# Ragho v. State of U.P. and Others

- **Citation:** (2019) 1 ILRA 1195
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-07-02
- **Case number:** Writ - C No. 627 of 2016
- **Bench:** Bala Krishna Narayana, Prakash Padia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ragho-v-state-of-u-p-and-others-44434
- **Pages:** 9

## Headnote

C.S.C., Sri Bimla Prasad, Sri Manoj Kumar
Kushwaha, Sri Vishal Kumar Upadhyay

A. Complaint before the Commission
(Uttar Pradesh Scheduled Caste and
Schedules
Tribes
Commission,
Lucknow)- Complainant had no right to
make complaint in question against the
petitioner regarding eviction of the
petitioner from his land. Moreover, the
complaint before the Commission was
not maintainable.
That once respondent no. 4 had already
exhausted all remedial forum then he had no
right to approach and make complaint in
question against the petitioner regarding
eviction of the petitioner from his land.
Moreover, in the instant case the grievance
which has been raised as complained by
respondent no. 4 before the commission is not
at all maintainable and the same is not within
the ambit and scope of the Commission to
proceed in the matter (Para-26). Order passed
by the Uttar Pradesh Scheduled Caste and
Scheduled Tribes Commission, Lucknow and
consequential notice issued by the Deputy
Collector,
Sadar,
Varanasi,
cannot
be
sustained.

The writ petition allowed.

CHRONOLOGICAL LIST OF CASES CITED:

1: - All Indian Overseas Bank Vs. S.C. And S.T.
Employees

2: - 1996(6) SCC 606, Welfare Association and
others Vs. Union of India and others

3:- 2012(6) ADJ 42, U.P. State Handloom
Corporation and another Vs. State of U.P. and
another

4:- LPA No.280 of 2007,Professor Ramesh
Chandra Vs. University of Delhi and another

5:- ILR 2008 KAR 2205, Karnataka Antibiotics
and Another Vs National Commission for SC
and ST and others

6:- (1978) 1 SCC 10, Union of India vs.Orient
Engg. & Commercial Co. Ltd. and another

7:- 1998 All.L.J.134, Chitranjan Singh vs
Chandra Bhushan Pandey

8:-
2010
AIR
SCW
3277,
Assistant
Commissioner, Commercial Tax Department,
Works Contract and Leasing, Kota Vs. M/s
Shukla and Brothers

9: - Writ C No.8490 of 2017, Shyam Lal and
14 others Vs. State of U.P. and 13 others(E-7)
1196 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

1 All. Ragho Vs. State of U.P. and Others
1195
be answerable to this Court in contempt
jurisdiction. We grant liberty to any
aggrieved person to approach this court
for appropriate order for compliance of
the above order/directions.

60. A copy of this order be sent to the
Chief Secretary, Government of Uttar
Pradesh, Lucknow to issue necessary
directions to the appropriate authorities
accordingly. The compliance report shall
be sent to the Registrar General of this
Court, who shall place it on the record of
this case.

61. The writ petition is allowed in
the above terms.
-----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.07.2019

BEFORE
THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE PRAKASH PADIA, J.

Writ - C No. 627 of 2016

Ragho ...Petitioner
Versus
State of U.P. and Others ...Respondents

Counsel for the Petitioner:
Sri Gajala Srivastava, Sri Manish

Counsel for the Respondents:
C.S.C., Sri Bimla Prasad, Sri Manoj Kumar
Kushwaha, Sri Vishal Kumar Upadhyay

A. Complaint before the Commission
(Uttar Pradesh Scheduled Caste and
Schedules
Tribes
Commission,
Lucknow)- Complainant had no right to
make complaint in question against the
petitioner regarding eviction of the
petitioner from his land. Moreover, the
complaint before the Commission was
not maintainable.
That once respondent no. 4 had already
exhausted all remedial forum then he had no
right to approach and make complaint in
question against the petitioner regarding
eviction of the petitioner from his land.
Moreover, in the instant case the grievance
which has been raised as complained by
respondent no. 4 before the commission is not
at all maintainable and the same is not within
the ambit and scope of the Commission to
proceed in the matter (Para-26). Order passed
by the Uttar Pradesh Scheduled Caste and
Scheduled Tribes Commission, Lucknow and
consequential notice issued by the Deputy
Collector,
Sadar,
Varanasi,
cannot
be
sustained.

