certificate which was
issued by the Uttar Pradesh Financial
Corporation against them. The noncompliance of above provision coupled
with the fact that the adjustment of Rs.
17,68,450.00 claimed by the appellants
is without any payment of any Court fee,
in the suit for the relief leave no doubt
that the civil court has no jurisdiction
unless
there
is
compliance
of
the
provisions of the Civil Procedure Code.
The relief of permanent injunction has
been sought without complying with this
provision. In view of this we are of the
view
that
the
Civil
Court
has
no
jurisdiction to grant such relief. The
result of the above discussion is that this
appeal has no force. Accordingly, it is
dismissed.

Para 20
Case law discussed:
1977 AWC 115(FB)
1972 ALJ 861
JT 1994 (2) SC 604
(2004) 2 SCC 283

## Text

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2 All] M/s Nadeem Apartment Private Ltd. and another V. State of U.P. and others
501
accommodation in order to meet the need
of her growing family.

12. In the result, the writ petition
succeeds and is allowed. The order of the
appellate court dated 20.10.1983 is
quashed and the order of the prescribed
authority dated 21.8.1981 is restored. In
the circumstances of the case there shall
be no order as to cost. Petition allowed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.4.2004

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE R.S.TRIPATHI, J.

First Appeal No. 319 of 1997

M/s Nadeem Apartment Private Ltd. and
another

...Appellants
Versus
State of U.P. and others ...Respondent

Counsel for the Appellants:
Sri Shashi Nandan
Sri G.N. Verma
Sri S.A. Gilani
Sri W.H. Khan
Sri J.H. Khan
Sri Arun Kumar
Sri B.A. Khan

Counsel for the Respondents:
Sri Ravi Sinha
Sri U.N. Sharma
Sri Nitin Sharma,
Sri M.A. Zaidi, S.C.
Sri P.K. Jain
Sri A.K. Gupta,
Sri A.K. Gaur

Code of Civil Procedure, 1908- 0.39 R.
(2) proviso (as amended by U.P. Act 57
of 1976)-Permanent injunction- Grant of
under said proviso no injunction shall be
granted to stay proceedings for recovery
of any dues recoverable as arrears of
land revenue unless adequate- Relief of
permanent
injunction-sought
without
complying with said provision- Hence
civil court has no jurisdiction to grant
such relief.

In this connection when we go through
the provisions of the Civil Procedure
Code we find that in the State of U.P. in
Rule 2 (2) of Order 39 the following
provision has been added by U.P. Act no.
57 of 1976:- "provided that no such
injunction shall be granted ...(g) to stay
the proceedings for the recovery of any
dues recoverable as land revenue unless
adequate security is furnished. Para 19

In the instant case there is absolutely no
material to show that any security was
furnished by the appellants in connection
with the recovery certificate which was
issued by the Uttar Pradesh Financial
Corporation against them. The noncompliance of above provision coupled
with the fact that the adjustment of Rs.
17,68,450.00 claimed by the appellants
is without any payment of any Court fee,
in the suit for the relief leave no doubt
that the civil court has no jurisdiction
unless
there
is
compliance
of
the
provisions of the Civil Procedure Code.
The relief of permanent injunction has
been sought without complying with this
provision. In view of this we are of the
view
that
the
Civil
Court
has
no
jurisdiction to grant such relief. The
result of the above discussion is that this
appeal has no force. Accordingly, it is
dismissed.

Para 20
Case law discussed:
1977 AWC 115(FB)
1972 ALJ 861
JT 1994 (2) SC 604
(2004) 2 SCC 283

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

1. This appeal has been filed against
a judgment and decree dated 14.8.1997
passed by Ist Additional Civil Judge (Sr.
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
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Division), Meerut dismissing the original
suit no. 549 of 1985 with costs.

