# Smt. Adiba v. State of U.P. & Ors

- **Citation:** (2024) 4 ILRA 1504
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-04-05
- **Case number:** Writ-C No. 10173 of 2024
- **Bench:** Dinesh Pathak
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-adiba-v-state-of-u-p-ors-51735
- **Pages:** 8

## Headnote

U.P. Panchayat Raj Act, 1947 - Section
95(1)(g) - Uttar Pradesh Panchayat Raj
(Removal of Pradhans, Up Pradhans and
Members) Enquiry, Rules, 1997 - Rule 5Petitioner is an elected Pradhan in the
Panchayat Election 2020-21-during his tenure
being Pradhan, a complaint has been moved by
private
person-
pointing
out
some
embezzlement in the development work done by
the petitioner- District Magistrate on behalf of
State Government has constituted a committee-
to conduct preliminary inquiry against the
incumbent- petitioner has no right to participate
4 All. Smt. Adiba Vs. State of U.P. & Ors.
1505
in the preliminary inquiry -before passing the
order under Rule 5 of Enquiry Rules, 1997 he
had been given effective opportunity to file her
reply against the charges - no more res-integra
that
Rules
are
secondary
in
nature
as
subordinate legislation to help in governing law
and are made to make the parent Act work-
District Magistrate has not committed any error
in passing the order to conduct a final enquiry
and cease the financial and administrative
power in exercise of power conferred u/s
95(1)(g) of Act, 1947 read with Rule 5 of the
Enquiry Rules 1997.

Writ Petition dismissed. (E-9)

List of Cases cited:

## Text

1504 INDIAN LAW REPORTS ALLAHABAD SERIES
objective of the SARFAESI Act duly
complimented by the Rules, which are
geared
towards
efficient
and
speedy
recovery of debts, together with the
interpretation of the relevant laws by this
Court should not be lost sight of. Losing
sight thereof may not be in the larger
interest of the nation and susceptible to
interference."
(Emphasis supplied)

13. One of the plea in the aforesaid
case like in the instant case was inability of
the auction purchaser to get the loan
sanctioned. In the instant case as noted above,
the petitioner was fully aware of his financial
capacity still he participated in the auction
and made bid of an amount which was
beyond his means. The mortgaged property
belonged to the firm of his father and there
was every likelihood that the bid was made to
create obstacle in the way of the secured
creditor in recovering its dues. There was no
extraneous
condition
pleaded
by
the
petitioner as may have incapacitated him
from depositing the balance amount. The
factors pleaded for getting extension were his
own creation and not attributable to any
external force. Therefore keeping in mind the
limited power of judicial review, we are of
the considered opinion that there was no error
in the decision of the secured creditor in
rejecting the request to extend the time for
payment of the balance amount.

14. It is noteworthy that by our
previous order dated 15.03.2024, we
granted time to the petitioner to make
payment of the remaining amount by
18.03.2024 alongwith interest for the
period of delay beyond 11.01.2024 and
fixed today's date.

15. Shri Vivek Saran, learned
counsel for the petitioner, at the outset,
submitted that the petitioner could not
comply with the said order as he is not in
position to deposit the remaining amount,
inasmuch as the loan, which he had applied
for, has yet not been sanctioned.

16. Keeping in mind the aforesaid
facts, we are of the opinion that there was
no illegality or infraction of any statutory
provision in the action of the Bank.

17. The petition lacks merit and is,
accordingly, dismissed.
----------
(2024) 4 ILRA 1504
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.04.2024

BEFORE

THE HON'BLE DINESH PATHAK, J.

Writ-C No. 10173 of 2024

Smt. Adiba ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri M J Akhtar, Sr. Adv.

Counsel for the Respondents:
C.S.C., Sri Dharam Vir Jaiswal, Sri Harsh Vikram,
Sri Kushagra Vaibhav Singh, Sri Pradeep Kumar
Singh

U.P. Panchayat Raj Act, 1947 - Section
95(1)(g) - Uttar Pradesh Panchayat Raj
(Removal of Pradhans, Up Pradhans and
Members) Enquiry, Rules, 1997 - Rule 5Petitioner is an elected Pradhan in the
Panchayat Election 2020-21-during his tenure
being Pradhan, a complaint has been moved by
private
person-
pointing
out
some
embezzlement in the development work done by
the petitioner- District Magistrate on behalf of
State Government has constituted a committee-
to conduct preliminary inquiry against the
incumbent- petitioner has no right to participate
4 All. Smt. Adiba Vs. State of U.P. & Ors.
1505
in the preliminary inquiry -before passing the
order under Rule 5 of Enquiry Rules, 1997 he
had been given effective opportunity to file her
reply against the charges - no more res-integra
that
Rules
are
secondary
in
nature
as
subordinate legislation to help in governing law
and are made to make the parent Act work-
District Magistrate has not committed any error
in passing the order to conduct a final enquiry
and cease the financial and administrative
power in exercise of power conferred u/s
95(1)(g) of Act, 1947 read with Rule 5 of the
Enquiry Rules 1997.

