# Rao etc v. State of Karnataka and

- **Citation:** (2011) 1 ILRA 202
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-02-22
- **Case number:** Civil Misc. Writ Petition No. 32436 of 2001
- **Bench:** A.P. Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rao-etc-v-state-of-karnataka-and-41836
- **Pages:** 4

## Headnote

U.P.Z.A.L.R. Act-Section 142-user of land
for Hat-market by Bhumidhar-possessing
due license-challenged on ground it falls
within Nagar Palika limit-hence private
Respondents have no right-from perusal
of
record
plot
in
question
beyond
territorial limit of petitioner-no rights or
privilege of recorded Bhumidhar can be
curtailed-petition dismissed

Held: Para 10

Apart from this, the evidence adduced
indicates
that
the
contesting
respondents, in accordance with the Zila
Parishad
Adhiniyam,
had
obtained
licence from the Zila Parishad upon
payment of the requisite fee. Thus on all
scores the order dated 8.5.92 cannot be
said to be suffering from any infirmity.
Case law discussed:
1976 RD 109; AIR 1931 Oudh 110; AIR 1961
SC SC=1969 R.D.288; 1998 (3) AWC 1629;
1 All] Nagar Panchayat Sahabad,Rampur V. Chunnu Khan and others
203

## Text

202 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

4. Recently also in Raghvendra
Rao etc. Vs. State of Karnataka and
others, JT 2009 (2) SC 520 the Apex
Court has observed:

"It is now a well-settled principle of
law that merely because an employee had
continued under cover of an order of
Court, he would not be entitled to any
right to be absorbed or made permanent
in the service. ............."

5. Admittedly the petitioners are
daily wage employees and have no right
to hold the post or continue in service. On
the date when impugned order was passed
disengaging the petitioners, there was no
provision under which petitioners could
have claimed regularisation and none has
been shown before this Court.

6.

Learned
counsel
for
the
petitioners
however
submitted
that
disengagement amounts to retrenchment
and as such has violated the procedure
prescribed in U.P. Industrial Disputes Act,
1947, hence the termination is illegal.

7. The question whether termination
amounts to retrenchment or not requires
investigation into several questions of fact
and it is now well settled that if some
right is claimed under labour legislation
and if the legislation also contain
adjudicatory forum, the remedy lie there
and not by filing writ petition. In the case
of contractual appointment, the remedy
lies
elsewhere,
but
no
relief
of
reinstatement can be granted in view of
the provisions of Specific Relief Act as
also this Court's judgement in Special
Appeal No. 1906 of 2008 (Brij Bhushan
Singh and another Vs. State of U.P. and
others) decided on 19.12.2008.

8. In view thereof I find no merit in
the writ petition. Dismissed. Interim order,
if any, stands vacated.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.02.2011

BEFORE
THE HON'BLE A.P. SAHI, J.

Civil Misc. Writ Petition No. 32436 of 2001

Nagar Panchayat Sahabad,Rampur

 ...Petitioner
Versus
Chunnu Khan and others ...Respondents

Counsel for the Petitioner:
Sri Anurag Pandey
Sri D.V.Jaiswal

Counsel for the Respondents:
C.S.C.

U.P.Z.A.L.R. Act-Section 142-user of land
for Hat-market by Bhumidhar-possessing
due license-challenged on ground it falls
within Nagar Palika limit-hence private
Respondents have no right-from perusal
of
record
plot
in
question
beyond
territorial limit of petitioner-no rights or
privilege of recorded Bhumidhar can be
curtailed-petition dismissed

Held: Para 10

Apart from this, the evidence adduced
indicates
that
the
contesting
respondents, in accordance with the Zila
Parishad
Adhiniyam,
had
obtained
licence from the Zila Parishad upon
payment of the requisite fee. Thus on all
scores the order dated 8.5.92 cannot be
said to be suffering from any infirmity.
Case law discussed:
1976 RD 109; AIR 1931 Oudh 110; AIR 1961
SC SC=1969 R.D.288; 1998 (3) AWC 1629;
1 All] Nagar Panchayat Sahabad,Rampur V. Chunnu Khan and others
203
(Delivered by Hon'ble A.P.Sahi, J.)

1. Heard Sri Anurag Pandey holding
brief of Sri D.V. Jaiswal learned counsel for
the petitioner and the learned standing
counsel.