2. The history giving rise to his first
appeal is that the original suit no. 549 of
1985 was filed by the appellants against
the respondents. In the above suit it was
pleaded that the appellants took a
commercial loan of Rs. 11.70 lacs and an
additional loan of Rs. 3.50 lacs for M/s
Rasolia Cold Storage Pvt. Ltd. from Uttar
Pradesh Financial Corporation in the year
1979-1980 executing agreements. The
amounts of the above loans were not paid
by the appellants, and consequently a
recovery certificate was sent to the
District Magistrate, defendant no.2 by the
Uttar Pradesh Financial Corporation. On
the basis of the aforesaid recovery
certificate
defendant
no.2,
District
Magistrate, Meerut appointed defendant
no.3 Potato Development Officer as
Receiver of the above Rasolia Cold
Storage and possession of the same was
taken over by the Receiver. The
appellants in their above suit challenged
the appointment of defendant no.3 as
Receiver and pleaded that the possession
taken over by the Receiver was illegal.
They alleged to have suffered loss worth
rupees several lacs on account of
misappropriation of the articles including
machinery, potato bags, furniture's etc of
the Cold Storage. The further contention
raised in the suit was that the Receiver did
not maintain any account after taking over
possession and misappropriated 37279
bags of potato belonging to the farmers,
furniture's
and
other
articles
all
amounting
to
Rs.
17,68,450.00.
Appellants filed Misc. Civil Writ Petition
No.
10627
of
1984
against
the
respondents before this Court challenging
the appointment of the Receiver and by
virtue of an order passed in that writ
petition possession of the Cold Storage
was ordered to be restored back to the
appellants on their depositing Rs. 1.00
lac. Rs. 1.00 lac was deposited and the
Cold Storage in question was restored
back to the plaintiffs.

3. According to the plaint case, after
taking over possession of the Cold
Storage, the respondents misappropriated
many articles and did not give any proper
list of articles while handing over its
possession back to the appellants. As per
the plaint case the respondents in
collusion with each other managed to sell
the property of the Cold Storage worth
Rs. 1.00 crore for an amount of Rs. 17.00
lacs only to the defendant nos. 5 to 7.
They claimed the relief of setting aside
the above sale and claimed adjustment of
the loss suffered by them on account of
appointment of the Receiver. The
following reliefs were prayed for by
appellants:-

(i) That an amount of Rs. 17,68,450.00
suffered by way of loss by them be
declared to be adjustable against their
loan dated 23.12.1990 and 30.3.1979.

(ii) That the defendant-respondents be
restrained from realising the amount of
loan by way of arrears of land revenue or
through any process by adopting coercive
measure or by auction of the pledged
property
till
the
amount
of
Rs.
17,68,450.00 is adjusted or any other
amount found to be paid by the plaintiffs
to the defendants stands adjusted.

(iii) That the order passed by defendant
no.2 confirming the sale and the other
proceedings relating to that, passed in
favour of defendant nos. 5 to 7 pertaining
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to Rasolia Cold Storage be set aside and
declared void.

4. Before the lower court all the
defendants filed their written statement
and contested the suit.

5. In a joint written statement filed
by respondent nos. 1,2,3 & 4 it was
pleaded that on the receipt of the recovery
certificate for Rs. 23,10,416.00 which was
found to be due against the appellant, the
proceedings for recovery under the
U.P.Z.A. and L.R. Act were taken and
therefore, the suit filed by the appellant
was barred by section 287-A and 331 of
the U.P.Z.A. & L.R. Act. In their written
statement the question of jurisdiction of
the civil court to try the suit was also
raised by them. They denied to have
misappropriated any article of the Cold
Storage in question and pleaded that the
appellants have not suffered any loss.
They contended that the Receiver had
found the record of the Cold Storage
incomplete at the time of taking over the
possession of the Cold Storage and the
entries of the records were found to be
fake and manipulated. They challenged
the claim of adjustment of more than Rs.
17.00 lac denying their any liability for
any loss.

6. The defendant no.2 contested the
suit and filed a separate written statement
wherein
it
was
pleaded
that
the
proceedings under the provisions of
U.P.Z.A. & L.R. Act were initiated in
accordance with law, and therefore, the
suit
was
not
maintainable.

