# Mohd. Ishtiaq v. State of U.P. & Ors

- **Citation:** (2016) 1 ILRA 234
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-02-25
- **Case number:** Service Single No. 3426 of 2016
- **Bench:** Rajan Roy
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-ishtiaq-v-state-of-u-p-ors-43413
- **Pages:** 3

## Headnote

Indian Evidence Act-Section 107 and
108-presumption of Civil death father of
1 All.
 Mohd. Ishtiaq Vs. State of U.P. & Ors.
235
petitioner disappeared more than 7
years ago-Civil Suit for declaration of
civil death-dismissed with finding in
view of specific provision in Evidence
Act-no
declaration
required-claim
of
compassionate
appointment
denied
unless-declaration
made
by
Courtauthorities given all post retirel benefitswhich itself denotes-acceptance of civil
death-denial
of
compassionate
appointment-not
proper-direction
for
fresh consideration given.
Held: Para-9
A perusal of the said circular does not
indicate any declaration is required
under it from a Court. It only refers to
the satisfaction of a competent authority
which in this case appears to be the
authority
competent
to
provide
compassionate appointment. In any case
in view of the judgments cited herein
above, the said circular can not come in
the way if the conditions for applicability
of Section 108 of the Indian Evidence Act
are satisfied. Moreover, in the present
case, it has been averred that the deathcum-retirement benefits consequent to
the death of the father have been
released in favour of the petitioner and
other family members, therefore, this
raises
a
presumption
about
the
disappearance and civil death of the
father having been accepted by the
opposite parties themselves otherwise
even this benefit would not have been
extended.
Case Law discussed:
2005 (23) LCD 169; Special Appeal No. 767 of
2012

## Text

234
 INDIAN LAW REPORTS ALLAHABAD SERIES
intention of securing the interest of revenue
by imposing just conditions at the first
appellate stage, can also not be held to be
arbitrary and reading a principle contrary to
the intention of Section 220 (6) amounts to
adding
something
in
the
appellate
jurisdiction which the law neither expressly
nor by implication does provide. The apex
court judgement placed reliance upon in the
Division Bench judgements cited before us,
does appear to have led to the incorporation
of Rule 35-A in the Rules of 1963 but no
such amendment was made in pursuance of
the apex court judgement incorporating any
such provision which may authorise the
appellate
authority
at
the
stage
of
proceedings under Section 246 or 246-A to
pass an interim stay order. The position of
law becomes further doubtful when it is
noticed that the writ petition in the case of
Prem
Prakash
Tripathi
(supra)
was
dismissed, as such a direction issued therein
becomes binding merely between the
parties and is not a judgement in rem. On
the other hand, looking to the scheme of the
Act and law laid down by the apex court in
the case of Assistant Collector of Central
Excise v. Dunlop India Ltd. (1985) 154 ITR
172 and the judgements reported in AIR
1956 All. 130: Goverdhan Lal Jagdish
Kumar v. Commissioner of Income Tax and
others;
AIR
1957
Andhra
Pradesh
114:Vetcha Sreeamamurthy v. Income Tax
Officer and another and AIR 1957 Andhra
Pradesh
671:
Shrimathi
Mokhamatla
Mondamma and another v. Shrimathi
Mokhamatla Venkatalakshmidevi, we are
not in agreement with the proposition of law
as has been canvassed by the learned
counsel for the petitioner in the writ
petition. It is, however, open to the CBDT
to issue guidance to the assessing authority
to deal with the matters, during pendency of
the appeals filed under Section 246 and
246-A so that the recovery of revenue of
direct taxes may not suffer a set back and
the
assessee
is
equally
relieved
of
unnecessary torture.
12. In the circumstances of the case,
we leave it open to the petitioner to
approach the assessing officer under
Section 220 (6) of the Act within a period
of two weeks from today and in case any
application is filed by the petitioner
before the assessing officer, he shall pass
necessary
order
after
affording
an
opportunity to the petitioner within three
months from the date of filing of any such
application.
Until
decision
on
the
application, filed if any, or until decision
of the appeal itself within a period of
three month, the recovery proceedings in
relation to the assessment year 2012-2013
for the disputed amount shall remain in
abeyance and the same shall abide by to
the outcome of the appeal.
13. With the aforesaid observations,
the writ petition is disposed of.
-------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.02.2016
BEFORE
THE HON'BLE RAJAN ROY, J.
Service Single No. 3426 of 2016
Mohd. Ishtiaq
 ...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Alok Mishra
Counsel for the Respondents:
C.S.C., Amit Kr. Singh Bhaduriya
Indian Evidence Act-Section 107 and
108-presumption of Civil death father of
1 All.
 Mohd. Ishtiaq Vs. State of U.P. & Ors.
235
petitioner disappeared more than 7
years ago-Civil Suit for declaration of
civil death-dismissed with finding in
view of specific provision in Evidence
Act-no
declaration
required-claim
of
compassionate
appointment
denied
unless-declaration
made
by
Courtauthorities given all post retirel benefitswhich itself denotes-acceptance of civil
death-denial
of
compassionate
appointment-not
proper-direction
for
fresh consideration given.
Held: Para-9
A perusal of the said circular does not
indicate any declaration is required
under it from a Court. It only refers to
the satisfaction of a competent authority
which in this case appears to be the
authority
competent
to
provide
compassionate appointment. In any case
in view of the judgments cited herein
above, the said circular can not come in
the way if the conditions for applicability
of Section 108 of the Indian Evidence Act
are satisfied. Moreover, in the present
case, it has been averred that the deathcum-retirement benefits consequent to
the death of the father have been
released in favour of the petitioner and
other family members, therefore, this
raises
a
presumption
about
the
disappearance and civil death of the
father having been accepted by the
opposite parties themselves otherwise
even this benefit would not have been
extended.
Case Law discussed:
2005 (23) LCD 169; Special Appeal No. 767 of
2012
(Delivered by Hon'ble Rajan Roy, J.)
1. Heard learned counsel for the
parties.
2. The father of the petitioner is said
to have disappeared more than seven
years
ago,
therefore,
he
claims
compassionate appointment presuming
his civil death in terms of Section 107 and
108 of the Indian Evidence Act.
3. The question as to whether in
such cases declaration is required by the
Civil Court or not was considered by the
Division Bench of this Court in the case
of Ramakant Singh Vs. State of U.P. and
others reported in 2005 (23) LCD 169
wherein it was held that even if the suit
had not been filed, a presumption could
be drawn, if the conditions imperative for
raising the presumption were satisfied.
Once a presumption of civil death is
raised on the satisfaction of the conditions
given in Section 108 of the Indian
Evidence Act, the burden of proof that he
is alive, is then shifted to the person who
affirms that the person reported missing
was seen and is alive.
4. Similar view has been taken by
another Division Bench of this Court in
the case of District Judge Vs. Saurabh
Kumar, (Special Appeal No. 767 of
2012).
5. In the present case, father of the
petitioner is said to have disappeared
while in service on 06.10.2007. An F.I.R.
is
said
to
have
been
lodged
on
11.10.2007.
6. According to the petitioner, a
final report was submitted in respect
thereto before a Court of competent
jurisdiction. However, learned counsel for
the petitioner is unable to inform the
Court as to whether the same has been
accepted or not. The mother of the
petitioner is said to have filed a Regular
Suit bearing No. 128 of 2015 seeking
declaration regarding the civil death of
her husband which was dismissed on the
ground that under Section 108 of the
236
 INDIAN LAW REPORTS ALLAHABAD SERIES
Indian Evidence Act a presumption of
civil death exists but the said provision
does not require any declaration by the
Court. A suit for declaration can only be
filed under Section 34 of the Specific
Relief Act. However, such declaration is
to be accompanied by such further relief
as may be necessary. As the Plaintiff did
not seek any relief other than declaration,
therefore, only for this reason the Suit was
dismissed. The appeal against the said
judgment was also dismissed.
7. Nevertheless the petitioner herein
applied for compassionate appointment.
The same has been rejected on the ground
that unless the competent authority gives
a declaration about the civil death of his
father
he
can
not
be
provided
compassionate appointment.
8.