Writ Petition dismissed. (E-9)

List of Cases cited:

1. Vivekanand Yadav vs. State of U.P. and
others, 2010 (111) RD 699

2. Shamim v. State of U.P. and Ors.; (2018) 4
UPLBECH 2573

(Delivered by Hon'ble Dinesh Pathak, J.)

1. Heard learned counsel for the
parties and perused the record on board.

2. The petitioner has invoked the
extraordinary jurisdiction of this Court under
Article 226 of the Constitution of India
assailing the order dated 29.02.2024 passed
by District Magistrate, Bijnor (respondent
no.2) under Section 95(1)(g) of U.P.
Panchayat Raj Act, 1947 (in brevity Act,
1947) read with Rule 5 of Uttar Pradesh
Panchayat Raj (Removal of Pradhans, Up
Pradhans and Members) Enquiry, Rules,
1997 (in brevity Enquiry Rules, 1997)
whereby administrative and financial power
of the incumbent Pradhan (petitioner) has
been ceased and, simultaneously, regular
inquiry has been directed to be conducted.

3. The facts culled out from the
record are that petitioner is an elected
Pradhan in the Panchayat Election 2020-21.
During his tenure being Pradhan, a
complaint has been moved by private
person, namely, Khursheed and Rafeeq
Ahmad pointing out some embezzlement in
the development work done by the
petitioner. Considering the severity of the
matter, District Magistrate on behalf of
State
Government
has
constituted
a
committee, vide order dated 28.04.2023,
consists of two members to conduct
preliminary inquiry against the incumbent
Pradhan
intending
to
examine
the
allegations made against her. After due
inquiry, Committee has submitted its
preliminary
inquiry
report
dated
09/10.11.2023, whereby four charges have
been levelled against the present petitioner
relating to the financial embezzlement.
Having considered the preliminary inquiry
report
dated
09/10.11.2023,
District
Magistrate, Bijnor has issued notice to the
petitioner,
vide
its
order
dated
28/25.11.2023 (Annexure No.3), affording
opportunity to file her reply, if any, within
15 days. In pursuance thereof, petitioner
has filed her reply dated 04.01.2024.
Having considered the reply submitted by
the Pradhan insufficient, learned District
Magistrate
has
passed
order
dated
29.02.2024 under Section 95(1)(g) of Act,
1947 read with Rule 5 of the Enquiry
Rules, 1997, by which Inquiry Committee
has been constituted consist of Project
Director, District Village Development
Agency, Bijnor as well as Executive
Engineer,
P.W.D,
Bijnor
and,
simultaneously, ceased the financial and
administrative power of the Pradhan, which
is under challenge before this Court.

4. Learned Senior counsel for the
petitioner submits that in preliminary
inquiry petitioner was not permitted to
participate. Apart from that, report was
submitted at a very belated stage on
1506 INDIAN LAW REPORTS ALLAHABAD SERIES
09/10.11.2023 in pursuance of the order
dated 28/25.4.2023, to wit, beyond the
prescribed
period
of
limitation
as
enunciated under Rule 4(2) of Enquiry
Rules, 1997, therefore, preliminary enquiry
report as well as the entire subsequent
proceedings based on said report is nullity
in the eye of law. It is further submitted that
exonerating
the
Secretary
from
the
allegations is not justifiable inasmuch as
his conduct is also liable to be inquired
along with the petitioner. In his third
submission, learned Senior Advocate has
tried to question genuineness/validity of the
charges relating to GST and submit that all
these charges are vague and result of
misleading document. Lastly it is submitted
that the instant writ petition may be
allowed and the order impugned passed by
the District Magistrate may be quashed
being illegal, cryptic and unwarranted
under the law.