They
challenged the rights of the appellants to
get the adjustment of the amount of Rs.
17,68,450.91.

7. Defendant nos. 5,6 & 7 contested
the suit filing their written statement
separately. In their written statement they
pleaded that an auction was proposed to
be held by opening tenders and the
appellants have no right to challenge the
highest tender accepted for the auction.
The question of maintainability of the suit
was also raised by them.

8. On the basis of the pleadings of
the parties the lower court framed in all
12 issues for the decision of the suit and
after considering the evidence both oral
and documentary led by the parties the
trial court passed the impugned judgment
and decree. Feeling aggrieved against this
judgment and decree this appeal has been
filed. We have heard the learned counsel
for both parties at length and have given
our careful consideration to the materials
available on the record. In the instant
appeal the following points arise for
decision:-
(i) Whether
the
appointment
of
defendant no.3 as Receiver by defendant
no.2 was illegal? If so, its effect?

(ii) Whether the Receiver after his
appointment caused loss/damage to the
Cold Storage to the extent of Rs.
17,68,450/- as pleaded in the plaint?

(iii) Whether the plaintiff is entitled to
adjustment of Rs. 17,68,450/- or any
amount towards loss?

(iv) Whether the auction of the Cold
Storage is illegal and collusive and is for
inadequate amount, if so, its effect?

(v) Whether
the
civil
court
has
jurisdiction to grant the relief claimed?
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9. We have heard the learned
counsel for both the parties at length and
have also gone through the record.

10. On the first point it is argued
from the side of the appellants that the
trial court did not finally adjudicate the
issue framed on this point and has
observed
only this
much
that
the
controversy relating to this point was
involved in C.M.W.P. 10627 of 1984
before the High Court, and therefore,
when that writ petition was pending this
issue cannot be decided by it. The
contention from the side of the appellants
before this Court is that the above writ
petition no. 10627 of 1984 had been
disposed of by this Court as early as on
11.2.1986 whereas the trial court decided
the suit on 14.8.1997, and therefore, the
above observations of the trial court are
factually incorrect. His argument is that
in absence of any finding recorded by the
trial court on the above issue the case of
the appellants has been prejudiced. When
we go through the record we find that
there is absolutely not aniota of evidence
(oral or documentary) to show that the
above writ petition had been disposed off
on 11.2.1986. Even in the oral evidence
led by the appellants before the trial court
not a single word has come for the
disposal of the above writ petition.
Learned counsel for the appellants has
pointed out that an affidavit enclosing a
copy of the order of this Court passed in
above writ petition was brought on the
record before the lower court, therefore,
the trial court has committed error in not
considering this affidavit on above issue.
It cannot be disputed that the provisions
of Civil Procedure Code as they stood on
the date of decision of above suit
provided
for
adducing
oral
and
documentary evidence for the decision of
a suit. In any suit the documents which
are not certified copies or are not proved
by leading cogent oral evidence cannot be
read in evidence. Also when oral
evidence was led by both the parties
evidence in the form of affidavit could not
be led. Therefore, in absence of any
provision to permit the appellants to lead
evidence in the form of affidavit and in
any certified copy of judgment of petition
above argument advanced from the side
of the appellants cannot be taken to be
helpful to draw an inference that the trial
court has committed an error in deciding
the above issue no.1. In view of all the
above facts and circumstances, the trial
court cannot be blamed for not deciding
this point. Moreover, when we consider
the contention raised from the side of the
appellant we find that there is no denial of
the fact that the above writ petition was
dismissed by this Court recording the
statement of the counsel for the petitioner
that the petition has become infructuous.
Thus there was no decision by this Court
in above writ petition on merits on above
point. As such the above decision of the
writ petition is therefore of no help in
coming to any conclusion on this point.

