# Rahul Kumar v. State of U.P. & Ors - **Citation:** (2023) 8 ILRA 466 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2023-08-10 - **Case number:** Writ C No. 26718 of 2023 - **Bench:** Mrs. Manju Rani Chauhan - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rahul-kumar-v-state-of-u-p-ors-50673 - **Pages:** 3 ## Headnote Civil Law-Constitution of India, 1950-Article 226-Mines & Minerals- Impugned order passed without any application of mind-Only because the petitioner had deposited Rs.5 lacs on 28.9.2017 it had been concluded that the petitioner had done illegal mining- The notice had St.d that 5436 cubic meter of sand was excavated whereas the order St.s that 4302 cubic meters were illegally excavated- here was neither any inspection nor was there any report present on the basis of which order was passed- That Rs.5 lacs were accepted from the petitioner without any adjudication and without any quantification of the penalty etc which was paid by the petitioner on the oral assurance that compounding would be done and no specific denial has been made in the counter affidavit- Amount of Rs.5 lacs, which was taken from the petitioner be returned to him and interest be paid on that amount at the rate of 6% per annum from the date of deposit. Petition p ## Text 466 INDIAN LAW REPORTS ALLAHABAD SERIES "5. I may point out that Uttar Pradesh Panchayat Raj (Disposal of Election Disputes) Rules, 1994 have been framed under section 12-C, 12- D read with section 110 of the Uttar Pradesh Panchayat Raj Act. Rule 4 of these Rules provides that the procedure of Civil Procedure Code shall be applied in the hearing of election petitions subject to the rules made under these Rules. Rule 4 makes it clear that the procedure of CPC shall be applied. Therefore, the opposite party No.1 is directed to dispose of the pending applications for the amendment of the written statement and for summoning the documents and after disposal of these applications opposite party No.1 is directed to frame issues and after framing of tire issues, he will record the statement of the witnesses of the election petitioner and opportunity of cross-examination shall be given to the opposite parties. After that the opposite parties shall be given opportunity to adduce oral evidence. All the documents of both the parties shall be taken on the date of framing the issues. Either of the party shall be at liberty to request the Presiding Officer to summon the specific document which are required to be proved in the election petition and the Presiding Officer may pass appropriate order for summoning of the documents if those documents are required to ascertain whether a prima facie case is made out or not. The question of summoning the ballot papers or recounting be disposed of after hearing both the parties if it is found that prima facie case is made out to summon the ballot papers or the recounting of the votes. So far as the impugned order is concerned, this order will not be implemented unless the due procedure as directed above, is followed by the opposite party No. 1 and if this order is to be implemented, there will be a specific order pointing out the particular documents after hearing both the parties" 13. From perusal of the aforesaid directions, it is apparent that the learned Single Judge has not considered the specific provision of proviso (ii) and (iv) of Rule 4 of 1994 Rules, while passing the directions regarding the cross-examination of witnesses. Therefore, in my considered view, the aforesaid judgment is per incuriam likewise judgment in Ram Adhar Singh (supra) also did not deal with the proviso (ii) and (iv) of Rule 4 of 1994 Rules, therefore, the same cannot be applicable in the instant case. 14. In view of the aforesaid, the instant writ petition is dismissed being devoid of merits. 15. In view thereof, it is hereby directed that the Sub-Divisional Magistrate, Sadar, Mirzapur shall decide the instant Election Petition at the earliest expeditiously, preferably within a period of two months from the date of production of a certified copy of this order after following due procedure of law. ---------- (2023) 8 ILRA 466 ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 10.08.2023 BEFORE THE HON'BLE MRS. MANJU RANI CHAUHAN, J. Writ C No. 26718 of 2023 Rahul Kumar ...Petitioner Versus State of U.P. & Ors. ...Respondents Counsel for the Petitioner: Sri Rajesh Yadav, Sri Mukul Yadav 8 All. Rahul Kumar Vs. State of U.P. & Ors. 467 Counsel for the Respondents: C.S.C. Civil Law-Constitution of India, 1950Article 226-Filing of Affidavits- It is strange that the petitioner, Rahul Kumar has shown his address, i.e. resident of VillMuzaffarnagar Keshon, Block Mohd. Pur Devmal, Tehsil & District-Bijnor, whereas the residence of deponent is of different place, i.e. Vill-Bhamourapatti, Bhamori Patti, District-Sambhal. Thus the relation mentioned by the deponent as family member of the petitioners appears to be doubtful- To divulge the real fact, affidavit of the deponent; Kamas Singh is necessary. Accordingly, he is required to file an affidavit explaining his relation, specifically, with