# Shailendra Pandey v. State of U.P.Thr. Prin. Secy. Nagar Vikas Vibhag, lko & Ors

- **Citation:** (2013) 1 ILRA 163
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-01-28
- **Bench:** Uma Nath Singh, Virendra Kumar Dixit
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shailendra-pandey-v-state-of-u-p-thr-prin-secy-nagar-vikas-vibhag-lko-ors-42478
- **Pages:** 5

## Headnote

(A) Constitution of India, Article
226-Territorial
Jurisdiction-license
to
collect parking fee of vehicle-granted by
Nagar Panchayat Basti-impugned order
to cancel the contract-passed by Special
Secretary-Lucknow Bench can entertain
petition.

(B) Constitution of India, Article
226-Principle of natural Justice-contract
to collect parking fee of vehicle-given by
Nagar Panchayat-can be canceled for
any reason only by Nagar Panchahayt
Basti-Special Secretary no where in
picture-even without notice opportunityorder without jurisdiction quashed.

Held: Para-8

On
due
consideration
of
rival
submissions, we find considerable force
in the grounds of writ petition as well as
the arguments of learned counsel for
petitioner that the Special Secretary,
who passed the order, directing the
District Magistrate, Basti, to take action
against the petitioner where under the
District Magistrate directed the Nagar
Panchayat concerned to proceed, was
not competent to pass the order for the
reason that the Special Secretary was
not a party nor an authority to grant the
contract in favour of the petitioner and
secondly, it would reflect upon and
interfere
with
the
independence/autonomy of local bodies.
Case Law discussed:
(1975) 2 SCC 671

## Text

1 All] Shailendra Pandey Vs. State of U.P.Thr. Prin. Secy. Nagar Vikas Vibhag, lko & Ors.
163

"We have heard learned counsel for
the parties. That the petitioner's basic
payhad been fixed since 1970 at Rs.190/-
p.m. is not disputed. There is also no
dispute that the basic pay of the appellant
was reduced to Rs.181/- p.m. from
Rs.190/- p.m. in 1991 retrospectively
w.e.f. 18-12-1970. the appellant has
obviously
been
visited
with
civil
consequence but he had been granted no
opportunity to show cause against the
reduction of his basic pay. He was not
even put on notice before his pay was
reduced by the department and the order
came to be made behind his back without
following any procedure known to law.
There, has, thus been a flagrant violation
of the principles of natural justice and the
appellant has been made to suffer huge
financial loss without being hears. Fair
play in action warrants that no such order
which has the effect of an employee
suffering civil consequence should be
passed without putting the concerned to
notice and giving him a hearing in the
matter."

37. Thus, in the light of the
abovesaid facts, if an employee has been
paid excess amount voluntarily by the
employer without there being any fault or
misrepresentation on his part and he does
not fall in the categories of employee as
given in the case of Chandi Prasad Uniyal
(supra) from whom the said amount can
not
be
recovered
then
from
such
employee the same can be recovered but
before doing so he may be given an
opportunity of hearing to put forward his
case/defence.

38. In the present case, promotional
scale has been given to the petitioner in
pursuance to the Government Order dated
11.8.1983 by his employer voluntary in
bona fide manner without there being any
element of fraud on his part subsequently
cannot be recovered from him when he is
retired from service after attaining the age
of superannuation on the ground that
same has wrongly been given to him by
the employer because his case comes
within the ambit and scope of the
category of those employee from whom if
the excess amount paid cannot be
recovered as mentioned in the case of
Chandi Prasad Uniyal (supra).

39. For the foregoing reasons, the
impugned
order
dated
28.8.2009
(Annexure No.1) passed by the opposite
party no.4/District Development Officer,
Hardoi in Writ Petition No.124 (SS) of
2010 as well as order dated 28.1.2010
passed by District Development Officer,
Hardoi in Writ Petition No.1686 (SS) of
2010 are set aside. Furhter, if any amount
has been recovered from the petitioner in
pursuance to the impugned orders under
challenge in the present writ petition, the
same shall be refund to him by the official
respondent and they are also directed to
release all the post retiral dues to the
petitioner for which he is entitled but
withheld by themt in pursuance to the
impugned orders, the said exercise shall
be done within a period of four weeks
from the date of receiving a certified copy
of this order .

