# Ram Sijore [PIL] v. State of U.P. & Ors

- **Citation:** (2014) 3 ILRA 1110
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-09-23
- **Case number:** Misc Bench No. 9514 of 2014
- **Bench:** Dr. Dhananjaya Yeshwant Chandrachud, C.J. Devendra Kumar Upadhyaya
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-sijore-pil-v-state-of-u-p-ors-43094
- **Pages:** 4

## Headnote

Constitution of India, Art.-226-Removal
of encroachments on public land-when
complete machinery provided in section
122-B of UPZA & LR Act as well as Rule
115(D)-1 -without availing alternative
remedy-petition not maintainable- writ
court can not be substitute to normal
remedy-petition dismissed.

Held: Para-11
This Court has been moved under Article
226 of the Constitution without a due
invocation of the remedy under Section
122-B. Where the Statute itself as well as
the Rules provide a comprehensive remedy,
there is no reason or justification to move
the Court under Article 226 without
exhausting the remedy available in law. It
is only where the Court is satisfied that
there is an inaction on the part of the
competent statutory authority designated
to exercise powers under Section 122-B and
Rule 115-D, that the Court may assume
jurisdiction in an appropriate case and issue
directions. Otherwise, the filing of a writ
petition before this Court under Article 226
should not be taken as a substitute for
invocation of the normal remedies which
are provided under the Act and the Rules.

## Text

1110 INDIAN LAW REPORTS ALLAHABAD SERIES
the sterilization operation, if the couple
opts for bearing the child, it ceases to be
an unwanted child. Compensation for
maintenance and upbringing of such a
child cannot, the Supreme Court held, be
claimed.

8. While allowing the appeal, the
Supreme Court however, observed that
the State Government should contemplate
devising welfare schemes or take up the
matter with Insurance Companies for
obtaining appropriate insurance policies
to provide coverage of such claims where
a child is born of a woman, despite having
undergone
a
successful
sterilization
operation. It is in pursuance of these
observations that it would appear that a
claim of the present nature has been
covered under the insurance policies
obtained by the State pursuant to which,
an amount of Rs.30,000/- has already
been paid to claimant in the present case
by way of compensation.

9. Whether, as a matter of fact, the
operating surgeon had exercised due and
reasonable care while performing the
surgery or conversely whether, as the
claimant suggests, there was negligence
on the part of the surgeon in performing
the surgery, cannot be determined in writ
proceedings under Article 226 of the
Constitution.
These
are
matters
of
evidence which, in fact, can be resolved
only on the basis of material which is
produced in the course of the trial of a
suit. Santra (supra), in fact, was a case
which originated in a suit before the trial
Court as was the subsequent decision of
the Supreme Court in Shiv Ram (supra).
The remedy under Article 226 of the
Constitution can, in appropriate cases, be
availed of for remedying a violation of the
fundamental rights, such as the right to
life and personal liberty under Article 21
of the Constitution. Where, however, a
claim of the nature, such as the present,
intrinsically depends upon proof of an act
of medical negligence, such a claim
cannot be determined in exercise of writ
jurisdiction under Article 226 of the
Constitution. A suit for the recovery of
the amount of a claim of that nature
would be dealt with under the provisions
of Section 9 of the Code of Civil
Procedure, 1908.

10. Consequently, we decline to
entertain the petition only on the ground
that disputed questions of fact, which
would arise in these proceedings, would
have to be adjudicated upon by the trial
Court in a regular civil suit.

11. Leaving it open to the petitioner
to pursue the ordinary civil remedy
available in law, we dismiss the petition.
However, there shall be no order as to
costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.09.2014

BEFORE
THE HON'BLE DR. DHANANJAYA YESHWANT
CHANDRACHUD, C.J.
THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.

Misc Bench No. 9514 of 2014

Ram Sijore [PIL] ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Nripendra Mishra

Counsel for the Respondents:
C.S.C.
3 All]. Ram Sijore [PIL] Vs. State of U.P. & Ors.
1111
Constitution of India, Art.-226-Removal
of encroachments on public land-when
complete machinery provided in section
122-B of UPZA & LR Act as well as Rule
115(D)-1 -without availing alternative
remedy-petition not maintainable- writ
court can not be substitute to normal
remedy-petition dismissed.