The writ petition allowed.

CHRONOLOGICAL LIST OF CASES CITED:

1: - All Indian Overseas Bank Vs. S.C. And S.T.
Employees

2: - 1996(6) SCC 606, Welfare Association and
others Vs. Union of India and others

3:- 2012(6) ADJ 42, U.P. State Handloom
Corporation and another Vs. State of U.P. and
another

4:- LPA No.280 of 2007,Professor Ramesh
Chandra Vs. University of Delhi and another

5:- ILR 2008 KAR 2205, Karnataka Antibiotics
and Another Vs National Commission for SC
and ST and others

6:- (1978) 1 SCC 10, Union of India vs.Orient
Engg. & Commercial Co. Ltd. and another

7:- 1998 All.L.J.134, Chitranjan Singh vs
Chandra Bhushan Pandey

8:-
2010
AIR
SCW
3277,
Assistant
Commissioner, Commercial Tax Department,
Works Contract and Leasing, Kota Vs. M/s
Shukla and Brothers

9: - Writ C No.8490 of 2017, Shyam Lal and
14 others Vs. State of U.P. and 13 others(E-7)
1196 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Prakash Padia, J.)

1. Heard learned counsel for the
petitioner, learned Standing Counsel for
respondents no. 1 and 2, Sri Vishal
Kumar Upadhyay, learned counsel for
respondent no. 3 and Sri Bimla Prasad,
learned counsel for respondent no. 4.
With the consent of the learned counsel
for the parties this petition is disposed of
finally at the admission stage itself.

2. The petitioner has preferred the
present writ petition challenging the order
dated 1.12.2015 passed by the Uttar Pradesh
Scheduled Caste and Schedules Tribes
Commission, Lucknow-respondent no. 3 and
consequential notice dated 31.12.2015 issued
by the Deputy Collector, Sadar, Varanasi,
copies of which are appended as Annexures 7
and 8 to the writ petition.

3. The facts in brief, as narrated in
the writ petition are that the petitioner is
the Bhumidhar of Plot No. 398/3 area
0.020
Hectare
situated
in
Mauja
Shivdaspur
Pargana-Dehat
Amanat,
District Varanasi and is in possession over
the aforesaid plot in question. The
aforesaid plot was purchased by the
petitioner from the erstwhile owner
through a sale deed dated 21.11.1976.
Subsequently, the petitioner constructed
his house over plots no. 398/1 and 398/3
and the rest of the land was being used as
Abadi.

4. The respondent no.4 viz. Ram Ji
Das, also claiming himself to be the
owner of aforesaid plot No. 398/1, area
278.3 Sq. Meter has filed an application
under Section 145 of Criminal Procedure
Code. On the aforesaid application a case
was registered as Case No. 15/17 of 2013
(Ramji Das Versus Ragho Prasad). In the
said case the petitioner has also filed his
objection and after hearing both the
parties Addl. City Magistrate-I Varanasi
found that over the disputed plot house of
the petitioner is constructed and rest of
the land is being used as Abadi by the
petitioner.

5. Thereafter a suit being Case No.
73 of 2000 was filed by Ram Vilas
against Ragho Prasad and several other
persons in respect of Plot No.398/1 for the
relief that respondents may be directed
not to obstruct him from using of the plot
as Rasta. The aforesaid suit was dismissed
in default on 15.4.2011 and the said order
has become final.

6. Apart from the above, the
petitioner has also filed a suit being Case
No. 4 of 2016 (Ragho Prasad Singh Vs.
Smt. Shanti Devi and another) for specific
performance as well for permanent
injunction in the court of Civil Judge (Jr.
Division)
Hawaii
Varanasi.
In
the
aforesaid suit Shanti Devi, wife of Ram
Vilas as well as Ram Ji Das (respondent
no. 4) were made parties.

