# Mukesh Kumar v. Union of India & Ors - **Citation:** (2020) 9 ILRA 476 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2020-03-03 - **Case number:** WRIT - C No. 7811 of 2008 - **Bench:** Ramesh Sinha, Ajit Kumar - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mukesh-kumar-v-union-of-india-ors-45974 - **Pages:** 4 ## Headnote A. Constitution of India,1950-Article 226challenge to- petitioner candidature rejection for the allotment of retail outlet dealership-petitioner being a defence personnel claims benefits of reservation for the allotment of retail outlet - the petitioner is not covered under Clause 4(d) as he is physically fit and active in service-the claimant shall himself must have gone disabled while in service to render him incapable to continue as such or personnel must have died of injury to make dependents eligible as the case may be, to get benefit under clause 4. (Para 3 to 10) The petition is dismissed. (E-6) ## Text 476 INDIAN LAW REPORTS ALLAHABAD SERIES any other officer not below the rank of such Director, in the Department of State Government; Office Bearer or Representatives of Association of Micro or Small Industries or Enterprises; Representatives of Banks and Financial Institutions lending to micro or small enterprises. The persons mentioned in Clause (iv) of Section 21(1) may be brought in Council in the alternative of Representative of Banks and financial institutions lending to Micro and Small Enterprises, if it is found necessary to include persons having special knowledge in the field of industry, finance, law, trade or commerce. Director is Chairperson of MASEF Council. Therefore, the statutory body like MASEF Council does not suffer the element of personal prejudice or bias as is available in the case of individual persons constituting Arbitral Tribunal. It may be that persons constituting MASEF Council at the time of conciliation may not be the same when the said Conciliator took up the matter for arbitration. Therefore, central idea beyond the embargo created by Section 80(1) available in case of individuals constituting Arbitral Tribunal is absent in the matter covered by Section 18 of MSMED Act, 2006 since here, the Council, which is permitted to act as Conciliator as well as Arbitrator is a statutory body having not less than there persons but upto five persons and, therefore, the element of personal bias, prejudice is absent in such a case. 62. Even otherwise, as we have already discussed, Section 80 itself permits an otherwise agreement between the parties. Meaning thereby the embargo that Conciliator shall not be Arbitral Tribunal is not absolute. That being so, the mandatory and overriding effect contained in Section 18(3) and 18(4) and Section 24 of MSMED Act, 2006 cannot be whittled down by referring to a salutary principle though, in our view, no such salutary principle having force of law to the extent that a legislative provision must be read as sub-serving is recognized or available. 63. In view of above discussion, we are clearly of the view that MASEF Council having acted as Conciliator is not barred from working as Arbitral Tribunal to arbitrate the dispute under Section 18(3) and such jurisdiction of MASEF Council has been given overriding effect by virtue of Section 18(4) and Section 24 which have to be given complete swing in the area covered by same. The argument, therefore, advanced otherwise by learned counsel for petitioner is hereby rejected. The question, formulated above, is answered against petitioner and we hold that MASEF Council is not prohibited from working as Arbitrator itself for adjudication of dispute between the parties and it is not obliged to refer the matter to any other body. 64. No other point has been argued. 65. The writ petition lacks merits. Dismissed, accordingly. ---------- (2020)09ILR A476 ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 03.03.2020 BEFORE THE HON'BLE RAMESH SINHA, J. THE HON'BLE AJIT KUMAR, J. WRIT - C No. 7811 of 2008 Mukesh Kumar ...Petitioner Versus Union of India & Ors. ...Respondents 9 All. Mukesh Kumar Vs. Union of India & Ors. 477 Counsel for the Petitioner: Sri Arvind Agrawal, Sri Manoj Kumar Yadav Counsel for the Respondents: A.S.G.I., Sri Vikas Budhwar, Sri R.D. Singh A. Constitution of India,1950-Article 226challenge to- petitioner candidature rejection for the allotment of retail outlet dealership-petitioner being a defence personnel claims benefits of reservation for the allotment of retail outlet - the petitioner is not covered under Clause 4(d) as he is physically fit and active in service-the claimant shall himself must have gone disabled while in service to render him incapable to continue as such or personnel must have died of injury to make dependents eligible as the case may be, to get benefit under clause 4. (Para 3 to 10) The petition is dismissed. (E-6) (Delivered by Hon'ble Ramesh Sinha, J. & Hon'ble Ajit Kumar, J.) 1. Sri R.D. Singh, Advocate has filed vakalatnama on behalf of Union of Indiarespondent no. 1 which is taken on record. 