# Shakuntala Devi v. State of U.P. & Ors

- **Citation:** (2022) 10 ILRA 122
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-11
- **Case number:** Writ-C No. 14321 of 2022
- **Bench:** Manoj Kumar Gupta, Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shakuntala-devi-v-state-of-u-p-ors-47691
- **Pages:** 5

## Headnote

C.S.C., Sri Vijay Kumar Dixit

A.
UP
Kshettra
Panchayat
and
Zila
Panchayat Act, 1961 - Section 251 -
Relief seeking demolition of Dak Bunglow
and providing access to the petitioner's
house was rejected - Appeal against it,
was claimed to be filed u/s 251 - An
Appeal u/s 251 lies only against any order
or direction of Zila Panchayat passed in
exercise of powers conferred upon it
under the specific provisions, but no relief
was sought under any such provision -
Held, the right to appeal is a creature of
statute and unless such right is clearly and
expressly provided for under an statute, it
does not exist - Earlier direction of High
Court to decide the recall application and
appeal on merits could not be construed
as conferring jurisdiction upon respondent
no. 3 to act as appellate authority. (Para
10, 12 and 13)
Writ petition dismissed. (E-1)
List of Cases cited:-

## Text

122 INDIAN LAW REPORTS ALLAHABAD SERIES

11. Recently, in Bharat Coking
Coal Ltd. And othyers v. Shyam Kishore
Singh (Civil Appeal No.1009 of 2020,
decided on 5.2.2020), the issue regarding the
delay and laches, was considered by Hon'ble
the Supreme Court and a petition filed
belatedly, seeking change in the date of birth
in the service record, was dismissed.

12. Relying on T.T. Murali Babu'
case (supra) and R.K. Zalpuri'case (supra),
same view has been expressed by Hon'ble the
Supreme Court in Union of India and others
Vs. N. Murugesan and others (2022) 2 SCC
25 observing:

"We have already dealt with the
principles of law that may have a bearing on
this case. ... there was an unexplained and
studied reluctance to raise the issue .... Hence,
on the principle governing delay, laches ...
Respondent No. 1 ought not to have been
granted any relief by invoking Article 226 of
the Constitution of India."

13. In the case in hand, after hearing
learned counsel for the parties and taking the
above authorities into account, in our opinion,
the petitioner is not entitled to any relief. It is,
however, sought to be contended that the order
dated February 10, 2012 was communicated
vide Communication dated December 30,
2021, which is sought to be relied upon to
show that the order was communicated to the
petitioner quite late in the year 2021.
However, a perusal thereof shows that it is not
addressed to him. It is merely an interdepartmental communication from the Joint
Secretary in the State of U.P. to the Greater
NOIDA. In any case, the same cannot be taken
to be a reasonable explanation for condoning
huge delay in filing the present writ petition. In
this case, the direction was issued by this
Court about a decade back. The petitioner
should have been vigilant and enquired about
the status of the application filed by him
before the competent authority. There is
nothing on record to suggest that he ever made
any representation or enquired about the order
passed on his representation. In any case, the
release of land under Section 48 of the Act is
not a matter of right with the landowner. It is a
power conferred on the Government."

10. In the case in hand, it is evident that
after construction of water reservoir in the year
1909-10, the representations were made for the
first time in the year 2010. Thereafter no
efforts were taken by the petitioners. In our
opinion, the petitioners should have been
vigilant enough and enquire about the status of
their representation so made before the
authorities concerned. There is nothing on
record to suggest that the petitioners ever
made any inquiry, whatsoever, in respect of
the representations so made. It is the definite
stand of the State that height of the dam has
not been increased and whatever was there a
century before, has been retained. Thus in our
view, the petitioners are not entitled for any
relief.

11. In view of above, the petition is
devoid of merit. No interference is called for
by this Court. The writ petition is, accordingly,
dismissed.

