# Smt. Kavita v. State of U.P. and others

- **Citation:** (2012) 1 ILRA 471
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-04-30
- **Case number:** Civil Misc. Habeas Corpus Writ Petition No. 10715 of 2012
- **Bench:** Dharnidhar Jha, Ramesh Sinha
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-kavita-v-state-of-u-p-and-others-42206
- **Pages:** 4

## Headnote

Constitution of India, Article 226-Habeas
Corpus Petition-determination of ageC.J.M. By placing reliance upon medical
report-confined
petitioner
in
Nari
Niketan-confirmed by Session Judgeadmittedly when the offence committed
she was about 18 years-as per law
developed by Apex Court in Jai Mala
Case 3 years have to be added-petitioner
not committed any offense-if taken away
from Lawful custody of her guardian-her
liberty can not be confined-petition
disposed of by giving liberty to go at any
place or person of her choice
472 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
Held: Par a 5 and 6

We have just recorded that the lady is
aged 18 years or more than that and is
thus, major and her liberty could never
be confined by an order which might be
having the tinge of judicial sanctity.
Usually judicial sanctity is attached to
resisting such order so as to resisting the
release of such confined persons. But the
balance of reasonableness, which is the
hallmark
of
judging
such
orders,
convince us that any judicial order,
which failed the scrutiny on reasonableness could not be upheld. The lady,
Smt. Kavita, was more than 18 years of
age and as such, the order of the Chief
Judicial Magistrate and that passed by
the learned Sessions Judge in the form of
Annexure 5 and 6 respectively, could not
be upheld.

We are clearly of the view that the lady
was wrongfully confined in exercise of
an illegal judicial jurisdiction. We, as
such, direct that the lady, Smt. Kavita, be
set at liberty immediately so that she
could go to the place or to a person, she
likes or chooses to.
Case law discussed:
AIR 1982 SC 1297; AIR 1965 SC 942

## Text

1 All] Smt. Kavita V. State of U.P. and others
471
Division
Officer,
Saidpur.
If
the
authorities were proceeding to cancel the
said allotment, in the opinion of the Court
the mandatory requirement of sub-section
(5) of Section 198 of the 1950 Act had to
be fulfilled inasmuch as sub-section (5)
clearly
recites
that
no
orders
for
cancellation shall be made unless a notice
of show cause is given to the allottee. The
principles of natural justice are, therefore,
engrained as a statutory requirement and
there is nothing on record to indicate that
the petitioners were ever put to notice
about the said proceedings initiated by the
Collector.

10. Apart from this the counter
affidavit of the Gaon Sabha does not
demonstrate that any such notice was
served on the petitioners.

11. The contention raised on behalf
of the petitioners that the order has been
passed on the basis of a report of the
Tehsildar dated 15.07.1996 also deserves
to be noticed inasmuch as if the said
report is the basis of the cancellation
order then in that event it was obligatory
on the Collector to put the petitioners to
notice about the evidence which was
sought to be utilized for cancelling the
lease of the petitioners.

12. In these circumstances, the only
conclusion that can be drawn is that the
cancellation has been carried out in
violation of the provisions of sub-section
(5) of Section 198 of the Act.

13. Thus, in my opinion, the order of
the Collector dated 29.08.1996 being in
violation of principles of natural justice
and in violation of the aforesaid statutory
provisions is a nullity. Accordingly, the
order
dated
29.08.1996
and
the
affirmance thereof by the Commissioner
dated 26.02.1998 in so far as it relates to
the
petitioners'
allotment
and
its
cancellation is hereby set aside with a
direction to the Collector-respondent no.2
to afford an opportunity of hearing to the
petitioners and then pass an appropriate
order in accordance with law.

14. The writ petition is accordingly
allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.04.2012

BEFORE
THE HON'BLE DHARNIDHAR JHA, J.
THE HON'BLE RAMESH SINHA, J.

