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

- **Citation:** (2022) 7 ILRA 366
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022
- **Case number:** Writ- C No. 3858 of 2022
- **Bench:** Mrs. Sangeeta Chandra, Om Prakash Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-asiya-v-state-of-u-p-ors-48891
- **Pages:** 5

## Headnote

A. Civil Law - Scrutiny of caste certificate
-
Power
of
District
Level
Scrutiny
Committee - Demand made for reference
to Vigilance Cell in the light of Kumari
Madhuri Patil's case, but the Scrutiny
Committee rejected the objection relying
on GOs. dated 02.07.1994 and 05.01.1996
- Validity challenged - High Court found
difference in approach of the two Division
Benches in the cases of Nasrin Bano's case
and Mairaj Ahmed's case and hence
referred the matter to the Hon'ble Chief
Justice to constitute a Larger Bench
formulating two questions - High Court
also directed the petitioner to approach
the District Level Scrutiny Committee and
place all the relevant facts with regard to
the validity of the Caste Certificate. (Para
5, 16 and 17)
Writ petition disposed of. (E-1)
List of Cases cited :-

## Text

366 INDIAN LAW REPORTS ALLAHABAD SERIES
representation of the petitioner in his order
dated 14.09.2012.

7. We have perused the impugned order
and we find that reasons have been given in
detail therein. Moreover, this Court is aware
that the rights of the highest bidders are
governed by the Statutory Rules, if any, and
the conditions of auction. The brochure
issued by the Kanpur Development Authority
had clearly stipulated that the Authority was
not bound to accept the highest bid tendered.
The Authority having reserved its right to
reject even the highest bid and also the right
to withdraw the plot itself from the auction in
spite of the highest bid, no right accrues to
the
highest
bidder.
Acceptance
and
confirmation of the highest bid by the
Auction Committee having not been done, it
cannot be said that any right accrues to the
petitioner warranting interference by this
Court to issue a mandate to force the
authority to sell the plot in question to the
petitioner even if the price bid by him has
been
found
non-competative
by
the
Authority.

8. The Hon'ble Supreme Court in the
case of Laxmi Kant and others Vs.
Satyawan and others, 1996 SCC (4) 208
has found that the conditions of auction are
mentioned in the tender document. The
bidder participating in an auction on the
basis of such conditions cannot question the
same on the ground that it was not open to
the Authorities to prescribe such conditions.
On
the
contrary,
the
principle
of
acquiescence and estopple would prevent
them from doing so. It would not be open to
a participant to the auction proceeding to
question the conditions at a later stage or as
an afterthought.

9. The aforesaid judgment of the
Hon'ble Supreme Court has been relied upon
again in the case of U.P. Avas Evam Vikas
Parishad and others Vs. Om Prakash
Sharma: 2013 (5) SCC 182 wherein the
Supreme Court has considered several
earlier
precedents
and
come
to
the
conclusion that bidders participating in the
tender process have no other right except the
right to equal and fair treatment. No
contract comes into existence merely by
submission of the highest bid until it is
accepted. Mere deposit of 20 per cent or part
payment of the bid amount by the highest
bidder at the fall of the hammer does not
amount
to
acceptance
of
the
bid.
Communication of acceptance of the highest
bid is necessary for concluding the contract
and it cannot be said that the auction process
has been finalised until a contract follows it.

10. In view of the facts as mentioned
in the impugned order and the law settled by
Hon'ble Supreme Court we are of the
considered opinion that merely because
petitioner's bid was the highest and above
the reserved price fixed by the Respondent
No. 2, it cannot be said that any right
accrued to the petitioner to entail a
Mandamus to be issued by this Court.

11. The writ petition being devoid of
merits is dismissed.
----------
(2022)07ILR A366
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 30.06.2022

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.
THE HON'BLE OM PRAKASH TRIPATHI, J.

