# Mahendra Singh & Anr v. Board of Revenue & Ors

- **Citation:** (2022) 11 ILRA 90
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-20
- **Case number:** Writ B No. 49499 of 2015
- **Bench:** Chandra Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahendra-singh-anr-v-board-of-revenue-ors-47917
- **Pages:** 7

## Headnote

C.S.C., Sri Amresh Singh, Sri Brijesh Kumar
Verma, Sri Krishna Mohan, Sri Mohit Kumar,
Sri Rajeev Misra, Sri Rajesh Kumar, Sri Rajiv
Misra, Sri Shiv Nath Singh (Sr. Advocate),
Sri Sher Bahadur Singh

A. Civil Law - Code of Civil Procedure, 1908Order 47 Rule 1-U.P. Zamindari Abolition
and Land Reforms Act, 1950- Section 229-BReview-Delay of 22 years-petitioners filed
two suits u/s 229-B, which got decreedSecond review application filed by State and
Gaon Sabha has been allowed after 22 years
of the date of judgment of the Board of
revenue-Board
of
revenue
illegally
condoned and allowed application ignoring
the provisions under Order 47, Rule 1, CPCImpugned judgment of Board of revenue is
set aside.(Paras 1 to 12)

B. Under Order 47 Rule 1 CPC a judgment
may be open to review inter alia if there is
a mistake or an error apparent on the face
of record. An error which is not self-evident
and has to be detected by a process of
reasoning, can hardly be said to be an error
apparent on the face of the record
justifying the court to exercise its power of
review under Order 47 Rule 1 CPC. In
exercise of the jurisdiction under Order 47
Rule 1 CPC it is not permissible for an
erroneous decision to be "reheard and
corrected". A review petition, it must be
remembered has a limited purpose and
cannot be allowed to be "an appeal in
disguise."(Para 9)

The writ petition is allowed. (E-6)

List of Cases cited:

## Text

90 INDIAN LAW REPORTS ALLAHABAD SERIES
jurisdiction as the revisional court had
already dismissed the revision against the
order of trial court which attained finality
as such appellate court had no jurisdiction
to allow the appeal against the same order
of trial court.

14. Since the order of trial court dated
10.07.2007 passed under Section 34 of U.P.
Land Revenue Act 1901 under which
petitioner and respondent No.3 were
ordered to be recorded in the revenue
records in the place of deceased tenure
holder as such the petitioner's claim for
exclusive right can be examined in the
regular suit and for that relief petitioner can
avail remedy of suit for declaration of his
exclusive right and title in respect to
disputed plots.

15. Considering the entire facts and
circumstances of the case as well as ratio of
law laid down by Apex Court on the
principles of merger as well as of this Court
on the point of perversity and jurisdiction,
the impugned order dated 03.06.2013
passed by respondent No.1 and 21.03.2013
passed by respondent No.2 are liable to be
set aside and are hereby set aside. The writ
petition stands allowed. No order as to
costs.
----------
(2022) 11 ILRA 90
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.09.2022

BEFORE

THE HON'BLE CHANDRA KUMAR RAI, J.

Writ B No. 49499 of 2015

Mahendra Singh & Anr. ...Petitioners
Versus
Board of Revenue & Ors. ...Respondents

Counsel for the Petitioners:
Sri Ramesh Chandra, Sri S.C. Varma

Counsel for the Respondents:
C.S.C., Sri Amresh Singh, Sri Brijesh Kumar
Verma, Sri Krishna Mohan, Sri Mohit Kumar,
Sri Rajeev Misra, Sri Rajesh Kumar, Sri Rajiv
Misra, Sri Shiv Nath Singh (Sr. Advocate),
Sri Sher Bahadur Singh

A. Civil Law - Code of Civil Procedure, 1908Order 47 Rule 1-U.P. Zamindari Abolition
and Land Reforms Act, 1950- Section 229-BReview-Delay of 22 years-petitioners filed
two suits u/s 229-B, which got decreedSecond review application filed by State and
Gaon Sabha has been allowed after 22 years
of the date of judgment of the Board of
revenue-Board
of
revenue
illegally
condoned and allowed application ignoring
the provisions under Order 47, Rule 1, CPCImpugned judgment of Board of revenue is
set aside.(Paras 1 to 12)