7. It is contended by learned counsel
for the petitioner that the dispute of title is
involved between the parties and till date
respondent no. 4 is not able to prove his
title before the competent court. It is
further contended that when respondent
no. 4 was not able to prove his title over
the land in question, only in order to
harass
the
petitioner,
he
filed
an
application in the shape of a complaint
before the Commission for the SC and
ST, Lucknow-respondent no. 3. On the
said application notices were issued by
the Commission to the Collector and the
S.S.P. Varanasi for eviction of the
petitioner. Pursuant to the aforesaid
directions issued by respondent no. 3, the
1 All. Ragho Vs. State of U.P. and Others
1197
respondent no.2-Deputy Collector Sadar,
Varanasi issued notice to the petitioner for
his eviction over the plot in question, i.e.,
Plot No.398/1. At this point of time,
challenging the decision taken by the
respondent no. 3- Commission for the SC
and ST, Lucknow dated 1.12.2015 and the
order passed therein by the respondent no.
2-Deputy Collector Sadar, Varanasi vide
its letter dated 31.12.2015 the petitioner
has preferred the present writ petition.

8. It is contended by learned counsel
for the petitioner that the respondents no.
3 and 2 have no jurisdiction to decide the
title. It is further contended that the
aforesaid respondents have absolutely no
jurisdiction
to
pass
any
order
to
dispossess the petitioner. It is further
contended that under Article 300-A of the
Constitution protection of the property
was granted. It is further contented that
before passing the aforesaid order no
notice or opportunity whatsoever has been
given to the petitioner and since the
orders passed are in complete violation of
Principle of Natural Justice they are liable
to be set aside.

9. When the writ petition was filed,
by a detailed order passed by co-ordinate
Bench of this Court the impugned orders
dated
1.12.2015
and
31.12.2015
(Annexures- 7 and 8 of the writ petition)
were kept in abeyance.

10. In the counter affidavit filed by
respondent no. 4 it is contended that
respondent no.3 is fully empowered to
pass the order of eviction under the Uttar
Pradesh Commission for Scheduled Caste
and Scheduled Tribes Act, 1995. It is
further contended that the orders were
rightly passed by respondents no. 3 and 2
for eviction of the petitioner from the land
in question.

11. Another counter affidavit was
filed by respondent no. 3- Uttar Pradesh
Commission for Scheduled Caste and
Scheduled
Tribes,
Lucknow
stating
therein that the respondent Commission is
fully empowered to issue notice to
investigate the matter. It is contended that
Section 12 of the Act gives power to the
Commission to investigate the matter.

12. In the rejoinder affidavit the
petitioner denied the facts contained in the
counter affidavits. It is contended that
powers provided under Section 11 of the
Uttar Pradesh Commission for Scheduled
Caste and Scheduled Tribes Act, 1995
confers only certain functions and powers
upon the Commission. In support of
above submission learned counsel for the
petitioner placed reliance on a judgment
dated 5.5.2017 given by co-ordinate
Bench of this Court in Writ C No.8490 of
2017 (Shyam Lal and 14 others Vs. State
of U.P. and 13 others) which is quoted
below-

"The order dated 09.01.2017
passed by the U.P. Scheduled Caste and
Scheduled
Tribes
(Commission)
i.e.
respondent No.2 requiring the District
Magistrate,
Varanasi
to
put
the
complainants, namely Sri Hari, Manhgoo
and Manohar in possession of the
property through S.D.M. with the help of
Police force, is challenged on the ground
that it is beyond its authority and Section
11 of the Uttar Pradesh Commission for
the SC and ST Act, 1995 confers only
certain
functions
and
powers
upon
Commission, which is quoted as under:

"FUNCTIONS AND POWERS
OF THE COMMISSION"
1198 INDIAN LAW REPORTS ALLAHABAD SERIES

11. Duties and functions of the
commission.-

(1) It shall be the duty of the
Commission-

a) to investigate and monitor all
matters
relating
to
the
safeguards,
provided for the Scheduled Castes and
Scheduled Tribes under the Constitution
or under any other law, for the time being
in force or under any order of the State
Government and to evaluate the working
of such safeguards;

(b) to enquire into specific
complaints with respect to the deprivation
of rights and safeguards of the Scheduled
Castes and Scheduled Tribes;(c) to
participate and advice on the planning
process of Socioeconomic development of
the Scheduled Castes and Scheduled
Tribes and to evaluate the progress of
their development;