2. Heard Sri Manoj Kumar Yadav, Advocate holding brief of Sri Arvind Agrawal, learned counsel for the petitioner, Sri Vikas Budhwar, learned counsel appearing on behalf of the respondentcorporation, Sri R.D. Singh, learned counsel for the respondent no. 1 and perused the record. 3. By means of this writ petition under article 226 of the constitution, the petitioner has challenged the order dated 19th of December, 2019 whereby the petitioner's candidature has been rejected for the allotment of retail outlet dealership in respect of the location advertized on the ground that "the applicant is not meeting the specific eligibility criteria under the advertised category. Despite affording opportunities, the applicant could not furnish documents with respect to CC-I category". 4. Learned counsel for the petitioner has argued that as per the brochure and the relevant clauses, the petitioner falls in the category of defence personnel and, therefore, he is entitled for the benefit of reservation for the allotment of retail outlet dealership and the stand taken by the respondents is incorrect. He has also drawn our attention towards the affidavit that he had filed before the Competent Authority of the Oil Company in which he has stated that he is working in Para Military Force and as soon as he is awarded dealership, he will resign from his service. 5. Per Contra, it has been argued by Sri Budhwar, counsel appearing on behalf of the Oil Company that the reservation for the defence personnel prescribed under the brochure has come to be defined under the provisions contained in Clause-4-C and D which runs as under:- "4 (c). Defence Personnel (DEF) Defence Personnel means personnel of armed forces (vis. Army, Navy, Air Force) and will cover: (i) Widows/dependents of those members of Armed Forces who died in war or in harness due to attributable causes; (ii) Ex-service men who are war disabled/disabled in peace due to attributable causes; (iii) Able bodied Ex-service men. Candidate applying under this category covered under (i) & (ii) above would be required to submit as and when advised by Oil Company, the Eligibility Certificate in original, issued from 478 INDIAN LAW REPORTS ALLAHABAD SERIES Directorate General of Resettlement (DGR), Ministry of Defence, Government of India sponsoring the candidate for the RO Dealership for which he/she has applied. Certificate of eligibility issued for one RO Dealership is not valid for another RO Dealership and therefore a candidate can be considered to be eligible only if he/she has been sponsored for the particular location with reference to current advertisement. Candidate applying under this Category covered under (iii) above should submit copy of Discharge Order or Pension Order." 6. He further submits that the petitioner is a personnel of Para Military Force, therefore, he comes under category 'D' which defines the government servant including the Para Military Force and Public Sector personnel in the following manner: "4 (d) Government (including PMP) and Public Sector Personnel The personnel serving in different Departments of Central/State Governments and Public Sector undertakings or Central/State Government, who are incapacitated or disabled while performing their duties will be eligible under this category. In case of death, while performing duties, their widows/dependants will be eligible under this category. Applicants under this category would be required to submit as and when advised by Oil Company, a copy of relevant certificate from the concerned Organization/Government Department signed by the Head of the Officer or an Officer not below the rank of Under Secretary to the Government-Appendix VIII." 7. He argued that on the basis of Clause (d), the petitioner since continues to be a personnel in active service of Para Military Force and is physically fit, therefore, the petitioner is not covered under the definition prescribed for vide Clause 'd'. 