both the petitioners in the aforementioned writ petitions, within two weeks, which shall be kept on record by the office- Stamp Reporter shall take care of the fact that in such cases the affidavit be filed by the petitioner himself/herself or his/her family member. (E-15) List of Cases cited: 1. Vivekanand Yadav Vs St. of U.P. & anr.2010 (10) ADJ 1 (FB) 2. Narendra Kumar Vs St. of U.P. & ors.2013 (1) ADJ 228 3. Rahul Kumar Vs St. of U.P. & ors-Writ-C No.26718 of 2023 4. Jaidev Vs St.te of U.P. & ors. Writ-C No 26639 of 2023 5. Smt. Shabista Praveen Vs St. of U.P. & anr.Writ-C No.22385 of 2023, decided on 09.08.2023 (Delivered by Hon'ble Mrs. Manju Rani Chauhan, J.) 1. List revised. No one has appeared on behalf of the petitioner to press this case. 2. Mr. Anuradha Sundram, learned Additional Chief Standing Counsel is present. 3. At very outset, learned Standing Counsel states that this is complainant's petition and the petitioner being complainant has no locus to file such petition, therefore, this petition is not maintainable. In support of his contention, he has relied upon the Full Bench judgment of this Court in the case of Vivekanand Yadav vs. State of U.P. and another1 and the judgment of Co-ordinate Bench of this Court in the case of Narendra Kumar vs. State of U.P. and Ors.2 4. In view of the above, the petitioner being complainant has no locus to file the petition. 5. Accordingly, the writ petition is dismissed as not maintainable. 6. Before parting with the order, this Court feels it necessary to deal with practice of affidavits filing in such petitions that today, two petitions, i.e. Writ-C Nos.26718 of 20233 and 26639 of 20234 are listed. Affidavits in both of the cases are sworn by one Kamas Singh, who in one petition, i.e. Writ-C Nos.26718 of 2023, described himself to be family member of the petitioner therein, namely, Rahul Kumar and in Writ-C No. 26639 of 2023, which is dismissed as not pressed, as friend of the petitioner therein, namely, Jaidev. It is strange that the petitioner, Rahul Kumar has shown his address, i.e. resident of VillMuzaffarnagar Keshon, Block Mohd. Pur Devmal, Tehsil & District-Bijnor, whereas the residence of deponent is of different place, i.e. Vill-Bhamourapatti, Bhamori Patti, District-Sambhal. Thus the relation mentioned by the deponent as family 468 INDIAN LAW REPORTS ALLAHABAD SERIES member of the petitioners appears to be doubtful. 7. The address of the deponent mentioned in both the cases with respect to his relation with the petitioners stinks upon genuineness. To divulge the real fact, affidavit of the deponent; Kamas Singh is necessary. Accordingly, he is required to file an affidavit explaining his relation, specifically, with both the petitioners in the aforementioned writ petitions, within two weeks, which shall be kept on record by the office. 8. The Stamp Reporter shall take care of the fact that in such cases the affidavit be filed by the petitioner himself/herself or his/her family member. 9. Here, it is also pertinent that the stamp reporter will also adhere to the directions with respect to filing of affidavits in view of the directions issued by this Court in the case of Smt. Shabista Praveen vs. State of U.P. and Another5. 10. Mr. Rajesh Yadav, learned counsel for the petitioner is expected to remain attentive while verifying affidavits in such cases. 11. Registrar Compliance is directed to communicate this order to all concerned for its compliance forthwith. ---------- (2023) 8 ILRA 468 ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 04.08.2023 BEFORE THE HON'BLE SIDDHARTHA VARMA, J. THE HON'BLE MANOJ BAJAJ, J. Writ C No. 27340 of 2019 Vinay Prakash Shukla ...Petitioner Versus State of U.P. & Ors. ...Respondents Counsel for the Petitioner: Sri Aarushi Khare, Sri Sarvesh Kumar Pandey, Sri Vinay Kumar Khare (Senior Adv.) Counsel for the Respondents: C.S.C. Civil Law-Constitution of India, 1950-Article 226-Mines & Minerals- Impugned order passed without any application of mind-Only because the petitioner had deposited Rs.5 lacs on 28.9.2017 it had been concluded that the petitioner had done illegal mining- The notice had St.d that 5436 cubic meter of sand was excavated whereas the order St.s that 4302 cubic meters were illegally excavated- here was neither any inspection nor was there any report present on the basis of which order was passed- That Rs.5 lacs were accepted from the petitioner without any adjudication and without any quantification of the penalty etc which was paid by the petitioner on the oral assurance that compounding would be done and no specific denial has been made in the counter affidavit- Amount of Rs.5 lacs, which was taken from the petitioner be returned to him and interest be paid on that amount at the rate of 6% per annum from the date of deposit. Petition partly allowed. (E-15) List of Cases cited: 1. Anant Narayan Mishra Vs. U.O.I. & ors. 2020 (3) ADJ 466 2. Ranjit Thakur Vs U.O.I. & ors. 1987(4) SCC 611 (Delivered by Hon'ble Siddhartha Varma, J. & Hon'ble Manoj Bajaj, J.) 1. Instructions filed today by learned Standing Counsel be kept on record.