40. With the above observations,
both writ petitions are allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.02.2013

BEFORE
THE HON'BLE UMA NATH SINGH, J.
THE HON'BLE VIRENDRA KUMAR DIXIT, J.
164 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
MISC. BENCH No. - 182 of 2013

Shailendra Pandey

...Petitioner
Versus
State Of U.P.Thr.Prin.Secy.Nagar Vikas
Vibhag,Lko.& Others
 ...Respondents

Counsel for the Petitioner:
Sri Aditya Narayan
Sri Harish Chandra

Counsel for the Respondents:
C.S.C.

(A) Constitution of India, Article
226-Territorial
Jurisdiction-license
to
collect parking fee of vehicle-granted by
Nagar Panchayat Basti-impugned order
to cancel the contract-passed by Special
Secretary-Lucknow Bench can entertain
petition.

(B) Constitution of India, Article
226-Principle of natural Justice-contract
to collect parking fee of vehicle-given by
Nagar Panchayat-can be canceled for
any reason only by Nagar Panchahayt
Basti-Special Secretary no where in
picture-even without notice opportunityorder without jurisdiction quashed.

Held: Para-8

On
due
consideration
of
rival
submissions, we find considerable force
in the grounds of writ petition as well as
the arguments of learned counsel for
petitioner that the Special Secretary,
who passed the order, directing the
District Magistrate, Basti, to take action
against the petitioner where under the
District Magistrate directed the Nagar
Panchayat concerned to proceed, was
not competent to pass the order for the
reason that the Special Secretary was
not a party nor an authority to grant the
contract in favour of the petitioner and
secondly, it would reflect upon and
interfere
with
the
independence/autonomy of local bodies.
Case Law discussed:
(1975) 2 SCC 671

(Delivered by Hon'ble Uma Nath Singh, J.)

Order (Oral)

1. We have heard learned counsel
for parties and perused the pleadings of
writ petition.

2. Vide our order dated 09.01.2013,
State was granted a week's time to seek
instructions but till date no instructions
have been received from the Department.
However, learned State counsel took
objection to the maintainability of the writ
petition on the ground that the matter
relates to Nagar Panchayat Basti which
comes within the territorial jurisdiction of
Allahabad Bench.

3. As the relevant order which is
impugned herein namely Annexure No.3
has been passed by the Special Secretary,
Government
of
U.P.,
Nagar
Vikas
Vibhag, the part of cause of action has
arisen in terms of judgment of a
Constitution Bench of Hon'ble the Apex
Court passed in the matter of Sri
Nasiruddin Vs. State Transport Appellate
Tribunal, which is reported in (1975) 2
SCC 671. Paragraphs 37 and 38 of the
judgment are reproduced as under :-

"37. The conclusion as well as the
reasoning of the High Court is incorrect.
It is unsound because the expression
"cause of action" in an application under
Article 226 would be as the expression is
understood and if the cause of action
arose because of the appellate order or
the revisional order which came to be
passed at Lucknow then Lucknow would
have jurisdiction though the original
order was passed at a place outside the
areas in oudh. It may be that the original
1 All] Shailendra Pandey Vs. State of U.P.Thr. Prin. Secy. Nagar Vikas Vibhag, lko & Ors.
165
order was in favour of the person
applying for a writ. In such case an
adverse appellate order might be the
cause of action. The expression "cause of
action is well-known. If the cause of
action arises wholly or in part at a place
within the specified oudh areas, the
Lucknow Bench will have jurisdiction. If
the cause of action arises wholly within
the specified oudh areas, it is indisputable
that the Lucknow Bench would have
exclusive jurisdiction in such a matter. If
the cause of action arises in part within
the specified areas in oudh it would be
open to the litigant who is the dominus
litis to have his forum conveniens. The
litigant has the right to go to a Court
where part of his cause of action arises.
In such cases, it is incorrect to say that
the litigant chooses any particular Court.
The choice is by reason of the jurisdiction
of the Court being attracted by part of
cause of action arising within the
jurisdiction of the Court. Similarly, if the
cause of action can be said to have arisen
part within specified areas in oudh and
part outside the specified oudh areas, the
litigant will have the choice to institute
proceedings either at Allahabad or
Lucknow. The Court will find out in each
case whether the jurisdiction of the Court
rightly attracted by the alleged cause of
action.