12. There shall be no order as to costs.
----------
(2022) 10 ILRA 122
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.08.2022

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Writ-C No. 14321 of 2022

Shakuntala Devi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
10 All. Shakuntala Devi Vs. State of U.P. & Ors.
123
Counsel for the Petitioner:
Sri Gopal Misra

Counsel for the Respondents:
C.S.C., Sri Vijay Kumar Dixit

A.
UP
Kshettra
Panchayat
and
Zila
Panchayat Act, 1961 - Section 251 -
Relief seeking demolition of Dak Bunglow
and providing access to the petitioner's
house was rejected - Appeal against it,
was claimed to be filed u/s 251 - An
Appeal u/s 251 lies only against any order
or direction of Zila Panchayat passed in
exercise of powers conferred upon it
under the specific provisions, but no relief
was sought under any such provision -
Held, the right to appeal is a creature of
statute and unless such right is clearly and
expressly provided for under an statute, it
does not exist - Earlier direction of High
Court to decide the recall application and
appeal on merits could not be construed
as conferring jurisdiction upon respondent
no. 3 to act as appellate authority. (Para
10, 12 and 13)
Writ petition dismissed. (E-1)
List of Cases cited:-

1. U.P. Awas Evam Vikas Parishad Vs Gyan Devi
(Dead) By LRS. & ors.; (1995) 2 SCC 326

(Delivered by Hon'ble Manoj Kumar
Gupta, J.
&
Hon'ble Dr. Yogendra Kumar Srivastava, J.)

1. Heard counsel for the petitioner,
learned Standing Counsel for the State
respondents and Sri Vijay Kumar Dixit on
behalf
of
Zila
Panchayat,
Bijnor
(respondent no. 2).

2. The petitioner has called in
question an order dated 30.3.2022, passed
by District Magistrate, Bijnor (respondent
no. 3), in an appeal filed by the petitioner
under Section 251 of U.P. Kshettra
Panchayat and Zila Panchayat Adhiniyam,
1961, challenging order of Zila Panchayat
dated 9.9.2019.

3. The case of the petitioner is that
she got a plan sanctioned on 24.4.1995 for
construction of a residential building. The
petitioner admits that near her house, there
is Dak Bungalow, belonging to Zila
Panchayat, Bijnore. The petitioner claims
right of way to her house through the Dak
Bungalow. It is alleged that respondent no.
2 had closed the rasta to her house by
constructing a wall. The petitioner being
aggrieved by the said action of respondent
no. 2, preferred Writ Petition No. 13478 of
2018, which was disposed of with liberty to
the petitioner to move a representation
before Zila Panchayat, with direction to
Zila Panchayat to decide the same within
two months.

4. It seems that in terms of the said
order, the petitioner filed a representation
in which prayer made was for removal of
the wall constructed by Zila Panchayat and
thus, provide free access to the petitioner to
her house from the main road. The
representation of the petitioner was decided
by Apar Mukhya Adhikari by an order
dated 9.9.2019. In the said order, specific
finding has been recorded that Nihal Singh
(husband of the petitioner), was an
employee of Zila Panchayat/Zila Parishad
and he retired on 31.10.2017. Even after his
retirement, he did not vacate the servant
quarter, which was in his possession as an
employee of Zila Panchayat/Zila Parishad.
He is making false and fake claim
regarding rasta through Dak Bungalow to
exert pressure on the authorities, so that
they may not ask him to vacate the quarter
or pay rent for the same. It is specifically
recorded in the order that the claim made
124 INDIAN LAW REPORTS ALLAHABAD SERIES
by the petitioner on basis of an alleged
certificate by Adhyaksh or Apar Mukhya
Adhikari, Prithvi Singh Chauhan, admitting
existence of any common passage, is not
acceptable, as at the relevant time, there
was no officer by that name. It is a fake
document. It is also held that the petitioner
already has a passage on the northern side
of the wall of Dak Bungalow through
which she has access to her house. The
representation was thus found to be devoid
of merit and was rejected.

