# Ravindra Nath Srivastava v. State Of U.P. & Others

- **Citation:** (2012) 2 ILRA 914
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012
- **Case number:** Civil Misc. Writ Petition No. 37630 of 1995
- **Bench:** Amreshwar Pratap Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ravindra-nath-srivastava-v-state-of-u-p-others-42213
- **Pages:** 3

## Headnote

C.S.C.
Sri Ajit Kumar
Sri J P Pandey
Sri Tarun Verma
SriVirendra Singh
Sri R.B.Pandey
Sri Shyam Singh
Sri Ajit Kuamr Singh
2 All] Ravindra Nath Srivastava V. State of U.P. and others
915
U.P. Imposition of Ceiling on Land
Holdings Act-1960-Section 38-procedure
about deciding ceiling appeal-as per
provision of order 41 rule 17 (1)-request
for adjournment on ground to attained
funeral
of
senior
counsel
rejectedcommissioner decided appeal on merit
on
ex-parte
basis-held-appellate
authority committed manifest mistake
by ignoring the death of Senior Counselat the most appeal could have been
dismissed in default rather to decide on
merit-order
quashed-with
necessary
direction.

Held: Para 7

Having
considered
the
aforesaid
submissions and having perused the
records as well as the order sheet of the
appellate court, this Court finds that the
appellate authority has committed a
manifest error by showing disrespect to
the resolution of the Bar Association for
a genuine cause, namely, to attend the
funeral of one the senior lawyers who
had expired on that date. In the
circumstances the request made by the
counsel on behalf of the petitioner for
adjournment was absolutely justified
and could have been granted. The
finding recorded that the petitioner was
seeking unnecessary adjournments with
a view to prolong the appeal, therefore,
does not appear to be correct on the
basis of the facts which have been
brought on record.

## Text

914 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
of the institution vide his letter dated
23.7.2005 had earlier made a request for
such alteration in the name and date of birth
of the petitioner which was accordingly
granted vide order dated 27.7.2005. The
Secretary further indicated that since this
change was brought about by the principal
himself, therefore, no further alteration can
be made on the request of the petitioner.

7. It is this order dated 16th of May
2007 which has been assailed before this
Court on the ground that the Principal of the
Institution had no authority to request for
any change unless there was any thing
contrary in the records, and even if it was to
be done, the petitioner ought to have been
put to notice. Learned Counsel contends
that the said change, according to the
regulation quoted hereinabove, can be
brought out only on the asking of the
candidate concerned and not on the request
of the Principal of the Institution.

8. Learned Standing Counsel on the
other hand contends that it appears that the
principal had made the request on the basis
of the record available with him and in such
circumstances the impugned order cannot
be faulted with.

9. Having heard learned counsel for
the parties and having perused the
regulations as also the impugned order, the
change in any part of the certificate or mark
sheet can be brought about provided the
same is not inconformity with records or on
the asking of the candidate. In the instant
case the Secretary has proceeded to alter the
name of the petitioner and his date of birth
without putting the petitioner to notice on
the asking of the Principal of the Institution.
The order does not indicate any discrepancy
in the records for bringing about this change
in the name of the petitioner and his date of
birth. The order, therefore, is in violation of
the principles of nature justice and not only
this it is not in conformity with the
regulations as quoted hereinabove.

10. Accordingly, the impugned order
dated 16.5.2007 rejecting the application of
the petitioner is hereby quashed. The
Secretary of the Board shall in the light of
the observations made herein above proceed
to examine the records after calling for a
report from the Principal of the institution
and thereafter pass an appropriate order on
the application of the petitioner within three
months after giving him an opportunity to
file objections, if any.

11. The writ petition is accordingly
allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.07.2012

BEFORE
THE HON'BLE AMRESHWAR PRATAP SAHI, J.

Civil Misc. Writ Petition No. 37630 of 1995

Ravindra Nath Srivastava
 ...Petitioner
Versus
State Of U.P. & Others ...Respondents

Counsel for the Petitioner:
Sri Shyamal Narain
Sri Habib Ahmed

Counsel for the Respondents:
C.S.C.
Sri Ajit Kumar
Sri J P Pandey
Sri Tarun Verma
SriVirendra Singh
Sri R.B.Pandey
Sri Shyam Singh
Sri Ajit Kuamr Singh
2 All] Ravindra Nath Srivastava V. State of U.P. and others
915
U.P. Imposition of Ceiling on Land
Holdings Act-1960-Section 38-procedure
about deciding ceiling appeal-as per
provision of order 41 rule 17 (1)-request
for adjournment on ground to attained
funeral
of
senior
counsel
rejectedcommissioner decided appeal on merit
on
ex-parte
basis-held-appellate
authority committed manifest mistake
by ignoring the death of Senior Counselat the most appeal could have been
dismissed in default rather to decide on
merit-order
quashed-with
necessary
direction.