B. Under Order 47 Rule 1 CPC a judgment
may be open to review inter alia if there is
a mistake or an error apparent on the face
of record. An error which is not self-evident
and has to be detected by a process of
reasoning, can hardly be said to be an error
apparent on the face of the record
justifying the court to exercise its power of
review under Order 47 Rule 1 CPC. In
exercise of the jurisdiction under Order 47
Rule 1 CPC it is not permissible for an
erroneous decision to be "reheard and
corrected". A review petition, it must be
remembered has a limited purpose and
cannot be allowed to be "an appeal in
disguise."(Para 9)

The writ petition is allowed. (E-6)

List of Cases cited:
1. Collector,Land Acqn. Anantnag & anr. Vs Mst.
Katji & ors. (1987) AIR SC 1353

2. Esha Bhattacharjee Vs Managing Committee
of Raghunathpur Nafar Academy & ors. (2013)
12 SCC 649
11 All. Mahendra Singh & Anr. Vs. Board of Revenue & Ors.
91
3. Haryana Vs Mohinder Singh & ors. (2002) JT
10 SC 197

4. Parsion Devi & ors. Vs Sumitr Devi & ors.
(1997) JT 8 SC 480

(Delivered by Hon'ble Chandra Kumar
Rai, J.)

1. Heard Sri Suresh Chandra Varma
and Sri Ramesh Chandra, learned counsel
for the petitioners, Sri Krishna Mohan, Sri
Shiv Nath Singh, learned Senior Advocate
and Sri Sher Bahadur Singh, learned
counsel for respondent no.3- Gaon Sabha.

2. Brief facts of the case are
petitioners filed two suits under Section
229B of U.P.Z.A. & L.R. Act on the basis
of lease deed executed in their favour by
the erstwhile Zamindar on 22.6.1948 in
respect of Khata No.38 area 10.04 acres.
Another suit was filed by Ayodhya. Suits
were dismissed by the trial Court against
which two appeals were filed i.e. Appeal
Nos.798/312
and
398/213
(Mahendra
Singh Vs. Gaon Sabha and Others).
Additional Commissioner vide separate
judgment dated 29.8.1984 dismissed both
the appeals. Petitioner no.1 as well as father
of the petitioner no.2 filed two second
appeals which were numbered as Second
Appeal No.3 & 4 of 1984-85. Board of
Revenue vide judgment and order dated
11.7.1990 allowed both the appeals and
decreed both the suits. Gaon Sabha and
State of U.P. were parties to the suit under
Section 229B of the U.P.Z.A. & L.R. Act
and they had full notice and knowledge of
the entire proceeding. Gaon Sabha and
State of U.P. filed Restoration Application
No.229 of 2009-10 (State Vs. Ayodhya
Prasad and Others), learned member of
Board of Revenue recorded the finding that
judgment dated 11.7.1990 was not ex-parte,
as such, the same should be treated as
review petition and should be placed before
the Division Bench of the Board of
Revenue, by the same order effect and
operation of the order dated 11.7.1990 has
been stayed. The matter was placed before
the Division Bench of the Board of
Revenue and they held that matter be
placed before single member as the
application is not review application and it
can
be
treated
only
as
restoration
application, accordingly, the matter was
again placed before single member of the
Board of Revenue. The Board of Revenue
vide order dated 18.6.1996 rejected the
restoration application dated 11.7.1990
filed by State and Gaon Sabha. On
19.3.2013, two review applications were
filed by DGC (Revenue) which were
registered
as
Review
Application
Nos.1/2012-13 and 2/2012-13. Along with
review application, the application for
condonation of delay and affidavit were
also filed, the deponent of the affidavit filed
in the support of the review application as
well as delay condonation application was
not pradhan of the Gaon Sabha, he was
clerk of DGC (Revenue), who has filed his
affidavit, review application were placed
before the Division Bench of the Board of
Revenue vide order dated 25.1.2013.
Petitioners filed a Civil Misc. Writ Petition
No.64148 of 2013 against the order of
Board of Revenue dated 25.1.2013. The
writ petition was disposed of by this Court
vide judgment dated 25.11.2013 with
direction to decide the review application
within two months from the date of
production of certified copy of the order.
Respondent no.4, Ravindra also filed a
Civil Misc. Writ Petition No.5377 of 2013
before this Court which was dismissed vide
order dated 19.9.2013 with a clear finding
that there is no explanation of delay of 22
years. Division Bench of the Board of
Revenue vide judgment dated 15.7.2015
92 INDIAN LAW REPORTS ALLAHABAD SERIES
allowed both the review applications
setting aside the order dated 11.7.1990
passed in Second Appeal Nos.3 and 4 and
second appeal was restored to its original
number, hence this writ petition. This Court
while entertaining the writ petition at the
admission stage has passed the following
interim order dated 8.9.2015:

"Notice on behalf respondents- 1
and 2 has been accepted by Chief Standing
Counsel, on behalf of respondent-3 has
been accepted by Sri Amresh Singh as well
as Sri Rajesh Kumar and on behalf of
respondent-4 has been accepted by Sri
Rajesh Mishra. All the respondents are
granted one month's time for filing counter
affidavit.

List in the week commencing
26.10.2015.

Till the next date of listing the
operation of the order of Board of Revenue
dated 15.07.2015 shall remain stayed and
parties shall maintain status quo on the
spot"

3. Learned counsel for the petitioners
submitted that no sufficient cause has been
shown for condonation of delay of 22 years
in filing the review application against the
order of Board of Revenue allowing the
second appeal on merit. He further
submitted that Board of Revenue has
committed illegality while considering the
review
application
taking
into
consideration the merit of the case also. He
also submitted that none of the ground
mentioned under Order 47 Rule 1 of Code
of Civil Procedure was available but the
Board of Revenue has allowed the highly
time barred review application. He next
submitted that State of U.P. and Gaon
Sabha had every knowledge of the entire
proceeding even they were heard by the
Board of Revenue while the second appeal
was allowed on merit in the year 1990, as
such, the delay in filing the review
application has been illegally condoned and
review application has been illegally
allowed by the Board of Revenue. He
further submitted that Writ-B No.51377 of
2013 filed at the instance of respondent
no.4 against the order dated 11.7.1990
passed by Board of Revenue was rejected
vide order dated 19.9.2013. Counsel for the
petitioners
placed
reliance
upon
the
judgment of this Court challenged in the
case of Kanpur Developement Authority
Through Chairman Vs. Raksha Rani
Agarwal (First Appeal Defective No.50 of
2008) dated 9.12.2015 in which the first
appeal filed with delay before the High
Court was dismissed on the ground of
limitation, the Paragraph Nos.21 & 22 of
the
judgment
rendered
in
Kanpur
Development Authority (supra) are as
follows:

"21.Following
various
earlier
decisions, some of which have been
referred hereinabove, includingState of
Nagalandv.Lipok
AO(supra)
inManiben
Devraj Shahv.Municipal Corporation of
Brihan Mumbai,(2012) 5 SCC 157, in para
18 of the judgment, the Court said as
under:

?What needs to be emphasised is
that even though a liberal and justice
oriented approach is required to be
adopted in the exercise of power under
Section 5 of the Limitation Act and other
similar statutes, the Courts can neither
become oblivious of the fact that the
successful litigant has acquired certain
rights on the basis of the judgment under
challenge and a lot of time is consumed at
various stages of litigation apart from the
cost. What colour the expression ?sufficient
cause? would get in the factual matrix of a
given case would largely depend on bona
11 All. Mahendra Singh & Anr. Vs. Board of Revenue & Ors.
93
fide nature of the explanation. If the Court
finds that there has been no negligence on
the part of the applicant and the cause
shown for the delay does not lack bona
fides, then it may condone the delay. If, on
the other hand, the explanation given by
the applicant is found to be concocted or he
is thoroughly negligent in prosecuting his
cause, then it would be a legitimate
exercise of discretion not to condone the
delay. In cases involving the State and its
agencies/instrumentalities, the Court can
take note of the fact that sufficient time is
taken in the decision making process but no
premium can be given for total lethargy or
utter negligence on the part of the officers
of
the
State
and/or
its
agencies/instrumentalities
and
the
applications filed by them for condonation
of delay cannot be allowed as a matter of
course by accepting the plea that dismissal
of the matter on the ground of bar of
limitation will cause injury to the public
interest.?