5. Par contra, learned Standing
counsel has vehemently opposed the
submissions as raised by the learned
counsel for the petitioner and supported the
order impugned passed by the District
Magistrate. He has contended that full
opportunity has been afforded to the
petitioner
before
passing
the
order
impugned dated 29.02.2024. Petitioner, at
this stage, has no right to raise any question
qua charges inasmuch as regular inquiry is
going on. It is further contended that
submission of preliminary enquiry report
even after prescribed period of limitation
does not make it redundant in the eye of
law. It is next contended that at this stage,
while the final inquiry is going on, there is
no justification to interfere in the order
impugned dated 29.02.2024. Therefore,
instant writ petition, being misconceived
and devoid on merits, is liable to be
dismissed.
6. Having considered the rival
submissions advanced by learned counsel
for the parties and perused of record, it is
manifested that District Magistrate, having
considered the preliminary inquiry report,
has passed order impugned under Section
95(1)(g) of Act, 1947 read with Rule 5 of
the Enquiry Rules, 1997. At the stage of
moving complaint under Rule 3 of the
Enquiry Rules 1997 and, thereafter, during
the preliminary inquiry, there is nothing
mandatory to hear the the Pradhan. The
purpose of preliminary inquiry is nothing
but to find out the truthfulness of the
allegations as mentioned in the complaint.
It is a fact finding process to make out a
prima facie case for the purposes of regular
enquiry to be conducted. Even otherwise,
after receiving the preliminary inquiry
report
dated
09/10.11.2023,
District
Magistrate has passed the order dated
28/25.11.2023 to issue notice to the
petitioner to file her reply against the
charges/allegations as made out in the
preliminary inquiry report. In its order
dated 28/25.11.2023, District Magistrate
has
acknowledged
the
financial
embezzlement
to
the
tune
of
Rs.
5,79,599.00/- during the development work
done by the petitioner. In response to said
notice petitioner has filed her reply dated
04.01.2024 refuting the charges/allegations
levelled against her in the preliminary
inquiry report. District Magistrate, while
passing
the
order
impugned
dated
29.02.2024, has considered the charges in
detail in the light of the reply submitted by
petitioner and found the case fit to be
examined in the regular/final inquiry and,
accordingly, constituted a committee of two
members
to
submit
their
report.
Simultaneously, in exercise of its power
under proviso to Section 95(1)(g) of the
Act, 1947, District Magistrate has ceased
the administrative and financial power of
4 All. Smt. Adiba Vs. State of U.P. & Ors.
1507
the Pradhan. Thus, it cannot be said that
petitioner
had
not
been
accorded
opportunity of hearing before passing the
order dated 29.02.2024 under Rule 5 of
Enquiry Rules, 1997. Discussing the scope
and nature of the power entrusted upon
District Magistrate under Section 95(1)(g)
of the Act, 1947 read with Equiry Rules,
1997 and the rights of the delinquent
elected person as well there are two Full
Bench judgments of this Court, which are
required to be referred. In the matter of
Vivekanand Yadav vs. State of U.P. and
others, 2010 (111) RD 699, Hon'ble Full
Bench of this Court, while answering the
question referred, expounded that Pradhan
is neither entitled to be associated in the
preliminary inquiry nor is entitled to the
copy of the preliminary report. However,
he has to be given an opportunity to explain
his conduct on the charges levelled against
him before passing an order to cease his
financial and administrative power. For
ready
reference
question
which
was
referred to the Hon'ble Full Bench and
reply thereon is quoted herein below:

"Questions Referred
14. The Counsel for the parties
have formulated the following questions
from the referring orders that are referred to
us: (i) Whether the pradhan is required to
be associated in the preliminary enquiry
under the proviso to section 95(1)(g) of the
U.P. Panchayat Raj Act?
(ii) In case, the preliminary enquiry
is adverse to the pradhan then, whether an
opportunity is necessary before passing an
order ceasing financial and administrative
powers of the Pradhan?
(iii) If the District Magistrate has
sufficient material to undertake a formal
enquiry then, is he still required to hold a
preliminary enquiry?
(iv)
Whether
the
following
observations in Chunmun v. District
Magistrate, Sonbhadra; 1998 (3) AWC
1892 (the Chunmun case) are correct:
"Conclusions
107.
Our
conclusions
are
as
follows:
(a)
The
DM
may
ask
the
preliminary enquiry to be conducted by any
officer defined under Rule 2(c) of the
Enquiry Rules on a complaint or a report
under Rule 3 or any other material or
information. He has suo motu powers as
well to order a preliminary enquiry;
(b) A Pradhan has no right to object
that complaint or report is not in
accordance with Rule 3 of the Enquiry
Rules;
(c) A Pradhan is neither entitled to
be associated in the preliminary enquiry
nor is entitled to the copy of the
preliminary report. However, before an
order
ceasing
the
financial
and
administrative
power
is
passed,
his
explanation or point of view or the version
to the charges should be obtained and
considered;
(d) In the first and the third WPs,
the impugned orders have been passed on
the basis of preliminary report after
obtaining and considering the explanation
of the Pradhan. The impugned orders in
these WPS cannot be faulted on this
ground;
(e) In our opinion the word
'otherwise' in Rule 5 includes and the DM
can rely upon the following reports only to
cease financial and administrative power
and direct the final enquiry:
A report of a person who is also
defined as an enquiry officer under Rule
2(c) of the Enquiry Rules-- irrespective of
whether he was directed by the DM to
conduct the preliminary inquiry or not;
1508 INDIAN LAW REPORTS ALLAHABAD SERIES
A
preliminary
enquiry
report
conducted by the DM himself.
(f) In the third writ petition, the
report was submitted by the DPRO, who is
defined as an enquiry officer under Rule
2(c) of the Enquiry Rules. The impugned
order cannot be faulted on the ground that
the DPRO was not asked by the DM to
conduct the preliminary enquiry;
However,
it
is
open
to
the
petitioners in the first and third WPS to
raise other points before the appropriate
bench."

7. At subsequent stage scope of
Section 95(1)(g) of the Act, 1947 has again
been examined by Full Bench of this Court
in the matter of Shamim v. State of U.P. and
Ors.; (2018) 4 UPLBECH 2573. Relevant
paragraph nos. 37-40 of the aforesaid
judgment is quoted herein below:

"37. In Vivekanand, Hafiz Ataullah
Ansari and thereafter reiterated in Paras
Jain that the elected representative would
have to be given an opportunity to raise
objection to the findings returned in the
preliminary
enquiry
and
his/or
her
objections will have be considered, though
prima
facie,
by
the
State
Government/District Magistrate before an
order
ceasing
the
financial
and
administrative power and functions is
passed. The consequence of the order
passed in exercise of power under Section
95(1)(g) is serious consequence as it
divests the elected representative from
exercising power until exonerated in final
enquiry and the decision of the State
Government is final. The decision taken by
the State Government is not based on any
expediency or policy of the State, rather, it
is a statutory power conferred upon the
State
Government
exercising
inherent
judicial power after confronting the elected
representative, with show cause notice
based on the preliminary report, thereafter,
taking a decision upon due application of
mind on the objections of the elected
Pradhan. Once such an order is passed, it is
not open for the State Government to either
review or modify the order during the
course
of
final
enquiry. The
order,
therefore, finally decides the issue between
Pradhan
and
the
Authority
(State
Government) in so far it relates to exercise
of financial and administrative power. The
office of the local body is an elected office
of the constitutional democratic institution;
the elected head is not a government
servant and it would be improper to
compare
these
proceeding
with
departmental
proceeding
in
service
jurisprudence. A head of a local body is
elected for a limited term. If during the
removal proceedings, he is denuded from
exercising financial and administrative
powers then even if he is exonerated in the
enquiry the time spent during enquiry is
lost, he does not get his period extended.
The consideration about the presence of all
or some of the trappings of a court is really
not decisive. The main and basic test is
whether the adjudicating power which a
particular authority is empowered to
exercise has been conferred on it by a
statute and can be described as part of the
State's
inherent
power
exercised
in
discharging its judicial function. Applying
this test there can be no doubt that the
power which the State Government/District
Magistrate exercises under proviso to
Section 95(1)(g) is a quasi-judicial power
exercised by a quasi-judicial authority.
38.
Once
the
financial
and
administrative function is ceased, it affects
the constitutional and statutory right of the
Pradhan; no power of review having been
conferred on the District Magistrate. He has
to act according to the rules exercising the
4 All. Smt. Adiba Vs. State of U.P. & Ors.
1509
inherent judicial power of the State
Government and is not dictated by the
policy or expediency of the State.
39. We accordingly proceed to
answer the reference in the following
terms:
(A).
The
District
Magistrate
exercising delegated authority of the State
Government, is a Tribunal exercising quasi
judicial power by a quasi judicial authority
under the proviso to Section 95(1)(g) of the
Panchayat Raj Act while proceeding to
cease the administrative and financial
authority of the Pradhan pending final
enquiry.
(B) Re-Question (i):The decision of
the Division Bench in Smt. Sonia vs. State
of U.P. (supra) lays down the correct
position of law.

