# Ram Nagar Refrigeration and Ice (Cold Storage) Private Limit v. State Of U.P

- **Citation:** (2010) 2 ILRA 562
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-02-16
- **Case number:** Misc. Bench No. 3049 of 2010
- **Bench:** Devi Prasad Singh, Dr. Satish Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-nagar-refrigeration-and-ice-cold-storage-private-limit-v-state-of-u-p-41629
- **Pages:** 3

## Headnote

U.P. Regulation of cold storage Act 1976Section-35-pending Statuary Appeal-No
interim
order
passed-due
to
non
availability
of
member-inspite
of
direction of Court neither State Standing
Counsel nor Additional Solicitor General
produced any instruction-once the State
as well as Central Govt. fails to discharge
their statuary obligation-Court issued
Mandamus to fulfill those vacancy within
two months-recovery proceeding stayed
till
consideration
of
interim
stay
Application

Held: Para-8 and 9

We feel that State of U.P. as well as
Government of India has failed to
discharge the statutory duty in not filling
the vacancy of the Tribunal. On account
of failure on the part of the respondents,
we are of the view that a direction may
be issued to fill up the vacancy within a
reasonable period
to
safeguard
the
litigant's interest.
2 All] Ram Nagar Refrigeration and Ice (Cold Storage) Private Limited V State of U.P.
563
Keeping
in
view
the
facts
and
circumstances of the case and public
interest involved, we mould the relief
with regard to filling up the vacancy of
the Tribunal.

Accordingly, we allow the writ petition
and a writ in the nature of mandamus is
issued directing the opposite parties to
fill up the vacancy of the Tribunal
keeping in view the provision contained
in Section 35 of the U.P. Regulation of
Cold Storage Act 1976 and other law
time
being
in
force
expeditiously
preferably
within
a
period
of
two
months. The recovery proceedings shall
remain suspended till the disposal of the
interim relief application by the Tribunal,
whenever it is duly constituted.

## Text

562 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

Similarly,
in
Tarlochan
Dev
Sharma v. State of Punjab, (2001) 6
SCC 260: (AIR 2001 SC 2524), the
Hon'ble Supreme Court, after placing
reliance upon a large number of its earlier
judgment, observed as under:-

"In the system of Indian democratic
governance, as contemplated by the
constitution, senior officers occupying
good position as Secretaries, are not
supposed
to
mortgage
their
own
discretion, volition and decision-making
authority and be prepared to give way or
being pushed back or pressed ahead at
the behest of the politicians for carrying
out command having no sanctity in
law......No Government servant shall in
the performance of his official duties, or
in the exercise of power conferred on him,
act otherwise than in his best judgment
except when he is acting under the
direction of his official superior."

7. A perusal of the impugned order
reveals that the suspension order dated
16.02.2010 has been passed in pursuance
of the directions issued by the Special
Secretary, Rural Development dated 3rd
February,
2010
and
apparently
the
suspension order has not been passed by
the
competent
authority
after
due
application of independent mind. As such
the suspension order cannot be sustained
and the same deserves to be quashed.

8. Writ petition is, therefore,
allowed. The impugned suspension order
dated 16.02.2010 is hereby quashed.
However, it is open for the competent
authority to pass afresh order if the
material available on record against the
petitioner is found so grave which may
warrant awarding of major punishment
against the petitioner, as per rules.
There is no order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 13.05.2010

BEFORE
THE HON'BLE DEVI PRASAD SINGH, J.
THE HON'BLE DR. SATISH CHANDRA, J.

Misc. Bench No. 3049 of 2010

Ram Nagar Refrigeration and Ice (Cold
Storage) Private Limit
 ...Petitioner
Versus
State Of U.P

 ...Respondent

Counsel for the Petitioner:
Sri R.C. Pathak

Counsel for the Respondent:
C.S.C.,
Sri Pratyush Tripathi

U.P. Regulation of cold storage Act 1976Section-35-pending Statuary Appeal-No
interim
order
passed-due
to
non
availability
of
member-inspite
of
direction of Court neither State Standing
Counsel nor Additional Solicitor General
produced any instruction-once the State
as well as Central Govt. fails to discharge
their statuary obligation-Court issued
Mandamus to fulfill those vacancy within
two months-recovery proceeding stayed
till
consideration
of
interim
stay
Application

Held: Para-8 and 9

We feel that State of U.P. as well as
Government of India has failed to
discharge the statutory duty in not filling
the vacancy of the Tribunal. On account
of failure on the part of the respondents,
we are of the view that a direction may
be issued to fill up the vacancy within a
reasonable period
to
safeguard
the
litigant's interest.
2 All] Ram Nagar Refrigeration and Ice (Cold Storage) Private Limited V State of U.P.
563
Keeping
in
view
the
facts
and
circumstances of the case and public
interest involved, we mould the relief
with regard to filling up the vacancy of
the Tribunal.