11. Now we proceed to examine
whether the appointment of defendant
no.3 as Receiver by defendant no.2 is
illegal. Admittedly a recovery certificate
of Rs. 23,10,416.91 was issued by the
Uttar
Pradesh
Financial
Corporation
against the appellants and after the receipt
of this recovery certificate under the
provisions of Section 279 (i) (g) and 286A of the U.P.Z.A. & L.R. Act the District
Magistrate appointed defendant no.3 as
receiver for the Cold Storage in question.
Learned counsel for the appellants had
relied
on
the
decision
in
M/s
R.B.Lachhmandas Sugar & General
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Mills (P) Ltd. and another Vs. State of
Uttar Pradesh and others 1977 AWC
page 115 (Full Bench) and Diamond
Sugar Mills Ltd. and anotherVs. State
of U.P. and others 1972 ALJ page 861.
A perusal of the decision in M/s R.B.
Lachhmandas Suger & General Mills (P)
Ltd. (supra) shows that in that case this
Court took the view that "A Collector
exercising powers under section 286-A of
U.P.Z.A. & L.R. Act has to objectively
consider whether it is just and proper to
appoint
a
Receiver
after
giving
opportunity of hearing to the defaulter but
he is not bound to exhaust the modes of
realization contained in Clause (a) to (f)
of Section 279 of the said Act before
appointing a Receiver under Section 286A of the Act." From this Full Bench
decision it is clear that the Collector has
been empowered to appoint a Receiver
under Section 286-A of the aforesaid Act
but the only requirement is that he has to
give a notice to the defaulter before such
appointment of Receiver and has to
consider objectively such appointment. In
the instant case on the record there is not
a single word in the oral evidence
adduced from the side of the appellants
before the trial judge that no such show
cause notice was ever issued by the
Collector to the appellants before the
appointment of the Receiver. When the
recovery was for an amount of more than
Rs. 23.00 lacs payable to the Uttar
Pradesh Financial Corporation and as per
above Full Bench decision the Collector
has power to appoint a Receiver without
exhausting other modes of recovery. In
absence of any cogent and reliable
evidence from the side of the appellant
that no notice was given to the appellants
before appointing the Receiver or that the
Collector did not consider the matter
objectively in doing so in our view the
Collector cannot be said to have exercised
his power illegally in appointing the
Receiver for the Cold Storage. The other
ruling cited from the side of the appellants
Diamond Sugar Mills Ltd. and another
(supra) is a case in which on the basis of a
report of the D.G.C. (Civil) the Receiver
was appointed for a running the business
of the petitioner exparte without any
notice. In that case this Court took the
view that "The reasoning given in Smt.
Vimla Rani's case Civil Misc. Writ
Petition No. 3264 of 1971 decided on
18.5.2004 is suggestive that the receiver
should, normally be appointed only in
case the other processes are insufficient
for
the
recovery
of
the
arrears."
Therefore, in the circumstances of this
case this ruling is not applicable. In the
instant case there is also no evidence to
suggest that there was any malafide
intention on the part of the Collector in
appointing the Receiver. The appellants
had taken loan and failed to pay the same
as per terms of the agreement. Only
thereafter was the recovery certificate was
issued.

12. Considering all above facts we
are of the view that the appointment of the
Receiver by the Collector cannot be held
to be illegal or malafide.

