# Rachna Gupta v. Union of India

- **Citation:** (2014) 1 ILRA 469
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-04-21
- **Case number:** Service Single No. 7910 of 2010
- **Bench:** Sudhir Kumar Saxena
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rachna-gupta-v-union-of-india-54639
- **Pages:** 6

## Headnote

470 INDIAN LAW REPORTS ALLAHABAD SERIES

A.S.G.,Sri Alok Mathur, Sri I.H. Farooqui,
Sri Kamal Kumar Singh,
Bisht, Sri P.N. Chaturvedi

Constitution
of
India,
Art.-12-Army
School affiliated to CBSE Board-getting
grant in aid cent percent from central
government-performing statutory duty
cast upon government institution being
within instrumentality of State-petition
maintainable.

Held:Para-20
Thus, there is no difficulty in holding that
Army Public School is certainly amenable to
writ jurisdiction of this Court. Consequently,
preliminary objection is overruled.

Case Law Discussed:
[(2012) 12 SCC 331]; [(1989)2 SCC 691]; [WP(C)
4412 of 2005]; (2005) 4 SCC 649; [WP(C) No.
4277 of 2010]; [2005(106) FLR 111].

## Text

1 All] Rachna Gupta Vs. Union of India

469
challenge
in
any
appeal.
Only
a
representation is provided for before the
District Magistrate himself under Section 15
of the Act and in case he refuses to release
the property on such representation, he is to
make a reference to the Court having
jurisdiction to try an offence under the Act.
The Court, while dealing with the reference
made under sub-section (2) of Section 15 of
the Act has to see whether the property was
acquired by a gangster as a result of
commission of an offence triable under the
Act and has to enter into the question and
record his own finding on the basis of the
enquiry held by him under Section 16 of the
Act. If the Court came to the conclusion that
the property was not acquired by the gangster
as a result of commission of an offence
triable under the Act, the Court shall order
for release of the property in favour of the
person from whose possession it was
attached. If the conclusion for the Court is
otherwise, it may pass such order as it thinks
fit for the disposal of the property by
attachment, confiscation or delivery to any
person entitled to the possession thereof or
otherwise.........."

"The court is not expected to act as a
Post Office or mouth piece of the State or the
District Magistrate. If a person has no
criminal history during the period the
property was acquired by him, how the
property can be held to be a property
acquired by or as a result of commission of
an offence triable under the Act is a pivotal
question which has to be answered by the
Court. Besides, the aforesaid question, the
other important question to be considered by
the Court is whether the property which was
acquired prior to the registration of the case
against the accused under the Act or prior to
the registration of the first case of the gang
chart can be attached by the District
Magistrate under Section 14 of the Act..."

15. For the aforesaid reasons and in the
wake of legal position cited above, both the
impugned orders passed by the District
Magistrate Varanasi and Special Judge,
Gangster Varanasi are liable to be quashed
because both the courts have failed to assign
any reason as to how the property purchased
about 7 years prior to the registration of the
case under Gangsters Act against the
husband of the petitioner was attached by
District Magistrate under section 14 of the
Gangster Act.

16. Accordingly, the writ petition is
allowed. The order dated 10.2.2010
passed by Special Judge, Gangster Act,
Varanasi and the order dated 6.8.2009
passed
by
the
District
Magistrate,
Varanasi are hereby quashed.

17. It is further directed that if the
petitioner
moves
an
application/representation before the District
Magistrate, Varanasi for release of her house
with a certified copy of this order and other
relevant documents, the District Magistrate,
Varanasi shall dispose of her representation
by a reasoned and speaking order in
accordance with law within a period of six
weeks.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.04.2014

BEFORE
THE HON'BLE SUDHIR KUMAR SAXENA, J.

Service Single No. 7910 of 2010

Rachna Gupta............ ..........Petitioner
Versus
Union of India..... ..............Respondent

Counsel for the Petitioner:
Sri Vijay Dixit
Counsel for the Respondent:
470 INDIAN LAW REPORTS ALLAHABAD SERIES

A.S.G.,Sri Alok Mathur, Sri I.H. Farooqui,
Sri Kamal Kumar Singh,
Bisht, Sri P.N. Chaturvedi

Constitution
of
India,
Art.-12-Army
School affiliated to CBSE Board-getting
grant in aid cent percent from central
government-performing statutory duty
cast upon government institution being
within instrumentality of State-petition
maintainable.

Held:Para-20
Thus, there is no difficulty in holding that
Army Public School is certainly amenable to
writ jurisdiction of this Court. Consequently,
preliminary objection is overruled.

Case Law Discussed:
[(2012) 12 SCC 331]; [(1989)2 SCC 691]; [WP(C)
4412 of 2005]; (2005) 4 SCC 649; [WP(C) No.
4277 of 2010]; [2005(106) FLR 111].