5. Being aggrieved by the said order,
the petitioner filed an appeal purportedly
under Section 251 of U.P. Kshettra
Panchayat and Zila Panchayat Adhiniyam,
1961. It seems that while the appeal
remained
pending,
the
petitioner
approached this Court by way of Writ
Petition No. 35772 of 2019 for a direction
to the Appellate Authority to decide the
appeal.
The
said
writ
petition
was
dismissed by an order dated 7.11.2019,
observing that the petitioner had not
enclosed along with the writ petition, any
evidence relating to submission of the
memo of appeal in the office of District
Magistrate and consequently, no positive
direction could be issued. It was left open
to the petitioner to obtain details from the
Postal Department regarding service and
approach the Appellate Authority with such
details and pray for early disposal of the
appeal. On 24.12.2019, the appeal was
dismissed, observing that the petitioner had
not preferred any appeal against the order
dated 9.9.2019.

6.

The
petitioner
once
again
approached this Court by way of Writ
Petition No. 33062 of 2021, alleging that
there
was
a
typographical
error
in
mentioning the date of presentation of the
appeal as 19.7.2019 in the order of this
Court. The correct date was 17.9.2019. It
was also corrected by this Court. The
petitioner also took a plea that she had
preferred a recall application, seeking recall
of the order of District Magistrate and
prayed for decision on merits. The writ
petition was disposed of on 20.12.2021
with direction to District Magistrate to pass
appropriate orders on the pending recall
application, as well as pending appeal, on
merits, within a specified time frame.

7. The Appellate Authority has now
passed
the
impugned
order
dated
30.3.2022, wherein it is noted that the
alleged appeal is in fact a representation
addressed to Apar Mukhya Adhikari, Zila
Panchayat, Bijnor, with copy thereof being
forwarded to various authorities, including
the District Magistrate. However, the
Appellate Authority after noting said fact,
has proceeded to consider the grievance on
merits and has observed that the petitioner
has separate access from the main road and
that her claim for a passage through the
Dak Bungalow, is wholly without any
basis. Accordingly, the claim made by the
petitioner for removal of the wall of Dak
Bungalow and thereby providing access to
her through Dak Bungalow, has been
turned down. In the concluding part, it has
been observed that as a matter of fact, no
appeal has been filed by the petitioner, but
the matter is being decided in compliance
of the order of this court dated 20.12.2021.

8. Learned counsel for the petitioner
submitted that respondent no. 3 has
wrongly observed that as a matter of fact,
no appeal was preferred by the petitioner
against order dated 9.9.2019. It is urged
that the petitioner is an illiterate woman
and therefore, could not file appeal in
proper format. It is submitted that since
there was specific direction of this Court to
10 All. Shakuntala Devi Vs. State of U.P. & Ors.
125
decide the appeal on merits and therefore
the observations made in the impugned
order with regard to non-filing of any
appeal against the order dated 9.9.2019, is
incorrect.

9. The provision with regard to
appeals from order of Zila Panchayat is
contained under Section 251 of the U.P.
Kshettra Panchayat And Zila Panchayat
Adhiniyam, 1961. The relevant provision is
being extracted below:-

"251. Appeals from order of Zila
Panchayat. - (1) Any person aggrieved by
any order or direction made by a Zila
Panchayat or a Kshettra Panchayat, as the
case may be, under the powers conferred
upon it by Sections 165(1), 171, 184,
191(6), 193, 202, 216, 218, 221 or under a
bye-law made under sub-head (a) of
Heading D and under Heading E of subsection (2) of Section 239, may within thirty
days from the date of such direction or
order, exclusive of the time requisite for
obtaining a copy thereof, appeal to such
officers as the State Government may
appoint, for the purpose of hearing such
appeals or any of them or, failing such
appointment, to the District Magistrate.

(2) The appellate authority may,
if it thinks fit, extend the period allowed by
sub-section (1) for appeal.

(3) No appeal shall be dismissed
or allowed in part or whole unless
reasonable opportunity of showing cause
or being heard has been given to the
parties."

10. It is noteworthy that under Section
251, appeal lies against any order or
direction made by Zila Panchayat in
exercise of powers conferred upon it by
Section 165(1), 171, 184, 191(6), 193, 202,
216, 218, 221 or under a bye-law made
under sub-head (a) of Heading D and under
Heading E of sub-section (2) of Section
239. On specific query made by the Court
as to under which of these provisions, order
passed by Zila Panchayat dated 9.9.2019
would fall, counsel for the petitioner is not
in a position to point out to any of the
above
sections
whereunder
the
Zila
Panchayat had exercised its power in
passing order dated 9.9.2019, rejecting the
representation of the petitioner.