13. Now coming to point nos. 2 & 3
when we go through the record we find
that the appellants have claimed damages
for the loss of the articles of the Cold
Storage including several bags of potato.
In the plaint before the trial court in
schedule A & B a list of the properties
which
were
shown
to
have
been
misappropriated are given. In schedule A
loss on account of various items have
been valued to the tune of Rs.2,96,400.00
whereas loss in the schedule B is shiun as
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Rs.14,72,000.00
which
included
the
misappropriation of potato bags stored in
the Cold Storage. The respondents denied
that they omitted any misappropriation.
The burden lies upon the appellants to
prove that the articles of schedule A & B
were misappropriated by the respondents.
To discharge this burden the appellants
have not adduced any reliable oral or
documentary evidence to prove that when
the Receiver took over the possession of
the Cold Storage the above articles were
available in the Cold Storage. While
discussing the evidence led by the parties,
on this point the trial court has observed
that in the evidence adduced before it, it
has come that due to non-availability of
sufficient number of staff the verification
of the number of potato bags could not be
done on 11.8.1984 and the Cold Storage
was sealed in the morning hours with a
view to get its physical verification
completed later on. The trial court has
also noted that the evidence was available
to the effect that on the request of the
Receiver approval was made by District
Magistrate by issuing notice to the owners
of the Cold Storage to remain present till
the panel physically verified the bags
containing the potatoes. This direction
was issued and the verification of the
store by the panel was done who found
only 22882 bags of potato whereas 8347
bags had been found to have been taken
out from the store by that time. Against
this in the record of the appellants 43331
bags were shown in the store and 6052
bags were shown to have been taken out.
The trial court has noted on the basis of
evidence led by the parties that on the
point of entries about the exact stock
position till 22.2.1984, 11300 bags had
been shown in the stock register and
thereafter before handing over the register
to the Receiver fake entries in that register
without mentioning any rack numbers
where the bags were kept were made by
the appellants although the respondents
had been able to get photocopies of that
store register prepared immediately after
taking over the possession of the Cold
Storage. The trial court has also observed
that these photocopies of the said register
do go to show that there was no mention
of the rack numbers against the entries but
subsequently with a view to justify these
entries these rack numbers were entered
in the register to show complete entries of
the register. These cogent factual
materials undoubtedly go to show that the
appellants not only failed to establish the
exact stock position of the Cold Storage
but they manipulated entries in the
register later on. Apart from this, on the
rest of the page numbers of the register of
the stock, cutting and re-writing had also
been found by the trial court and all these
created doubt about the maintenance of
the register in normal course of the
business. On the record there is sufficient
evidence
to
show
that
there
was
discrepancy in the number of bags shown
in the bills of the Cold Storage for the
period 25.2.1984 to 6.8.1984 and the
letter dated 15.4.1984 sent to the
Collector also failed to explain about the
above material discrepancies. Thus from
the above discussion we are of the
opinion that the misappropriation as
pleaded by the appellants has rightly been
not accepted by lower court.

14. In the judgment of the trial court
it is stated that the evidence shows that
the panel deputed for the physical
verification found only 22.8.1982 bags
out of which 6052 bags had already been
taken out. There is a proper discussion of
the evidence by the trial court on this
points. The lower court has also observed
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that the appellants were informed in
writing to be for present at the time of
physical verification of the articles of the
Cold
Storage
but
they
deliberately
absented and did not participate in the
physical verification. As regards the
other articles of the Cold Storage, the
respondents got noted the articles when
the possession of the Cold Storage was
returned back to the appellants. At that
time also no such discrepancy was
pointed out by the appellants. In view of
these materials there is absolutely no
evidence to accept the case set up by the
appellants about the misappropriation of
the
articles
as
pleaded
by
them.
Accordingly, we hold that the trial court
has rightly considered the evidence led by
parties on this point.

15.

Apart
from
the
above
discussions there is no denial of the fact
that the dues for which the recovery
certificate was issued were in respect of
the loan taken by the appellants from
Uttar Pradesh Financial Corporation. In
this connection it is worth noting that
there is no evidence worth the name to
show that the respondents 2 to 4 have
concern with Uttar Pradesh Financial
Corporation, therefore, the reliefs claimed
by the appellants for adjustment of any
loss alleged to have been caused by above
respondents 2 to 4, can not be granted in
connection with the loan advanced by the
Uttar Pradesh Financial Corporation.

16. In the light of aforesaid
discussion the question of adjustability of
the sum of Rs. 17,68,450.00 by way of
loss, if any, towards the loan in question
has rightly been decided by the lower
court against appellants. Accordingly, we
decide points 2 & 3 against the appellants.

