# Shyam Manohar Gupta v. State of U.P. & others

- **Citation:** (2013) 1 ILRA 127
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-12-06
- **Case number:** Civil Misc. Writ Petition No. 59570 of 2009
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shyam-manohar-gupta-v-state-of-u-p-others-42410
- **Pages:** 3

## Headnote

U.P. Collection Amin Service Rule 1974
Rule 5 (1)-regularization of servicepetitioner working as season collection
Amin-claim for regularization rejected by
Single Judge as become overage-Special
Appeal
Court
by
setting
aside
the
judgement issued direction to consider
the
regularization-Second
inning
collector rejected the claim saying the
recovery less than 70 %-again quashed
the order with finding of fact about
recovery more than 70 %-and in third
inning again rejected on ground of
collection made by the petitioner is less
than 70 % in the year 2006-2009-heldmode of taking decision very shocking
when claim relates to year 1990 and the
collection found more than 70 %-
respondent
deliberately
denying
the
claim-thus petition allowed with cost of
128 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
Rs.
16,000/
with
direction
of
regularization within four weeks

Held: Para-7

 No useful purpose would be served in
remitting matter back to the authority to
decide the matter afresh since the Court
finds that this is the fourth round of
litigation and that there is a deliberate
attempt on the part of the respondents
to deny the claim for one reason or the
other. The fact remains that in the
judgment of the Court dated 28th July,
2008 passed in Writ Petition No. 50758
of
2004,
the
petitioner
had
been
categorised in 'A' category and had made
a recovery of more than 70% which had
never been disputed by the respondents
and consequently, the Court is of the
opinion, that no useful purpose would be
served in remitting the matter to the
respondents to decide the matter afresh.

## Text

1 All] Shyam Manohar Gupta V. State of U.P. & others
127
in consonance with the law laid down by
this Court.

23. From the judgment of PunjabHaryana High Court, it is clear that it was
held by the Punjab-Haryana High Court that
reading of Section 14 of the 2002 Act itself
makes it clear that it is only when the
possession of asset is required to be taken
by the secured creditor or the same is
required to be sold or transferred by the
secured creditor under the provisions of the
2002 Act, it is then that an application can
be made. Thus the Punjab-Haryana High
Court has also held that application under
Section 14 of the 2002 Act can be made
when possession is to be taken or asset has
to be sold. In the present case the judgment
in Arun Kumar Arora's do not help the
petitioners since in the present case
application under Section 14 was filed after
sale of mortgaged asset and much after the
issuance of sale certificate and further the
application under Section 17 was filed by
the petitioners after sale of the mortgaged
asset. Moreso, the Full Bench judgment of
the Madras High Court has already laid
down in Lakshmi Shanker Mills' case
(supra), as noted above, that there would be
no automatic stay on filing of an application
under Section 17 of the 2002 Act. We are in
full agreement with the Full Bench
judgment of the Madras High Court in
Lakshmi Shanker Mills' case (supra).

24. In view of the aforesaid
discussions, we are of the view that by mere
filing an application under Section 17 of the
2002 Act, there is no embargo on the Bank
from proceeding under the 2002 Act.

25. As observed above, against the
order of Debt Recovery Tribunal rejecting
the application under Section 17 of the 2002
Act, the petitioners have statutory remedy
under Section 18 of the 2002 Act. We,
however, provide that in the event
petitioners files an appeal within 30 days
from today, the same be entertained and
decided on merits.

26. Subject to above, the writ petition
is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.12.2012

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 59570 of 2009

Shyam Manohar Gupta
 ...Petitioner
Versus
State of U.P. & others
 ...Respondents

Counsel for the Petitioner:
Sri Vinod Sinha
Sri Mahesh Sharma

Counsel for the Respondents:
C.S.C.

U.P. Collection Amin Service Rule 1974
Rule 5 (1)-regularization of servicepetitioner working as season collection
Amin-claim for regularization rejected by
Single Judge as become overage-Special
Appeal
Court
by
setting
aside
the
judgement issued direction to consider
the
regularization-Second
inning
collector rejected the claim saying the
recovery less than 70 %-again quashed
the order with finding of fact about
recovery more than 70 %-and in third
inning again rejected on ground of
collection made by the petitioner is less
than 70 % in the year 2006-2009-heldmode of taking decision very shocking
when claim relates to year 1990 and the
collection found more than 70 %-
respondent
deliberately
denying
the
claim-thus petition allowed with cost of
128 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
Rs.
16,000/
with
direction
of
regularization within four weeks

Held: Para-7

 No useful purpose would be served in
remitting matter back to the authority to
decide the matter afresh since the Court
finds that this is the fourth round of
litigation and that there is a deliberate
attempt on the part of the respondents
to deny the claim for one reason or the
other. The fact remains that in the
judgment of the Court dated 28th July,
2008 passed in Writ Petition No. 50758
of
2004,
the
petitioner
had
been
categorised in 'A' category and had made
a recovery of more than 70% which had
never been disputed by the respondents
and consequently, the Court is of the
opinion, that no useful purpose would be
served in remitting the matter to the
respondents to decide the matter afresh.

(Delivered by Hon'ble Tarun Agarwala, J.)

