# Om Prakash @ Pappu v. Sub Divisional Officer/ Prescribed Authority Sandila Hardoi & Ors

- **Citation:** (2022) 7 ILRA 75
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-18
- **Case number:** Writ C No. 4519 of 2022
- **Bench:** Manish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/om-prakash-pappu-v-sub-divisional-officer-prescribed-authority-sandila-hardoi-48837
- **Pages:** 4

## Headnote

A. Election Law - UP Panchayat Raj Act,
1947 - Section 12-C - Civil Procedure
Code - O. XIV R. 1 an R. 2 - Issue of law,
how long need to be decided first - The
issue
of
law
as
mentioned
in
the
application of the petitioner did not
contain issues relating to the jurisdiction
of the Court or a bar to the suit created by
any law for the time being in force - Held,
the contentions raised to direct the
prescribed authority to decide the issue of
law first is not tenable in law. (Para 13)
Writ petition dismissed. (E-1)
76 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

7 All. Om Prakash @ Pappu Vs. Sub Divisional Officer/ Prescribed Authority Sandila Hardoi &
 Ors.
75

(2)
Appearances
under
subsection (1) may be simultaneous or at
different times.

(3) The registering officer shall
thereupon?

(a) enquire whether or not such
document was executed by the persons by
whom it purports to have been executed;

(b) satisfy himself as to the
identity of the persons appearing before
him and alleging that they have executed
the document; and

(c) in the case of any person
appearing as a representative, assign or
agent, satisfy himself of the right of such
person so to appear.

(4)
Any
application
for
a
direction under the proviso to sub-section
(1) may be lodged with a Sub-Registrar,
who shall forthwith forward it to the
Registrar to whom he is subordinate.

(5) Nothing in this section applies
to copies of decrees or orders."

11. It is an undisputed fact in the
present case that the orders passed by the
Sub Registrar is after the expiry of four
months after presentation of document for
registration and that the Respondent No. 4
had not appeared despite summons/notices,
hence, there is no illegality in the order
passed by the Sub-Registrar. A document
cannot be registered in absence of executor
before the Registering Authority or his
authorized representative, assignee or any
other person as permissible under the Act,
admitting the execution of the document.

12. The appellate authority has rightly
passed the order consigning the appeal to
the record.

13. The appellate authority neither
rejected the appeal nor closed the rights of
the petitioner. Later on in case the executor
is traced and may appear before the SubRegistrar or if any of its respondent in case
he is found to be dead, the petitioner may
still move any appropriate application for
registration of the instrument, if and as it
may permissible under the law.

14. As discussion made hereinabove,
there is no illegality in the orders
impugned, hence the petition is devoid of
merit and is accordingly dismissed.
----------
(2022)07ILR A75
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.07.2022

BEFORE

THE HON'BLE MANISH KUMAR, J.

Writ C No. 4519 of 2022

Om Prakash @ Pappu ...Petitioner
Versus
Sub
Divisional
Officer/
Prescribed
Authority Sandila Hardoi & Ors.
 ...Respondents

Counsel for the Petitioner:
A.Z. Siddiqui

Counsel for the Respondents:
C.S.C., Vikrant Prakash

A. Election Law - UP Panchayat Raj Act,
1947 - Section 12-C - Civil Procedure
Code - O. XIV R. 1 an R. 2 - Issue of law,
how long need to be decided first - The
issue
of
law
as
mentioned
in
the
application of the petitioner did not
contain issues relating to the jurisdiction
of the Court or a bar to the suit created by
any law for the time being in force - Held,
the contentions raised to direct the
prescribed authority to decide the issue of
law first is not tenable in law. (Para 13)
Writ petition dismissed. (E-1)
76 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Manish Kumar, J.)

1. Heard Shri A.Z. Siddiqui, learned
counsel appearing for the petitioner,
learned
Standing Counsel
and
Shri
Vikrant Prakash, learned counsel for the
respondent no. 2.

2.
Present
petition
has
been
preferred to quash the impugned orders
dated 04.07.2022 and 12.01.2022. It has
further been sought to direct the Election
Tribunal to first decide the preliminary
issue before the further proceedings in
the Election Petition and direct the
Prescribed Authority to get the aforesaid
original ballot paper be investigated by
the Police after registering the FIR at the
concerned Police Station.