(Delivered by Hon'ble Sudhir Kumar Saxena, J.)

1. Sri Alok Mathur, learned counsel for
the respondents raised preliminary objection
to the maintainability of writ petition on the
ground that Army Public School is not 'State'
within the definition of Article 12 of the
Constitution of India. He referred to a
decision of Division Bench of this Court
given in the case of Army School,
Kunraghat, Gorakhpur Vs. Smt. Shilpi Paul
[2005(2) LBESR 457 (All)]. In Para 18 of
the judgment it has been held that Army
School is not 'State' under Article 12 of the
Constitution of India, hence writ petition
itself was not maintainable.

2. A reference has been made to the
decision
of
Hon'ble
Apex
Court
dismissing the SLP directed against the
order of Hon'ble Jammu & Kashmir High
Court wherein similar question was
raised. In para 22 of the judgment,
Division Bench of J & K observed that
Army Welfare Education Society is not an
instrumentality of the State under Article
12 of the Constitution.

3. In reply to the above submission, Sri
Vijay Dixit, learned counsel for petitioner
placed reliance upon the judgment of
Hon'ble Supreme Court given in Civil
Appeal No. 7355 of 2008 directed against the
order passed by Division Bench of
Uttarachal High Court. It was a case of Army
Public School, challenging the order of
termination in Writ Petition No. 398 of
2004(S/B) (Km. Vimi Joshi Vs. Chairman
School Managing Committee and others) in
which Court had granted interim order which
was challenged in Special Leave Petition.
Hon'ble Apex Court dismissed the appeal
holding that Army Public Service School
was a public enterprise. Apex Court further
directed to decide the writ petition.
Ultimately writ petition was allowed.

4. Reliance has been placed before this
Court upon the decision of Hon'ble Apex Court
given in the case of Ramesh Ahluwalia Vs.
State of Punjab and others [(2012) 12 SCC
331]. Para 12 and para 14 of the judgment of
Ramesh Ahluwalia are quoted below:

(12)
We
have
considered
the
submissions made by the learned counsel for
the parties. In our opinion, in view of the
judgment rendered by this Court in Andi
Mukta Sadguru Shree Muktajee Vandas
Swami Suvarna Jayanti Mahotsav Smarak
Trust there can be no doubt that even a purely
private body, where the State has no control
over its internal affairs, would be amenable to
the jurisdiction of the High Court under
Article 226 of the Constitution, for issuance of
a writ of mandamus. Provided, of course, the
private body is performing public functions
which are normally expected to be performed
by the State authorities.
1 All] Rachna Gupta Vs. Union of India

471

(14) In view of the law laid down in
the aforesaid judgments of this Court, the
judgment of the learned Single Judge as
also the Division Bench of the High Court
cannot be sustained on the proposition
that the writ petition would not be
maintainable
merely
because
the
respondent institution is a purely unaided
private educational institution."

5. Furthermore, learned counsel has
placed reliance on the case of Andi Mukta
Sadguru Shree Muktajee Vandas Swami
Suvarna Jayanti Mahotsav Smarak Trust
and others Vs. V.R. Rudani and others
[(1989) 2 SCC 691] wherein Court has
observed that writ petition cannot be said
to be not maintainable merely because
respondent institution is purely unaided
private educational institution.

6. Learned counsel has relied upon
another decision of Hon'ble Delhi High
Court rendered in the case of Smt. Swapna
Sood Vs. Directorate of Education and others
[WP(C) 4412 of 2005]. Relevant portion of
the referred judgment is as under:-

"I also do not find any force in the
arguments of the counsel for respondent
No.2 that respondents No.2 and 3 being
not the State, the writ petition under
Article 226 of the Constitution of India is
not
maintainable.
Admittedly,
respondents No.2 and 3 are discharging
important
public
functions,
namely,
imparting education to the children,
therefore, to that extent the respondents
are performing the functions of the State
and recruitment of teachers to achieve the
said object is also in discharge of the
public function by respondents No.2 and
3. The teachers who impart education
have an element of public interest in the
performance of their duties."

7. Supreme Court in the case of
(2005) 4 SCC 649 entitled Zee Telefilms
Ltd. and Anr. vs Union of India & Others
has held that in such matters writ is
maintainable. It will be relevant to
reproduce the following paragraphs from
the judgment :

"31. Be that as it may, it cannot be
denied that the Board does discharge
some duties like the selection of an Indian
cricket team, controlling the activities of
the players and others involved in the
game of cricket. These activities can be
said to be akin to public duties or State
functions and if there is any violation of
any constitutional or statutory obligation
or rights of other citizens, the aggrieved
party may not have a relief by way of
petition under Article 32. But that does
not mean that the violator of such right
would go scot-free merely because it or
he is not a State. Under the Indian
jurisprudence there is always a just
remedy for the violation of a right of a
citizen. Though the remedy under Article
32 is not available, an aggrieved party can
always seek a remedy under the ordinary
course of law or by way of a writ petition
under Article 226 of the Constitution,
which is much wider than Article 32.