38. To sum up, our conclusions are
as follows. First there is no permanent
seat of the High Court at Allahabad. The
seats at Allahabad and at Lucknow may
be changed in accordance with the
provisions of the order. Second, the Chief
Justice of the High Court has no power to
increase or decrease the areas in oudh
from time to time. The areas in oudh have
been determined once by the Chief Justice
and, therefore, there is no scope for
changing the areas. Third. the Chief
Justice has power under the second
proviso to paragraph 14 of the order to
direct in his discretion that any case or
class of cases arising in oudh areas shall
be heard at Allahabad. Any case or class
of cases are those which are instituted at
Lucknow. The interpretation given by the
High Court that the word "heard" confers
powers on the Chief Justice to order that
any case or class of cases arising in oudh
areas shall be instituted or filed at
Allahabad, instead of Lucknow is wrong.
The word "heard" means that cases which
have already been instituted or filed at
Lucknow may in the discretion of the
Chief Justice under the second proviso to
paragraph 14 of the order be directed to
be heard at Allahabad. Fourth, the
expression "cause of action" with regard
to a civil matter means that it should be
left to the litigant to institute cases at
Lucknow Bench or at Allahabad Bench
according to the cause of action arising
wholly or in part within either of the
areas. If the cause of action arises wholly
within oudh areas then the Lucknow
Bench will have jurisdiction. Similarly, if
the cause of action arises wholly outside
the
specified
areas
in
oudh
then
Allahabad will have jurisdiction. If the
cause of action in part arises in the
specified oudh areas and part of the cause
of action arises outside the specified
areas, it will be open to the litigant to
frame the case appropriately to attract the
jurisdiction either at Lucknow or at
Allahabad. Fifth, a criminal case arises
where the offence has been committed or
otherwise as provided in the Criminal
Procedure Code. That will attract the
jurisdiction of the Court at Allahabad or
Lucknow. In some cases depending on the
facts
and
the
provision
regarding
jurisdiction, it may arise in either place."
166 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

4. Thus, we reject the objection
raised by the learned State Counsel.

5. The brief facts giving rise to filing
of this writ petition are that Nagar
Panchayat, Babhnan Bazar, Basti, issued
public notice for auction and award of
contract/licence to collect the parking fee
for the year 2012-13 at the taxi stands
situated within the municipal limit of the
Nagar Panchayat, in the newspaper. The
petitioner is an enlisted civil contractor
with Irrigation Department. According to
him, due to some pre-occupations he
could not participate in the auction held
on
18.04.2012
and,
as
such,
had
authorized Shri Nagendra Kumar Singh,
son of late Shri Shyam Nath Singh,
resident of village Ramapur, district Basti,
to participate on his behalf in the auction
process.
The
petitioner
quoted
Rs.2,99,100/- as the highest rate and, as
such, vide order dated 18.04.2012, issued
by
the
Executive
Officer,
Nagar
Panchayat,
he
was
awarded
contract/licence for collecting the parking
fees. In terms of the order dated
18.04.2012, the petitioner deposited 1/4th
of the quoted amount with the Nagar
Panchayat and started the work of
collection in accordance with the Rules. A
baseless and frivolous complaint was
made by someone that the petitioner has
been realizing entry fee from all the
vehicles. The matter was enquired into by
the Sub-Divisional Magistrate, Harriya,
Basti. He submitted his enquiry report
dated
02.12.2012
to
the
District
Magistrate, Basti, holding that (i) entry
fees from vehicles were being realized
and (ii) the collection was being done by
one Shri Paras Nath Yadav and not the
petitioner. On the basis of the above
inquiry report, the Special Secretary,
Govt. of U.P., Nagar Vikas Vibhag,
Lucknow, issued the letter no.4949/01-112-380 Sa/12 dated 13.12.2012 directing
the District Magistrate, Basti, to take
action against the petitioner/Shri Paras
Nath Yadav. The District Magistrate,
thus,
vide
letter
no.90/LBC
dated
15.12.2012, directed the Nagar Panchayat,
Babhnan Bazar, Basti, to take action
against the petitioner/Shri Paras Nath
Yadav, in terms of directions issued by
the
aforesaid
Special
Secretary,
Government of U.P. Opposite parties 5
and 6 without application of mind in a
mechanical manner issued the impugned
letter/order
No.347
(6)/Na.pa.Ba.ba./2012-13
dated
20th
December
2012
and
letter/order
no.348/Na.pa.Ba.ba./2012-13 dated 20th
December 2012. It is also the averment
that the enquiry report is an ex-parte
report and it is illegal, arbitrary and
against the principles of natural justice.
Besides, though the impugned orders have
been passed on the basis of the letter
dated 13.12.2012 (Annexure No.3) of the
Special Secretary but he was not
empowered to issue any direction in the
matter and, as such, the impugned orders
deserved to be quashed. It is submitted
that the contract was given to the
petitioner by the Nagar Palika and thus
only the said Palika is empowered to take
a decision in the matter. However, it has
not taken any independent decision and in
following the order of the Special
Secretary, it has acted mechanically and
without application of mind. Thus,
according to the petitioner, the action of
the State Government is in contravention
of the provisions of Section 35 (1) of the
Nagar Palika Adhiniyam, 1916.