"22.In our view, the kind of
explanation rendered in the case in hand
does not satisfy the observations of Apex
Court that if delay has occurred for reasons
which does not smack of mala fide, the
Court should be reluctant to refuse
condonation. On the contrary, we find that
here is a case which shows a complete
careless and reckless long delay on the part
of applicants which has remain virtually
unexplained at all. Therefore, we do not
find any reason to exercise our judicial
discretion exercising judiciously so as to
justify condonation of delay in the present
case."

4. On the other hand, counsel for the
respondents submitted that the opportunity
to State and Gaon Sabha was not properly
afforded while deciding the second appeal
vide judgment dated 11.7.1990, as such,
when the State and the Gaon Sabha came to
know about the same, the proceedings were
initiated before the Board of Revenue. He
further submitted that interest of the State
and the Gaon Sabha is involved and the
petitioners has get the order in respect of
the State land so the judgment of Board of
Revenue has been rightly reviewed by the
subsequent order of the Board of Revenue.
He placed reliance upon the judgments
reported in AIR 1987 SC 1353 (Collector
Land Acquisition, Anantnag and Others
Vs. Katji and Others) & (2013) 12 SCC
649 (Esha Bhattacharjee Vs. Managing
Committee
of
Raghunathpur
Nafar
Academy and Others). On the basis of
aforementioned judgment of the Apex
Court,
counsel
for
the
respondents
submitted that liberal view should be taken
in respect to the delay condonation matter
and in place of rejecting the application,
appeal or revision on the technical grounds,
the matter should be adjudicated on merit.
Counsel
for
the
respondents
further
submitted that filing of Writ-B No.51377 of
2013 is the manipulation of petitioners, as
such, no reliance can be placed upon the
same.

5. I have considered the argument
advanced by learned counsel for the parties
and perused the record.

6. There is no dispute about the fact
that the suit under Section 229B of
U.P.Z.A. & L.R. Act filed by the petitioners
were decreed in the second appeal by the
Board of Revenue vide judgment and order
dated 11.7.1990 after hearing the counsel
for the parties. Paragraph No.5 of the
judgment of Board of Revenue will be
relevant for perusal which is as follows:

"5. The learned counsel for the
respondent has argued that the fact as is
94 INDIAN LAW REPORTS ALLAHABAD SERIES
evident from the extracts from the Khasras
and Khataunis filed by the parties, all go to
show that the names of the plaintiffs have
never appeared in revenue records and if
some patta would have actually been
executed the name of plaintiff their name
must have been brought on record. The
learned counsel for the respondent has
further argued that evidently the land in
dispute has remained recorded as Sanjar
belonging to the Gaon Sabha including the
revenue records pertaining to consolidation
of holdings operations and there is non
evidence that the plaintiffs have ever paid
any land revenue for the land. In reply to
the contentions of learned counsel for the
appellant about the cancellation of the
house the learned D.G.C. (R) has said that
these contentions are irrelevant for this
case nor there is any evidence for that
effect."

7. Perusal of Paragraph No.5 of the
judgment of Board of Revenue fully
demonstrate that the judgment dated
11.7.1990 is not ex-parte against the Gaon
Sabha and State. The first restoration
application filed at the instance of the Gaon
Sabha and State was rejected by the Board
of Revenue and the second review
application filed at the instance of the State
and the Gaon Sabha after 22 years of the
date of judgment of the Board of Revenue
has been allowed, the judgment passed on
merit by the Board of Revenue has been set
aside. Since the Board of Revenue vide
judgment dated 11.7.1990 has allowed the
appeal on merit after hearing the counsel
for the parties, as such, the State or Goan
Sabha can challenge the judgment passed
on merit by the Board of Revenue dated
11.7.1990 before the higher Court rather by
way of restoration or review before the
same Court even after 22 years. It is also
material that respondent no.4 challenged
the order dated 11.7.1990 before this Court
in the year 2013 which was dismissed by
this Court vide order dated 19.9.2013
although counsel for the respondents
submitted that filing of Writ-B No.5377 of
2013 is the manipulation of the petitioners.

