# Naseem Banoo and others v. Presiding Officer & others

- **Citation:** (2007) 2 ILRA 574
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-03-02
- **Bench:** Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/naseem-banoo-and-others-v-presiding-officer-others-40961
- **Pages:** 6

## Headnote

Constitution
of
India,
Art-226-
alternative remedy writ petition -arises
out against the order passed by recovery
officer-deemed to be order passed by
recovery
tribunal-appealable
under
section 20 of Recovery of Debts due to
Bank
and
Financial
Institutions
Act,1993-dismissal of appeal by tribunal
held-illegal-petition dismissed on the
ground of alternative remedy.

Held: Para 15

Thus
the
above
observation
clearly
indicate that forum of appeal to the
Tribunal
which
has
been
provided
against the order of Recovery Officer
which is sufficient safeguard in the event
the Recovery Officer acts in arbitrary or
unreasonable manner.
Case Law discussed:
2004 Banking Cases-348(DB)
2002(2) Bank CLR 272(SC)
AIR 1963 SC 1503
AIR 1935 PC 5

## Text

574 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
23.11.2006 passed by the respondent no.
2 is quashed. The petitioner shall be
entitled to continue to function as
Aanganwari Karyakatri for the village in
question in terms of her appointment
given on 25.8.2006. No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.03.2007

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.

Civil Misc. Writ Petition No. 9893 of .2007

Naseem Banoo and others ...Petitioners
Versus
Presiding Officer & others...Respondents

Counsel for the Petitioners:
Sri. Kaushal kant

Counsel for the Respondents:
Sri. Tarun Verma
Sri. K.M. Astahna

Constitution
of
India,
Art-226-
alternative remedy writ petition -arises
out against the order passed by recovery
officer-deemed to be order passed by
recovery
tribunal-appealable
under
section 20 of Recovery of Debts due to
Bank
and
Financial
Institutions
Act,1993-dismissal of appeal by tribunal
held-illegal-petition dismissed on the
ground of alternative remedy.

Held: Para 15

Thus
the
above
observation
clearly
indicate that forum of appeal to the
Tribunal
which
has
been
provided
against the order of Recovery Officer
which is sufficient safeguard in the event
the Recovery Officer acts in arbitrary or
unreasonable manner.
Case Law discussed:
2004 Banking Cases-348(DB)
2002(2) Bank CLR 272(SC)
AIR 1963 SC 1503
AIR 1935 PC 5

(Delivered by Hon'ble Ashok Bhushan. J.)

1. Heard Sri Kushal Kant, learned
counsel for the petitioners and the learned
counsel appearing for the respondents 1
and 3.

2. By this writ petition the
petitioners have prayed for quashing the
order dated 3-9-2002 passed by the
Recovery
Officer,
Debt
Recovery
Tribunal, Allahabad and order dated
30.11.2006 passed by the Debt Recovery
Tribunal dismissing the appeal No.224 of,
2002 filed against the order of the
Recovery Officer.

3. Learned counsel appearing for the
respondents raised a preliminary objection
with regard to entertainability of this writ
petition.
Learned
counsel
for
the
respondents submitted that the petitioners
have statutory remedy of filing an appeal
before the appellate tribunal Under
Section 20 of the Recovery of Debts Due
to Banks and Financial Institutions Act,
1993 against the order dated 30.11.2006
passed by the Debt Recovery Tribunal
hence the writ petition need not be
entertained by this Court under Article
226 of the Constitution. Reliance has been
placed on Division Bench judgement of
Delhi High Court reported in II (2004)
Banking cases 348 (DB) Continental
Construction Ltd. & Ors Versus State
Bank of India & Ors.

4.

Learned
counsel
for
the
petitioners
refuting
tho
preliminary
objection of learned counsel for the
respondents contended that no remedy of
appeal is available to the petitioners
2 All] Naseem Banoo and others V. P.O. and others
575
against the order dated 30.11.2006 passed
by
the
Tribunal.
Learned
counsel
submitted that the order dated 30.11.2006
has been passed by the Tribunal in
exercise of its appellate power Under
Section 30 of the Act. He submits that no
appeal is contemplated Under Section 20
against an order passed by the Tribunal in
exercise of its appellate jurisdiction.
Learned counsel for the petitioners in
support of his contention placed reliance
on the judgements of the apex Court on
AIR 1963 S.C. 1503 Roop Chandra
Versus
State
of
Punjab.
Another
judgement relied by him on a judgement
of the apex Court in 2002 (2) Bank CLR
272 (SC) Union of India and another
Versus
Delhi
High
Court
Bar
Association and another.