17. Now coming to point no.4 we
find that in the instant case the contention
of the appellants is that the circle rate of
the land of the Cold Storage in question is
Rs. 1500.00 per sq. yard, and therefore
the price of the land of the Cold Storage
comes to Rs. 55-56 lacs. According to the
appellants there were machineries etc.
worth Rs. 50.00 lacs in the said Cold
Storage. The respondents in collusion
with each other managed to sell the said
Cold Storage for a sum of Rs. 17 lacs only
in favour of respondents 5 to 7. In this
connection the counsel for the appellants
has drawn the attention of this Court
towards copy of the judgment in Civil
Revision no. 867 of 1990 connected with
Civil Revision no. 1079 of 1990 M/s Noor
Jahan Cold Storage Vs. State of U.P.
through Collector, Meerut and others
decided on 18.4.1991 wherein the learned
Single Judge of this Court observed that
"the fact that according to the memo
circle rate fixed by the A.D.M. (Finance),
Meerut the value of the Cold Storage is
not less 55.00 lacs and the agreement has
been executed at Rs.17 lacs. There is no
explanation prima facie for selling the
property at such low price. Hence
without making any observations on
merits it cannot be said that the plaintiff
has no case when he has alleged that the
Uttar Pradesh Financial Corporation has
acted arbitrarily and may be fraudulently
in disposing of the property to M/s Noor
Jahan Cold Storage for such a paltry sum
when the value of the land besides
structure, machinery etc. would also not
be less than Rs. 50 lacs or so."

18. The learned Single Judge by
making these observations (emphasis on
the underlined portion) has not finally
expressed his opinion about the value of
the property of the Cold Storage however,
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when
we
consider
the
various
pronouncements of Hon'ble Supreme
Court we find that circle rate can never be
taken to be the proper rate to assess the
actual market value of the landed
property. Circle rate is meant only for
registration of the sale deeds for imposing
stamp duty by the Revenue Authorities.
In this connection reliance can be placed
on the Jawajee Nagnatham Vs. The
Revenue Divisiona; Pffocer. Ado;anad.
A.P., etc. JT 1994 (2) S.C. 604 and
Krishi
Utpadan
Mandi
Samiti,
Sahaswan, District Badaun Trough Its
Secretary
Vs.
Bipin
Kumar
And
Another (2004) 2 SCC 283. In the light
of these discussions when we go through
the evidence led by the parties before the
lower court we find that there is
absolutely no reliable evidence from the
side of the appellants to show that the
market value of the Cold Storage in
question was worth Rs. 1.00 crore
including the price of land machinery etc.
Therefore, the observations made by the
learned Single Judge in the aforesaid
revision do not help the appellants. The
learned trial Judge has rightly observed
that the circle rate is only meant for the
realization of the stamp duty for the
purposes of registration and it has nothing
to do with the actual market value of the
property. The trial court has also
observed that the appellants failed to
adduce any evidence to prove that the
market value of the land of the Cold
Storage was Rs. 1500.00 per sq. yard on
the date of its sale. There is nothing on
the record to disagree with the trial court
on this point. It has also come in the
judgment of the Court below that the
appellants themselves valued the land of
the Cold Storage in question in 1978 to
the tune of Rs. 16,250.00 only and in a
letter written to the District Magistrate,
Meerut the price of the land in question
was mentioned as Rs. 200.00 per sq.
Yard. On the other hand the respondents
led their evidence in the form of sale deed
dated 6.4.1987 of the village Jahidpur to
show that the land in that village in the
year 1987 was sold at the rate of Rs.
66.00 per sq.yard or Rs. 300.00 per
sq.yard. Apart from the above material
the trial court has observed that in the
evidence led by the parties before it the
appellants themselves valued their entire
project including building, machinery etc.
of the Cold Storage to the tune of Rs.
18,50,000.00., Therefore, if the value of
the building and machinery etc. has
fetched Rs. 17 lacs in its sale to
defendants 5 to 7, this value cannot be
taken to be inadequate on account of any
collusion amongst the respondents. The
result of this discussion is that this point
no. 4 has to be decided against the
appellants. Accordingly, this point is
decided.

