# Priyanka v. State of U.P. & Ors

- **Citation:** (2022) 9 ILRA 1262
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-13
- **Case number:** Writ-C No. 36350 of 2019
- **Bench:** Vivek Chaudhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/priyanka-v-state-of-u-p-ors-49049
- **Pages:** 9

## Headnote

Civil Law - Essential Commodities Act,
1955- Section 3/7 - Fair Price Shop
licensee- license of fair price shop
cancelled-Appeal
rejected-
Right
of
subsequent allottee -Respondent No.6 has
the right to hold shop only in case the
license of the petitioner is cancelled.
9 All. Priyanka Vs. State of U.P. & Ors.
1263
Otherwise, she has no right with the
dispute between the petitioner and the
State. In the present case, a conditional
license was given to the respondent No.6
which does not create any independent
right in favour of respondent No.6 and,
therefore, respondent No.6 cannot oppose
the
present
writ
petition.
Mere
participation of respondent no.6 at the
appeal stage will also not confer any such
legal right.

Settled law that mere grant of conditional
license in favour of the subsequent allottee and
her participation in the appeal cannot confer any
independent right to her.

Civil Law - Indian Evidence Act, 1872-
Section
92-
When
the
documentary
evidence is available, oral statement
cannot
be
relied
-
Sub
Divisional
Magistrate shows that he has wrongly
relied upon the statements made by the
villagers in the inquiry. On the basis of
oral statements of some persons, he has
held that stock registers are incorrect. The
same cannot be held to be a proper
procedure. Once, the oral statements
against a documentary evidence is being
relied upon by the authority concerned, it
must specifically state the circumstance
and the reason as to why the authority is
proceeding to disbelieve the documentary
evidence - In the entire judgment, there is
no reference of the documents and reply
submitted
by
the
petitioner
-
The
appellate court while referring to the
submissions of the counsel for parties,
without even considering the case of
petitioner, has again relied upon the oral
statements - The appellate court has also
not given any reason as to why the
appellate court has relied upon the oral
statements
against
the
documentary
evidence. It merely states that there is no
reason to interfere with the order of Sub
Divisional
Magistrate
as
there
is
a
difference between the statement given
by the villagers and the submissions and
record submitted by the petitioner which
is not believed by the Sub Divisional
Magistrate. The same cannot be said to be
a finding of facts in accordance with law.
There is no consideration of the case of
petitioner, again in the appellate order.

Where documentary evidence is available then it
is incumbent upon the Authority to rely upon
the same , instead of relying on the oral
evidence hence, no finding of fact can be
recorded by relying solely upon oral evidence
and ignoring the documentary evidence. (Para
9, 13)

Writ Petition allowed. (E-3)

Case Law/Judgements relied upon:-

## Text

1262 INDIAN LAW REPORTS ALLAHABAD SERIES
towards the certificate issued by the Second
Secretary Administration and Consular
Affairs of Finland dated 29.12.2016 and of
Inspector General Finnish Immigration
service dated 14.6.2018 so as to contend
that the petitioner would be released from
Finnish citizenship as of the date when he
gets Indian citizenship and the said
decision will enter into force only if the
petitioner within two years from the entry
into force of the said decision presents
Finnish Immigration service with an
approval of receipt of Indian citizenship.

31. Learned counsel for the respondents
no. 1 and 2 on the basis of the averments
contained in paragraph 3 and 5 of the counter
affidavit as well as instructions so received by
him has not disputed the statutory provisions
with respect to the grant of citizenship by
naturalisation as contained under Section 6 of
1955 Act read with Third schedule appended
to it in particular clause (b) which underwent
amendment on 3.12.2004 whereby condition
of renouncing of citizenship of foreign
country stands dispensed with and in its
place, stood substituted by the condition
precedent being that the petitioner has to
furnish
undertaking
to
renounce
the
citizenship of the foreign country, in the
event that the application for Indian
citizenship being accpeted.