Held: Para-11
This Court has been moved under Article
226 of the Constitution without a due
invocation of the remedy under Section
122-B. Where the Statute itself as well as
the Rules provide a comprehensive remedy,
there is no reason or justification to move
the Court under Article 226 without
exhausting the remedy available in law. It
is only where the Court is satisfied that
there is an inaction on the part of the
competent statutory authority designated
to exercise powers under Section 122-B and
Rule 115-D, that the Court may assume
jurisdiction in an appropriate case and issue
directions. Otherwise, the filing of a writ
petition before this Court under Article 226
should not be taken as a substitute for
invocation of the normal remedies which
are provided under the Act and the Rules.

(Delivered by Hon'ble Dr. Dhananjaya
Yeshwant Chandrachud, C. J.)

1. The petitioner has moved this
Court seeking invocation of jurisdiction
under
Section
122-B
of
the
U.P.
Zamindari Abolition & Land Reforms
Act, 19501 in respect of certain illegal
encroachments on a land which is
recorded for public utility purposes in the
revenue records of Village Ismilepur
Dubkhar, Pargana and Tehsil Akbarpur,
District Ambedkar Nagar.

2. The records would indicate that
the petitioner has moved a representation
to the Collector, Ambedkar Nagar merely
only on 18 September 2014, i.e. one day
before the date of filing of these
proceedings under Article 226 of the
Constitution on 19 September 2014.

3. Sub-section (1) of Section 122-B
of the Act provides that where any
property vested under the provisions of
the Act in a Gaon Sabha or a local
authority is damaged or misappropriated
or where any Gaon Sabha or local
authority is entitled to take or retain
possession of any land under the
provisions of the Act and such land is
occupied otherwise than in accordance
with the provisions of the Act, the Land
Management Committee or the local
authority, as the case may be, shall inform
the Assistant Collector concerned in the
manner prescribed. Under sub-section (2)
of Section 122-B of the Act, the
jurisdiction of the Assistant Collector is
invoked on the information received
under sub-section (1) or otherwise.

4. Sub-section (2) of Section 122-B
provides as follows:

"Where
from
the
information
received
under
sub-section
(1)
or
otherwise, the Assistant Collector is
satisfied that any property referred to in
sub-section (1) has been damaged or
misappropriated or any person is in
occupation of any land, referred to in that
sub-section, in contravention of the
provisions of this Act, he shall issue
notice to the person concerned to show
cause why compensation for damage,
misappropriation or wrongful occupation
as mentioned in such notice be not
recovered from him or, as the case may
be, why he should not be evicted from
such land."

5. Similarly, Rule 115-D (1) of the
U.P.
Zamindari
Abolition
&
Land
1112 INDIAN LAW REPORTS ALLAHABAD SERIES
Reforms
Rules,
19522
makes
the
following provisions:

"Where
the
Land
Management
Committee or the local authority, as the
case may be, fails to take action in
accordance with Section 122-B, the
Collector shall--

(a) on an application of the Chairman
; Member of Secretary of the Committee ;
or

(b) on a report made by the Lekhpal
under sub-rule (3) of Rule 115-C; or

(c) on the report of the local
authority concerned or its official referred
to in the proviso to sub-rule (5) of Rule
115-C;

(d) on facts otherwise coming to his
notice;

call upon the person concerned
through notice in Z.A. Form 49-A to
refrain
from
causing
damage
or
misappropriation, to repair the damage or
make good the loss or remove wrongful
occupation and to pay damages or to do or
refrain from doing any other thing as the
exigencies of the situation may demand or
to show cause against it in such time not
exceeding fifteen days as may be
specified in the notice."

6. From these provisions, it is clear
that, initially, what sub-section (1) of
Section 122-B contemplates is that the
Land Management Committee or the local
authority shall inform the Assistant
Collector in the manner prescribed where
any property, which is vested in a Gaon
Sabha or a local authority, has been
damaged or misappropriated or where it is
entitled to take or retain possession of a
land which is occupied otherwise than in
accordance with the provisions of the Act.
However, sub-section (2) of Section 122B makes it abundantly clear that the
Assistant Collector can be satisfied in
regard to the damage or misappropriation
as contemplated in sub-section (1) or in
regard to unlawful occupation of a land
either on the basis of the information
which is received under sub-section (1) or
otherwise.