(d) to present to the State
Government annually and at such other
time as the Commission may deem first,
reports upon the working of those
safeguard;

(e) to make in such reports
recommendations as to the measures that
should be taken by the State Government
for the effective implementation of those
safeguards and other measures for the
protection, welfare and socio-economic
development of the Scheduled Castes and
Scheduled Tribes; and

(f) to discharge such other
functions in relation to the protection,
welfare, development and advancement of
the scheduled Castes and Scheduled
Tribes as may be referred to it by the
State Government.

(2) The State Government shall
cause the reports of the Commission to be
laid before each House of the State
Legislature along with a memorandum
explaining the action taken or proposed to
be taken on the recommendations and the
reasons for the non-acceptance, if any, of
any of such recommendations."

It is apparent from simple
reading of the same that the commission
cannot issue direction to the District
Magistrate
concerned
to
put
the
complainants in possession and forcefully
evict the person in settled possession over
the property in dispute with the help of
Police. Eviction of even an unauthorized
occupant can take place under as per the
procedure prescribed by law.

We in full agreement with the
view expressed therein and see no reason
to take any different view. For all the
aforesaid reasons, the order passed by the
Commission cannot be sustained. It is
hereby set aside.

The writ petition is hereby
allowed."

13. It appears from the record of the
case that criminal and civil litigation were
filed by the parties in the competent court
in order to prove their title. When
respondent no. 4 was not able to obtain
any favourable order in his favour he
made a complaint before the Commission
on 2.11.2015. On the said complaint order
was passed by the Commission on
1.12.2015
directing
the
District
Magistrate and Sr. Superintendent of
Police,
Varanasi
to
remove
illegal
possession of the petitioner from the land
in question and provide possession of the
said land to the complainant-respondent
no. 4 in the present petition. After the
aforesaid order a consequential order was
passed by the Deputy Collector Sadar,
Varanasi-respondent no. 2 on 31.12.2015
directing the petitioner to remove his
possession over the land in question
within a period of one week and handover
1 All. Ragho Vs. State of U.P. and Others
1199
the peaceful possession of same to the
complainant otherwise action will be
taken against him.

14. Powers conferred upon the
Commission under Section 11 of the Act
of 1995. Section 11 of the Act of 1995
have already been quoted in the judgment
of Shayam Lal (Supra). From perusal of
the same it is clear that the commission
cannot issue direction to the District
Magistrate and Senior Superintendent of
Police to forcefully evict the petitioner
from his property in question.

15. The Commission is clothed with
the power of summoning and enforcing
the attendance of any person for a limited
purpose as contained in Article 338 of the
Constitution of India. By virtue of powers
confer
under
Article
338
of
the
Constitution the Commission does not
become Civil Court which does not have
power to adjudicate the rights of the
parties in order to issue any direction or
injunction on merits.

16. It is clear from the record that the
entire
proceedings
initiated
by
the
Commission is wholly arbitrary, unjust and
illegal and is in complete violation of the law
laid down by the Apex Court in case of All
Indian Overseas Bank Vs. S.C. And S.T.
Employees' Welfare Association and others
Vs. Union of India and others, 1996(6) SCC
606 as well as U.P. State Handloom
Corporation and another Vs. State of U.P.
and another, 2012(6) ADJ 42.

17. In case of All India Overseas
Bank (Supra) it was held by the Supreme
Court that the Commission does not have
any power to issue interim injunction.
Relevant paragraphs 10 and 11 of the
aforesaid judgment is quoted below-

10. Interestingly, here, in clause
8 of Article 338, the words used are "the
Commission shall..... have all the powers
of the Civil Court trying a suit." But the
words "all the powers of a Civil Court"
have to be exercised "while investigating
any matter referred to in sub-clause (a) or
inquiring into any complaint referred to in
sub-clause (b) of clause 5". All the
procedural powers of a Civil Court are
given to the Commission for the purpose
of investigating and inquiring into these
matters and that too for that limited
purpose only. The powers of a Civil Court
of granting injunctions, temporary or
permanent,
do
not
inhere
in
the
Commission nor can such a power be
inferred or derived from a reading of
clause
8
of
Article
338
of
the
Constitution.

