# Shailendra Nath Mishra v. Union of India and others

- **Citation:** (2003) 3 ILRA 794
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-07-08
- **Case number:** Civil Misc. Writ Petition No. 17767 of 2001
- **Bench:** M. Katju, R.S. Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shailendra-nath-mishra-v-union-of-india-and-others-40202
- **Pages:** 4

## Headnote

Sri V.B. Singh
Sri Vijay Sinha
Sri S.N. Srivastava
S.C.
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3 All] Shailendra Nath Mishra V. Union of India and others
795
Easement Act-sec. 60- House allotted by
company
to
his
General
ManagerCompany directed to vacate house-in
question-Allotment
made
in
official
capacity-Held-Petitioner
simply
a
Licencee and not the tenant-licence can
be terminated at any time.

Held- Para 12

Writ jurisdiction is equity jurisdiction
and we are not inclined to exercise our
discretion under Article 226 of the
Constitution of India in favour of a
person like the petitioner who has
illegally remained in possession of the
accommodation in question and has
abused the sympathy shown to him. In
our opinion the petitioner was only a
licencee of the premises in question, and
a licence can be terminated at any time
vide Section 60, of the Easements Act.

## Text

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794 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
these writ petitions are dismissed and
interim orders vacated.

52. However, since the wholesale
mandis at Kanpur City have been existing
for a long time in our opinion it would not
be appropriate if they are immediately and
abruptly ordered to be shifted to the
Navin
Mandi
Sthal
at
Naubasta
(Hamirpur Road). As pointed out in the
report of Mr. J.J. Munir, the learned
Advocate
Commissioner,
the
Navin
Mandi Sthal at Naubasta requires to be
developed so that the whole sellers can
appropriately shift there. We therefore,
direct that a Committee shall be set up
forthwith for this purpose under the
Chairmanship
of
the
Commissioner,
Kanpur Division and the members of the
Committee will include representatives of
the Associations of whole sellers of
foodgrains,
fruits
and
vegetables,
khandsari etc. as also officials of the
various concerned departments e.g. the
Kanpur
Development
Authority,
the
Krishi Utpadan Mandi Samiti, Kanpur,
Nagar Nigam, Kanpur, Jal Sansthan,
Kanpur,
U.P.
Power
Corporation,
Telephone
Department
etc.
This
Committee will form a rational plan for
shifting all the existing wholesale mandis
at Kanpur to the Navin Mandi Sthal,
Naubasta
(Hamirpur
Road).
The
Committee will ensure that the petitioners
and the other wholesellers of Kanpur are
provided
appropriate
space,
accommodation and facilities including
sewerage, water supply, electric and
telephone supply etc.

53. However, we give a firm
directive to the authorities that under no
condition should the existing wholesale
mandis in Kanpur City be allowed to
remain at their existing sites at Kidwai
Nagar,
Cooperganj,
Collectorganj,
Badshahi Naka etc. beyond one year
from the date of this judgment, and they
must be shifted to the Navin Mandi Sthal,
Naubasta (Hamirpur Road) latest within
one year from the date of delivery of this
judgment. It is made clear that there will
be no pick and chose in this connection,
and all the wholesale dealers have to go to
the new site within one year from today.
The matter has been dragging on for 26
years, and it cannot be allowed to drag on
forever.

54. Let the Register General of this
Court send copy of this judgment
forthwith to the Chief Secretary, U.P.
Secretaries of the Department of Food and
Civil Supplies, Home, Law as well as the
D.G.P., U.P. and the Commissioner,
Kanpur Division who will ensure strict
compliance with this judgment.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 8.7.2003

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE R.S. TRIPATHI, J.

Civil Misc. Writ Petition No. 17767 of 2001

Shailendra Nath Mishra
...Petitioner
Versus
Union of India and others ...Respondents

Counsel for the Petitioner:
Sri S.S. Sharma
Sri V.K. Dixit

Counsel for the Respondents:
Sri V.B. Singh
Sri Vijay Sinha
Sri S.N. Srivastava
S.C.
http:\\allahabadhighcourt.nic.in
3 All] Shailendra Nath Mishra V. Union of India and others
795
Easement Act-sec. 60- House allotted by
company
to
his
General
ManagerCompany directed to vacate house-in
question-Allotment
made
in
official
capacity-Held-Petitioner
simply
a
Licencee and not the tenant-licence can
be terminated at any time.