5. I have considered the submissions
of learned counsel for the parties and have
perused the record.

6. The question which has arisen in
this writ petition is as to whether against
the appellate order passed by the Debt
Recovery Tribunal Under Section 30 of
the Act, a further appeal can be flied
Under Section 20 of the Act? For
answering this question scheme of the Act
has to be looked into. Section 2 (a)
defines
"Appellate
Tribunal"
as
an
Appellate Tribunal established under Subsection (1) of Section 8. Section 2 (o)
defines "Tribunal" means the Tribunal
established under Sub-section (1) of
Section 3. Section 20 provides for an
appeal to the Appellate Tribunal. Section
20 (1) which is relevant in the present
case is quoted below :-

"20(1)
Save
as
provided
in
Subsection (2), any person aggrieved by
an order made, or deemed to have been
made by a Tribunal under this Act, may
prefer an appeal to an appellate Tribunal
having jurisdiction in the matter."

A perusal of provisions of Section 20
(1) indicate that the appeal is provided
against an order made, or deemed to have
been made. by a Tribunal. Other relevant
provision for purpose of this case is
Section 30 of the Act. Section 30 of the
Act has been amended by Act NO.1 of
2000. Prior to its amendment Section 30
provided:-

"30. The orders of the Recovery
Officer be deemed as orders of the
Tribunal:-

Notwithstanding anything contained
in Section 29, the order made by the
Recovery Officer in exercise of his power
Under Section 25 to 28 (both inclusive),
shall be deemed to have been made by the
Tribunal and an appeal against such
order shall lie to the appellate Tribunal."

8. Thus Section 30 as originally
enacted provided an appeal against an
order of Recovery Officer to the appellate
Tribunal and the order of Recovery
Officer was deemed to be an order of
Tribunal. Section 30 was amended with
effect from17.1.2000 and now amended
section provides as under:-

"30. Appeal against the order of
Recovery Officer:-

(1)
Notwithstanding
anything
contained In Section 29, any person
aggrieved by an order of the Recovery
Officer made under this Act may, within
thirty days from the date on which a copy
of the order is issued to him, prefer an
appeal to the Tribunal."
576 INDIAN LAW REPORTS ALLAHABAD SERIES [2007

9. The amended Section 30 now
provides an appeal within thirty days from
an order of the Recovery Officer to the
Tribunal. Thus the appellate power has
also been conferred on the Tribunal
against the order of the Recovery Officer
which was not earlier with the Tribunal.
Earlier the appellate forum against the
order of Recovery Officer was also the
appellate Tribunal.

10. The right of appeal is creature of
statute. The Privy Council in A.I.R. 1935
Privy Council 5 Ohene Moore Versus
Akessch Tayee long ago observed:-

"After all, it is to be remembered that
all appeals in this country and elsewhere
exist merely by statute and unless the
statutory conditions are fulfilled no
jurisdiction is given to any Court of
Justice to entertain them."

11. The question to be answered is
that as to whether the appeal can be filed
against an order of Tribunal which order
is passed by the Tribunal in exercise of
appellate jurisdiction Under Section 30.
The appeal to the appellate Tribunal has
been provided for against an order of
Tribunal Under Section 20 (1) as noted
above. Taking plain and simple meaning
of words used in Section 20 (1) of the Act
that right of appeal has been provided to
any person aggrieved by an order .made
or deemed to have been made by a
Tribunal under this Act, the words are
wide enough to give right of appeal to an
aggrieved person against an order passed
by the Tribunal under the Act. The order
of Tribunal passed Under Section 30 is
also an order of Tribunal under the Act.
Section 20 (1) does not create any
exception with regard to those orders of
the Tribunal which have been passed in
exercise of its appellate jurisdiction. All
orders passed by the Tribunal under the
Act are appealable before the appellate
Tribunal by virtue of Section20(1). The
order passed by the Tribunal in exercise
of powers under sections 17 and 19 or
order passed by the Tribunal deciding an
appeal filed Under Section 30 or passing
on order under Section 31 or Section 31A are all appealable. Learned counsel for
the petitioner has relied on the judgement
of the apex Court in Roop Chandra
Versus State of Punjab and another
(supra). The apex Court in the said
judgement had considered the provisions
of Section 21 (4) and Section 42 of East
Punjab
Holdings
(Consolidation
and
Prevention of Fragmentation) Act, 1948.
Section 21 (4) provided that any person
aggrieved by the order of the Settlement
Officer (Consolidation) may within sixty
days of that order appeal to the State
Government. Section 41 of the Act
provided that the State Government for
administration of the Act appoint such
person as it think fit and may by
notification
delegate
any
power
or
function under this Act to any officer
either by name or designation. The State
Government by notification has delegated
its power under Section 21 (4) to
Assistant
Director
of
Consolidation
exercising its power Under Section 41.
An order was passed by the Assistant
Director
of
Consolidation
exercising
delegated
powers
of
the
State
Government. The question arose as to
whether the appeal shall lie to the State
Government against the order passed by
the Assistant Director of Consolidation in
exercise of delegated appellate power.
The apex Court in the said judgement
held that no appeal shall lie to the
Government against the order passed by
its delegate who exercised the appellate
2 All] Naseem Banoo and others V. P.O. and others
577
power
of
the
State
Government.
Following was laid down by the apex
Court in paragraph 11:-