40. The reference to the Full
Bench accordingly stands answered. The
special appeal shall now be placed before
the regular Bench according to roster for
disposal in light of the questions so
answered."

8. It is, thus, elucidated that
petitioner has no right to participate in the
preliminary inquiry and before passing the
order under Rule 5 of Enquiry Rules, 1997
he had been given effective opportunity to
file her reply against the charges as
mentioned in the preliminary inquiry
report.

9. I am skeptical of the second
submission raised by the learned Senior
counsel
for
the
petitioner
as
well
questioning the legality and validity of the
preliminary inquiry report, and subsequent
proceedings on the basis thereof, having
been it filed beyond the prescribed period
of limitation as enunciated under Rule 4(2)
of Enquiry Rules 1997. It is no more resintegra that Rules are secondary in nature
as subordinate legislation to help in
governing law and are made to make the
parent Act work. Once the decision is taken
by
the
State
Government/District
Magistrate to cease the administrative and
financial power of Pradhan, same cannot be
revoked during course of the final enquiry
inasmuch as said order is passed under the
statutory power conferred upon the State
Government exercising inherent judicial
power after confronting with the elected
representative.
Limitation
to
submit
preliminary enquiry report as enunciated
under Rule 4(2) of the Enquiry Rules, 1997
is directory in nature in order to submit
such report in pursuance of the order
passed by the State Government/District
Magistrate exercising its statutory power
conferred under Section 95(1)(g) of Act,
1947. Statutory power conferred upon the
State Government/District Magistrate under
which he exercises its inherent judicial
power to examine the conduct of the
representative cannot be held redundant
only on the pretext of delay in filing the
preliminary inquiry report which could not
be submitted under the prescribed period of
30 days of its having been so ordered. The
phrase used under Rule 4(2) of Enquiry
Rules, 1997 viz "as expeditiously as
possible" does not confer a mandate upon
the Preliminary Inquiry Officer to submit
the report in strict time frame as prescribed
under sub Rule 2. If submission in this
regard, as advanced by the learned Senior
Counsel for the petitioner, is taken to be
convincing or valid, it would frustrate
entire purpose of the statutory mandate as
embodied under Section 95(1)(g) of the
Act, 1947. Delay in submitting the
preliminary inquiry report neither could
frustrate the entire purpose of inquiry
which has been proposed to be conducted
to
examine
the
misdeeds
of
the
1510 INDIAN LAW REPORTS ALLAHABAD SERIES
representatives during their period in office
nor render the entire proceedings illegal.
The purpose of employing the phrase "as
expeditiously as possible" is to expedite the
preliminary
inquiry
so
that
entire
proceeding under Section 95(1)(g) of the
Act, 1947 including the final inquiry could
be concluded expeditiously inasmuch as
representatives elected under the Panchayat
election are hold office for a limited period
of five years and an enquiry, if any,
proposed against them cannot be permitted
to be continued for indefinite period.
Purpose of legislation while employing the
word "as expeditiously as possible" along
with the prescribed period of limitation i.e.
"30 days" is to indicate a minimum time
frame so that Inquiry Officer could make a
sincere endeavour to submit his preliminary
inquiry report without unnecessary delay.

10. So far as third submission qua
discrimination made with the petitioner
inasmuch as Secretary is also responsible
along with the petitioner is concerned, I am
of the considered opinion that the District
Magistrate in the realm of law has
exercised his statutory power to conduct an
enquiry against the petitioner qua the
financial embezzlement committed during
the development work done by him. Prima
facie satisfaction of the District Magistrate
is not to be questioned at this stage while
the final enquiry is still going on.
Accusation of Secretary, if any, can be
considered
separately
by
the
State
authorities in case they find it necessary.
Petitioner has still in an opportunity to raise
this question during the final enquiry
before the Enquiry Officer.

11. Last submission advanced by
learned Senior counsel for the petitioner is
not persuasive as well whereby he has
questioned the charges levelled against the
petitioner relating to excess payment of
GST. In view of pendency of the final
enquiry,
in
pursuance
of
the
order
impugned dated 29.02.2024, it would not
be befitting for this Court to examine the
factual aspect of the matter as to whether
charges qua payment of excess GST are
genuine or not. Petitioner has still an
opportunity to counter this question before
the Inquiry Officer.