32. This Court in the case of Andi
Mukta Sadguru Shree muktajee Vandas
Swami Swarna jayanti Mahotsav Smarak
Trust vs. V.R. Rudani has held:

"Article 226 confers wide powers on
the High Courts to issue writs in the
nature of prerogative writs. This is a
striking departure from the English law.
Under Article 226, writs can be issued to
,,any person or authority. The term
,,authority used in the context, must
receive a liberal meaning unlike the term
472 INDIAN LAW REPORTS ALLAHABAD SERIES

in Article 12 which is relevant only for
the
purpose
of
enforcement
of
fundamental rights under Article 32.
Article 226 confers power on the High
Courts to issue writs for enforcement of
the fundamental rights as well as nonfundamental rights."

8. In the case of Shalu Kataria Vs.
Director of Education and others [WP(C)
No. 4277 of 2010], the facts were
identical as aforesaid writ petition was
allowed by High Court of Delhi. Hon'ble
Apex Court dismissed SLP. It was a case
of Army School.

9. There is another decision of
Uttarakhand High Court given in the case
of Trilochan Singh Vs. Committee of
Management, Army School, Hempur and
others (Special Appeal No. 371 of 2012),
wherein Bench observes that :

"society and the schools established
by
the
society
are
directly
and
substantially part of the Indian Army and,
accordingly, it cannot be said that the
society and its schools are not authority
within the meaning of Article 12 of the
Constitution of India."

10. Taking note to Right of Children
to Free & compulsory Education Act,
2009 (Act 35/2009) as well as amended
Article 21-A of the Constitution of India,
a Division Bench of this Court in the case
of Shreyaskar Tripathi Vs. State of U.P.
and Others (Special Appeal No. 1501 of
2007)
decided
on
26.11.2010
has
observed that writ petition under Article
226 of the Constitution of India can be
filed keeping in view that private body is
discharging
public
duty
or
public
obligations of public nature. Relevant part
of para 32 is reproduced below:

"32 A writ petition under Art.226 of the
Constitution is maintainable against the
State, and authorities exercising powers of
the State, statutory body, and instrumentality
or agency of the state, a company financed
and owned by the State, private body run
substantially on State funding, a private body
discharging public duty or public obligations
of public nature and person or a body under
liability to discharge any function under any
statute, to compel it to perform statutory
functions. A writ of mandamus may also be
issued to any person or authority performing
public duty owing positive obligation to the
affected party. The Supreme Court as long
back as in 1976 in Executive Committee of
Vaish Degree College, Shamli & Ors. Vs.
Laxmi Narain & Ors., (1976) 2 SCC 58, held
that writ petition is maintainable against the
Committee of Management of a society
running
an
educational
institution
discharging statutory duties."

11. Army Public School affiliated
with
Central
Board
of
Secondary
Education has to perform functions
according to the provisions of the Act,
instructions and regulations framed by the
CBSE. Army Public School is imparting
education from class I to class XII which
is a public function. Since public duty has
been imposed by the Act 35 of 2009 in
view of Article 21A of the Constitution of
India, a writ is certainly maintainable.

12. It is contended that Army Public
School receives grants from the Welfare
Fund of the Adjutant Generals Branch,
Integrated Head Quarters of Ministry of
Defence (Army). In view of various
decisions quoted above question of
funding now does not remain significant.

13. Division Bench decision in the
case of Army Public School Vs. Shilpi Paul
1 All] Rachna Gupta Vs. Union of India

473
was given in 2005, much before the
enactment of Act 35 of 2009 which has
made all such schools amenable to writ
jurisdiction as observed by division bench
of this Court in the case of Shreyaskar
Tripathi. Para 33 of the judgment of
division bench of this Court given in the
case of Shreyaskar Tripathi (supra) reads as
under:

"33. We find substance in the
submission of Shri Ashok Khare that the
learned Single Judge did not appreciate
that
the
educational
institutions
recognised under the U.P. Intermediate
Education Act, even if it is unaided, has to
carry out several statutory functions. The
teachers
of
such
institutions
have
statutory conditions of service prescribed
under Government Order dated 10th
August, 2001 issued in exercise of power
under Section 7AA (3) of the Act. Now
by the enforcement of Art.21A of the
Constitution of India by the Right of
Children
to
Free
and
Compulsory
Education Act, 2009, all the schools
including unaided schools are under
statutory obligation to provide education
to children. It is thus difficult to accept
the submission that writs under Art.226 of
the Constitution of India cannot be issued
to
such
institutions.
The
opinion
expressed by learned Single Judge, is
contrary to law and is unacceptable."