7. The expression 'or otherwise' is
wide enough to include information
which is received from any person in
regard to an unlawful occupation or
possession of a land which is vested in a
Gaon Sabha or a local authority.

8. Rule 115-D makes the position
equally clear because if the Land
Management Committee or the local
authority fails to take action in accordance
with Section 122-B, the Collector is
thereafter empowered to act. Under clause
(d) of sub-rule (1) of Rule 115-D, the
Collector can act on facts otherwise
coming to his notice.

9. Thus, a comprehensive procedure
is laid down in Section 122-B of the Act
as well as in Rule 115-D (1) of the Rules
for invoking the jurisdiction of the
Assistant Collector or, as the case may be,
the Collector.

10. The expression 'Collector' for the
purposes of Rule 115-D would include the
Assistant Collector of the First Class as
defined in Section 3 (4) of the Act.

11. This Court has been moved
under Article 226 of the Constitution
without a due invocation of the remedy
under Section 122-B. Where the Statute
itself as well as the Rules provide a
comprehensive remedy, there is no reason
or justification to move the Court under
3 All]. Munni Prasad Mishra Vs. State of U.P. & Anr.
1113
Article 226 without exhausting the remedy
available in law. It is only where the Court
is satisfied that there is an inaction on the
part of the competent statutory authority
designated to exercise powers under Section
122-B and Rule 115-D, that the Court may
assume jurisdiction in an appropriate case
and issue directions. Otherwise, the filing of
a writ petition before this Court under
Article 226 should not be taken as a
substitute for invocation of the normal
remedies which are provided under the Act
and the Rules.

12. In view of this discussion, we
leave it open to the petitioner to pursue
the remedy available under Section 122-B
or, as the case may be, under Rule 115-D.

13. At this stage, the interference of
the Court would not be warranted. Hence,
we are not inclined to entertain the
petition at the present stage.

14. The petition is, accordingly,
dismissed. There shall be no order as to
costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.09.2014

BEFORE
THE HON'BLE MAHESH CHANDRA TRIPATHI, J.

Civil Misc. Writ Petition No. 13307 of 2008

Munni Prasad Mishra ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri A.K. Rai, Sri Vishnu Kumar Singh, Sri
D.K. Singh, Sri H.P. Shahi

Counsel for the Respondents:
C.S.C.
Constitution of India, Art.-226-Voluntary
Retirement-application filed on 29.08.2003by notice dated 19.09.2003 S.P. Required
the petitioner disclose reason for seeking
voluntary
retirement-petitioner
given
explanation on 24.09.2003-S.P. Passed
termination order on 09.03.2004-appeal
also got same fact-held-once petitioner
sought voluntary retirement-as per Rule
56(c) and (d)-S.P. Bound to inform in
writing within 90 days otherwise- deemed
to
be
accepted-termination
as
well
appellate
order-not
sustainable-deemed
retirement
since
29.08.2003.-petition
allowed.

Held: Para-18 & 19
18. It is admitted situation that in spite
of the said acknowledgment, the same
was never acted upon and his application
for voluntarily retirement was never
decided, and, it is apparent that the said
application, had never been processed by
the competent authority as per the U.P.
Fundamental Rules.

19. Since the petitioner had never been
informed before the expiry of the notice
period
(three
months)
since
his
application dated 19.9.03, it would will
deemed
to
be
accepted
by
the
department and the petitioner would
deemed to be voluntarily retired on the
expiry of three months.

Case Law discussed:
(1978) 2 Supreme Court Cases 202; (1) [1970]
2 S.C.R. 657; AIR 1978 Supreme Court 17;
2004 (1) AWC 412; 1995 (1) LBESR 871.

(Delivered by Hon'ble Mahesh Chandra
Tripathi, J.)

1. Heard Shri H.P. Shahi, who
appears for the petitioner and Mr. Pankaj
Rai, learned Additional Chief Standing
Counsel for the respondents.

2. By means of the present writ
petition the petitioner has prayed for
quashing of the impugned termination