11. The Commission having not
been specifically granted any power to
issue interim injunctions, lacks the
authority to issue an order of the type
found in the letter dated March 4, 1993.
The order itself being bad for want of
jurisdiction, all other questions and
considerations raised in the appeal are
redundant. The High Court was justified
in taking the view it did. The appeal is
dismissed. No costs."

18. In the case of U.P. State
Handloom Corporation (Supra) also the
Division Bench of this Court had an
occasion to consider the scope of powers
of the Commission under Article 338 of
the Constitution of India and held as
under-

"..........The
powers
to
summoning or enforcing attendance of
any person and examining him on oath;
requiring the discovery and production of
any document' receiving evidence on
1200 INDIAN LAW REPORTS ALLAHABAD SERIES
affidavits' requisitioning any public record
or copy thereof from any Court or office';
issuing commissions for the examination
of witnesses and documents' and any
other matter that may be prescribed by
Section 12 of the State Act are for the
purposes of facilitating investigation and
enquiries. These powers are not for
issuing any orders or decrees to be
implemented by the public authorities. If,
after making investigation and enquiry,
the
National
Commission
or
State
Commission for the Scheduled Castes and
Scheduled
Tribes
comes
to
any
conclusion with regard to atrocities
committed,
or
for
ensuring
socioeconomic upliftment of the members of
the Scheduled Castes and Scheduled
Tribes, the Commission can make a
recommendation
to
the
President
/Governor, as the case may be, to give due
consideration for the benefit of the
members of the community."

19. The power to summon or
enforce attendance of any person and
examine him on oath, as available to the
Commission under Article 338 (8), is the
same as is available to a civil court while
trying a suit, as such, the exercise of such
power is to be guided by the provisions
contained and principles enshrined under
Order XVI of the Code of Civil Procedure
especially Rule 1 & 14 thereof. Therefore,
before
summoning
a
person,
the
Commission is required to apply its mind
as to the necessity thereof. Such summons
for personal appearance should not be
issued mechanically. The Commission
has to examine the facts of each case and
if it is found that such appearance of a
person is necessary for the purpose of
inquiry or investigation, only then the
summons should be issued. It would be
appropriate that the reasons and the
purpose for issuance of such summons is
mentioned. Under Order XVI Rule 1, the
concerned party desirous of obtaining any
summons for the attendance of any person
is required to file an application stating
therein the purpose for which the witness
is proposed to be summoned.

20. A Division Bench of the Delhi
High Court in the case of Professor
Ramesh Chandra Vs. University of
Delhi and another LPA No.280 of 2007
decided on 4.5.2007, was of the view that
from the reading of Clause 6-8 of Article
338 of the Constitution of India it is clear
that the reports made by the Commission
are mandatory in nature and cannot
equated with the decree passed by the
civil court, which are binding on the
parties. The relevant portion of the
aforesaid
judgement
is
reproduced
hereinbelow:-

"6. It is not possible to agree
with the learned senior counsel that the
Commission under Article 338 of the
Constitution of India is an adjudicatory
body which can issue binding directions
or injunction orders. ....

.....While
conferring
limited
powers of a civil court for some purposes,
Article 338 has not given the Commission,
the power to adjudicate and pass binding
and executable decrees like a civil court.

...It is clear from the reading of
Clauses 6-8 that the reports made by the
Commission
are
recommendatory
in
nature and cannot be equated with
decrees/orders passed by Civil Courts
which are binding on the parties and can
be enforced and executed. It cannot be
said that the reports of the said
Commission
are
alternative
to
the
hierarchical judicial system envisaged
under the Constitution of India."
1 All. Ragho Vs. State of U.P. and Others
1201

21. Karnataka High Court in
Karnataka Antibiotics and Another Vs
National Commission for SC and ST
and others, ILR 2008 KAR 2205 held
that the Commission is not empowered
under Article 228 of the Constitution
either to set aside a concluded inquiry or
the order of penalty or the order of
Appellate Authority. The relevant portion
of the aforesaid judgment reads as under-