8. The Board of Revenue has
arbitrarily condoned the delay in filing the
review application and allowed the review
application
without
considering
the
provisions contained under Order 47 Rule 1
of the Code of Civil Procedure. The
provisions of Order 47 Rule 1 of the Code
of Civil Procedure are as follows:

"1. Application for review of
judgment?(1)
Any
person
considering
himself aggrieved?

(a) by a decree or order from
which an appeal is allowed, but from which
no appeal has been preferred,

(b) by a decree or order from
which no appeal is allowed, or

(c) by a decision on a reference
from a Court of Small Causes,

and who, from the discovery of
new and important matter or evidence
which, after the exercise of due diligence,
was not within his knowledge or could not
be produced by him at the time when the
decree was passed or order made, or on
account of some mistake or error apparent
on the face of the record, or for any other
sufficient reason, desires to obtain a review
of the decree passed or order made against
him, may apply for a review of judgment of
the Court which passed the decree or made
the order.

(2) A party who is not appealing
from a decree or order may apply for a
review of judgment notwithstanding the
pendency of an appeal by some other party
except where the ground of such appeal is
common to the applicant and the appellant,
11 All. Mahendra Singh & Anr. Vs. Board of Revenue & Ors.
95
or when, being respondent, he can present
to the Appellate Court the case on which he
applies for the review.

[Explanation.?The fact that the
decision on a question of law on which the
judgment of the Court is based has been
reversed or modified by the subsequent
decision of a superior court in any other
case, shall not be a ground for the review of
such judgment.]"

9. The Apex Court considering the
provisions of Order 47 Rule 1 of Code of
Civil
Procedure
as
adjudicated
the
controversy of review jurisdiction in the
following cases:

1. Haryana Vs. Mohinder Singh
and Others reported in JT 2002 (10) S.C.
197. Paragraph No.5 of the judgment will
be relevant which is as follows:

"5. We have carefully considered
the
submissions
of
learned
counsel
appearing on either side. The division
bench in the High Court, in our view,
completely overstepped the limits of its
review jurisdiction and on the face of it
appears to have proceeded as though it is a
rehearing of the whole petition which had
been earlier finally disposed of. It has often
been reiterated that the scope available for
a litigant invoking the powers of review is
not one more chance for rehearing of the
matter already finally disposed of. The
course adopted in this case by the High
Court appears to be really what has been
held by this Court to be not permissible. On
this ground alone, without expressing any
views on the merits of the claim, the order
of the High Court dated 14.5.99 is set aside
and the original order dated 14.5.1998
shall stand restored. While noticing some of
the submissions made on merits by either
side, we consider it appropriate to place on
record that even the learned counsel for the
appellant could not seriously dispute the
position that the respondents would at any
rate be entitled to be placed on the 'first
higher standard pay scale' and that to this
extent atleast, the respondents' claim would
deserve consideration. The appeals are
allowed in the above terms. No order as to
costs."

2. Parsion Devi and Others Vs.
Sumitr Devi and Others reported in JT
1997 (8) SC 480. Paragraph No.9 of the
judgment will be relevant which is as
follows:

9. Under Order 47 Rule 1 CPC a
judgment may be open to review inter alia if
there is a mistake or an error apparent on the
face of the record. An error which is not selfevident and has to be detected by a process of
reasoning, can hardly be said to be an error
apparent on the face of the record justifying
the court to exercise its power of review
under Order 47 Rule 1 CPC. In exercise of
the jurisdiction under Order 47 Rule 1 CPC it
is not permissible for an erroneous decision
to be "reheard and corrected". A review
petition, it must be remembered has a limited
purpose and cannot be allowed to be "an
appeal in disguise".

10. So far as case law cited by learned
counsel for the respondent are concerned, it
will be relevant to mention here that liberal
view can be taken by the Court under the
circumstances of the case so that matter can
be adjudicated on merit. In the present case
second appeal has been adjudicated once on
merit vide judgment dated 11.7.1990, as such,
for exercising review jurisdiction after 22
years there is no question of taking liberal
view by the Court, as such, case laws cited by
learned counsel for the respondents are not
applicable in the present controversy.