32. Learned counsel for the respondents
no. 1 and 2 has further made a statement at
bar that the present writ petition may be
disposed of with a direction that the petitioner
may approach the competent authority along
with the certified copy of the order within a
period of four weeks from today and
complete necessary formalities so required
theirin then the competent authority will
consider the claim of the petitioner for garnt
of citizenship of India within further period of
three weeks in accordance with law.

33. Resultantly the present writ petition
is
being
disposed of
with
following
directions:-

(a) Petitioner shall approach the
competent authority within four weeks from
today along with certified copy of this order;

(b) Competent Authority shall
apprise the petitioner with the formalities
which are yet to be completed as per the
provisions contained under the Citizenship
Act, 1955 and the Rules of 2009 as amended
from time to time; and

(c)
After
completion
of
the
formalities the competent authority shall
consider the matter and pass a reasoned and
speaking order in the light of the observation
so made herein before for the grant of
citizenship of India by naturalisation.
----------
(2022) 9 ILRA 1262
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 13.09.2022

BEFORE

THE HON'BLE VIVEK CHAUDHARY, J.

Writ-C No. 36350 of 2019

Priyanka ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Birendra Pratap Singh

Counsel for the Respondents:
C.S.C., Sudhir Kumar Singh

Civil Law - Essential Commodities Act,
1955- Section 3/7 - Fair Price Shop
licensee- license of fair price shop
cancelled-Appeal
rejected-
Right
of
subsequent allottee -Respondent No.6 has
the right to hold shop only in case the
license of the petitioner is cancelled.
9 All. Priyanka Vs. State of U.P. & Ors.
1263
Otherwise, she has no right with the
dispute between the petitioner and the
State. In the present case, a conditional
license was given to the respondent No.6
which does not create any independent
right in favour of respondent No.6 and,
therefore, respondent No.6 cannot oppose
the
present
writ
petition.
Mere
participation of respondent no.6 at the
appeal stage will also not confer any such
legal right.

Settled law that mere grant of conditional
license in favour of the subsequent allottee and
her participation in the appeal cannot confer any
independent right to her.

Civil Law - Indian Evidence Act, 1872-
Section
92-
When
the
documentary
evidence is available, oral statement
cannot
be
relied
-
Sub
Divisional
Magistrate shows that he has wrongly
relied upon the statements made by the
villagers in the inquiry. On the basis of
oral statements of some persons, he has
held that stock registers are incorrect. The
same cannot be held to be a proper
procedure. Once, the oral statements
against a documentary evidence is being
relied upon by the authority concerned, it
must specifically state the circumstance
and the reason as to why the authority is
proceeding to disbelieve the documentary
evidence - In the entire judgment, there is
no reference of the documents and reply
submitted
by
the
petitioner
-
The
appellate court while referring to the
submissions of the counsel for parties,
without even considering the case of
petitioner, has again relied upon the oral
statements - The appellate court has also
not given any reason as to why the
appellate court has relied upon the oral
statements
against
the
documentary
evidence. It merely states that there is no
reason to interfere with the order of Sub
Divisional
Magistrate
as
there
is
a
difference between the statement given
by the villagers and the submissions and
record submitted by the petitioner which
is not believed by the Sub Divisional
Magistrate. The same cannot be said to be
a finding of facts in accordance with law.
There is no consideration of the case of
petitioner, again in the appellate order.