11. We are of considered opinion that
the order dated 9.9.2019, rejecting the
prayer of the petitioner to demolish
boundary of Dak Bungalow and thereby
provide access to the petitioner to her
house, would not fall under any of the
above sections. Consequently, no appeal
would lie against such an order.

12. It has been consistently held that
the right to appeal is a creature of statute
and unless such right is clearly and
expressly provided for under an statute, it
does not exist. In order for a litigant to
invoke the remedy of an appeal, such right
must be expressly conferred by the statute.
The Constitution Bench of the Supreme
Court in the case of U.P. Awas Evam
Vikas Parishad v. Gyan Devi (Dead) By
LRS. And Others, has held that right to
appeal is a statutory right and the courts
cannot confer or infer it. It was further held
that what is legislatively not permitted
cannot be read by implication, not in
respect of right of appeal, as it is a creature
of statute and granting such right in the
absence of express statutory provision
would be legislating and not interpreting.

13. The direction of this Court in the
earlier round of litigation to decide the
recall application and appeal on merits
could not therefore be construed as
126 INDIAN LAW REPORTS ALLAHABAD SERIES
conferring jurisdiction upon respondent no.
3
to
act
as
appellate
authority.
Consequently, the direction of this Court
has to be construed in the light of the above
settled legal position.

14. Accordingly, in our opinion, even
if we assume that the representation dated
17.9.2019 was an appeal preferred before
respondent no. 2, as is sought to be
contended,
it
was
not
maintainable.
Moreover, the Appellate Authority as well
as Apar Mukhya Adhikari, Zila Panchayat,
Bijnore, have considered the plea of the
petitioner on merits and have held that the
petitioner is already having separate
passage for ingress and egress to her house
from a lane on the northern side of the wall
of Dak Bungalow and that she does not
have any right of passage through the Dak
Bungalow.

15. We find no illegality or perversity
in the said finding to warrant interference
in exercise of writ jurisdiction.

16. The petition is accordingly
dismissed.
----------
(2022) 10 ILRA 126
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.10.2022

BEFORE

THE HON'BLE PANKAJ BHATIA, J.

Writ-C No. 14359 of 2019

Anandi Water Park Resorts And Club Pvt.
Ltd. ...Petitioner
Versus
State of U.P. ...Respondent

Counsel for the Petitioner:
Apoorva Tewari, Aditya Tewari
Counsel for the Respondent:
C.S.C.

A. Tax Law - Constitution of India -
Article 265 - UP Entertainment and
Betting Tax Act, 1979 - Sections 2(l) (iii)
& 12 - Entertainment tax - It's imposition
on the costume used in the water park -
Legality challenged - Held, the costume
used in the water park would neither fall
within the definition of words 'instrument'
or
'contrivance'
-
The
renting
on
'costumes' cannot be included in the term
'payment for admission' as defined under
Section 2(l) - Held further, the tax can be
levied only when specially provided for
and not by intendment - Assessment
order was held beyond the authority of
law and is violative of Article 265 of the
Constitution of India. (Para 15 and 16)
Writ petition allowed. (E-1)

(Delivered by Hon'ble Pankaj Bhatia, J.)

1. Heard Sri Aditya Tewari, learned
Counsel for the petitioner and Sri Rajesh
Kumar Shukla, learned Counsel appearing
on behalf of the State.

2. The present petition has been filed
challenging the order dated 31.08.2010
whereby
the
entertainment
tax
of
Rs.3,17,378.04/- was imposed in exercise of
powers conferred under Section 12 of The
Uttar Pradesh Entertainment and Betting Tax
Act, 1979 (hereinafter referred to as "The
1979 Act") along with penalty of Rs.20,000/-.
The petitioner also challenges the order dated
21.01.2016 whereby the statutory appeal
preferred by him was rejected as well as the
order
dated
30.03.2017
whereby
the
application for recall of the appellate order
was also rejected.

3. The facts in brief are that the
petitioner is a Company incorporated under