Held- Para 12

Writ jurisdiction is equity jurisdiction
and we are not inclined to exercise our
discretion under Article 226 of the
Constitution of India in favour of a
person like the petitioner who has
illegally remained in possession of the
accommodation in question and has
abused the sympathy shown to him. In
our opinion the petitioner was only a
licencee of the premises in question, and
a licence can be terminated at any time
vide Section 60, of the Easements Act.

(Delivered by Hon'ble M. Katju, J.)

1. Heard learned counsel for the
parties.

2. The petitioner is challenging the
impugned
order
dated
15.1.2001,
contained in Annexure 1 to the writ
petition.

3. The respondent no. 3 British India
Corporation Limited
(BIC)
was
an
associate of Cawnpore Sugar Work.
Limited. The Chairman of B.I.C. was also
Chairman of Cawnpore Sugar Works
Limited. It is alleged in para 5 of the writ
petition that the petitioner was initially
appointed in Cawnpore Sugar Works
Limited in 1980. Thereafter, he was
transferred to several places. The house in
question, which belongs to BIC was
allotted to the petitioner in the year 1997,
as has been stated in para 7 of the writ
petition, being house no. 14/104. This was
allotted free of cost to the petitioner, who
was
the
General
Manager
of
the
Cawnpore Sugar Works Limited at that
time. It was provided in his capacity as an
officer of the Company. Subsequently, in
the year 1998, the petitioner was
appointed as an Additional Director of the
said company, as is stated in para 9 of the
writ petition (vide Annexure 3 to the writ
petition).

4. In para 12 of the writ petition, it is
stated that the petitioner was suspended
by the Chairman of Cawnpore Sugar
Works Limited vide letter dated 7.1.1999
vide annexure 4 to the writ petition. In
para 18 of the writ petition, it is stated that
on 15.1.2001, the respondent no. 1 had
asked the petitioner to vacate the premises
in his occupation. The petitioner is
residing in half portion of house no.
14/104. The petitioner has alleged that he
is willing to purchase the said house. He
has also alleged that the respondents have
no right to evict him.

5. We have also perused the counter
affidavit of the BIC Annexure CA-1 is a
copy of the allotment order dated
27.6.1997. That order states (in para 2)
that the premises is being allotted to the
petitioner in view of his employment in
Cawnpore Sugar Works Ltd. It is also
stated in para 3 of Annexure CA-1 that
the allotment cannot confer any tenancy
right on the petitioner. In para 5 there of it
is stated that the permission granted to the
petitioner to occupy the accommodation
was at the will of the management and
could be terminated at any time. Thus, a
perusal of the allotment order shows that
the petitioner was purely a licencee and
not a tenant of the said accommodation.
In view of Section 60 of the Easement
Act, a licence can be terminated at any
time and a licencee has no right. The
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796 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
petitioner was given the accommodation
in view of his employment in the
Cawnpore Sugar Works Limited. In para
4 of the counter affidavit it is stated that
since the Cawnpore Sugar Works Limited
now is not part of BIC, as such the
petitioner was required to vacate the
bungalow (vide Annexure CA II of the
counter affidavit.

6. In para 5 of the counter affidavit,
it is stated that when the period of the
allotment came to an end, notice dated
10.5.2000 was issued to the petitioner to
vacate the premises, and till it is vacated,
the petitioner would have to pay damages
of Rs. 10,000/-and lease rent of Rs. 2000/-
per month- totaling Rs.12,000/- per month
vide Annexure CA III.

7.

Thereafter,
the
petitioner
requested
through
his
letter
dated
26.4.1999 (vide Annexure CA 4) for
allotment/permission for living in the
bungalow for further two years, which
was considered through letter dated
16.7.1999 on sympathetic ground, vide
Annexure CA 5. A perusal thereof, shows
that the petitioner was allowed to retain
the bungalow for one year w.e.f. 1.5.99 on
a licence fee of Rs. 2000/- per month. It
was made clear in para 4 of the said letter
that the permission granted to the
petitioner will not confer any tenancy
right on him. It was also stated that
permission granted for the premises can
be terminated at any time by giving a
notice. IN para 6, it is stated that after one
year the petitioner would have to vacate
the premises, failing which he will have to
pay Rs. 10,000/- per month as damages
for
unauthorized
occupation.
The
petitioner did not pay the license fee of
Rs. 2000/-per month from December,
1999, as is evident from the letter of BIC
dated 10.5.2000, Annexure CA VIII.
Hence he was asked to vacate the
premises.