Where documentary evidence is available then it
is incumbent upon the Authority to rely upon
the same , instead of relying on the oral
evidence hence, no finding of fact can be
recorded by relying solely upon oral evidence
and ignoring the documentary evidence. (Para
9, 13)

Writ Petition allowed. (E-3)

Case Law/Judgements relied upon:-

1. W.P. No.24684 (M/S) of 2021; ''Smt. Gudiya
Devi Vs St. of U.P.. Thru. Principal Secretary
Food and Civil Supplies Lko. & ors., dated
27.10.2021 (cited)

2. Civil Appeal No.9363-9364 of 2014 Sumitra
Devi Vs. St. of U.P.; dt. 08.10.2014 (cited)

3. Poonam Vs. St. of U.P. & ors. (2016) 2 SCC
779

4. W.P No. 1063 (M/S) of 2020 Putti Lal Vs. St.
Of U.P. Thru Prin.Secy. Food & Supplies
Lucknow & ors. dt. 06.09.2021

(Delivered by Hon'ble Vivek Chaudhary, J.)

1. Heard Mr. Abhishek Singh,
Advocate holding brief of Mr. Birendra
Pratap Singh, learned counsel for the
petitioner, learned Standing Counsel for
respondent no. 1 to 5 and Mr. Sudhir Kumar
Singh, learned counsel for respondent no.6.

2. The petitioner, who is a fair price
shop licensee, has approached this Court
challenging the order dated 03.10.2019
passed by respondent no.3, whereby her
appeal is rejected, and order dated 31.01.2017
passed by respondent no.4 by which license
of her fair price shop was cancelled.

3. Learned counsel for respondent
no.6 claims that respondent no.6 was
1264 INDIAN LAW REPORTS ALLAHABAD SERIES
granted license
after the license of
petitioner was cancelled. He submits that
he has a right to oppose the present writ
petition as now he is holding a license for
the area concerned. He further submits that
petitioner could not have been granted the
license as she is not competent to hold
license and, thus, raised a preliminary
objection.

4. Opposing the same, learned
counsel
for
petitioner
submits
that
respondent no.6 was granted permission
only as an alternative arrangement, till the
dispute with regard to license of the
petitioner is decided. Reference is made to
the letter dated 02.06.2016 of the Sub
Divisional
Magistrate,
Tehsil
Mahsi
whereby
permission
was
granted
to
respondent No.6. Perusal of the said letter
shows that the permission to respondent
No.6
was
granted
in
reference
to
Government Order dated 26.11.2016 in the
public
interest
as
an
alternative
arrangement which would be subject to
decision of the appeal and in case the
appellate authority decides the matter in
favour of the petitioner, no claim of
respondent No.6 would be accepted.

5. A bare perusal of the letter dated
02.06.2016
clearly
demonstrates
that
respondent No.6 was granted permission to
distribute the ration in the area concerned
only as an alternative arrangement to
petitioner whose license was in dispute at
that time. The said letter itself clarifies that
in case the claim of petitioner is accepted,
the new allottee, respondent No.6, would
not have any claim whatsoever. Therefore,
from the reading of the said letter itself it is
clear that respondent No.6 was granted
permission to distribute ration only till the
matter with regard to petitioner is decided.
Learned counsel for respondent No.6 has
referred to following judgments in support
of his case:-

(i) Writ Petition No.24684 (M/S)
of 2021; ''Smt. Gudiya Devi Vs. State of
U.P. Thru. Principal Secretary Food and
Civil
Supplies
Lko.
&
Ors,
dated
27.10.2021;

(ii) Civil Appeal No.9363-9364
of 2014 Sumitra Devi Vs. State of U.P.;
dated 08.10.2014

6. In the judgment passed in case of
Sumitra Devi (supra), it is noted that,
appellant in the case was a subsequent
allottee as he was granted license on
20.02.2008. From the said judgment it is
not clear as to whether the said license was
a temporary license or an absolute. From
the reading of the judgment it appears that
the license was an absolute license granted
in favour of the subsequent allottee and the
license was not subject to the decision of
the earlier allottee. Therefore, the facts of
the said case, being different from the facts
of the present case, are of no help to
respondent No.6. Further, the Supreme
Court was moved by the fact that
subsequent allottee has filed an application
for impleadment and without deciding the
said impleadment application the High
Court had finally decided the writ petition.
In the said background the matter was
remanded back. The Supreme Court while
remanding the matter also stated "we make
it clear that on merits of the case, we have
expressed no opinion." Thus, the facts of
the said case are of no help to respondent
No.6.