11. Considering the ratio of law laid
down by the Apex Court as well as by this
96 INDIAN LAW REPORTS ALLAHABAD SERIES
Court and the fact that judgment dated
11.7.1990 was passed on merit after
hearing both the parties, the review
jurisdiction exercised by the Board of
Revenue after 22 years from the date of the
judgment passed by the Board of Revenue
on merit is wholly without jurisdiction and
cannot be sustained in the eye of law. The
impugned judgment and order dated
15.7.2015 passed by Board of Revenue,
Allahabad in Review Application Nos. 1
and 2 of 2012-13 is liable to be set aside
and is hereby set aside. The original order
of Board of Revenue dated 11.7.1990 shall
stand restored.

12. The writ petition is allowed.

13. No order as to costs.
----------
(2022) 11 ILRA 96
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.09.2021

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Writ C No. 8089 of 2021

M/s Sunray Auto Glass Pvt. Ltd., Gautam
Budh Nagar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Chandra Bhan Gupta

Counsel for the Respondents:
C.S.C., Shekhar Srivastava

d- Je dkuwu & m0iz0 vkS|ksfxd fookn
vf/kfu;e] 1947 & /kkjk 6&,u & ,di{kh;
vkns"k & uksfVl rkfeYkk & Mkd dh vk[;k esa
izkfIr ij gLrk{kj vfookfnr & izHkko &
vfHkfu/kkZfjr fd;k x;k] Mkd foHkkx dh fLFkfr
vk[;k o uksfVl izkIr djus okYks dk uke o pYk
nwjHkk'k ntZ gksus ds lk{; ls vfookfnr gks tkrk
gS fd uksfVl lsok;kstd dks rkfeYk gks x;k Fkk &
lsok;kstd us uksfVl rkfeYk gksus ds ckn Hkh
viuk i{k Je U;k;kYk; ds le{k ugha izLrqr
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vkns"k esa dksbZ fof/kd «kqfV ugha ik;kA ¿iSjk 4
1⁄4d1⁄2À
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vf/kfu;e] 1947 & /kkjk 6&,u & vkS|ksfxd
fookn ds fuLrkj.k ds nkSjku /kkjk 6&x dk
mYYka?ku fl) & Jfed dh iqu% fu;qfDr djus
vkSj mls iw.kZ cdk;k osru Hkqxrku djus gsrq
Je U;k;kYk; }kjk fn;k x;k vkYkksP; vkns"k]
fdruk oS/kkfud & Je fookn ds fopkjk/khu ds
nkSjku Jfed 58 o'kZ dh vk;q iwjk dj fYk;k &
Jfed }kjk dksbZ vU; dk;Z u djus dk dksbZ
lk{; ugha & izHkko & vfHkfu/kkZfjr fd;k x;k]
tgka /kkjk 6&,u dk mYYka?ku gks] rc Hkh iqu%
fu;qfDr o iw.kZ cdk;k osru dk vkns"k Lor%
ikfjr ugha gks ldrk gS & dsoYk ,deq"r
izfrdj iznku djus dk vkns"k U;k;laxr
mik; gS & gkbZdksVZ us lsok;kstd }kjk Jfed
dks 3 Ykk[k #i;s dh ,d eq"r /kujkf"k
izfrdj ds :i esa fn, tkus dk vkns"k fn;kA
¿iSjk 4 1⁄4[k1⁄2] 4 1⁄4x1⁄2 ,oa 5 1⁄4d1⁄2À
fjV ;kfpdk आंशिक :Ik ls Lohd`r (E-1)
mYysf[kr iwoZ fu.kZ;ksa dh lwph%&
1. पी.वी.के. क्षिडस्टीलरी क्षललक्षिमटेड बिाम
महेन्द्र राम, (2009) 5 एस.सी.सी.705

2- महक क्षसिंह बिाम प्रसाईक्षडिंडग आक्षि.सर
इिंडस्टरीयल
क्षिटरव्यूिल,
2005
(5)
ए.
डब्लू.सी.5147;

3- प्रेम बहादुर दलेला बिाम उमेशराS बाली
2019(11) ए.डी.Sेे. 697;

4- उत्तर प्रदेश शासि बिाम लेबर कोट_ यू.पी.
इलाहाबाद 2002 (4) ए. डब्लू.सी.3295;