# Radhey Shyam v. State of U.P. and others

- **Citation:** (2008) 1 ILRA 341
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-02-18
- **Case number:** Special Appeal No. 203 of 2008
- **Bench:** S. Rafat Alam, Vineet Saran
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/radhey-shyam-v-state-of-u-p-and-others-41127
- **Pages:** 3

## Headnote

U.P. Punchayat Raj Act, 1947-Section 5A,
95
(1)
(g)-Removal
of
village
Pradhan-on ground of being convicted
for an offence of Dacoity-challenge made
on ground that-against conviction appeal
admitted
and
during
pendency
of
Appeal-operation of conviction order
suspended-held
not
amounts
to
temporary stay but the execution of
sentence suspended and not obliterated.

Held: Para 5

We
are
not
impressed
with
the
submission made before us for the
reason that the suspension of sentence
·does not amount to washing out the
conviction. It is admitted that the appeal
has
only
been
admitted
and
the
appellant has been released on bail and
the sentence has been suspended till the
disposal of the appeal, which does not
amount to setting aside the conviction.
Case law discussed:
(2007) 3 SCC (Crl.) 149
(2005) 1 SCC 754
342 INDIAN LAW REPORTS ALLAHABAD SERIES [2008

## Text

1 All] Radhey Shyam V. State of U.P. and others
341
constituting that the alienation will, in no
manner, affect the rights of the other party
under any decree which may be passed in
the suit unless the property was alienated
with the permission of the Court. On the
basis of principle of "precedence" this
judgement, being latest one, will prevail
over the earlier judgements cited by the
learned counsel for the appellants.

10. The learned Trial court has
pointed out a very material thing in its
impugned
order.
The
defendantrespondent no.3 has already filed a suit
against the present appellants for the
cancellation of the sale deed on various
grounds which is numbered as Original
Suit No. 389 of 2003. Therefore, in the
present suit if the appellants are made
party on the basis of the sale deed in their
favour, there will arise a dispute regarding
the genuineness of the sale deed itself
between the defendants inter-se, which
cannot be decided in the said suit. Thus, it
is clear that interest of the third party is
contrary to their alleged vendor.

11.

In
view
of
our
above
discussions, we come to the conclusion
that the learned Trial Court has rightly
observed that the third party appellants
are not proper and necessary party to the
suit and their prayer is hit by Section 52
of the Transfer of the Property Act.
Moreover,
the
appellants
lack
in
bonafides in moving the Court after 7
years of the sale deed in which it was
specifically disclosed that the suit was
pending. The suit is ready for final
argument. Rule 3A of Order 1 CPC lays
down the provision for separate trial
where the joinder of the defendants may
delay the trial. As such, this appeal is
devoid of merits and it is dismissed
summarily under Order 41 11 C.P.C. with
costs to the contesting respondents.
Appeal dismissed.

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.02.2008

BEFORE
THE HON'BLE S. RAFAT ALAM, J.
THE HON'BLE VINEET SARAN, J.

Special Appeal No. 203 of 2008

Radhey Shyam

...Appellant
Versus
State of U.P. and others ...Respondents

Counsel for the Appellant:
Sri S.A.N. Shah

Counsel for the Respondents:
Sri Arvind Kumar Singh
S.C.

U.P. Punchayat Raj Act, 1947-Section 5A,
95
(1)
(g)-Removal
of
village
Pradhan-on ground of being convicted
for an offence of Dacoity-challenge made
on ground that-against conviction appeal
admitted
and
during
pendency
of
Appeal-operation of conviction order
suspended-held
not
amounts
to
temporary stay but the execution of
sentence suspended and not obliterated.

Held: Para 5

We
are
not
impressed
with
the
submission made before us for the
reason that the suspension of sentence
·does not amount to washing out the
conviction. It is admitted that the appeal
has
only
been
admitted
and
the
appellant has been released on bail and
the sentence has been suspended till the
disposal of the appeal, which does not
amount to setting aside the conviction.
Case law discussed:
(2007) 3 SCC (Crl.) 149
(2005) 1 SCC 754
342 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
(Delivered by Hon'ble S. Ratat Alam. J.)

1. This is intra Court appeal under
the Rules of the Court arising from the
judgment of the Hon'ble Single Judge of
this Court dated 10.1.2008 dismissing the
petitioner-appellant's Civil Misc. Writ
Petition No. 1301 of 2008.

2. It appears that the appellant being
aggrieved
by
the
order
of
the
Collector/District Magistrate, Etah·dated
18/19.12.2007 whereby he was removed
from the post of Pradhan in exercise of
the power under Section 95(1)(g) of the
U.P. Panchayat Raj Act, 1947 (in short
the Act) challenged its validity in the
aforesaid writ petition. The Hon'ble
Single Judge, having heard learned
counsel for the parties, found that the
appellant having been convicted for the
offence of dacoity and attempt to murder
in sessions trial, is not entitled to hold
public office of Pradhan of the village and
hence did not find any good ground to
interfere
with
the
order
of
the
Collector/District Magistrate impugned in
the writ petition.