19. The last point which requires
decision is whether the Civil Court has
jurisdiction to grant the relief claimed by
the appellants. In this connection when
we go through the provisions of the Civil
Procedure Code we find that in the State
of U.P. in Rule 2 (2) of Order 39 the
following provision has been added by
U.P. Act no. 57 of 1976:- "provided that
no such injunction shall be granted
.......(g) to stay the proceedings for the
recovery of any dues recoverable as land
revenue unless adequate security is
furnished.

20. In the instant case there is
absolutely no material to show that any
security was furnished by the appellants
in connection with the recovery certificate
which was issued by the Uttar Pradesh
http://www.allahabadhighcourt.nic.in
2 All] Ram Pratap Singh V. State of U.P. and others
509
Financial Corporation against them. The
non-compliance
of
above
provision
coupled with the fact that the adjustment
of Rs. 17,68,450.00 claimed by the
appellants is without any payment of any
Court fee, in the suit for the relief leave
no doubt that the civil court has no
jurisdiction unless there is compliance of
the provisions of the Civil Procedure
Code. The relief of permanent injunction
has been sought without complying with
this provision. In view of this we are of
the view that the Civil Court has no
jurisdiction to grant such relief. The
result of the above discussion is that this
appeal has no force. Accordingly, it is
dismissed.

 Appeal dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.4.2004

BEFORE
THE HON'BLE A.K. YOG, J.

Civil Misc. Writ Petition No.27625 of 2001

Ram Pratap Singh

...Petitioner
Versus
State of U.P. & others ...Opposite Parties

Counsel for the Petitioner:
Sri H.S.N.Tripathi
Sri P.S. Tripathi

Counsel for the Opposite Parties:
Sri R.P. Goyal, Adv. General
Sri R. K. Awasthi, S.C.
Sri S. K. Rai
Sri Yashwant Verma

Constitution
of
India-Article
14-U.P.
Recruitment
of
Dependents
of
Government Servants Dying in Harness
Rules,
1974-
Compassionate
appointment-Petitioner
seeking
compassionate appointment-At relevant
time he was a minor-Hence not eligible
for appointment-Petitioner also failed to
establish
that
family
of
deceased
employee is in distress to -Further,
Dying in Harness Rule, held, hit by
Article 14 of Constitution-Doctrine of
legitimate expectations explained.

There
is
no
justification
for
the
Government
to make compassionate
appointments of a dependant of an
employee dying in harness ignoring
families of those eligible candidates
waiting in open market and whose
families may be in still graver. Para 44

Compassionate appointment, in a way
create reservation within reservation
and it should be so high so as to destroy
and
make
concept
of
equality
guaranteed by Article AIR 1964 SC 179
and AIR1967 SC1283 Constitution of
India, merely illusory. Reference may be
made to AIR 1963 SC 649. Para 45

To sum up-(i) petitioner has failed on the
facts of the present case, as discussed
above, to prove 'distress' which could
warrant compassionate appointment to
mitigate hardship immediately to the
family of deceased employee in question;
and, (ii) in the light of the discussion
made above, Dying in Harness Rules do
not stand the fest of valid classification
and, therefore, the Rules contemplating
compassionate appointments are hit by
Article 14 and 16, Constitution of India.
(iii) Respondents are directed to activate
Compassionate Fund Rule and The U.P.
Benevolent Fund Scheme 1997, and to
make it real, purposive and effective so
as to achieve solemn object for which
they are framed (iv) A copy of this
judgement
shall
be
sent
to
Chief
Secretary for bringing the matter to the
concerned and the State Government is
mandated to take appropriate action in
the light of the above.

Para 59
Case law discussed:
(1994) 6 SCC 282, (1994) 4 SCC 138, AIR
1996 SC 2445 (Pr. 5,6), AIR 1973 SC 2602,
AIR 1964 SC 1573, AIR 1971 SC 2486, JT
2001 (1) SC 536, AIR 1996 SC 2184 (Pr.10),
AIR 2001 SC 1203 (Pr. 11), (1991) 4 SCC 139,