Accordingly, we allow the writ petition
and a writ in the nature of mandamus is
issued directing the opposite parties to
fill up the vacancy of the Tribunal
keeping in view the provision contained
in Section 35 of the U.P. Regulation of
Cold Storage Act 1976 and other law
time
being
in
force
expeditiously
preferably
within
a
period
of
two
months. The recovery proceedings shall
remain suspended till the disposal of the
interim relief application by the Tribunal,
whenever it is duly constituted.

(Delivered by Hon'ble Devi Prasad Singh, J.)

1. Heard Sri R. C. Pathak learned
counsel for the petitioner, Sri H. P.
Srivastava,
learned
Additional
Chief
Standing Counsel for the State of U.P.
and Sri Pratyush Tripathi learned counsel
for the Union of India. With the consent
of parties, we proceed to decide the
present writ petition finally at the
admission stage.

2. The brief matrix of the present
controversy relates to a pending appeal
filed by the petitioner before the Cold
Storage
Tribunal,
U.P.
Lucknow
established in pursuance to provision
contained in U.P. Regulation of Cold
Storage Act 1976.

3. Submission of the petitioner's
counsel is that he has preferred a statutory
appeal before the Tribunal on 05.01.2010
under the U.P. Regulation of Cold
Storages
Act,
1976.
However,
the
application for interim relief could not be
taken up since the members of the
Tribunal are not available.

4. It has been stated that since
09.03.2010, the Tribunal is not functional
on account of absence of members. The
submission is that irreparable loss and
injury would be caused to the petitioner in
case this Court does not stay the recovery
proceedings, which has been initiated in
pursuance to impugned order, which is
subject matter of the appeal pending
before the Tribunal.

5. We had directed the learned
Standing Counsel to receive instruction
why the members for the Tribunal in
question have not been appointed. In spite
of repeated orders passed by this Court,
neither Standing Counsel nor Assistant
Solicitor General of India could receive
any instruction.

6. It appears that the respondents are
not conscious to the plight of the litigant
whose matter is pending with the
Tribunal. Section 35 of the Act provides
the persons, who shall be member of the
Tribunal. For convenience, Section 35 of
the Act is reproduced as under:

"35. Constitution of Tribunal. -
There shall be Tribunal consisting of the
following members namely -

a)
The
Agricultural
Marketing
Adviser the Government of India who
shall be the Chairman;

b)
the Legal Remembrance to the
Government of Uttar Pradesh Officer of
his department nominated by him not
below
the
rank
of
Joint
Legal
Remembrance;

c)
the Secretary to the Government
in the Agriculture Department or an
officer of that department nominated by
564 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
him not below the rank of Joint
Secretary."

7. In the absence of member
appointed for the purpose, the Tribunal is
not functional. It is statutory duty of the
State of U.P. as well as the Union of India
to fill up the vacancies within the
reasonable period. Once the retirement of
an officer is known or an officer is
transferred from the Tribunal to other
place, then it shall be incumbent upon the
State
Government
and
the
Central
Government to fill up the vacancies
immediately. The aims and objects of the
Act is for licensing, supervision and
control of Cold Storage in the State of
U.P. and for matters connected therewith.
In the absence of members constituting
Tribunal, litigants have no option but to
approach this Court under Article 226 and
227 of the Constitution of India.

8. We feel that State of U.P. as well
as Government of India has failed to
discharge the statutory duty in not filling
the vacancy of the Tribunal. On account
of failure on the part of the respondents,
we are of the view that a direction may be
issued to fill up the vacancy within a
reasonable
period
to
safeguard
the
litigant's interest.

Keeping
in
view
the
facts
and
circumstances of the case and public
interest involved, we mould the relief
with regard to filling up the vacancy of
the Tribunal.

9. Accordingly, we allow the writ
petition and a writ in the nature of
mandamus is issued directing the opposite
parties to fill up the vacancy of the
Tribunal keeping in view the provision
contained in Section 35 of the U.P.
Regulation of Cold Storage Act 1976 and
other
law
time
being
in
force
expeditiously preferably within a period
of two months. The recovery proceedings
shall remain suspended till the disposal of
the interim relief application by the
Tribunal, whenever it is duly constituted.

10. The registry shall send the copy
of this order to the Chief Secretary,
Government of U.P. as well as Secretary,
Government
of
India,
Agricultural
Department within a week.

11. Let compliance report be filed to
this Court within three months from
today. The learned Standing Counsel as
well as the Assistant Solicitor General of
India shall also informed to the respective
authorities accordingly.
With the aforesaid direction the writ
petition is allowed.

No costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.05.2010

BEFORE
THE HON'BLE PRADEEP KANT, J.
THE HON'BLE ANIL KUMAR, J.

Misc. Bench No. 4489 of 2010

Smt. Sharda Devi and others ...Petitioner
Versus
State of U.P.

 ...Respondent

Counsel for the Petitioner:
Sri Bhaskar Pratap Dubey

Counsel for the Respondent:
C.S.C.

Constitution
of
India,
Art-226-Writ
Petition
laches
unexplained
delay-