Writ- C No. 3858 of 2022

Smt. Asiya ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
7 All. Smt. Asiya Vs. State of U.P. & Ors.
367
Counsel for the Petitioner:
Ashish Kumar Shukla

Counsel for the Respondents:
C.S.C., Dr. Arjun Singh

A. Civil Law - Scrutiny of caste certificate
-
Power
of
District
Level
Scrutiny
Committee - Demand made for reference
to Vigilance Cell in the light of Kumari
Madhuri Patil's case, but the Scrutiny
Committee rejected the objection relying
on GOs. dated 02.07.1994 and 05.01.1996
- Validity challenged - High Court found
difference in approach of the two Division
Benches in the cases of Nasrin Bano's case
and Mairaj Ahmed's case and hence
referred the matter to the Hon'ble Chief
Justice to constitute a Larger Bench
formulating two questions - High Court
also directed the petitioner to approach
the District Level Scrutiny Committee and
place all the relevant facts with regard to
the validity of the Caste Certificate. (Para
5, 16 and 17)
Writ petition disposed of. (E-1)
List of Cases cited :-
1. Kumari Madhuri Patil & anr. Vs Additional
Commissioner, Tribal Development & ors., AIR
1995 SC 94
2. Writ C No. 3338 of 2022; Mohd. Israr Khan
Vs St. of U.P. & ors.
3. M.B. No. 36397 of 2018; Nasrin Bano Vs St.
of U.P. & ors.
4. Writ Petition No. 1611 (MB) of 2008;
Taramuni Tharu Vs St. of U.P. & ors. decided on
23.09.2010
5. PIL No. 1396 of 2011; Tharu Shakti Samiti &
anr. Vs St. of U.P. & ors. decided on 12.01.2011
6. Hizwana Bano Vs St. of U.P. & ors.; 2011 (1)
ADJ 441
7. Writ C No. 160 of 2019; Mairaj Ahmed Vs St.
of U.P. & ors.
8. Rasheed Ahmad Vs St. of U.P. & ors.; 2009
(7) AJD 385
(Delivered by Hon'ble Mrs. Sangeeta
Chandra, J. & Hon'ble Om Prakash
Tripathi, J.)

1. Heard learned counsel for the
petitioner and learned Standing Counsel
appearing for the State-respondents.

2. Sri Dr. Arjun Singh, learned
counsel appearing for the opposite party no.
6, has raised a preliminary objection
regarding maintainability of the writ
petition and submitted that the order
impugned is an interlocutory order and the
petition is not maintainable against such
order. The petitioner should wait for final
order to be passed whereafter a statutory
remedy of filing appeal will be available
before Divisional Level Committee.

3. This writ petition has been filed
challenging the order dated 08.06.2022
passed by the respondent no.2 District
Level Caste Scrutiny Committee.

4. Learned counsel for the petitioner
submits that in terms of a judgment rendered
by the Supreme Court in the case of Kumari
Madhuri Patil and Another vs. Additional
Commissioner, Tribal Development and
Others, AIR 1995 SC 94, where the Court
has held that for examination of whether a
candidate belongs a particular reserved
category, the matter should be referred to the
Vigilance Cell for conducting the inquiry for
which it directed that each Directorate should
constitute a Vigilance Cell consisting of
Senior Deputy Superintendent of Police and
such number of Police Inspectors to
investigate into the claims for reservation, no
enquiry by Vigilance Cell has been done.

5. The petitioner had filed an
objection to complaint made against her.
The District Level Scrutiny Committee
368 INDIAN LAW REPORTS ALLAHABAD SERIES
should have referred the matter of the
petitioner for investigation to Vigilance
Cell. The petitioner's objection has been
rejected by means of impugned order
passed
by
District
Level
Scrutiny
Committee saying that the directions issued
by the Supreme Court in the case of
Kumari Madhuri Patil (Supra) have been
incorporated in the Government Orders
dated 02.07.1994 and 05.01.1996. There
being no direction in the two Government
Orders
for
referring
the
matter
for
investigation to the Vigilance Cell, the
petitioner's objection is misconceived.

6. Learned counsel for the petitioner
submitted that in similar case, a coordinate
Division Bench of this Court has entertained
a petition, namely, Writ-C No.3338 of 2022
(Mohd. Israr Khan vs. State of U.P. and
others). The Court has found that the order
impugned passed by the District Level
Scrutiny Committee was in violation of
judgment of Supreme Court in the case of
Kumari Madhuri Patil (Supra) and therefore,
the Court has entertained the petition and
directed the Standing Counsel to seek
instructions and stayed the order impugned
till the next date of listing.