Held: Para 7

Having
considered
the
aforesaid
submissions and having perused the
records as well as the order sheet of the
appellate court, this Court finds that the
appellate authority has committed a
manifest error by showing disrespect to
the resolution of the Bar Association for
a genuine cause, namely, to attend the
funeral of one the senior lawyers who
had expired on that date. In the
circumstances the request made by the
counsel on behalf of the petitioner for
adjournment was absolutely justified
and could have been granted. The
finding recorded that the petitioner was
seeking unnecessary adjournments with
a view to prolong the appeal, therefore,
does not appear to be correct on the
basis of the facts which have been
brought on record.

(Delivered by Hon'ble Amreshwar Pratap
Sahi, J.)

1. Heard Sri Shyamal Narain,
learned counsel for the petitioner and
learned Standing Counsel for the State.

2. This petition deserves to be
disposed of on a very short ground and on
a point which has been advanced by the
learned
counsel
for
the
petitioner
contending that the appellate authority has
manifestly erred by not respecting the
resolution of the Bar on account of the
condolence due to the death of a senior
lawyer practicing in the Bar Association
in the court of the Commissioner,
Gorakhpur.

3. Sri Shyamal Narain submits that
the appeal was filed by the petitioner's
father and when he died the petitioner was
substituted by the appellate authority on
21st October, 1995. Thereafter the next
date fixed was 28th October, 1995 on
which date an adjournment was sought
which was granted and the date fixed was
31st October, 1995. Sri Shyamal Narain
submits that the petitioner after his
substitution
had
not
sought
any
unnecessary adjournment and as a matter
of fact on 31st October, 1995 the
petitioner's counsel could not assist the
appellate authority on account of the
resolution of the Bar Association copy
whereof has been filed as annexure-8 to
the writ petition. He has invited the
attention of the Court to the said
document where it is recorded that the
lawyers in order to attend the funeral of
late
Sri
Vishwanath
Tripathi
were
abstaining from work and as such the
appeal be accordingly adjourned.

4. The appellate authority in stead of
adjourning the matter recorded that the
matter has been heard with the assistance
of D.G.C. Revenue and that the counsel
for the petitioner was avoiding hearing
only with a view to linger on the matter.
He described the adjournment sought as a
devise to prolong and protract the hearing
of the appeal. Accordingly, he proceeded
ex-parte
and
in
a
cryptic
manner
dismissed the appeal.
916 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

5.

Aggrieved,
the
petitioner
approached this Court through this
petition
and
the
operation
of
the
impugned order was stayed vide interim
order dated 31.12.1995.

6. The contesting respondents
including the State have filed counter
affidavits and they contend that the
appellate authority has not committed any
error and has disposed of the appeal
keeping in view its long pendency. In the
circumstances they pray that the writ
petition be dismissed as the petitioner
himself was responsible for the delay
caused in the hearing of the appeal.

7. Having considered the aforesaid
submissions and having perused the
records as well as the order sheet of the
appellate court, this Court finds that the
appellate authority has committed a
manifest error by showing disrespect to
the resolution of the Bar Association for a
genuine cause, namely, to attend the
funeral of one the senior lawyers who had
expired on that date. In the circumstances
the request made by the counsel on behalf
of the petitioner for adjournment was
absolutely justified and could have been
granted. The finding recorded that the
petitioner
was
seeking
unnecessary
adjournments with a view to prolong the
appeal, therefore, does not appear to be
correct on the basis of the facts which
have been brought on record.

8. The learned Standing Counsel and
the learned counsel for the contesting
respondents have not been able to justify
the action of the appellate authority in
dismissing the appeal cursorily without
the assistance of the petitioner's counsel
and in his absence.

9. Apart from this Section 38 of the
U.P. Imposition of Ceiling on Land
Holdings Act requires that the procedure
for hearing and deciding an appeal to be
followed by the appellate authority shall
be the same as that of a civil court and the
procedure laid down in the Code of Civil
Procedure Code, 1908. Since the matter
arose out of an appeal, therefore, the
provisions of Order XXXXI Rule 17 (1)
stood attracted. The court, therefore,
could have dismissed the case in default
but not on merits in the absence of the
counsel for the petitioner. On both counts,
therefore, the order of the appellate
authority is unsustainable. Accordingly,
the order of the learned Additional
Commissioner dated 31st October, 1995
is quashed. The appellate authority may
now proceed to dispose of the appeal on
merits in accordance with law.

10. The writ petition is allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.07.2012

BEFORE
THE HON'BLE AMRESHWAR PRATAP SAHI, J.

Civil Misc. Writ Petition No. 41252 of 1996

Mardan

 ...Petitioner
Versus
Collector Kanpur Dehat & Others

 ...Respondents

Counsel for the Petitioner:
Sri A..K. Sachan

Counsel for the Respondents:
C.S.C.
Sri V.K. Singh

U.P.Zamindari abolition and Land Reform
Act, 1950-Section9, 122-B-Eviction of