# Mahipal Singh v. The State of U.P. and others

- **Citation:** (2008) 3 ILRA 937
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-09-26
- **Bench:** V.M. Sahai, Pankaj Mithal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahipal-singh-v-the-state-of-u-p-and-others-41275
- **Pages:** 3

## Headnote

Constitution
of
India,
Article
226Termination
of
service-petitioner
working as Shiksha Mitra-B.S.A. passed
termination order as per direction of
District Magistrate-direction of Single
Judge to make representation to the
D.M.-putting rider and closing the door
of justice from future right of challengeheld-illusory and futile exercise-learned
Single Judge exceeded the jurisdictioncannot sustain.

Held: Para 8 & 9

In
view
of
aforesaid
facts
and
circumstances, we are of the opinion
that the order passed by the learned
single Judge exceeds jurisdiction and,
therefore, if cannot be sustained under
law. Accordingly, we allow the appeal
and set-aside the judgment and order of
the learned single Judge dated 1.9.2008
and send back the matter before the
appropriate Bench of the learned single
Judge for decision afresh on merits

 The special appeal is allowed as above.
No order as to costs.
938 INDIAN LAW REPORTS ALLAHABAD SERIES [2008

## Text

3 All] Mahipal Singh V. The State of U.P. and others
937
court
therefore
while
granting
or
maintaining the relief against arbitrary
ejectment to the tenant can very well ask
the tenant to shed the un-reasonable
benefit of the Rent Control Act granted to
him in the form of immunity against
enhancement of rent, however inadequate
the rent might be. Tenant will have to
shed the undue advantage of immunity
from enhancement of rent under the Rent
Control Act to barter his protection from
arbitrary eviction provided for by the said
Act."

Thereafter in H.M. Kitchlu vs.
A.D.J. 2004 (2) A.R.C. 652, I have held
that the same principle of enhancement of
rent to a reasonable extent may be made
applicable while dismissing the writ
petition of the landlord for the reason that
by doing so writ court approves the
protection of Rent Control Act granted to
the tenant by the courts below.

Property in dispute is a shop, rent of
Rs.30/- per month is virtually as well as
actually no rent. It is rather ridiculous.
Accordingly, it is directed that w.e.f.
October,
2008
onwards,
tenants
respondents shall be liable to pay rent @
Rs.1000/- per month. No further amount
as house tax, water tax or chhajja tax shall
be payable over and above the aforesaid
rent of Rs.1000/- per month. As no one
has appeared for the tenants, hence
landlord shall send certified copy of this
judgment to any one of the tenants
through registered post.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.09.2008

BEFORE
THE HON'BLE V.M. SAHAI, J.
THE HON'BLE PANKAJ MITHAL, J.

Special Appeal No.1298 of 2008.

Mahipal Singh

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

Counsel for the Petitioner:
Sri. Mithilesh Kumar Tiwari

Counsel for the Respondents:
Sri. V.K. Singh
Sri. J.N. Maurya

Constitution
of
India,
Article
226Termination
of
service-petitioner
working as Shiksha Mitra-B.S.A. passed
termination order as per direction of
District Magistrate-direction of Single
Judge to make representation to the
D.M.-putting rider and closing the door
of justice from future right of challengeheld-illusory and futile exercise-learned
Single Judge exceeded the jurisdictioncannot sustain.

Held: Para 8 & 9

In
view
of
aforesaid
facts
and
circumstances, we are of the opinion
that the order passed by the learned
single Judge exceeds jurisdiction and,
therefore, if cannot be sustained under
law. Accordingly, we allow the appeal
and set-aside the judgment and order of
the learned single Judge dated 1.9.2008
and send back the matter before the
appropriate Bench of the learned single
Judge for decision afresh on merits

 The special appeal is allowed as above.
No order as to costs.
938 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
(Delivered by Hon'ble V.M. Sahai, J.)

1. We have heard Sri Mithilesh
Kumar Tiwari learned counsel for the
appellant,
learned
standing
counsel
appearing for respondents no. 1 and 2, Sri
V.K. Singh learned counsel appearing for
respondents no.4 and 5 and Sri J.N.
Maurya, learned counsel appearing for
respondents no.3 and 6.

2. This intra court appeal has been
preferred by the appellant against the
judgment and order dated 1.9.2008 passed
by the learned single Judge dismissing his
writ petition no.43748 of 2008 with the
direction to the petitioner to move a
representation
with
regard
to
his
grievance before the District Magistrate,
who has been directed to decide the same
within a time bound period. It further
provides that if the appellant is not
satisfied by the decision of the District
Magistrate on the representation he may
file a civil suit.