8. Thereafter the petitioner again
approached the BIC for extension of the
permission for one year w.e.f. 1.6.2000
which would expire on 31.5.2001, vide
letter dated 19.5.2000 (annexure CA VII).
Evidently, this was done again on
sympathetic ground.

9. It is alleged in para 8 of the
counter affidavit that the petitioner was an
erstwhile employee of Cawnpore Sugar
Works Limited, which was an associate of
BIC. However, the Cawnpore Sugar
Works has ceased to be an associate of
BIC. The petitioner is not the employee of
BIC and as such he has no right to live in
the accommodation in question.

10. From the above facts, we are
sorry to note that the petitioner, who has
held high posts in Cawnpore Sugar Works
Limited, is refusing to vacate the premises
belonging to BIC without any right or
justification. Although the respondents
have taken a sympathetic view and
allowed the petitioner to remain in
possession of the accommodation till
31.5.2001, the petitioner has abused this
sympathy and has not vacated the
premises
till
now.
This
is
indeed
regrettable. The petitioner has held high
posts, and he was not expected to behave
in such an improper manner. Decent
people vacate premises the moment they
realize that they have no right to remain
there, but it seems that decency has
become a rare commodity nowadays,
even among people who are occupying, or
have occupied high posts.
http:\\allahabadhighcourt.nic.in
3 All] A.K. Chaurasia V. The Customs, Excise & Gold (Control) Tribunal and another
797
11. In our opinion no sympathy can
be shown to a person like the petitioner
who has illegally remained in possession
after 31.5.2001.

12. Writ jurisdiction is equity
jurisdiction and we are not inclined to
exercise our discretion under Article 226
of the Constitution of India in favour of a
person like the petitioner who has
illegally remained in possession of the
accommodation in question and has
abused the sympathy shown to him. In our
opinion the petitioner was only a licence
of the premises in question, and a licence
can be terminated at any time vide
Section 60, of the Easements Act.

13. In view of the above, this writ
petition is dismissed.

14. The S.S.P. Kanpur Nagar is
directed to evict the petitioner from the
accommodation in question within 10
days from today. The learned counsel for
the petitioners will serve copy of this
judgment on the SSP Kanpur Nagar at the
earliest who will ensure strict compliance
of this order.

15. The petitioner must also pay
damages of Rs. 12,000/- per month from
31.5.2001 till the date of vacation of the
accommodation, and this amount must be
paid by the petitioner to the BIC within
two months from today. If he does not
pay the said amount, it will be realized
from the petitioner as arrears of land
revenue by the District Magistrate,
Kanpur Nagar.

16. Let copy of this judgment be
given to the learned counsel for the
respondents by 10.7.2003 on payment of
usual charges. The Registrar General of
this Court will send copy of this judgment
forthwith to the D.M. Kanpur Nagar.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.07.2003

BEFORE
THE HON'BLE PRAKASH KRISHNA, J.

Civil Misc. Writ Petition No. 1000 of 2000

Ashish Kumar Chaurasia
...Petitioner
Versus
The Customs, Excise & Gold (Control)
Appellate
Tribunal,
New
Delhi
and
another

 ...Respondents

Counsel for the Petitioner:
Sri S.P. Gupta
Sri Pankaj Bhatia

Counsel for the Respondents:
Sri Vikram Gulati, S.C.
Sri S.N. Srivastava, S.S.C.

Customs Act S.-129- wiver ApplicationConfiscation of 79 silver bricks worth of
Rs. 2.5 crores-against demand of Penalty
wiver application filed-on the ground
except
ancestral
property-No
bank
account or immovable Property-rejection
by
tribunal
held-not
proper-tribunal
directed to decide the controversy-if the
amount of Rs.50,000/-deposited within
one month-without insisting to deposit
the further amount.

Held- Para 4

For the decision of the waiver application
the authority should have considered as
to whether the appellant is in a position
to pay or deposit the duty and interest
demanded on the penalty levied. In my
view since non grant of waiver will make
the
appeal ineffective,
the Tribunal
should be very careful in rejecting the
waiver application. Right of appeal is a
substantive
statutory
right
circumstancealised by the condition of