7. This Court has perused the interim
orders dated 06.06.2022, 21.06.2022 and
26.06.2022 passed in said petition. It is
apparent that initially this Court had granted
time to Standing Counsel to seek instructions
as to why the directions issued by the
Supreme Court in the case of Kumari
Madhuri Patil (Supra) were not followed in
such matters. When no instructions were
forthcoming, the District Level Committee
was restrained from passing a final order till
the next listing of the petition.

8. Sri Manish Mishra, learned counsel
appearing for the State-respondents has
relied upon a Division Bench judgment in
the case of Nasrin Bano vs. State of U.P.
and others, M.B. No.36397 of 2018,
wherein the order of District Level Scrutiny
Committee
was
challenged
by
the
petitioners and mandamus was sought to
the State-respondents to enquire the dispute
regarding
Caste
Certificate
through
Vigilance Cell as per Government Order
dated 05.01.1996 in which guidelines had
been framed in the light of a judgment of
the Supreme Court in Kumari Madhuri
Patil
(Supra).
The
Division
Bench
considered the arguments made by the
learned counsel for the petitioners in Nasrin
Bano (Supra) that Scrutiny Committee
should have referred the matter to the
Vigilance Cell and should not have
conducted
inquiry
through
Revenue
Officials. The Division Bench in the case
of Nasrin Baso (Supra) thereafter has
considered in detail judgments rendered by
two Division Benches of this Court in
Taramuni Tharu vs. State of U.P. and
others, Writ Petition No.1611 (MB) of
2008, decided on 23.09.2010 and PIL
No.1396 of 2011, Tharu Shakti Samiti and
another vs. State of U.P. and others,
decided on 12.01.2011, wherein this Court
had observed that State Government had
constituted only one Scrutiny Committee
and there was no appellate authority over
such Scrutiny Committee for verification of
Caste Certificate. Therefore, the Divisional
Level Committee has been constituted by
the Government Order dated 27.01.2011.

9. The Division Bench in Nasrin
Bano (Supra) observed that after judgment
rendered in Tharu Shakti Samiti (Supra),
the State Government had issued another
Government Order dated 28.02.2011 where
scrutiny of Caste Certificate was to be done
by the Committee of District Level and
then Appeal was provided to the Divisional
7 All. Smt. Asiya Vs. State of U.P. & Ors.
369
and State Level Committees. The Division
Bench in Nasrin Bano (Supra) also
considered the observations made by the
Division Bench in the case of Hizwana
Bano vs. State of U.P. and others, reported
in 2011 (1) ADJ 441 and came to the
conclusion that the Government Orders
issued by the State Government on
05.01.1996, 27.01.2011 and 28.02.2011
had taken into account the observations
made by the Supreme Court in the case of
Kumari Madhuri Patil (Supra) and also by
the Division Benches of this Court in
Taramuni Tharu (Supra) and Tharu
Shakti Samiti (Supra) and constituted a
valid mechanism for investigation of Caste
Certificates
issued
by
the
Revenue
Officials. It had dismissed the writ petition
of Nasrin Bano on 17.12.2018 finding that
the relevant Government Orders had
sufficiently complied with the observations
made by the Supreme Court in Kumari
Madhuri Patil (Supra) and by the
judgments of earlier Division Benches of
this Court.

10. In view of the submission made
by Sri Manish Mishra, learned Standing
Counsel, this Court finds that there is no
good ground to give parity to the petitioner
of the case of Mohd. Israr Khan and to give
benefit of interim order granted by the
Division Bench, which was passed only
because the Standing Counsel could not
produce relevant instructions, although,
time had already been granted to him to do
so.

11. Learned counsel for the petitioner
in rejoinder has pointed out a Division
Bench judgment of this Court in the case of
Mairaj Ahmed vs. State of U.P. and
others, Writ-C No. 160 of 2019. It has been
submitted that the said writ petition was
allowed by the Court and the impugned
order had been set-aside giving a direction
to the District Level Scrutiny Committee to
adopt the procedure as given in the case of
Kumari Madhuri Patil (Supra) to decide the
validity of the Caste Certificate of the
petitioner therein in accordance with the
observations made by the Supreme Court in
the case of Kumari Madhuri Patil (Supra).