2. This petition has been filed
assailing the appellate order passed by the
Respondent
No.12
Collector,
Rampur
dismissing the appeal on the ground of
limitation and it also assails the order dated
8.5.1992 passed by the respondent No.11
Sub Divisional Officer, Sahabad district
Rampur whereby the contesting respondent
nos. 1 to 10 have been permitted to run a
market over their bhumidhari land under
Section 142 of the U.P.Z.A. & L.R.Act,
1950.

3. The background of the case is that
the order was passed in favour of contesting
respondents dated 8.5.1992 and a copy of
the said order has been filed along with a
supplementary affidavit dated 21.12.2001.
A perusal of the said order demonstrates
that the contesting respondents have been
allowed to hold a market over their
bhumidhari
land
situated
in
Village
Sahabad on every Tuesday and Saturday.
This order according to the petitioner has
been purportedly passed under Section 142
of the U.P.Z.A.L.R. Act which is being
quoted here:

"142. Right of a Bhumidhar to the
exclusive possession of all land in his
holding -(1) A bhumidhar with transferable
rights shall, subject to the provisions of this
Act, have the right to exclusive possession of
all land of which he is a bhumidhar and to
use it for any purpose whatsoever.

(2) A bhumidhar with non-transferable
rights shall, subject to the provisions of this
Act, have the right to exclusive possession of
all land of which he is such bhumidhar and
to use such land for any purpose connected
with agriculture, horticulture or animal
husbandry which includes pisciculture,
poultry farming and social forestry."

4. The contention raised above that the
said order is without jurisdiction inasmuch as
the petitioner Nagar Panchayat is the
authority to regulate the market and fairs
within its area and therefore in view of the
provisions of the Town Area Act and the
provisions of Section 241 read with Section
298 of the U.P. Municipalities Act it is the
petitioner who is entitled to grant or refuse
any such permission and hence the order
passed by the Sub Divisional Officer
deserves to be set aside. It has further
submitted that even though the appeal was
filed as a Misc. Appeal yet it could not have
been rejected on the ground of limitation as
the delay has been fully explained.
Nonetheless the order dated 8.5.92 being
without jurisdiction the writ petition deserves
to be allowed.

5. No notice had been issued in this
petition and the matter remains pending for
11 years.

6. The provisions of Section 142 of the
U.P.Z.A.L.R Act authorise a bhumidhar to
utilise his land in terms of the said
provisions. In the opinion of the Court the
order dated 8.5.92 simply acknowledges the
said rights and nothing beyond the same. The
right of the bhumidhar to enjoy his holdings
for the purpose of running a market or
holding a Hat came up for consideration
before a Division Bench of this Court in the
case of Shivraj Singh Vs. State of U.P. and
others reported in 1976 RD 109 and the
law was explained in para 21 and 25 of the
said decision that such right is a right to
204 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
immoveable property and further the Hats,
Bazars and Melas held on such bhumidhari
plots are within the proprietary rights of the
tenure holders. It was held categorically that
the right to hold market on their own land is
a right to immoveable property and reliance
was placed on the earlier decision in the case
of Ganesh Singh and another Vs.Shitla
Bux Singh and others reported in AIR
1931 Oudh 110. The proprietary rights and
the nature of the tenure of the bhumidhar was
explained with the help of the Apex Court
decision in the case of Rana Sheo Ambar
Singh V.Allahabad Bank AIR 1961 SC
SC= 1969 R.D.288.

7. Such rights were also acknowledged
by a learned Single Judge of this Court in the
case of Lakshmi Narain Upadhya V.
Gram Sabha reported in 1998(3) AWC
1629 wherein paras 8 and 11 the Court
observed as follows:

"8. Undoubtedly, every citizen or
person has a right to choose his own
employment or to take up any trade or
calling, subject only to the limits as may be
imposed by the State in the interests of the
public welfare. This fundamental right has
been guaranteed under Article 19(1)(g) of the
Constitution of India. The defendantappellants admittedly are holding cattle hats
on their own plots in the village and
similarly, Gaon Sabha of the village is
holding hat over its own plots. Both the
parties, therefore, have an innate right to hold
the hats on their own plots without any let or
hindrance from any quarter. The fate of
present litigation would, however, turn one
way or the other on the question as to
whether the Gaon Sabha has a right to
regulate the holding of the hat or to restrict
the right of the defendant-appellants in
holding hat on their own plots. The
defendant-appellants, therefore, would swim
or sink on the validity or otherwise of the
resolution dated 14.8.1977 alleged to have
been adopted under Section 15 (h) of the Act.
Chapter IV of the Act deals with the powers,
duties, function and administration of Gaon
Panhayat, Section 15, which is entitled as
'Duties and Function' runs as follows:

"it shall be the duty of every Gaon
Panchayat so far as its funds may allow to
make reasonable provisions within its
jurisdiction for:

(a).............................................to

(g).............................................

(h) regulation of melas, markets and
hats within its area, except those managed by
the State Government or the Zila Parishad
and without prejudice to the provisions of the
U.P.Melas Act, 1938.:

11.....In the instant case, what the Gaon
Panchayat has done is that in order to
promote its own hat on plot numbers,
832,835,836
and
837.
It
has
restricted/prohibited the holding of hat by the
defendant-appellants
on
their
ownplot
numbers 830A, 830B, 834, 842 and 843. As
said above, the defendant-appellants have a
fundamental right can be curtailed or
restricted
only
by
putting
reasonable
restriction by a valid law. Total prohibition is
permissible in cases where trade is inherently
dangerous, such as, trading in dangerous
goods, explosives, tourism or trafficking in
women or the like, but where there is a
lawful business activity, it cannot in any
manner be subjected to any fetters or
restrictions in the absence of any law. A
regulation, therefore, cannot disobey the
constitutional provisions/prohibitions by
1 All] Udai Veer Singh V. State of U.P. and others
205
employing an indirect method. In order to
be reasonable, the restriction must have a
reasonableness to the object. In short, a
regulation cannot go to the extent of
virtually eliminating the right guaranteed,
by introducing regulations which are not
related to the interest of the private persons
holding a hat even though the regulation
may be in the interest of general public."

8. The Sub Divisional Officer
therefore has simply acknowledged the
rights ,which are vested in the contesting
respondents as explained in the decisions
herein above. It is not the case of the
petitioners
that
the
respondents
are
indulging in any obnoxious trade or are
violating some mandate of the constitution.

9. The petitioner's appeal filed against
the said order was allowed and remanded
and the Sub Divisional Officer again
maintained his earlier order. While doing so
the Sub Divisional Officer relied on the
statements of Town Area Clerk Zaheerual
Islam and Abdul Wahid and that in view of
the map as produced by another clerk
Funnan Khan, the market which was being
held was found out side the limits of the
Town Area/petitioner Nagar Panchayat. In
view of this finding which could not be
successfully assailed before this court, the
applicability of the provisions of the Town
Area Act or any regulations or even
otherwise could not have been alleged by
the Town Area.

10. Apart from this, the evidence
adduced indicates that the contesting
respondents, in accordance with the Zila
Parishad Adhiniyam, had obtained licence
from the Zila Parishad upon payment of the
requisite fee. Thus on all scores the order
dated 8.5.92 cannot be said to be suffering
from any infirmity.

11. The writ petition lacks merit and is
accordingly dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.02.2011

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 38204 of 2008

Udai Veer Singh

 ...Petitioner
Versus
State of U.P. and others ...Respondent

Counsel for the Petitioner:
Sri C.B. Yadav

Counsel for the Respondents:
C.S.C.

U.P. Transport Development Staff (Group
'D')
Service
Rules
1979-Rule-3Suspension
order
passed
by
higher
authority than the appointing authorityNo provision shown by the Standing
Counsel
to
justify
the
order
of
suspension-by Transport Commissionerwhile the appointing authority of a
constable
is
Regional
Transport
Authority-apart from that more than two
and half years gone-No disciplinary
proceedings
initiated-whether
an
employees
can
be
placed
under
suspension for indefinite period? Held-
"No".

Held: Para 8

The order of suspension pending in a
contemplated inquiry by itself is not a
punishment but in case it is prolonged
without
initiation
or
completion
of
inquiry, it may become punitive with the
passage
of
time.
Whether
such
a
prolonged suspension can be held valid
and
justified
and
whether
the
respondents can be allowed to keep an
employee
under
suspension
for
an