# Sheetal v. State Of U.P. & Ors

- **Citation:** (2021) 7 ILRA 412
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-03-13
- **Case number:** Special Appeal Defective No. 240 of 2021
- **Bench:** Manoj Misra, Rohit Ranjan Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sheetal-v-state-of-u-p-ors-47118
- **Pages:** 4

## Headnote

A. U.P. Panchayat Raj Act, 1947 - Section
28-C - Fishery lease - Succession by
operation of law - Widow's right in fishery
lease of her husband
- Entitlement
thereof, even being a member of Gram
Panchayat - No permission of Collector -
Bar imposed under S. 28-C - Applicability
- Held, when a person inherits the estate,
it is by operation of law; the person steps
into the shoes of his or her predecessor by
devolution of interest which takes place
immediately
on
the
death
of
the
predecessor though such devolution may
be recognised later - Where the right
devolves upon a person by operation of
law on occurrence of an event over which
7 All. Sheetal Vs. State of U.P. & Ors.
413
a person does not have control, no
occasion arises to seek for permission
before such devolution. (Para 9)
Appeal dismissed (E-1)
Cases relied on :-

## Text

412 INDIAN LAW REPORTS ALLAHABAD SERIES
sheets. The plea of mala fide has not been
properly raised against the disciplinary
authority who has drawn the charge-sheets.
Otherwise also, whether there is delay in
drawing a charge-sheet on the misconduct
therein is a question of fact because it
would depend as to when the misconduct
was discovered. Therefore, the appropriate
course for the petitioner is to take all such
pleas in the disciplinary proceedings. We
are, thus, in agreement, with the view of the
learned Single Judge in that regard and we
therefore affirm the judgment and order of
the learned Single Judge to that extent.
Issue C is decided accordingly.

ISSUE D:

33. In respect of the prayer of the
petitioner to quash the suspension order, we
are of the view that the order of suspension
was passed in contemplation of inquiry
without referring to the misconduct. As five
charge-sheets were drawn, out of which,
two have been quashed by us, we are of the
view that the disciplinary authority would
have to consider whether in the light of the
charges mentioned in third, fourth and fifth
charge-sheets, the petitioner's continued
suspension is required or not. Issue D is
decided accordingly.

34. In view of our conclusions on the
issues, as discussed above, this appeal is
entitled to be partly allowed and is,
accordingly, partly allowed. The judgment
and order of the learned Single Judge to the
extent it rejected the prayer of the petitioner
to quash the first two charge-sheets dated
13.03.2020 is set aside. The charge-sheet
No.
GM(M)A-30/ND/01,
dated
13.03.2020;
and
charge-sheet
No.
GM(M)A-30/ND/02, dated 13.03.2020, are
hereby
quashed.
All
consequential
proceedings in pursuance of those chargesheets are also quashed. The judgment and
order of the learned Single Judge in respect
of the other three charge-sheets is affirmed.
In addition to above, a direction is issued to
the disciplinary authority to reconsider
whether the continued suspension of the
petitioner, on the basis of enquiry on the
three surviving charge-sheets, is warranted.
A decision in that regard shall be taken
within six weeks from the date of this
order.
----------
(2021)07ILR A412
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.06.2021

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE ROHIT RANJAN AGARWAL, J.

Special Appeal Defective No. 240 of 2021

Sheetal ...Petitioner
Versus
State Of U.P. & Ors. ....Respondents

Counsel for the Petitioner:
Sri Jamil Ahamad Azmi, Sri Mohd. Isa Khan

Counsel for the Respondents:
C.S.C,.Sri Rameshwar Prasad Shukla

A. U.P. Panchayat Raj Act, 1947 - Section
28-C - Fishery lease - Succession by
operation of law - Widow's right in fishery
lease of her husband
- Entitlement
thereof, even being a member of Gram
Panchayat - No permission of Collector -
Bar imposed under S. 28-C - Applicability
- Held, when a person inherits the estate,
it is by operation of law; the person steps
into the shoes of his or her predecessor by
devolution of interest which takes place
immediately
on
the
death
of
the
predecessor though such devolution may
be recognised later - Where the right
devolves upon a person by operation of
law on occurrence of an event over which
7 All. Sheetal Vs. State of U.P. & Ors.
413
a person does not have control, no
occasion arises to seek for permission
before such devolution. (Para 9)
Appeal dismissed (E-1)
Cases relied on :-
1. Horn Vs State Ind, 445 N.E.2d 976-978
Authorities discussed :-
1. P. Rama Natha Aiyar's Treatise "Advanced
Law Lexicon" (4th Edition)
(Delivered by Hon'ble Manoj Misra, J.)