12. This Court has carefully perused
the
Division
Bench
judgment
dated
16.01.2019 and finds that the order
challenged in the said writ petition was an
appellate order passed by the Divisional
Level Scrutiny Committee. The Court had
considered the observations made by the
Supreme Court in the case of Kumari
Madhuri Patil (Supra) and the arguments
raised by the learned counsel for the
petitioner that guidelines framed therein
were not followed. It had also referred to
the facts of the writ petition wherein the
petitioner being "Thathera" (Tinker of
vessels) had alleged to be a Backward
Caste at Serial No.59 of Schedule-1 of
Uttar Pradesh Public Services (Reservation
for Scheduled Castes, Schedules Tribes and
Other Backward Classes) Act, 1994.
However, after such certificate was issued
to him and he contested the Election for the
post of President of Nagar Panchayat,
Sahanpur allegation of fraud was made by
the private respondents saying that the
petitioner was "Sheikh" and not a member
of Backward Class of "Thathera".

13. The Division Bench referred a
judgment rendered in Rasheed Ahmad vs.
State of Uttar Pradesh and others reported
in 2009 (7) AJD 385, where considering a
similar case the Division Bench had
observed that only because the name is
prefixed by the word "Sheikh", the class of
a person cannot be determined. The
question as to whether a person belongs to
370 INDIAN LAW REPORTS ALLAHABAD SERIES
upper caste or not is required to be decided
on the basis of other relevant evidence.

14. It is apparent from the perusal of
the judgment rendered in the case of
Mairaj Ahmed (Supra) that Division
Bench had not noticed the earlier Division
Bench judgments rendered in the case of
Nasrin Bano (Supra). Without noticing
binding precedents of this Court or relevant
Government Orders, the Division Bench
had passed the order dated 16.01.2019
placing reliance only upon the question of
fact relating to the ancestors of the
petitioner prefixing their names with the
word "Sheikh", cannot be said to be upper
caste as per judgment rendered in the case
of Rasheed Ahmad (Supra).

15. The judgment in the case of Mairaj
Ahmed (Supra) cannot said to be rendered
after considering all the relevant Government
Orders and the Scheme framed therein in
compliance of the judgment rendered by the
Supreme Court in the case of Kumari
Madhuri Patil (Supra) and the Division
Bench judgments of this Court in the cases of
Taramuni Tharu (Supra) and Tharu Shakti
Samiti (Supra).

16. This writ petition is disposed of
with a direction to the petitioner to approach
the District Level Scrutiny Committee and
place all the relevant facts with regard to the
validity of the Caste Certificate claimed by
the petitioner.

17. Since this Court is sitting in
Division Bench and has considered the
judgments rendered by earlier coordinate
Benches and finds that there is a difference in
approach of the two Division Benches in the
cases of Nasrin Bano (Supra) and Mairaj
Ahmed (Supra). The matter is referred to the
Hon'ble Chief Justice to constitute a Larger
Bench
for
considering
the
following
questions:

(i) "Whether the Government Orders
dated
05.01.1996,
27.01.2011
and
28.02.2011 have been issued in exercise of
executive
jurisdiction
by
the
State
Government after considering the directions
issued by the Supreme Court in the case of
Kumari Madhuri Patil (Supra)?"

(ii) "Whether the judgment rendered in
the case of Mairaj Ahmed (Supra) can be
considered to have laid down a valid
proposition of law that the District Level
Scrutiny Committee should not have ignored
the observations made by the Supreme Court
in the case of Kumari Madhuri Patil
(Supra) for verification of Caste Certificate
by a Vigilance Cell moved by Police Officers
?".
----------
(2022)07ILR A370
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.05.2022

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE VIKAS BUDHWAR, J.

Writ-C No. 10123 of 2021

Palika Towns LLP, Lucknow ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Manu Khare, Sri Navin Sinha (Senior Adv.)

Counsel for the Respondents:
C.S.C., Anjali Upadhya, Sri Ramendra Pratap
Singh

A.
Company
Law
-
Insolvency
and
Bankruptcy Code 2016 - Sections 7 &
33(2) - Insolvency Resolution process -
After auction, the bid was accepted and