1. Heard the learned counsel for the
parties.

2. The petitioner is working as a
Seasonal
Collection
Amin
in
Tehsil
Salempur, District Deoria since February,
1985.
The
petitioner
applied
for
regularization of his services under the U.P.
Collection Amin Service Rules 1974. When
his claim was not considered, he preferred
Writ Petition No. 17935 of 1996 which was
dismissed against which a Special Appeal
No. 378 of 1997 was filed which was
allowed by a judgment dated 29th
December, 2001. The Division Bench held
that Rule 5(1) of the Rules of 1974 was not
considered by the learned Single Judge nor
by the authority and consequently, the Court
remitted the matter to the authority to
reconsider the matter afresh. The Court also
observed that the petitioner cannot be non
suited on the ground that he had become
overage and consequently, if the age comes
in the way of the regularization, the same
shall be deemed to have been waived.

3. Pursuant to the said order, the
District Magistrate again passed an order
dated 24th May, 2004 rejecting the claim of
the petitioner on the ground that no
recovery was made by the petitioner in the
last four faslis and that it was not upto 70%.
The petitioner, being aggrieved, filed Writ
Petition No. 50758 of 2004 which was
again allowed and, the Collector was
directed to decide the matter afresh. The
Court found that the petitioner had made
more
than
70%
recovery
and
was
categorised in 'A' category and, in the
absence of any counter affidavit being filed,
the impugned order could not be sustained
and was quashed.

4. Pursuant to the direction of the Writ
Court, the District Magistrate has again
passed the impugned order dated 31st
March, 2009 rejecting the claim of the
petitioner on the ground that for the years
2006-09, the petitioner has made a recovery
of less than 70% and therefore, he has not
entitled to be regularized under Rule 5(1) of
the Rules. The petitioner, being aggrieved,
by the aforesaid order, has filed the present
writ petition.

5. From the aforesaid, it is clear that
this is the fourth round of litigation and that
the petitioner's claim is being rejected for
one reason or the other, basically on the
ground that he has made a recovery of less
than 70%. The court fails to understand as
to how the recovery of the years 2006-2009
is now being taken into consideration. The
petitioner
had
made
a
claim
for
regularization of the services as far back in
the early 1990s which claim was rejected.
The Writ Court allowed the petition and
1 All] Alimuddin and others V. D.D.C. and others
129
remanded the matter back. Consequently,
the claim of the petitioner for regularization
was required to be considered in respect of
the earlier faslis and the present years was
not required to be considered.

6. The Court further finds that persons
similarly situated to the petitioner whose
claim was earlier rejected were granted the
relief
and
were
regularised
with
retrospective effect, but in the petitioner's
case the relief has been denied. The Court
gets a feeling that the respondents are
deliberately denying the relief to the
petitioner
and
consequently,
for
the
aforesaid reasons, the impugned order
cannot be sustained and is quashed. The
writ petition is allowed.

7. No useful purpose would be served
in remitting matter back to the authority to
decide the matter afresh since the Court
finds that this is the fourth round of
litigation and that there is a deliberate
attempt on the part of the respondents to
deny the claim for one reason or the other.
The fact remains that in the judgment of the
Court dated 28th July, 2008 passed in Writ
Petition No. 50758 of 2004, the petitioner
had been categorised in 'A' category and
had made a recovery of more than 70%
which had never been disputed by the
respondents and consequently, the Court is
of the opinion, that no useful purpose would
be served in remitting the matter to the
respondents to decide the matter afresh. The
Court is of the opinion, that the time has
come to issue a positive mandamus. The
Court, consequently, issues a writ of
mandamus commanding the respondents to
issue an order of regularization of the
service of the petitioner under the Rules of
1974 on the post of Seasonal Collection
Amin. This order is required to be passed
within four weeks from the date of
production of a certified copy of this order.
In view of the fact that the petitioner is
fighting for his right for the past 16 years,
the Court directs that he is entitled for cost
which the Court computes at Rs. 16,000/-
which shall also be paid by the respondents
to the petitioner within the aforesaid period.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.12.2012

BEFORE
THE HON'BLE RAN VIJAI SINGH, J.

Civil Misc. Writ Petition No. 60568 of 2012

Alimuddin and others

 ...Petitioner
Versus
D.D.C. And Others
 ...Respondents

Counsel for the Petitioner:
Sri K.P.S. Yadav
Sri Deepak Singh Yadav

Counsel for the Respondents:
C.S.C.
Sri Bijendra Kumar Mishra
Sri Sanjiv Kumar Shukla

Constitution of India, Article 226-reviewonce the delay condonation applicationrejected by S.O.C.-such order can not be
recalled-in absence of power of ReviewD.D.C. While allowing revision set-a-side
both
orders-remanded
back
before
S.O.C. For fresh consideration-amounts
to confer the power of review contrary to
statutory
provisions-remand
order
quashed.

Held: Para-14

So far as the order of Deputy Director of
Consolidation is concerned, although the
Deputy Director of Consolidation has set
aside both the orders dated 15.02.2010
and
17.02.2010
passed
by
the
Settlement Officer, Consolidation, but
remanded
the
matter
back
to
the