"12. Article 338 of Constitution
of India specifies for constitution of
National Commission for Schedule Castes
and Schedule Tribes. The Supreme Court
in All India Indian Overseas Bank SC and
ST employees' welfare association v.
Union of India (Supra) held that 'all the
procedural powers of civil court given to
the National Commission for Schedule
Caste and Schedule Tribe by Article
338(8) of the Constitution of India are for
the limited purpose of investigating any
matter
under
Article
338(5)(a)
or
inquiring into any complaint, under
338(5)(b). The powers of a civil court of
granting
injunctions,
temporary
or
permanent,
do
not
inhere
in
the
Commission nor can such a power be
inferred or derived from a reading of
Clause (8) of Article 338 of the
Constitution. The Commission having not
been specifically granted any power to
issue interim injunctions, lacks the
authority to issue an order of the type
found in the letter dated 4.3.1993
directing the Bank to stop the promotion
process pending further investigation and
final verdict in the matter'.

22. The Supreme Court in the case
of the Union of India vs. Orient Engg.
& Commercial Co. Ltd. and another
reported in [(1978) 1 SCC 10] had the
occasion to consider the requirements of
Order XVI Rule 1 C.P.C. and it observed
as under:

"3. In this case, a list of
witnesses was furnished by the 1st
respondent and the Registrar of the High
Court, in the routine course, granted
summons, perhaps not adverting as to
why the arbitrator himself was being
summoned. That was more or less
mechanical is evident from the fact that
the reason given for citing the arbitrator is
the omnibus purpose of proving the case
of the party-not the specific ground to be
made out. We should expect application
of the mind of the Registrar to the
particular facts to be established by a
witness before the coercive process of the
court is used. It is seen that the learned
Judge before whom objection was taken
under s. 151 C.P.C. to the summons to the
arbitrator dismissed the petition on the
score that he saw no ground to refuse to
summon the arbitrator as a witness. The
approach should have been the other way
round. When an arbitrator has given an
award, if grounds justifying his being
called as a witness are affirmatively made
out, the court may exercise its power,
otherwise not. It is not right that every
one,who is included in the witness list is
automatically summoned; but the true rule
is that, if grounds are made out for
summoning a witness he will be called;
not if the demand is belated, vexatious or
frivolous. Thus the court also has not
approached the question from the proper
perspective. If arbitrators are summoned
mindlessly whenever applications for
setting aside the award are enquired into,
there will be few to undertake the job.
The same principle holds good even if the
prayer is for modification or for remission
of the award. The short point is that the
court must realise that its process should
1202 INDIAN LAW REPORTS ALLAHABAD SERIES
be used sparingly and after careful
deliberation, if the arbitrator should be
brought into the witness box. In no case
can he be summoned merely to show how
he arrived at the conclusions he did. In the
present case, we have been told that the
arbitrator had gone wrong in his calculation
and this had to be extracted from his mouth by
being examined or cross-examined. We do
not think that every Munsif and every Judge,
every Commissioner and every arbitrator has
to undergo a cross-examination before his
judgment or award can be upheld by the
appellate court. How vicious such an
approach would be is apparent on the slightest
reflection.

4. Of course, if a party has a
case of mala fides and makes out prima
facie that it is not a frivolous charge or
has other reasonably relevant matters to
be brought out the court may, in given
circumstances, exercise its power to
summon even an arbitrator, because
nobody is beyond the reach of truth or
trial by Court. In the present case, after
having heard counsel on both sides, we
are not satisfied that on the present
material there is justification for the
examination of the arbitrator."

23. A Division Bench of this Court
in the case of Chitranjan Singh vs
Chandra Bhushan Pandey reported in
1998 All.L.J. 134 while dealing with a
contempt
proceeding
considered
the
necessity of summoning a person for
examination and after referring to the
provisions of Order XVI Rule 14 C.P.C.,
held that a special case has to be made out
even under Order XVI, Rule 14, C.P.C.,
for summoning witnesses as Court
witnesses.

