# Prabhu and another v. D.D.C. and others - **Citation:** (2012) 3 ILRA 1508 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2012-11-06 - **Case number:** Civil Misc. Writ Petition No. 51624 of 2012 - **Bench:** Tarun Agarwala - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prabhu-and-another-v-d-d-c-and-others-42342 - **Pages:** 2 ## Headnote C.S.C. Sri A.K. Malviya Sri Indra Raj Singh Sri Ravindra Prasad Sri Y.K.Singh Sri R.D. Singh U.P. Consolidation of Holdings Act 1953, Section 53 (b)-applicability of provisions of section 5 of limitation Act-if appeal or revision filed beyond time-general principle consonance with provision of Order 41 Rule 3-A-same analogy should be followed-order passed on merit without deciding delay condonationheld-faulty not sustainable. Held: Para-14 Here in this case, admittedly, the revision was filed along with an application for condonation of delay and without condoning the delay, the revision has been decided, therefore the Deputy Director of Consolidation has erred in deciding the revision on merit without condoning the delay and the impugned order dated 4.10.2012 passed by him cannot be sustained, hence, it is hereby quashed. Case Law discussed: 2008 14 SCC 445; 2005 Volume 4 SCC 613; 2001 (9) SCC 717 ## Text 1508 INDIAN LAW REPORTS ALLAHABAD SERIES [2012 ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 06.11.2012 BEFORE THE HON'BLE TARUN AGARWALA, J. Civil Misc. Writ Petition No. 51624 of 2012 Pramod Kumar ...Petitioner Versus State of U.P. and others ...Respondents Counsel for the Petitioner: Sri Narendra Mohan Counsel for the Respondents: C.S.C. Constitution of India, Article 226Transfer on complaint of MLA-being public representative can made complaint-but genuineness of allegations subject to enquiry-without adjudging truthness of complaint-transfer-held not proper once complaint withdrawn- presumption of false complaint transfer order quashed. Held: Para-5 In the instant case, the Authority has transferred the petitioner in public interest and has initiated an enquiry which is not a correct procedure. A prima facie case must be made out during a preliminary enquiry before issuing the transfer order, which in the instant case has not been done. The Court also find that the complaint has been withdrawn. (Delivered by Hon'ble Tarun Agarwala, J.) 1. The petitioner has challenged his transfer order dated 27.07.2012, by which the petitioner was transferred from Mahoba to Sonebhadra. 2. The contention of the petitioner is that the transfer was made on the basis of a complaint filed by the local MLA. It has also been stated that the local MLA subsequently withdrew his complaint, inspite of which, the petitioner has been transferred in public interest. The learned counsel for the petitioner submitted that the transfer order was not in public interest, but was politically motivated. 3. Paragraph-5 of the counter affidavit reveals that based on a complaint made by the local MLA, an enquiry was instituted against the petitioner and, pending enquiry, the petitioner has been transferred in public interest. The Respondents further submits that the enquiry is still pending, and even though, the complaint has been withdrawn by the MLA, it would not be in public interest to transfer the petitioner back during the pendency of the enquiry. 4. Having heard the learned counsel for the parties, the Court is of the opinion that the mere fact, a complaint has been made by the MLA against the petitioner does not by itself vitiates the transfer order. It is the duty of the representative of the people to express the grievances of the people and place it before the Authority concerned. However, merely because a complaint has been made by an MLA does not mean that the Authority would blindly follow the said complaint and transfer the incumbent. The complaint of the MLA is required to be looked into, for which purpose, a preliminary enquiry must be held. The Authority must find out as to whether there is any truth in the complaint levelled by the MLA and only thereafter, issue a transfer order either in public interest or on administrative ground. 5. In the instant case, the Authority has transferred the petitioner in public interest and has initiated an enquiry which 3 All] Prabhu and another V. D.D.C. and others 1509 is not a correct procedure. A prima facie case must be made out during a preliminary enquiry before issuing the transfer order, which in the instant case has not been done. The Court also find that the complaint has been withdrawn. 6. In the light of the aforesaid, the Court is of the opinion that the transfer order was passed on a false complaint on which, no preliminary enquiry was made. Consequently, the transfer order can not be sustained and is quashed. 7. The writ petition is allowed. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 19.10.2012 BEFORE THE HON'BLE RAN VIJAI SINGH, J. Civil Misc. Writ Petition No. 54502 of 2012 Parbhu and another ...Petitioners Versus D.D.C. and others ...Respondents Counsel for the Petitioner: Sri Markandey Upadhyay Sri Rishi Kant Rai Sri Rakesh Pandey Counsel for the Respondents: C.S.C. Sri A.K. Malviya Sri Indra Raj Singh Sri Ravindra Prasad Sri Y.K.Singh Sri R.D. Singh U.P. Consolidation of Holdings Act 1953, Section 53 (b)-applicability of provisions of section 5 of limitation Act-if appeal or revision filed beyond time-general principle consonance with provision of Order 41 Rule 3-A-same analogy should be followed-order passed on merit without deciding delay condonationheld-faulty not sustainable. Held: Para-14 Here in this case, admittedly, the revision was filed along with an application for condonation of delay and without condoning the delay, the revision has been decided, therefore the Deputy Director of Consolidation has erred in deciding the revision on merit without condoning the delay and the impugned order dated 4.10.2012 passed by him cannot be sustained, hence, it is hereby quashed. Case Law discussed: 2008 14 SCC 445; 2005 Volume 4 SCC 613; 2001 (9) SCC 717 (Delivered by Hon'ble Ran Vijai Singh, J.) 1. Supplementary affidavit filed today, is taken on record. 2. Heard Sri Rakesh Pandey along with Sri Rishi Kant Rai, learned counsel for the petitioners, Sri K.R.Sirohi, learned Senior Counsel assisted by Sri Yogesh Kumar Singh, learned counsel for respondents no. 2 to 5 and Sri R.D.Singh, learned counsel for respondents no. 6 to 9. 3. Through this writ petition, the petitioners have prayed for issuing a writ of certiorari quashing the order dated 4.10.2012 passed by Deputy Director of Consolidation, Ghazipur in Revision No. 1210 (Naresh Vs/. Mukhram), Revision No. 1297 (Mukhram Vs. Prabhu) and Revision No. 1298 (Surendra Vs. Prabhu). 4. Sri Rakesh Pandey along with Sri Rishi Kant Rai, learned counsel for the petitioners contends that the Revisions No. 1297 and 1298 were barred by time and there were also applications for condonation