Civil Misc. Habeas Corpus Writ Petition
No. 10715 of 2012

Smt. Kavita

 ...Petitioner
Versus
State of U.P. & others
 ...Respondents

Counsel for the Petitioner:
Sri Manoj Kumar Srivastava

Counsel for the Respondents:
Sri A.K.Pandey
Govt. Advocate

Constitution of India, Article 226-Habeas
Corpus Petition-determination of ageC.J.M. By placing reliance upon medical
report-confined
petitioner
in
Nari
Niketan-confirmed by Session Judgeadmittedly when the offence committed
she was about 18 years-as per law
developed by Apex Court in Jai Mala
Case 3 years have to be added-petitioner
not committed any offense-if taken away
from Lawful custody of her guardian-her
liberty can not be confined-petition
disposed of by giving liberty to go at any
place or person of her choice
472 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
Held: Par a 5 and 6

We have just recorded that the lady is
aged 18 years or more than that and is
thus, major and her liberty could never
be confined by an order which might be
having the tinge of judicial sanctity.
Usually judicial sanctity is attached to
resisting such order so as to resisting the
release of such confined persons. But the
balance of reasonableness, which is the
hallmark
of
judging
such
orders,
convince us that any judicial order,
which failed the scrutiny on reasonableness could not be upheld. The lady,
Smt. Kavita, was more than 18 years of
age and as such, the order of the Chief
Judicial Magistrate and that passed by
the learned Sessions Judge in the form of
Annexure 5 and 6 respectively, could not
be upheld.

We are clearly of the view that the lady
was wrongfully confined in exercise of
an illegal judicial jurisdiction. We, as
such, direct that the lady, Smt. Kavita, be
set at liberty immediately so that she
could go to the place or to a person, she
likes or chooses to.
Case law discussed:
AIR 1982 SC 1297; AIR 1965 SC 942

(Delivered by Hon'ble Dharnidhar Jha,J. )

1. We have directed the petition to
be listed in our chambers. Accordingly,
we have heard again Sri Manoj Kumar
Srivastava, Sri A. K. Pandey and Sri S.
M. Pandey, learned counsel for the parties
We have with us, in our Chambers, Smt.
Kavita, the solitary petitioner, along with
her counsel Sri Manoj Kumar Srivastava.

2. The present petition seeks an
order for quashing the orders dated 12-122011 passed by the learned Chief Judicial
Magistrate, Aligarh, and that of dated 1912-2011 passed by the learned Sessions
Judges, Aligarh (Annexures 5 and 6 to the
petition, respectively). By order dated 1212-2011, the learned Chief Judicial
Magistrate observed that the petitioner
was below 18 years of age and as such
was a minor who should not be handed
over in the custody of her lawful guardian
who had not come up before the court for
the
purpose.
The
Chief
Judicial
Magistrate, therefore, ordered confinement of the petitioner, Smt. Kavita in Nari
Niketan, Mathura, in connection with case
crime no. 256 of 2011 under Sections 363
and 366 I. P.C. That order appears
challenged before the learned Sessions
Judge in Criminal Revision petition no.
815 of 2011 and by order dated 19-122011
the
learned
Sessions
Judge
confirmed the order passed by the learned
Chief Judicial Magistrate.

3. During the course of hearing, it
was brought to our notice that the
petitioner was aged about 18 years on
account of having been born on 15-41992 as appears from Annexure 1 to the
counter affidavit filed by the State of U.
P. Thus, on the day the petition was filed,
she was about 18 years of age. Our
attention was also drawn to the medical
examination report which appears at
pages 21 to 23 of the present petition to
submit that the doctor appears not having
expressed
his
opinion
as
regards
determination of age of the petitioner in
spite of carrying out the ossification test.
We find that the doctor in spite of having
recorded the complete or partial fusion of
different joints or epiphyses, was not
finally opining as to what could be the age
of Smt. Kavita. We are of the opinion that
the doctor was probably working under
some influence and was not discharging
his official duties in spite of having been
asked by the Chief Medical Officer,
Aligarh, in that behalf as appears from the
1 All] Smt. Kavita V. State of U.P. and others
473
part of report which appears at page 23 of
the present petition. We record our
disapproval on the manner Dr. R.K. Goel
discharged his duties and we direct the
Chief Medical Officer, Aligarh, to be
vigilant about the official performance of
duties by Dr. R. K.Goel.