3. The brief facts of the present case
as per the petitioner are that the petitioner
was declared elected as Gram Pradhan of
Village
Atwa,
Kshetra
Panchayat
Kothwan, Tehsil Sandila, District Hardoi
by the Election authorities on 03.05.2021.
Later, some persons who were not elected
had
preferred
an
application
under
Section 12 C of the Uttar Pradesh
Panchayat Raj Act, 1947 (henceforth be
referred as, the Act, 1947) challenging
the election of the petitioner. In the said
proceedings, the notice was issued to the
petitioner and in reply thereto, a written
statement was submitted denying the
facts narrated in the application preferred
under Section 12 C of the Act, 1947.

4. The petitioner had moved
applications for framing of issues in
pursuance of which issues were framed
pertaining questions of facts and law
both.

5. The application of the petitioner
to decide the issues of law first, as per
Order XIV Rule 1 of the Civil Procedure
Code, 1908 (hereinafter for the sake of
brevity referred as, the Code, 1908), was
rejected by the prescribed authority vide
its order dated 04.07.2022 and feeling
aggrieved by the same, the present writ
petition has been preferred.

6. Learned counsel for the petitioner
has relied on Order XIV Rule 1 (4) which
provides that issues are of two kinds,
which are mentioned as follows:-

(a) issue of fact,

(b) issues of law.

7. Learned counsel for the petitioner
has further relied on Order XIV Rule 2
(2) of the Code, 1908 where the Court
has been mandated to decide the issue of
law first.

8. On the other hand, learned
Standing Counsel has submitted that the
proceedings
pending
before
the
prescribed authority is covered by the
provisions of Uttar Pradesh Panchayat
Raj ( Settlement of Election Disputes)
Rules, 1994 (hereinafter referred to as,
the Rule, 1994) framed under Section
110, read with Section 12 C and Section
12 D of the United Provinces Panchayat
Raj Act, 1947. It is further submitted that
as per Section 12 C (5), proceedings
before the prescribed authority under
Section 12 C of the Act, 1947 was for
questioning the election and are summary
in nature and thus, the submissions raised
for deciding the issues of law first, is not
acceptable as per Order XIV 2 (2) of
Code, 1908.
7 All. Om Prakash @ Pappu Vs. Sub Divisional Officer/ Prescribed Authority Sandila Hardoi &
 Ors.
77

9. It is further submitted that evidence is
going on and the petitioner is trying to linger
the proceedings by moving applications time
and again.

10. Shri Vikrant Prakash, learned
counsel appearing for the respondent no. 2
has submitted that the petitioner is moving
several applications time and again just to
linger the proceedings. It is further submitted
that earlier also, a petition bearing Writ C No.
2665 of 2022 was preferred by the wife of the
petitioner, who had also contested the
election and got only 10 votes, which was
disposed of by this Court vide its order dated
11.05.2022 giving liberty to the petitioner of
that petition to submit her reply/objection in
the suit.

11. After hearing learned counsel for
the parties and going through the records, the
position which emerges out is that the
submissions raised by the learned counsel for
the petitioner that prescribed authority has to
decide the issues of law first is not tenable.
As per the petitioner, the issue of law is as
under as pointed out from the annexure no. 7
to the present petition:-

 "क्या प्रस्तुतु यादिका में आदेश 6 दनयम 15 (4)
व्यवहार प्रकृदत संदहता का अनुपालन नहीं दकया गया है, याद है
तो प्रभाव?

12. Order XIV 2 (2) provides that if the
issues of law as well as fact arise in a suit
only the issues of law relates to the
jurisdiction of the Court, or a bar to the suit
created by any law for the time being in force
is to be decided first. For convenience, the
Order XIV 2 (2) of the Code, 1908 is quoted
hereinbelow:-

(2) Where issues both of law and
of fact arise in the same suit, and the Court
is of opinion that the case or any part
thereof may be disposed of on an issue of
law only, it may try that issue first if that
issue relates to-

(a) the jurisdiction of the Court,
or

(b) a bar to the suit created by
any law for the time being in force, and for
that purpose may, if it thinks fit, postpone
the settlement of the other issues until after
that issue has been determined, and may
deal with the suit in accordance with the
decision on that issue.