14. Division Bench of Uttaranchal
High Court in Writ Petition No.398 of 2004
(SB), Km. Vimi Joshi Vs. Chairman,
School Managing Committee and others,
speaking through Hon'ble Barin Ghosh, CJ
has observed as under in para (9) :

"In paragraph-20 of the judgment of
Hon'ble Supreme Court, referred above, the
Hon'ble Supreme Court, in no uncertain
terms, has held that the School is a 'Public
Enterprise'. In view of such pronouncement
of the Hon'ble Supreme Court, we hold that
the School is an Authority within the
meaning of Article 12 of the Constitution of
India and, accordingly, is answerable for
each of its actions, which is tainted.

15. In view of the authoritative
pronouncements of Hon'ble Supreme
Court, enactment of Act 35 of 2009 and
division bench judgment of this Court
given in the case of Shreyaskar Tripathi,
there is no need to refer the decision of
Shilpi Paul to a larger Bench.

16. Reliance has also been placed
upon the judgment of Madhya Pradesh
High Court given in writ petition filed by
Nazma Arif Vs. Managing Committee,
Army School, Sagar Cantonment and others
[2005(106) FLR111]. It was mentioned in
the judgment that the school is affiliated to
the Central Board of Secondary Education
and has been established by the Army
Personnel Welfare Society, Lucknow. The
institution is receiving, cent percent grantin-aid from the Central Government
(Defence Budget). Court quashed the order
of termination and ordered reinstatement.

17. Rajasthan and Punjab High
Court have also taken the similar view.

18.Settled position appears to be that
writ petition filed against Army Public
School is maintainable.

19. There is no reason why a
restricted view regarding prerogatives of
High Court contemplated by Article 226
of the Constitution of India be taken.

20. Thus, there is no difficulty in
holding that Army Public School is
474 INDIAN LAW REPORTS ALLAHABAD SERIES

certainly amenable to writ jurisdiction of
this Court. Consequently, preliminary
objection is overruled.

21. Sri Alok Mathur, Counsel for the
respondent is directed to file counter
affidavit within three weeks. List thereafter.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.04.2014

BEFORE
THE HON'BLE RAN VIJAI SINGH, J.

Civil Misc. Writ Petition No. 11589 of 2014

Suresh Singh............................ Petitioner
Versus
Board of Revenue & Ors.......Respondents

Counsel for the Petitioner:
Dr. Vinod Kumar Rai, Sri Ashok Kumar
Singh

Counsel for the Respondents:
C.S.C.

U.P. Land Revenue Act, 1901-Section191-Transfer of case pending before
Additional
Commissioner
to
otherwithout having consent from concern
commissioner without notice to other
side-while
direction
for
expeditious
disposal already there-in absence of
procedure to deal with transfer casesprovisions of section 24 CPC be followedorder entailing civil consequences can
not
be
passed-Board
exceeded
its
jurisdiction while transfer application
already filed before commissioner and
comments sought from concern Courtheld-such order arbitrary and illegal.-
quashed.

Held:Para-24
It is settled principle of law that justice
should not only be done, but it appears to
have been done. The manner in which the
learned
Member
Board
of
Revenue
proceeded to decide the transfer application
cannot be said to be a fair and transparent
particularly in the circumstances when the
transfer application has been allowed on
the allegation of the malafide.

Case Law Discussed:
(1957) 1 All ER 49 p. 53: 1957 AC 436(HL);
AIR 1967 SC 1877; AIR 1989 SC 317; AIR
1989 SC 159 Page 162; (2004) 6 SCC 254
Page 259; (1978) 1 SCC 248:(1978) 2 SCR
621; (1998(8) SCC 1; (2005(6) SCC 321);
((2007) 6 SCC 668); (2008(3) ESC 433(SC).

(Delivered by Hon'ble Ran Vijay Singh, J.)

1. Heard Dr. V.K.Rai, along with Sri
Ashok Kumar Singh, learned counsel for
the petitioner and the learned standing
counsel for the respondents.

2. Considering the facts of the case
the writ petition is taken up for final
disposal without issuing notice to the
private respondent with liberty to him to
file an application seeking variation/
recall /modification of the order which is
going to be passed.

3. This writ petition has been filed
with the following prayer:

I)Issue a writ of certiorari to quash
the order dated 21.2.2014 passed by
respondent no.1 in transfer application no.
597 (LR2001-14 (Kailash Nath Singh vs.
Suresh);

II)issue a writ of mandamus directing
to the respondent no.2 to decide the
appeal no.2 of 2009 Suresh Singh versus
Uday
Chand
Singh
and
others,
expeditiously.

III)Any other relief order and direction,
which this Hon'ble Court may deem fit and
proper
in
the
interest
of
justice..