1. This intra court appeal arises from a
judgment and order dated 02.07.2019 of a
Single Judge in Writ-C No.14609 of 2019
dismissing the writ petition of the appellant.

2. As per the report, the limitation for
filing the appeal was upto 02.08.2019 but the
same has been presented in February 2021
with a delay condonation application.

3 . Considering the explanation offered
and the fact that in between there had been
large scale restriction in movement due to
COVID-19 pandemic, we deem it appropriate
to condone the delay in filing this appeal.
Consequently,
the
delay
condonation
application is allowed. The delay in filing the
appeal is condoned. Office shall assign a
regular number to the appeal.

4. We have heard the learned counsel
for the appellant; learned Standing Counsel
for the respondents 1 to 4; and Sri
Rameshwar Prasad Shukla for the respondent
no.5.

5. In brief, the facts giving rise to this
appeal are as follows: The husband of the
sixth respondent in the year 2013 obtained a
fishery lease for a period of 10 years with
effect from 14.08.2013. On 18.12.2015, the
sixth respondent was declared elected as a
member of the Gram Panchayat concerned.
On 25.04.2018, the husband of the sixth
respondent died. As an interest in a fishery
lease is inheritable, the sixth respondent
applied for substitution as a lessee in place of
her late husband. When no action was taken
on her application, she filed Writ-C
No.42598 of 2018 which was disposed off
with a direction upon the Sub-Divisional
Magistrate,
Azamgarh
to
decide
the
application of the sixth respondent. Pursuant
thereto, by order dated 28.02.2019, the Sub
Divisional Magistrate, Sigari, Azamgarh,
upon finding that the period of lease remains,
allowed the application and substituted the
sixth respondent in place of her deceased
husband.
Questioning
the order
dated
28.02.2019 the appellant filed Writ-C
No.14609 of 2019 by claiming that without
the permission of the Collector, as is
necessary under Section 28-C of the U.P.
Panchayat Raj Act, 1947 (for short the Act),
the sixth respondent, who is member of Gram
Panchayat concerned, could not acquire
interest in a village tank by way of lease, etc.
Negativing the above claim, the learned
Single Judge dismissed the writ petition of
the appellant by declaring that Section 28-C
of the Act would not apply to a case where
the right devolves upon a person by operation
of law such as in a case of succession.

6. Aggrieved with the order of the
learned Single Judge, this appeal has been
filed.

7. As the fate of the appeal would
depend on the import of Section 28-C
of the Act, the same is extracted
below:-
414 INDIAN LAW REPORTS ALLAHABAD SERIES

28-C-- "Members and officers
not to acquire interest in contract etc.,
with

Bhumi Prabandhak Samiti - (1)
No member or office bearer of Gram
Panchayat

or Bhumi Prabandhak Samiti shall,
otherwise than with the permission in writing
of

the Collector, knowingly acquire or
attempt to acquire or stipulate for or agree to

receive or continue to have himself
or through a partner or otherwise any share
or

interest in any licence, lease, sale,
exchange, contract or employment with, by or
on

behalf of the Samiti concerned;

Provided that a person shall not be
deemed to acquire or attempt to acquire or

continue to have or stipulate for or
agree to receive any share or interest in any

contract or employment by reason
only of his -

(a) having acquired any interest
before he became a member or office bearer;

(b) having a share in a joint stock
company which makes the contract; and

(c) having a share or interest in the
occasional sale through the Samiti concerned
of an article in which he regularly trades
upto a value not

exceeding Rs. 50 in any one year.

(2) No court or other authority
shall enforce at the instance of any person a

claim based upon a transaction in
contravention of the provisions of sub-section
(1)."

8. The contention of the learned
counsel for the appellant is that the
restriction placed by the provisions of
Section 28-C would also cover a case of
acquiring interest through succession and
therefore, without the permission of the
Collector, the sixth respondent could not
have been substituted in place of her late
husband as a lease holder of the fishery
lease.