13. Undisputedly, the petitioner has
failed to show the issue of law as framed on
the application of the petitioner (annexed at
annexure no. 7 to the present petition) is
covered by any of the conditions contained in
Order XIV Rule 2 (2). The issue of law
framed on Order VI Rule 15 (4), the Order VI
deals with pleadings generally and Rule 15
(4) of Order VI is with regard to the person
verifying the pleadings shall also furnish an
affidavit in respect of pleadings. The issue of
law as mentioned in the application of the
petitioner did not contain issues relating to
the jurisdiction of the Court or a bar to the
suit created by any law for the time being in
force and hence, the contentions raised to
direct the prescribed authority to decide the
issue of law first is not tenable in law.

14. The proceedings, as per Section 12
C (5) are summary in nature and the evidence
is going on.

15. For the facts and circumstances
mentioned hereinabove, this court does not
find any good reason to interfere with the
proceedings which are going on before the
prescribed authority.

16. Petition is devoid of merit and is
dismissed, accordingly.
78 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2022)07ILR A78
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.07.2022

BEFORE

THE HON'BLE PANKAJ BHATIA, J.

Writ C No. 5098 of 2017

Ajay Pratap Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Manoj Kumar Dwivedi

Counsel for the Respondents:
C.S.C.

A. Civil Law - The United Provinces Excise
Act, 1910 - Section 34 - UP Excise
(Settlement of Licenses for Retail Sale of
Country Liquor) Rules, 2002 - R. 21 -
Suspension and cancellation of the licence
- Unauthorized liquor was found in rice
mill owned by the petitioner - Condition
required for suspension to the effect that
any other kind of liquor or intoxicating
drugs are found in the 'licensed premises'
or in 'possession of licensee', was not
fulfilled - Effect - Held, in the absence of
any allegation of any recovery from any
place in the 'licensed premises' or in the
'possession of the licensee', the powers to
suspend and cancel cannot be resorted to
under the Act or the Rules. (Para 15)
B. Civil Law - UP Excise (Settlement of
Licenses for Retail Sale of Country Liquor)
Rules, 2002 - R. 21 - Time limit of 7 days,
prescribed for calling explanation, was not
adhered to - Effect - Held, the orders
cancelling the licence were against the
substantive provisions and also violated
the procedural provisions. (Para 17 and
18)
Writ petition disposed off. (E-1)
(Delivered by Hon'ble Pankaj Bhatia, J.)

1. Heard learned Counsel for the
petitioner and learned Additional Chief
Standing Counsel.

2. The present writ petition has been
filed
challenging
the
order
dated
24.02.2016 whereby 06 country liquor and
02 Indian Made Foreign Liquor (IMFL)
licenses of the petitioner were cancelled
and the security as well as the licence fee
was forfeited in exercise of powers under
Section 34 of The United Provinces Excise
Act, 1910 as well as the appellate order
dated 22.03.2016 whereby the appeal
preferred by the appellant was dismissed
and the order dated 17.02.2017 whereby
the revision preferred by the petitioner
before the State Government was rejected.

3. The facts in brief leading to the
filing of the present writ petition are that
the petitioner was granted six licences of
country liquor shop in District Amethi in
exercise of the powers conferred under the
Uttar
Pradesh
Excise
(Settlement
of
Licenses for Retail Sale of Country Liquor)
Rules, 2002 (in short 'the Rules 2002') and
was also granted two licences for selling
foreign liquor in District Amethi in terms of
the provisions of Uttar Pradesh Excise
[Settlement of Licenses for Retail Sale of
Foreign Liquor (Excluding Beer and Wine
Rules)] Rules, 2001 (in short 'the Rules
2001'). On 28.01.2016, an FIR came to be
lodged in Case Crime No.103 of 2016,
under Section 60 of the Excise Act read
with Sections 419 and 420 IPC at Police
Station Musafirkhana, District Amethi
against one Guddu Singh and Babblu
Singh. The said two accused took the name
of the petitioner and in pursuant to the said
statement, the petitioner was arrested under
the said FIR. The allegations as contained