7. So far as the judgment passed in
case of Smt. Gudiya Devi (supra) is
concerned, the same is absolutely silent
with regard to rights of subsequent allottee.
The said issue was not even raised before
9 All. Priyanka Vs. State of U.P. & Ors.
1265
the Court. Since, no law is settled in case of
Smt. Gudiya Devi (supra), the same is no
help to respondent No.6.

8. On the other hand, learned counsel
for petitioner has placed reliance upon the
decision of the Supreme Court passed in
case of Poonam Vs. State of U.P. & Ors.
Reported
in
(2016)
2
SCC
779.
Paragraphs 49 to 53 are relevant for our
purposes which read as follow:-

"49. In the instant case, Shop No.
2 had become vacant. The appellant was
allotted
the
shop,
may
be
in
the
handicapped quota but such allotment is
the resultant factor of the said shop falling
vacant. The original allottee, that is, the
respondent, assailed his cancellation and
ultimately succeeded in appeal. We are not
concerned with the fact that the appellant
herein was allowed to put her stand in the
appeal. She was neither a necessary nor a
proper party. The appellate authority
permitted her to participate but that
neither changes the situation nor does it
confer any legal status on her. She would
have continued to hold the shop had the
original allottee lost the appeal. She
cannot assail the said order in a writ
petition because she is not a necessary
party. It is the State or its functionaries
who could have challenged the same in
appeal. They have maintained sphinx like
silence in that regard. Be that as it may,
that would not confer any locus on the
subsequent allottee to challenge the order
passed in favour of the former allottee.
She is a third party to the lis in this
context.

50. The decisions which we have
referred to hereinbefore directly pertain to
the concept of necessary party. The case of
Kailash Chand Mahajan [State of H.P. v.
Kailash Chand Mahajan, 1992 Supp (2)
SCC 351 : 1992 SCC (L&S) 874 : (1992)
21 ATC 528] makes it absolutely clear. We
have explained the authority in J.S. Yadav
[J.S. Yadav v. State of U.P., (2011) 6 SCC
570 : (2011) 2 SCC (L&S) 140] and opined
that it has to rest on its own facts keeping
in view the declaratory relief made therein,
and further what has been stated therein
cannot be regarded as a binding precedent
for the proposition that in a case of
removal or dismissal or termination, a
subsequently appointed employee is a
necessary party. The said principle shall
apply on all fours to a fair price shop
owner whose licence is cancelled. We may
hasten to add, this concept will stand in
contradistinction to a case where the land
after having vested under any statute in the
State has been distributed and possession
handed over to different landless persons.
It is because of such allotment and delivery
of possession in their favour, that is
required under the statute, rights are
created in favour of such allottees and,
therefore, they are necessary parties as has
been held in Ram Swarup v. S.N. Maira
[Ram Swarup v. S.N. Maira, (1999) 1 SCC
738] . The subtle distinction has to be
understood. It does not relate to a post or
position which one holds in a fortuitous
circumstance. It has nothing to do with a
vacancy. The land of which possession is
given and the landless persons who have
received the pattas and have remained in
possession, they have a right to retain their
possession. It will be an anarchical
situation, if they are not impleaded as
parties, whereas in a case which relates to
a post or position or a vacancy, if he or
she who holds the post because of the
vacancy having arisen is allowed to be
treated as a necessary party or allowed to
assail the order, whereby the earlier post
holder or allottee succeeds, it will only
1266 INDIAN LAW REPORTS ALLAHABAD SERIES
usher in the reverse situation -- an
anarchy in law.