12. In this conspectus, as above,
having considered the ratio decided by the
Hon'ble Full Bench as mentioned above, in
the given circumstances of the present case,
I am of the considered view that District
Magistrate has not committed any error in
passing the order dated 29.02.2024 to
conduct a final enquiry and cease the
financial and administrative power of the
incumbent Pradhan (petitioner) in exercise
of power conferred upon him under Section
95(1)(g) of Act, 1947 read with Rule 5 of
the Enquiry Rules 1997. District Magistrate
in its order impugned has unequivocally
issued direction to submit the final enquiry
report
following
the
provisions
as
enunciated under Rule 6 and 7 of the
Enquiry Rules, 1997. There is no illegality,
perversity or irregularity in the order under
challenge so as to warrant the indulgence of
this Court in exercise of its writ jurisdiction
under article 226 of the Constitution of
India. There is nothing on the record to
establish as to how petitioner is prejudice,
or if there is any likelihood of causing
miscarriage of justice to her, owing to the
order under challenge. District Magistrate
has validly exercised its statutory power to
scrutinize the financial embezzlement as
has been emanates during the preliminary
inquiry.

13. Resultantly, instant writ
petition, being devoid on merits and
4 All. Ram Pal Soni & Anr. Vs. State of U.P. & Ors.
1511
misconceived, is dismissed with no order as
to the costs.

14. Before parting the matter,
having considered a little delay in an
enquiry since the date of complaint moved
by
the
complainants,
namely,
Mr.
Khursheed and Rafeeq Ahmad, it would be
appropriate to issue a direction for
expeditious disposal of the enquiry and,
thereafter, to take final decision, if any. As
such, Inquiry Committee, as constituted in
pursuance of the order dated 29.02.2024, is
expected to complete inquiry and submit its
report in accordance with law preferably
within a period of two months from today
and District Magistrate shall take decision,
having considered the said report to be
submitted, preferably within a period of
one month, thereafter.
----------
(2024) 4 ILRA 1511
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.04.2024

BEFORE

THE HON'BLE JASPREET SINGH, J.
THE HON'BLE MANISH MATHUR, J.

Writ-C No. 13556 of 2021

Ram Pal Soni & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Ambika Prasad Mishra

Counsel for the Respondents:
C.S.C., Anand Kumar Singh, Gyanendra Mishra

Civil Law - SARFAESI Act,2002 - Sections
13 & 17 -Reference by single Judge -specific
reference to Sections 13 and 17(as amended in
2016) of SARFAESI Act- to arrive at a
conclusion that since part cause of action in
the dispute arose within territorial jurisdiction
of Lucknow-the securitization application would
thus be maintainable at Lucknow - provisions
of Section 17(1-A) indicates three clauses
pertaining to local limits of the Debts Recovery
Tribunal-
within
whose
jurisdiction
an
application/appeal can be filed under Section
17(1) of the SARFAES Act- if we apply the
concept of ejusdem generis- it is evident that
none of the three clauses indicate any common
genus and operate in different and separate
fields and therefore are clearly disjunctive- non
obstante clause contained in Section 35 of the
SARFAESI Act would have overriding effect
over the Debt Recoveries Tribunals Act-since
notice for e-auction was issued by the
authorized officer at Lucknow- whereafter eauction was actually conducted in terms of
Section 13(4) of the Act by the very same
officer at Lucknow-definitely constitute a part
cause of action at Lucknow in terms of Section
17 (1-A) of the SARFAESI Act-Clause (a) of
Section 17(1-A) of the SARFAESI Act is
disjunctive from clauses (b) & (c) of Section 17
(1-A) of the SARFAESI Act and is to be read
separately- Section 17(1-A) of the SARFAESI
Act would have an overriding effect over
provisions of the Recovery of Debts Due to
Banks and Financial Institutions Act 1993-
since part cause of action in the dispute arose
within territorial jurisdiction of Lucknow-the
securitisation
application
would
thus
be
maintainable at Lucknow as well.

Held, that since notices under Section 13 were
issued by the authorized authority situate at
Lucknow from where the e-auction was also
conducted, part cause of action in terms of
Section 17(1-A)(a) was evidently at Lucknow
where the securitisation application was thus
maintainable. (para 54)

Held, that judgment rendered by the learned
Single Judge in the case of Saurabh Gupta
(supra) being per incuriam, does not lay down
good law and is hereby overruled. (para 65)

Reference answered. (E-9)

List of Cases cited:

1. Y. Y. Abraham Ajith and others Vs. Inspector
of Police, Chennai and another, (2004) 8 SCC
100