6. Learned counsel for petitioner in
oral
submission
before
the
Court
1 All] Pradeep Kumar Sonker Vs. District Judge Faizabad And Another
167
reiterated the grounds taken in the writ
petition.

7. On the other hand, learned State
counsel submitted that the contract in
question was not cancelled by the Special
Secretary but he had only issued some
directions to the District Magistrate,
Basti, to take appropriate action on the
enquiry report.

8. On due consideration of rival
submissions, we find considerable force
in the grounds of writ petition as well as
the arguments of learned counsel for
petitioner that the Special Secretary, who
passed the order, directing the District
Magistrate, Basti, to take action against
the petitioner where under the District
Magistrate directed the Nagar Panchayat
concerned to proceed, was not competent
to pass the order for the reason that the
Special Secretary was not a party nor an
authority to grant the contract in favour of
the petitioner and secondly, it would
reflect upon and interfere with the
independence/autonomy of local bodies.

9. Impugned order (Annexure no.3)
passed
by
the
Special
Secretary,
Government
of
U.P.,
suffers
from
inherent infirmities of incompetence.
Besides, the petitioner has not been left
with any remedy of filing an statutory
appeal or revision, if any, on the
administrative side. The contract had been
alloted by the Nagar Panchayat, Babhnan
Bazar, Basti through the Executive
Officer, therefore, the said officer should
be the appropriate authority unless the law
governing the field specifically prohibits.
That apart, the enquiry and the enquiry
report which formed the basis of further
action were carried out ex-parte without
giving opportunity to the petitioner.

10. In view of all the aforesaid, the
order dated 13.12.2012 and all other
consequential
orders
leading
to
cancellation of the contract granted in
favour of the petitioner are hereby
quashed. Thus, the writ petition is
allowed.

11. However, it would be open for
the Nagar Panchayat-competent authority
to start the proceedings afresh on the
complaint made against the petitioner.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.02.2013

BEFORE
THE HON'BLE ANIL KUMAR,J.

SERVICE SINGLE No. - 635 of 2013

Pradeep Kumar Sonker
...Petitioner
Versus
District Judge Faizabad And Another

 ...Respondents

Counsel for the Petitioner:
Sri Kapil Muni Dubey

Counsel for the Respondents:
Sri Manish Kumar

Constitution
of
India,
Article
226resignation-effects from the date of
acceptance
by
the
competent
authorities-after acceptance-not open to
take 'U' turn in any manner-petitiondismissed.

Held: Para-21

Thus,
in
view
of
the
facts
stated
hereinabvoe, as per the law, admittedly,
in the present case, the petitioner had
submitted his resignation from service
on 15.02.2010 on personal grounds and
the same has been accepted by the O.P.
No. 1 on 07.06.2012. Accordingly, once