"11. The question then arises, when
the Government delegates its power, for
example, to entertain and decide an
appeal under S. 21 (4), to an officer and
the officer pursuant to such delegation
hears the appeal and makes an order, is
the order an order of the officer or of the
Government? We think it must be the
order of the Government. The order is
made under a statutory power. It is the
statute which creates that power. The
power can, therefore, be exercised only in
terms of the statute and not otherwise. In
this case the power is created by S. 21 (4).
That section gives a power to the
Government. It would follow that an
order made in exercise of that power will
be, the order of the Government for no
one else has the right under the statute to
exercise the power. No doubt the Act
enables the Government to delegate its
power but such a power when delegated
remains the power of the Government, for
the Government can only delegate the
power given to it by the statute and
cannot create an independent power in
the officer. When the delegate exercises
the
power,
he
does
so
for
the
Government."

12. The above case of the apex
Court was on its own facts and has no
application in the present case. In the
present case Tribunal is not exercising
any delegated power of appellate tribunal,
right of appeal to the Tribunal against the
order
of
Recovery
Officer
was
consciously provided by amended Section
30. The appeal under Section 30 the
Tribunal is not same thing as the appeal to
the appellate Tribunal Under Section 20.
There are several distinctions in both the
appeals including that appeal Under
Section 20 can be filed only against an
order of Tribunal whereas the appeal
Under Section 30 can be filed only
against an order of Recovery Officer.
Against the order of Recovery Officer the
appeal is not directly maintainable to the
appellate Tribunal since by deletion of
Section 30 as it was originally enacted the
order of the Recovery Officer cannot now
deemed to be order of the Tribunal. The
period of limitation provided for both the
appeals is also different whereas the.
appeal Under Section 20 of the Act can be
filed within 45 days and the appeal Under
Section 30 can be filed within thirty days.

13. From the scheme of the Act as
noticed above it is found that both the
appellate forum contemplate the different
kind of appeals and neither there is any
overlapping nor any conflict. Even though
the tribunal passed the order Under
Section 30 in the appellate forum an
appeal to the appellate Tribunal Under
Section 20 is very much available. There
is no indication in the Act nor there Is any
provision to come to the conclusion that
the orders passed by the Tribunal in
exercise of appellate jurisdiction are
excluded from the ambit of appeal which
can be filed before the appellate Tribunal
Under Section 20.

14. The judgement of the apex Court
in Union of India and another Versus
Delhi High Court Bar Association and
another (supra) is not on the issue which
has arisen in the present writ petition. The
following observation was made in
paragraph, 30 of the judgement;

"30.............Furthermore, Section 30,
after amendment by .the Amendment Act,
578 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
2000, gives a right to any person
aggrieved by an order of the Recovery
Officer, to prefer an appeal to the
Tribunal. Thus now an appellate forum
has been provided against any orders of
the recovery Officer which may not be in
accordance with law. There is, therefore,
sufficient safeguard which has been
provided in the event of the Recovery
Officer acting in an arbitrary or an
unreasonable manner. The provisions of
Sections 25 and 28 are, therefore, not bad
in law."

15. Thus the above observation
clearly indicate that forum of appeal to
the Tribunal which has been provided
against the order of Recovery Officer
which is sufficient safeguard in the event
the Recovery Officer acts in arbitrary or
unreasonable manner.

16. The Division Bench judgement
of Delhi High Court in Continental
Construction Ltd. & Ors Versus State
Bank of India & Ors. (supra) relied by
the counsel for the respondents fully
support the contention of the learned
counsel for the respondents The Delhi
High Court has took the view that after
the order of the Tribunal deciding an
appeal Under Section 30 the forum of
appeal under Section 20 is further forum
of appeal. Following was laid down in'
paragraphs21 and 22 ;-