51. In this context, reference to
the
judgment
in
Ramesh
Hirachand
Kundanmal v. Municipal Corpn. of Greater
Bombay [Ramesh Hirachand Kundanmal v.
Municipal Corpn. of Greater Bombay,
(1992) 2 SCC 524] would be fruitful. The
two-Judge Bench was dealing with the
concept of dominus litis which relates to
the plaintiff. The Court analysed the
provision contained in Order 1 Rule 10 and
various sub-rules. The subject-matter in the
case pertained to a dispute between the
petitioner and Respondent 1 which centred
on
the
demolition
and
unauthorised
construction by the competent authority
under
the
Bombay
Municipal
Act.
Respondent 2 was the lessee in possession
of the service station. The Municipal
Corporation had not issued any notice to
the said respondent. It was contended
before the Court that Respondent 2 was
instrumental in the initiation of the
proceeding by the Municipal Corporation
against him. The Court addressed to the
issue whether the said respondent is a
necessary or proper party. In the said case,
the appellant had instituted a case against
the third respondent for declaration that
she was the lawfully married wife of the
third respondent who had entered context
and admitted the claim. An application for
impleadment was sought by Respondents 1
and 2 on the ground that they were
respectively the wife and son of the third
respondent and they were interested in
denying the appellant's status as wife and
the children as the legitimate children of
the third respondent. The trial court had
allowed the application and the said order
was confirmed by the High Court in its
revisional jurisdiction.

52. This Court referred to the
authority
in
Razia
Begumv.Anwar
Begum[Razia Begum v. Anwar Begum, AIR
1958 SC 886] and came to hold that there
is a clear distinction between suits relating
to property and those suits in which the
subject-matter of litigation is a declaration
as regards status or legal character. The
Court observed that in the former category,
the
rule
of
personal
interest
is
distinguished from the commercial interest
which is required to be shown before a
person may be added as a party and
accordingly held: (Ramesh Hirachand case
[Ramesh
Hirachand
Kundanmal
v.
Municipal Corpn. of Greater Bombay,
(1992) 2 SCC 524] , SCC p. 531, para 14)

"14. ... The only reason which
makes it necessary to make a person a
party to an action is so that he should be
bound by the result of the action and the
question to be settled, therefore, must be a
question in the action which cannot be
effectually and completely settled unless he
is a party. The line has been drawn on a
wider construction of the rule between the
direct interest or the legal interest and
commercial
interest.
It
is,
therefore,
necessary that the person must be directly
or legally interested in the action in the
answer i.e. he can say that the litigation
may lead to a result which will affect him
legally, that is, by curtailing his legal
rights."

And again: (SCC p. 531, para 14)

"14. ... It is difficult to say that
the
rule
contemplates
joining
as
a
defendant a person whose only object is to
prosecute his own cause of action. Similar
provision was considered in Amon v.
Raphael Tuck & Sons Ltd. [Amon v.
Raphael Tuck & Sons Ltd., (1956) 1 QB
357 : (1956) 2 WLR 372 : (1954) 1 All ER
273]
,
wherein
after
quoting
the
observations of Wynn-Parry, J. in Dollfus
Mieg et Compagnie SA v. Bank of England
[Dollfus Mieg et Compagnie SA v. Bank of
9 All. Priyanka Vs. State of U.P. & Ors.
1267
England, (1950) 2 All ER 605 at p. 611] ,
that their true test lies not so much in an
analysis of what are the constituents of the
applicants' rights, but rather in what would
be the result on the subject-matter of the
action if those rights could be established,
Devlin, J. has stated: (Amon case [Amon v.
Raphael Tuck & Sons Ltd., (1956) 1 QB
357 : (1956) 2 WLR 372 : (1954) 1 All ER
273] , QB p. 371)

''... the test is "May the order for
which the plaintiff is asking directly affect
the intervener in the enjoyment of his legal
rights?"'"

Eventually, the Court unsettled
the order passed by the trial court as well
as by the High Court.