8. We have carefully gone through the provisions as quoted hereinabvoe and a bare reading of Clause 'd' clearly shows that a person has to be either incapacitated or disabled while performing his duty to become eligible to get reservation under this category. We have, therefore, also considered the aspect of benefit of dependents in a judgement passed in the case of Hariom Verma & another vs. Hindustan Petroleum Corporation Limited & 2 others in Writ-C No. 1153 of 2020 decided on 14th January, 2020 in which in concluding part, we have held thus:- "From the perusal of the aforesaid Clause, it is clearly revealed that the person who has got physically incapacitated during the course of employment can be put/brought in reserved category as prescribed for in Clause 2-A but so far as dependents are concerned, they are eligible to obtain benefit under the reserved Clause provided that person who suffered fatal injuries had died during the course of employment. We made a pointed query to the learned counsel for the petitioner as to whether he questions/guidelines and whether the order impugned can be said to be suffering from any legal error, he could not give any satisfactory answer. We, therefore, do not find any manifest error in the order impugned that may warrant interference. The writ petition fails and is, accordingly, dismissed. " 9 All. M/s KDP Grand Savanna Apartment Owners Asso. Ghaziabad Vs. State of U.P. & Ors. 479 9. In view of the above, therefore, in both the cases of personnel himself or dependents, the claimant shall himself must have gone disabled while in service to render him incapable to continue as such or personnel must have died of injury to make dependents eligible as the case may be, to get benefit under the clause 4. 10. We, accordingly, do not find any merit in the submissions advanced by learned counsel for the petitioner and also we do not find any manifest error in the order impugned warranting any interference in exercise of our jurisdiction under article 226 of the constitution. The writ petition fails and is, accordingly, dismissed. ---------- (2020)09ILR A479 ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 05.03.2020 BEFORE THE HON'BLE SUDHIR AGARWAL, J. THE HON'BLE RAJEEV MISRA, J. WRIT - C No. 8010 of 2020 M/s KDP Grand Savanna Apartment Owners Asso., Ghaziabad ...Petitioner Versus State of U.P. & Ors. ...Respondents Counsel for the Petitioner: Sri Ashutosh Gupta, Sri Amarish Chandra Tiwari Counsel for the Respondents: C.S.C., Sri Krishna Agrawal Electricity Act - Tariff - Association of Owners of Apartments (AOA) obtained single point electric connection for entire group of society - AOA charging higher fixed charges from ultimate consumers i.e. Flat Owners than what it was paying to Supplier (PVVNL) - Held - Builder or AOA neither can frame their own tariff nor can charge the flat owners on a rate higher than what is prescribed in the Tariff approved by UPERC for the area concerned (Para 8) Dismissed (E-5) (Delivered by Hon'ble Sudhir Agarwal, J. & Hon'ble Rajeev Misra, J.) 1. This writ petition under Article 226 of the Constitution of India has been directed against order dated 31.01.2020 passed by "Electricity Ombudsman", U. P. Electricity Regulatory Commission, Vibhuti Khand, Gomti Nagar, Lucknow, respondent-5 in Representation No.79 of 2008 (Sri Ved Prakash Pandey and two others v. Sri Dharmendra Kumar and others) and order dated 04.02.2019 passed by Electricity Consumer Grievance Redressal Forum, Meerut (hereinafter referred to as 'ECGRF') in Complaint Case No.70 of 2018 (Sri Jay Narayan Tyagi and others vs. Sri Rajkumar Tyagi and another). 2. Petitioner is an Association of Owners of Apartment of a High Rise Building having residential Apartments etc and is registered as Apartments Owners Association (hereinafter referred to as "AOA") under provisions of Societies Registration Act, 1860 (hereinafter referred to as "Act, 1860"). Apartments were developed by M/s KDP Infrastructure Private Limited (hereinafter referred to as "Apartments' Promoter/Builder") and after completion and sale of flats and registration of AOA, maintenance of 12 towers out of 15 have been handed over to Petitioner's Association. As 3 towers are still not complete, thus we are not concerned with the same.