Shri
Amit
Kumar
Singh
Bhadauriya, learned counsel for the
opposite parties 2 and 3 relies upon a
Circular of the Board dated 16.08.1996
which requires a declaration about the
civil death by the competent authority.
9. A perusal of the said circular does
not indicate any declaration is required under
it from a Court. It only refers to the
satisfaction of a competent authority which
in this case appears to be the authority
competent
to
provide
compassionate
appointment. In any case in view of the
judgments cited herein above, the said
circular can not come in the way if the
conditions for applicability of Section 108 of
the Indian Evidence Act are satisfied.
Moreover, in the present case, it has been
averred
that
the
death-cum-retirement
benefits consequent to the death of the father
have been released in favour of the petitioner
and other family members, therefore, this
raises a presumption about the disappearance
and civil death of the father having been
accepted by the opposite parties themselves
otherwise even this benefit would not have
been extended.
10. In view of the aforesaid, the
order impugned can not be sustained and
the same is quashed. The competent
authority which is empowered to provide
compassionate appointment is directed to
have a re-look at the matter in the light of
the observations and the pronouncements
referred herein above, after ascertaining
the correct factual position as regards the
acceptance or otherwise of the final report
submitted as referred above, and take a
decision regarding the entitlement of the
petitioner to compassionate appointment
within a period of two months from the date
a certified copy of this order is submitted.
Consequences shall follow as per law.
11. With the aforesaid observations,
the writ petition is disposed of.
-------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 05.02.2016
BEFORE
THE HON'BLE BACHCHOO LAL, J.
Bail No. 6864 of 2014
Badey Lal
 ...Applicant
Versus
State of U.P.
...Opp. Party
Counsel for the Applicant:
Vishnu Kumar Srivastava
Counsel for the Opp. Party:
Govt. Advocate
Cr.P.C.-Section 439-Third bail application
offence under Section 498-A, 304 B IPC and
3⁄4 DP Act-applicant is father-in-law-Hasiya