53. We have referred to the said
decision in Ramesh Hirachand case
[Ramesh
Hirachand
Kundanmal
v.
Municipal Corpn. of Greater Bombay,
(1992) 2 SCC 524] in extenso as there is
emphasis on curtailment of legal right.
The question to be posed is whether there
is curtailment or extinction of a legal right
of the appellant. The writ petitioner before
the High Court was trying to establish her
right in an independent manner, that is,
she has an independent legal right. It is
extremely difficult to hold that she has an
independent legal right. It was the first
allottee who could have continued in law,
if his licence would not have been
cancelled. He was entitled in law to
prosecute his cause of action and restore
his legal right. Restoration of the legal
right is pivotal and the prime mover. The
eclipse being over, he has to come back to
the same position. His right gets revived
and that revival of the right cannot be
dented by the third party"

9. The legal position, thus, is settled
by the Supreme Court. In view of the
aforesaid circumstances, respondent No.6
has the right to hold shop only in case the
license of the petitioner is canceled.
Otherwise, she has no right with the dispute
between the petitioner and the State. In the
present case, a conditional license was
given to the respondent No.6 which does
not create any independent right in favour
of
respondent
No.6
and,
therefore,
respondent No.6 cannot oppose the present
writ
petition.
Mere
participation
of
respondent no.6 at the appeal stage will
also not confer any such legal right. Even
otherwise, the issue being raised by the
respondent No. 6, that, whether petitioner is
entitled to hold a license or not, is not an
issue in the present proceedings. In the
present
writ
petition,
petitioner
has
challenged the order of cancellation of her
license which is passed on certain grounds.
Respondent No.6 cannot enlarge the scope
of the proceedings by adding an entirely
fresh issue to the dispute that license
granted to the petitioner is bad, which
would cause a review of the license given
to the petitioner. Therefore, even on merits,
the issue being raised by respondent No.6
cannot be looked into by this Court and is
rejected.

10. Coming back to the merits of the
case with regard to cancellation of license
of the petitioner, a fair price shop license
was
granted
to
the
petitioner
on
05.05.2011. After an inquiry a chargesheet was given to the petitioner on
20.03.2013 and on 25.03.2013 license of
petitioner was canceled by an ex-parte
order. Petitioner submitted her reply with
the recall application and by an order
dated
02.04.2013,
Sub
Divisional
Magistrate recalled his earlier order dated
25.03.2013. The Gram Pradhan of the
village filed an appeal before the
Commissioner, Devi Patan against the
order
of
recall
whereupon
the
1268 INDIAN LAW REPORTS ALLAHABAD SERIES
Commissioner partly allowed the said
appeal setting aside both the order dated
02.04.2013 as well as 25.03.2013 and
remanded the matter to respondent No.4
with a direction to pass fresh order on
merits. On 05.06.2014 a fresh chargesheet was issued to the petitioner calling
for an explanation to which a reply was
submitted
by
the
petitioner.
On
27.06.2014,
petitioner's
license
was
suspended and a detailed explanation was
called for. Petitioner submitted her
detailed reply along with evidences and
affidavit in support of her case. By an
order
dated
28.09.2014
the
Sub
Divisional
Magistrate
closed
the
proceedings with the fine of Rs.1000/-
upon the petitioner and a warning. On
10.07.2015,
the
Sub
Divisional
Magistrate again issued a show cause
notice to the petitioner. On 28.08.2015
the license of petitioner was again
suspended. Petitioner again submitted her
explanation before respondent No.4 with
regard to the charges. Respondent No.4
asked for original records such as
distribution/receipt register of last three
months as well as distribution certificate
issued by the nominated distribution
officer. All records were placed before
the Sub Divisional Magistrate. Against
the suspension order, petitioner filed an
appeal before the Commissioner. The
appeal of petitioner was rejected on
27.02.2016 with a direction to Sub
Divisional Magistrate to decide the
matter on merits within a period of one
month. By order dated 11.04.2016 the
Sub Divisional Magistrate passed a final
order canceling the license of the
petitioner. Petitioner preferred an appeal
before the Deputy Commissioner which
was partly allowed by judgment and
order dated 20.10.2016 and the matter
was again remanded back to the Sub
Divisional Magistrate. On 31.01.2017,
the Sub Divisional Magistrate again
passed an order canceling the license of
the petitioner. Petitioner preferred an
appeal which was also rejected by an
order dated 03.10.2019 and, hence, the
present writ petition is before this Court
challenging
both
the
orders
dated
31.01.2017 and 03.10.2019.