3. We have heard Sri S.A.N. Shah,
learned
counsel
for
the
petitionerappellant and the learned Standing
Counsel for the State-respondents no. 1, 2
and 3 as well as Sri Arvind Kumar Singh,
learned
counsel
for
the
contesting
respondent no.4 and have perused the
record.

4. Sri S.A.N. Shah, learned counsel
appearing for the appellant vehemently
contended before us that against the
conviction the appellant has preferred
Criminal Appeal No. 5152 of 2007
wherein he has been released on bail and
the sentences have been suspended vide
order dated 30.8.2007, hence he has a
right to hold the office of Pradhan. In
support of this contention he placed
reliance on the judgment of the Hon'ble
Apex Court in the case of Lalsai Khunte
Vs. Nirmal Sinha and others, (2007) 3
SCC (Crl.) 149.

5. We are not impressed with the
submission made before us for the reason
that the suspension of sentence ·does not
amount to washing out the conviction. It
is admitted that the appeal has only been
admitted and the appellant has been
released on bail and the sentence has been
suspended till the disposal of the appeal,
which does not amount to setting aside
the conviction.

6. Section 5-A of the U.P. Panchayat
Raj Act provides about disqualification of
the membership whereunder a person
having been convicted of an offence
involving
moral
turpitude
shall
be
disqualified for being chosen as, and for
being the Pradhan or a Member of a Gram
Panchayat. Under Section 95(1)(g) of the
Act a Pradhan can be removed if he is
accused or charged for an offence
involving moral turpitude or suffers from
any of the disqualification under Chapter
II-A of Section 5-A of the Act.

7. In the instant case, since the
appellant has been convicted and the
appeal is pending, hence he has rightly
been removed under Section 95(1)(g) of
the Act. Reliance on the judgment of
Lalsai Khunte Vs. Nirmal Sinha and
others (supra) is misplaced and is of no
help to the petitioner-appellant. In para-14
of the judgment their Lordships have
observed that the suspension does not
amount to temporarily washing out the
conviction. It has further been observed
1 All] Union of India V. Dr. Lalit Verma and another
343
that the conviction still remains, only the
operation of the order and the sentence
remain suspended and that does not
amount
to
temporary
stay
of
the
conviction. Besides that a Constitution
Bench of the Hon'ble Apex Court in the
case
of
K.
Prabhakaran
Vs.
P.
Jayarajan, (2005) 1 SCC 754 in para-42
has held that the suspension is not of
conviction or sentence, but it is only the
execution of the sentence or order which
is suspended and not obliterated.

8. Therefore, in view of the
exposition of law made by the Hon'ble
Apex Court, we do not find any factual or
legal error in the judgment of the Hon'ble
Single Judge. The appeal, being without
merit, is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.10.2007

BEFORE
THE HON'BLE DR. B. S. CHAUHAN, J.
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No.7495 of 2006

Union of India

...Petitioner
Versus
Dr. Lalit Varma & another ...Respondents

Counsel for the Petitioner:
Sri. K.C. Sinha
(Assistant Solicitor General of India)

Counsel for the Respondents:
Sri. G.K. Singh
Sri. R.N. Singh
Sri. Arun Singhal
Sri. G.S. Hajela
Sri. G.K. Malviya

All
Indian
Services
(Death
cum
Retirement benefit Rules 1958) Rule 16A-change of date of birth-recorded in
school
certificate-service
book-no
reasons shown for alteration of date of
birth-while the claim already rejected in
the year 1988 became final-even if claim
accepted-he will be younger than his
younger
brother-held-cannot
be
changed.

Held: Para 38

Had the case been so, we fail to
understand as what was the occasion for
the applicant-respondent to make an
application for change of his date of birth
in the service record and what was the
occasion for him to file a Civil suit or
seek a writ of mandamus from the
Tribunal to change the date of birth from
01.03.1959
to
13.02.1962.
The
admission of recording of date of birth in
the service record of the applicantrespondent as 01.03.1959 is admitted in
view of the rejection of his application
for correction of date of birth vide order
dated 22.04.1988~,which was never
challenged by the applicant-respondent
and it attained finality. The aforesaid
aspect
of
the
matter
had
been
completely lost sight of by the Tribunal
and, thus, there has been complete
misreading of Rule 16-A (4) of the Rules
1958. The cumulative effect of the
provisions of Rule 16 ·A (4) of Rules
1958 read with notification dated 17th
December, 1983 makes it abundantly
clear and leaves no room for doubt that
the date of birth given by the applicantrespondent in the first application form
cannot be changed while filling up the
application
forms
for
subsequent
examinations
and
these
forms
in
themselves
are
referable
to
Clause
16A(3) of the Rules 1958 for the purpose
of date of birth of the candidate.
Case law discussed:
AIR 1993 SC 1367, AIR 1993 SC 2647, AIR
1995 SC 850, AIR 1995 SC 1349, AIR 1995 SC
1449, 1995(2) SCC 1494, 1995(2) SCC 98, AIR
1996 SC 1000, 1996(7) SCC 421, AIR 1997 SC
2452, 2000(8)SCC 696, AIR 2001 SC 1666 AIR
2002 SC 509, AIR 2003 SC 4209, 2005(6) SCC
49, 2005(11) SCC 465, 2002(7) SCC 719, AIR