9. We have given our thoughtful
consideration to the contentions of the
learned counsel for the appellant and have
perused the provisions of Section 28-C of
the Act carefully. It is well settled that
Section 28-C has been inserted with an
object to protect the property of Gram
Panchayat so that persons who are in a
position to influence settlement of interest
in Gram Panchayat property do not utilise
their position to gain unethical advantage
for themselves. However, what is important
is that clause (a) of the proviso to subsection (1) of Section 28-C saves those
interests that were acquired by a person
before he became a member or office
bearer. When a person inherits the estate, it
is by operation of law; the person steps into
the shoes of his or her predecessor by
devolution of interest which takes place
immediately
on
the
death
of
the
predecessor though such devolution may be
recognised later. Recognition of such
devolution may be by way of mutation or
substitution in the records but such
mutation or substitution by itself does not
create any right though it may amount to a
recognition of the right. Thus, where the
right devolves upon a person by operation
of law on occurrence of an event over
which a person does not have control, no
occasion arises to seek for permission
before such devolution. The legislature
therefore to serve the legislative object of
controlling acquisition of interest in Gram
Panchayat
property,
in
its
wisdom,
qualified the phrase "acquire or attempt to
acquire any share or interest...... in any
license, lease, sale, exchange, contract or
7 All. Mata Pher Mishra Vs. The State of U.P. & Ors.
415
employment with, by, or on behalf of the
Samiti
concerned"
with
the
word
"knowingly". In P. Rama Natha Aiyar's
Treatise "Advanced Law Lexicon" (4th
Edition), it is provided that the primary
meaning of the word "knowingly" is with
"knowledge".
The
treatise
thereafter
proceeds to notice various facets of the
term "knowingly" as interpreted by courts
in different contexts. One of them being the
decision in Horn Vs. State Ind, 445 N.E.2d
976-978, wherein it was held that "act is
done "knowingly" or "purposely" if it is
willed, is the product of a conscious design,
intent or plan that it be done, and is done
with awareness of probable consequences.
As succession takes place by operation of
law on the death of the estate holder and
death though is certain but the time of it
cannot be controlled, particularly, when it
occurs naturally, the successor in the event
of death simply steps into the shoes of the
estate holder immediately on his death, by
operation of law and, therefore, no question
of seeking prior permission to acquire
interest arises. Accordingly, by keeping in
mind the legislative intent for inserting
Section 28-C as also the import of clause
(a) of the proviso to its sub-section (1), we
respectively agree with the view of the
learned Single Judge that the provisions of
Section 28-C of the U.P. Panchayat Raj
Act, 1947 will not place any restriction on
acquisition of interest in a fishery lease by
succession. The appeal has no merit and is,
accordingly, dismissed.
----------

(2021)07ILR A415
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.06.2021

BEFORE

THE HON'BLE SANJAY YADAV, A.C.J.
THE HON'BLE PRAKASH PADIA, J.

Special Appeal Defective No. 242 of 2021

Mata Pher Mishra ...Petitioner
Versus
The State Of U.P. & Ors. ....Respondents

Counsel for the Petitioner:
Dr. Rajesh Kumar Srivastav

Counsel for the Respondents:
C.S.C., Sri Sunil Kumar Misra

A. Constitution of India,1950 - Article 226
- Writ - Effect of delay/laches - UP State
Road Transport Corporation Employees
(Other than Officers) Service Regulation,
1981 - S. 69 - Statutory appeal, limitation
of three months provided - Effect of
delay/laches - Sufficient cause, defined -
Principle to be applied in condoning the
delay laid down - Held, Rules of limitation
are not meant to destroy the right of
parties. They are meant to see that parties
do not resort to dilatory tactics, but seek
their remedy promptly. The object of
providing a legal remedy is to repair the
damage caused by reason of legal injury -
Court should adopt liberal approach for
condonation of delay - Order of Single
Judge as well as of appellate authority set
aside. (Para 7 and 11)
B. Interpretation of statute - Liberal
construction - Words 'sufficient cause' -
Condonation of delay - Applicability and
Scope - Words 'sufficient cause' should
receive a liberal construction so as to
advance substantial justice. (Para 9)
Special Appeal allowed. (E-1)
Cases relied on :-
1. N. Balakrishnan Vs M. Krishnamurthy; JT
1998 (6) SC 242
2. Shakuntala Devi Vs Kuntal Kumari; AIR 1969
SC 575