"21. The omission of the words "
and an appeal against such order shall lie
to the Appellate Tribunal" in Section 30
of the Act (as it now stands) is a
necessary concomitant of the over·all
amendment made in 2000 to section 30 of
the Act which actually works to the
advantage of a litigant in as much as it
provides for an additional appelate
forum. This was noticed by the Supreme
Court in Union of India & Another v.
DeIhl High Court Bar Association &
others II (2002) SLT 552= 96(2002) DLT
726 (SC)=II (2002) Backward Class
194(SC)= (2002) 4 SCC 275. Prior to the
amendment of the Act in 2000, only one
appeal was provided for against an order
of the Recovery Officer, and that appeal
lay to the Appellate Tribunal; whereas
since 2000, a first appeal is provided to
the Tribunal and an appeal against the
order of the Tribunal is provided to the
Appellate Tribunal. This is a 'sufficient
safeguard' as observed by the Supreme
Court
in
Delhi
High
Court
Bar
Association in the event of Recovery
Officer
acting
in
an
arbitrary
or
unreasonable manner."

"22. Learned counsel for the
petitioners then submitted , relying upon
Sant Prasad v. Ashwani Prasad &
another, (1921) I.L.R. , 43 All. 403, that
since the Act did not provide for a second
appeal against an order passed by the
Tribunal (in the exercise of its original
jurisdiction), no second appeal can be
filed against an order passed by the
Recovery Officer. While the general
principle of law canvassed by learned
counsel for the petitioners may be true,
this question does not at all arise in this
writ petition for the simple reason that the
Act itself provides for a second appeal
against an order of the Recovery Officer.
A specific right having been conferred by
a statute cannot, surely, be taken away by
resort to a general principle. For a
similar reason, other cases relied on by
the learned Counsel, such as Hari Kishen
v Amar Nath-(1950) 52 P.L.R. 13 and Ali
Ahmed v. Roshan Das (1972) 8 DLT 429,
are equally in opposite."
2 All] Satya Deo Dikshit and another V. The State of U.P. and others
579

17. In view of forgoing discussions
it is held that the order dated 30.11.2006
passed by the Tribunal dismissing the
appeal of the petitioner filed against the
order
of
the
Recovery
Officer
is
appealable under Section 20 of the Act.
The petitioner having statutory remedy of
filing an appeal against the order dated
30.11.2006 the writ petition cannot be
entertained and is thus dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.05.2007

BEFORE
THE HON'BLE R.P. MISRA, J.
THE HON'BLE SHISHIR KUMAR, J.

Civil Misc. Writ Petition No. 39234 of 2002

Satya Deo Dikshit & another ...Petitioners
Versus
The State of U.P. & others ...Respondents

Counsel for the Petitioners:
Sri V.B. Upadhyay
Sri M. Prasad

Counsel for the Respondents:
S.C.

Uttar Pradesh Minerals (Prevention of
Illegal
Mining
Transportation
and
Storage) Rules 2002-Rule 11-petitioner
being traders of sand/morrum-stored for
purpose of selling to customers-prior to
the existence of Rule-whether liable to
pay any Royalty? Held-'No'-in rule no
such prohibition regarding disposal of
sand/morrum after the enforcement of
Rule.

Held: Para 15

In view of the aforesaid fact and
circumstances of the present case, we
are of the view that the minerals stored
by the petitioners prior to second of
September 2002 for the purposes of
selling it to customers will not be a n
offence or they are not liable to pay any
royalty.
Case law discussed:
AIR 1987 M.P. 74

(Delivered by Hon'ble R.P. Misra, J.)

1. The present writ petition has been
filed in the nature of mandamus declaring
the Uttar Pradesh Minerals (Prevention of
Illegal
Mining
Transportation
and
Storage) Rules, 2002, as prospective in its
operation. Further a writ in the nature of
mandamus directing the respondents not
to interfere in the storage, selling and
transporting of morrum, stored by the
petitioners prior to coming into force of
new Rules.

2. The brief facts of the case are that
the petitioners are traders of sand/morrum
and gitti. Petitioner No.1 stored minor
minerals on plots No.105 and 106 in
village Badanpur, Tehsil and District
Hamirpur for the purposes of selling it in
the open market. Petitioner No.2 has
stored minerals on plots Nos. 76 and 77
belonging to one Sri Kamesh Chaurasiya
in village Shitalpur, plots Nos. 78 and 333
belonging to one Sri Laxmi Narain Singh
in Tehsil- Helapur and plot No.354/2
belonging to one Sri Ram Kishun in
village Kanauta in Tehsil & District
Hamirpur. The petitioners purchased the
above mentioned minerals from the open
market and also from various lease/permit
holders in the district Hamirpur and
Mahoba for selling to various customers
who take into for the purposes of private
consumption. The petitioners purchase the
said minerals from the lease holders and
transport it to the business places. On
22.2.2002, the petitioner No.1 received a
notice from the mines officer by which