4. However, we are conscious of the
fact that there might be some dispute
regarding the petitioner being aged below
18 years or more than that age, on the date
of occurrence, but we have considered the
age recorded in her school records which
was 15-4-1994. We do not have any
hesitation in recording that the lady, Smt.
Kavita is aged about 18 years of age. The
medical assessment of age may also not
be conclusive. The determination of age is
always in the realm of being the estimated
age on account of scientific exercise. This
is the reason that the Supreme Court in
the case of Jaya Mala v. Home
Secretary, Government of Jammu and
Kashmir, reported in AIR 1982 SC 1297
had observed that if the age has been
determined by the doctor medically then
three years have to be added to such
assessed
age.
That
judgement
has
consistently been followed in the cases of
the present nature to give weightage to
assess the age of the victim so as to
appreciating the evidence of minority /
majority of the victim in favour of the
accused. In addition to that, it is trite that
if the girl who is at the verge of majority,
walks out of her parent's house to go with
any man, then it could not be a case of
kidnapping as the same could not be said
to be an act of taking away or enticing
away a woman below 18 years of age. It
could be a mere case of elopement. This
proposition was laid down by the
Supreme Court in the case of S.
Varadarajan
vs
State
of Madras
reported in AIR 1965 SC 942. We are not
concerned with that aspect of the matter.
We are mainly concerned as to whether a
lady who is 18 or more years of age,
could be directed to be confined. Even
assuming that the lady was below 18
years of age, we have to keep in our mind
that Smt. Kavita was not an accused, she
has not committed any offence. Legally,
her custody could not be authorised by
any court in connection with any offence
which is alleged having been committed
on account of taking or enticing her away
from her lawful guardianship. It would
have been in the fitness of things that the
learned Chief Judicial Magistrate should
have appreciated that position of law and
should not have directed the confinement
of the lady in Nari Niketan, as he did. He
could have directed her to be set at
liberty, at any rate.

5. We have just recorded that the
lady is aged 18 years or more than that
and is thus, major and her liberty could
never be confined by an order which
might be having the tinge of judicial
sanctity. Usually judicial sanctity is
attached to resisting such order so as to
resisting the release of such confined
persons.
But
the
balance
of
reasonableness, which is the hallmark of
judging such orders, convince us that any
judicial order, which failed the scrutiny
on reason-ableness could not be upheld.
The lady, Smt. Kavita, was more than 18
years of age and as such, the order of the
Chief Judicial Magistrate and that passed
by the learned Sessions Judge in the form
of Annexure 5 and 6 respectively, could
not be upheld.

6. We are clearly of the view that the
lady was wrongfully confined in exercise
of an illegal judicial jurisdiction. We, as
474 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
such, direct that the lady, Smt. Kavita, be
set at liberty immediately so that she
could go to the place or to a person, she
likes or chooses to.

7. With the above directions, we
dispose of the present petition.

8. Let a copy of this order be made
over to Sri R. A. Mishra, for onward
communication
to
the
concerned
authorities. Sri Mishra shall, in the
meantime, communicate by any means of
communication, the gist of this order and
that may be treated as the result of the
petition, so that the lady may not be
confined further.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLHABAD 27.04.2012

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 11997 of 1992

Hindalco Industries Limited ...Petitioner
Versus
Industrial Tribunal-I, U.P. at Allahabad
and others

 ...Respondents

Counsel for the Petitioner:
Sri N.B. Singh
Sri Ritvik Upadhaya
Sri Vinod Upadhyay

Counsel for the Respondent:
Sri P.C. Jhingam
S.C.

Constitution of India, Article 226-House
Rent
allowance-Labor
Court
allowed
reference in favor of workers-Hindalco
Company
situated
in
forest
areaconsidering shortage of accommodation
management given residential houses
those
who
worked
without
having
residential Quarter for 10 years-it can
work and wait the availability-for such
considerable
period-management
can
not
be
burdened
by
House
Rent
allowance-ignoring
this
aspect-award
not sustainable.

Held: Para 22

If some workmen have already worked
for decades together without being
dissatisfied
with
non-availability
of
housing accommodation or HRA in lieu
thereof, and they are given housing
accommodation seniority-wise as soon
as it becomes available, the Court finds
no justification to allow payment of HRA
to such workmen with such a long
retrospectivity causing an extraordinary
financial burden on the employer. In
fact, on this aspect also the tribunal has
not at all considered anything and in a
most casual and abrupt manner, also
without application of mind, it has
passed the award granting relief of
house
allowance
from
the
date
of
appointment. This direction, therefore,
also
in
my
view
is
illegal
and
unsustainable.
Case law discussed:
AIR 1960 SC 886; AIR 1959 SC 1035

(Delivered by Hon'ble Sudhir Agarwal, J. )

1. Sri Vinod Upadhyay, Senior
Advocate, assisted by Sri Ritvik Updhyay
for the petitioner and learned Standing
Counsel for respondent no.1 and 3.
Initially, Sri P.C. Jhingam had put in
appearance and filed counter affidavit and
after his death notice was issued to
respondent no.2 to engage another counsel
vide order dated 21.10.2011. None has
appeared on behalf of respondent no.2
though the case has been called in revised
list.

2. The writ petition is directed
against the award dated 29th April 1991