11. Learned counsel for the petitioner
submits that the proceeding held against the
petitioner is not in accordance with law. The
same is decided only on the basis of oral
statements of some persons. In the order of
the Sub Divisional Magistrate the reply of the
petitioner is nowhere considered. There is no
discussion in the entire order of the Sub
Divisional Magistrate as to why and how he
believed the oral statements of the villagers
and has held the documents to the contrary, to
be false. The Sub Divisional Magistrate was
also wrongly influenced because a complaint
against the petitioner was lodged under
Section 3/7 of the Essential Commodities
Act, 1955. There is no adverse order ever
passed by any competent court against the
petitioner and mere pendency of the case
should not have influenced the authority
concerned. He further submits that even the
appellate court has failed to consider the case
of petitioner and has rejected the appeal only
by looking upon the statements of villagers,
without considering the reply of the
petitioner. Petitioner has strongly relied upon
the Government Order dated 22.04.2004 and
states that the same provides comprehensive
guidelines with regard to the procedure of
inquiry and the same is not followed while
conducting the inquiry.

12. On the other hand learned
Standing Counsel submits that orders
passed by the authorities concerned are
detailed and exhaustive and the concurrent
9 All. Priyanka Vs. State of U.P. & Ors.
1269
finding of facts should not be interfered by
this Court.

13. When the documentary evidence
is available, oral statement cannot be relied.
The law in this regard is well settled by this
court in Writ Petition No. 1063 (M/S) of
2020 Putti Lal V. State Of U.P. Thru
Prin.Secy. Food & Supplies Lucknow &
Ors. by judgment dated 06.09.2021.
Paragraph 8 and 9 of the said judgment
reads as below:

"8. It goes without saying that
once there is documentary evidence to
prove certain facts, it is incumbent upon
the authority concerned to take the same
into consideration. The oral evidence
against such documentary evidence should
not be accepted, unless circumstances for
the said purpose are duly explained. The
said aspect of law is reiterated in the
aforesaid
Government
Order
dated
16.10.2014. A perusal of the impugned
orders clearly shows that this aspect of the
matter is totally ignored while passing the
impugned orders. Both the courts have
proceeded only on the basis of oral
statements given by the complainants. The
authority concerned never asked the
complainants to produce their ration cards.
The petitioner had submitted his Registers,
which have been ignored on frivolous
reasons.

9.
The
authority
concerned
should be more particular in cases where
they are disbelieving the record submitted
by the shop owner, to verify the correct
facts from the record of the complainants."

13. A bare perusal of the order of
the Sub Divisional Magistrate shows that
he has wrongly relied upon the statements
made by the villagers in the inquiry. On
the basis of oral statements of some
persons, he has held that stock registers
are incorrect. The same cannot be held to
be a proper procedure. Once, the oral
statements
against
a
documentary
evidence is being relied upon by the
authority concerned, it must specifically
state the circumstance and the reason as
to why the authority is proceeding to
disbelieve the documentary evidence. In
the
order
of
the
Sub
Divisional
Magistrate, there is nothing to indicate as
to why he is relying upon the oral
statements and disbelieving the records.
Even otherwise, in the entire judgment,
there is no reference of the documents
and reply submitted by the petitioner.
Thus, the manner in which the order
dated 31.01.2017 is passed by Sub
Divisional Magistrate is contrary to
settled principles of law and cannot stand.
The appellate court while referring to the
submissions of the counsel for parties,
without even considering the case of
petitioner, has again relied upon the oral
statements. The appellate court has also
not given any reason as to why the
appellate court has relied upon the oral
statements
against
the
documentary
evidence. It merely states that there is no
reason to interfere with the order of Sub
Divisional Magistrate as there is a
difference between the statement given
by the villagers and the submissions and
record submitted by the petitioner which
is not believed by the Sub Divisional
Magistrate. The same cannot be said to be
a finding of facts in accordance with law.
There is no consideration of the case of
petitioner, again in the appellate order.