24. It is admitted situation that all
remedial forum have been exhausted by
the respondent no. 4 and without
disclosing all these material facts, he
proceeded to file a complaint before the
Commission
and
the
same
was
entertained and without giving any notice
and opportunity to the petitioner, the
commission issued directions to the
District
Magistrate
and
Senior
Superintendent of Police to evict the
petitioner forcefully from his land in
question.

25. Apart from the same aforesaid
order was passed by the Commission
without
providing
any
notice
or
opportunity
to
the
petitioner.
The
Supreme Court in case of Assistant
Commissioner,
Commercial
Tax
Department,
Works
Contract
and
Leasing, Kota Vs. M/s Shukla and
Brothers reported at 2010 AIR SCW
3277 dealt with the principles of law
while exercising power of judicial review
on administrative action. It was held by
the Supreme Court in the aforesaid case
that the doctrine of audi alteram partem
has three basic essentials-

i) A person against whom an
order is required to be passed or whose
rights are likely to be affected adversely
must be granted an opportunity of being
heard.

ii) The concerned authority
should provide a fair and transparent
procedure.

iii) The authority concerned
must apply its mind and dispose of the
matter by a reasoned or speaking order.

Paragraph 9 of the aforesaid
judgment is quoted below-

9. The increasing institution of
cases in all Courts in India and its
resultant burden upon the Courts has
invited attention of all concerned inthe
1 All. U.P Financial Corporation Vs. Appellate Authority Under Payment Of Gratuity Act and Others 1203
justice administration system. Despite
heavy quantum of cases in Courts, in our
view, it would neither be permissible nor
possible to state as a principle of law,
that while exercising power of judicial
review on administrative action and more
particularly judgment of courts in appeal
before the higher Court, providing of
reasons can never be dispensed with. The
doctrine of audi alteram partem has three
basic essentials. Firstly, a person against
whom an order is required to be passed
or whose rights are likely to be affected
adversely must be granted an opportunity
of being heard. Secondly, the concerned
authority should provide a fair and
transparent procedure and lastly, the
authority concerned must apply its mind
and dispose of the matter by a reasoned
or speaking order. This has been
uniformly applied by courts in India and
abroad."

26. In view of the same,we are of
the considered view that once respondent
no. 4 had already exhausted all remedial
forum then he had no right to approach
and make complaint in question against
the petitioner regarding eviction of the
petitioner from his land. Moreover in the
instant case the grievance which has been
raised as complained by respondent no. 4
before the commission is not at all
maintainable and the same is not within
the ambit and scope of the Commission to
proceed in the matter.

27. For all the aforesaid reasons, the
order dated 1.12.2015 passed by the Uttar
Pradesh Scheduled Caste and Scheduled
Tribes Commission, Lucknow-respondent
no. 3 and consequential notice dated
31.12.2015
issued
by
the
Deputy
Collector, Sadar, Varanasi, cannot be
sustained. They are is hereby set aside.

28. The writ petition is hereby
allowed.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.07.2019

BEFORE
THE HON'BLE J.J. MUNIR, J.

Writ - C No. 1302 of 2018

U.P. Financial Corporation ...Petitioner
Versus
Appellate Authority Under Payment Of
Gratuity Act and Others ...Respondents

Counsel for the Petitioner:
Sri Ateeq Ahmad Khan

Counsel for the Respondents:
C.S.C., Sri Ranjeet Kumar Mishra

A. Whether interim relief being paid to an
employee
immediately
before
his
retirement would fall within the meaning
of 'wages' defined under Section 25 of the
Payment of Gratuity Act, 1972 for the
purpose of calculation of his gratuity,
under Section 4 (2)? (Para-1)

B.
Whether
a
statutory
right,
as
sacrosanct as that created under the Act
in favour of an employeeto receive
gratuity reckoned in accordance with the
Act, can be excluded on the basis of a
contract? (Para-12)
Once wages are defined to mean and
include dearness allowance, there is
absolutely no basis to exclude interim
relief from the definition of wages, that
is nothing but a temporary addition to
the principal component of wages, until
a revision of the dearness allowance or
the basic pay itself. (Para-17)

Interim relief claimed by the employee to be
part of his wages for the purpose of reckoning
his wages last drawn at the time of voluntary
retirement from service, would be indeed a