3. Learned counsel for the appellant
has urged two points. First, the order
dated 25.7.2008 impugned in the writ
petition was passed by the District Basic
Shiksha Adhikari on the direction of the
District Magistrate to terminate the
services of the appellant as Shiksha Mitra
and. therefore, there was no justification
to relegate the appellant to file a
representation
before
the
District
Magistrate. Secondly, it has been argued
that the appellant's right to seek redressal
by
invoking
Article
226
of
the
Constitution in future has also been taken
away, which is not permissible under law.

4. We have perused the order of the
District Basic Shiksha Adhikari dated
25.7.2008. The order clearly recites that
the services of the appellant were
terminated on a complaint made to the
District Magistrate, on the direction of the
District Magistrate. Therefore, we are of
the opinion that there was no purpose in
sending the appellant to the District
Magistrate for ventilating his grievance.
The District Magistrate has already taken
a decision in the matter and, as such, the
exercise of making a representation
before him on the face of it is futile.

5. Regarding the other submission, it
is necessary to reproduce the relevant part
of the impugned judgment and order of
the learned single Judge which is as
under:-

"The petitioner may move a fresh
representation ventilating his grievance
before the District Magistrate, Kanpur
Dehat within a period of one week from
today who shall decide the same by a
reasoned
and
speaking
order,
in
accordance with law within another
period of two weeks thereafter. In case the
petitioner is aggrieved by the decision of
the representation, he may approach the
Civil Court by filing civil suit as he has an
alternative and efficacious remedy by way
of filing civil suit before the Civil Court."

6. A plain reading of the aforesaid
order indicates that the Court has not only
relegated the appellant to an alternative
remedy of making a representation, which
under the facts and circumstances stated
above is nothing but illusory and a futile
exercise, but at the same time has directed
him not to approach this Court again even
if the decision on his representation goes
against him. In other words, the doors of
justice has been closed for him with a
further rider that in future also the door of
justice would not be opened for him and
3 All] Ram Sewak Sharma V. State of U.P. and others
939
instead he should file a civil suit. This
part of the order of the learned single
Judge is more in the nature of advisory
jurisdiction and amounts to pre-closing
the doors of justice for the appellant in
future. This has been done even before the
appellant has knocked the doors of justice
again. We cannot subscribe to the view
taken by the learned single Judge in this
regard as it is not for the courts to give
advise. The appellant has not solicited the
advise and there was no question of such
solicitation as the order has not yet been
passed by the District Magistrate.

7. Besides the above, the court is not
supposed to pass orders in vacuum or in
anticipation so as to foreclose the light of
the appellant to invoke the extra ordinary
jurisdiction of the Court in future for a
cause of action which has not yet arisen.

8. In view of aforesaid facts and
circumstances, we are of the opinion that
the order passed by the learned single
Judge exceeds jurisdiction and, therefore,
if cannot be sustained under law.
Accordingly, we allow the appeal and setaside the judgment and order of the
learned single Judge dated 1.9.2008 and
send
back
the
matter
before
the
appropriate Bench of the learned single
Judge for decision afresh on merits

9. The special appeal is allowed as
above. No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.09.2008

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.

Civil Misc. Writ Petition No. 18929 of 2005

Ram Sewak Sharma

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

Counsel for the Petitioner:
Sri. S.K. Yadav

Counsel for the Respondents:
Sri. H.R. Mishra
S.C.

U.P. Primary Agricultural Co-operative
Credit
Societies
Centralised
Service
Rules 1976-as amended by 12th amended
Rules
2004-power
of
appellate
authority-against the order of dismissal
by DAC-RAC allowed the appeal and
modified the order of dismissal with
reinstatement
by
withholding
two
increments
subject
to
payment
of
embezzled
amount-DAC
refused
the
joining even after deposit of damaged
amount-held-during pendency of appeal
the appellate authority becomes the
State Cadre Authority-as such after
30.06.2004 RAC has no authority to
decide the appeal-order passed by DAC
justified-direction issued to decide the
revision.

Held: Para 16

In the present case the right of appeal
has not been taken away but the forum
has been changed. The RAC which was
vested earlier with power to hear the
appeal against an order of the DAC has
been
deleted
by
virtue
of
(12th
Amendment) Rules, 2004 and the power
to hear the appeal is vested in the State
Cadre Authority w.e.f. 30/6/2004. The
RAC being not in existence after the