15. Thus, both the impugned orders
dated 31.01.2017 and 03.10.2019 cannot
stand and are set aside.

16. Writ petition is allowed.
1270 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2022) 9 ILRA 1270
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.09.2022 &
16.09.2022

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Crl. Misc. Bail Application No. 53 of 2021

Satish Sachan ...Applicant
Versus
State of U.P. ...Opp. Party

Counsel for the Applicant:
Sri Dheeraj Kumar Dwivedi, Sri Agni Pal Singh,
Sri Lalit Singh Tomar

Counsel for the Respondents:
G.A., Sri Meraj Ahmad Khan

Criminal
Law
-
Code
Of
Criminal
Procedure, 1973 (2 of 1974) - Sections
437 (1) (ii) & 439 - Bail - Special power of
High Court regarding Bail to an accused
previously convicted - Section 437 (1) (ii)
provides that an accused shall not be so
released on bail if he had been previously
convicted of an offence punishable with
death,
imprisonment
for
life
or
imprisonment for seven years or more -
however, in view of Second Proviso
appended to sub-section (1) of Section
437, Courts are not absolutely barred
from granting bail to a person if he had
been previously convicted, if the Court is
satisfied that it is just and proper so to do
for any special reason - Section 439 of the
Cr.P.C. confer special powers on High
Courts and Session Courts, & is a provision
of a special character whereas Section 437
contains a general provision regarding
grant of bail in non-bailable offences - a
special provision take precedence over
and override a general provision of law -
provision contained in Section 439 of the
Code will take precedence over Section
437 of the Code and the bar contained in
Section 437 (1) (ii) of the Code will not
limit the special powers of the High Court
under Section 439 of the Code (Para 11,
12 )

There is a dispute between the parties
regarding a piece of agricultural land as both
the applicant & informant claim rights in respect
of same piece of land - Informant lodged an
F.I.R. on 05.10.2020 at 20:36 hrs against
applicant, alleging that the applicant assaulted
them with sharp-edged weapons, resulting in
simple injuries - applicant lodged N.C.R. on
05.10.2020 at 23:38 hrs - accused/applicant
also suffered simple injuries in the incident -
applicant has a criminal history of six cases, in
five cases he has already been acquitted and
the appeal filed against the conviction in the
sixth case has been admitted and the order of
sentence has been suspended by this Court -
present case, prima facie appears to be a cross
case and it is yet to be ascertained as to who
was the aggressor - Bail Application Allowed
(Para 19)

Allowed. (E-5)

List of Cases cited:

1. Sanjay Chandra Vs CBI, (2012) 1 SCC 40

2. Dataram Singh Vs St. of U.P., (2018) 3 SCC
22

3. Emperor Vs H. L. Hutchinson AIR 1931 All
356

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Sri Agni Pal Singh, the
learned counsel for the applicant, Sri
Dinesh Kumar Srivastava, the learned
Additional
Government Advocate,
Sri
Meraj Ahmad Khan, the learned counsel for
the informant and perused the record.

2. The instant application has been
filed seeking release of the applicant on
bail in Case Crime No. 481 of 2020, under
Sections 147, 148, 149, 307, 452, 324, 504,
506 IPC, Police Station Ghatampur, District