# Smt. Ram Murti Devi v. State of U.P. & Ors

- **Citation:** (2021) 8 ILRA 829
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-03-26
- **Case number:** THE HON'BLE ANIL KUMAR OJHA.J. Writ C No. 4138 of 2021
- **Bench:** Surya Prakash Kesarwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-ram-murti-devi-v-state-of-u-p-ors-47315
- **Pages:** 6

## Headnote

U.P. Panchayat Raj Act (26 of 1947) -
Section
110
-
U.P.
Panchayat
Raj
(Maintenance of Family Registers) Rules
(1970) , Rule 6 - Inclusion of names in
register - Competent authority - Assistant
Development Officer - any person whose
name is not included in the family register
may apply to the Assistant Development
Officer (Panchayat) for the inclusion of his
name - if the Assistant Development
Officer (Panchayat) is satisfied, after such
enquiry as he thinks fit; that the applicant
is entitled to be registered in the register,
he may direct to include the name of the
applicant
in
the
family
register
-
thereupon the Secretary of the Gram
Sabha shall include the name of the
applicant accordingly - District Magistrate
has no power to issue amended family
members certificate (Para 16)
830 INDIAN LAW REPORTS ALLAHABAD SERIES
Allowed. (E-4)

## Text

8 All. Smt. Ram Murti Devi Vs. State of U.P. & Ors.
829
occupancy so that the applicant can
maintain an application for grant of a new
connection. The additional requirement
under the same clause is that in the event
there is a pending dispute with regard to the
ownership of the premises in a court of law,
a document evidencing such dispute be also
furnished. Sub-clause (ii) to sub-clause (vi)
also provide certain other conditions which
are to be complied with by the applicant
but presently we are not concerned with
them.

7. We after carefully reading the
provisions of Clause - 4.4 are of the firm
view that nowhere it prohibits the grant of
electricity connection to an applicant merely
on the ground that there is a pending dispute
in respect of property where the electricity
connection is sought to be supplied and
rightly so as the supply of electricity to the
occupant of a house is fundamentally
important to live with dignity under Article
21 of the Constitution else it would be a mere
animal existence. If we accept the contention
of the Power Corporation, the obvious
consequence would be that electricity supply
would stand disrupted for the reason that a
case relating to property is pending in a court
of law. This is neither the legislative intent
under the Electricity Act, 2003 nor under the
Code as electricity connection does not
confer title which fact is also fortified by
Note-3 of Annexure 4.1 of the Code which
provides that electricity connection shall not
be treated as a proof of ownership of the
premises. More so it is not the case of Power
Corporation that there are any previous
outstanding dues in respect of the said
premises.

8. We, in view of above, are of the
considered
view
that
the
impugned
disconnection of electricity supply is
dehors the law.

9. The writ petition is allowed. A
mandamus is issued to the respondent
concerned to grant electricity connection to
the applicant at his premises as indicated
above forthwith, subject to other statutory
compliance, if any, in accordance with law.
----------
(2021)08ILR A829
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.03.2021

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE ANIL KUMAR OJHA.J.

Writ C No. 4138 of 2021

Smt. Ram Murti Devi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Salilendu Kumar Upadhyay

Counsel for the Respondents:
C.S.C.

U.P. Panchayat Raj Act (26 of 1947) -
Section
110
-
U.P.
Panchayat
Raj
(Maintenance of Family Registers) Rules
(1970) , Rule 6 - Inclusion of names in
register - Competent authority - Assistant
Development Officer - any person whose
name is not included in the family register
may apply to the Assistant Development
Officer (Panchayat) for the inclusion of his
name - if the Assistant Development
Officer (Panchayat) is satisfied, after such
enquiry as he thinks fit; that the applicant
is entitled to be registered in the register,
he may direct to include the name of the
applicant
in
the
family
register
-
thereupon the Secretary of the Gram
Sabha shall include the name of the
applicant accordingly - District Magistrate
has no power to issue amended family
members certificate (Para 16)
830 INDIAN LAW REPORTS ALLAHABAD SERIES
Allowed. (E-4)
(Delivered by Hon'ble Surya Prakash
Kesarwani, J.
&
Hon'ble Anil Kumar Ojha, J.)

1. Heard Sri Salilendu Kumar
Upadhyay,
learned
counsel
for
the
petitioner and Sri Nitin Kumar Agarwal,
learned standing counsel for the State
respondent nos. 1 to 4.

2. With the consent of learned counsel
for the petitioner and the learned standing
counsel this writ petition is being disposed
of without calling for a counter affidavit.

Facts

3. Briefly stated facts of the present
case are that the petitioner is the wife of late
Sri Radhey Shyam. A copy of page No.168
of family register of Village Panchayat -
Dostpur, Tehsil - Karhal, District - Mainpuri,
has been appended as Annexure 10 to the
writ petition which shows that the name of
the petitioner and six others were initially
recorded in the family register. Subsequently,
the office of the District Magistrate issued a
certificate No.1495, dated 04.03.2020 titled
as "Sansodhit Parivari Jan Praman Patra" by
which he included the respondent nos. 5, 6
and 7 alongwith the petitioner and her family
members. Accordingly, the names of the
respondent nos. 5, 6 and 7 were entered in the
family register by the Village Development
Officer
vide
entry
dated
18.03.2020.
Aggrieved with the aforesaid entry made in
the family register relating to the petitioners
family, the petitioner has filed the present
writ petition praying for the following relief :-

"(A) Issue a writ order or
direction in the nature of certiorari
quashing the family certificate dated
04.03.2020 (Annexure No.9 to the writ
petition) issued by second respondent.

(B) Issue a writ order or direction
in the nature of certiorari quashing the
amended entry in family register dated
18.03.2020 (Annexure No.10 to this writ
petition) made by respondent no.4."

Submissions

4. Learned counsel for the petitioner
submits that order dated 04.03.2020, passed
by the office of the District Magistrate,
Mainpuri, and the consequential entries
made in the family register by the
Additional Village Development Officer,
dated 18.03.2020 are wholly without
authority of law inasmuch as the provisions
of the U.P. Panchayat Raj (Maintenance of
Family Registers) Rules, 1970, do not
empower the District Magistrate to pass
such an order.

5. Learned standing counsel has filed
today a short counter affidavit on behalf of
the respondent no.2 which runs in four
paragraphs. In paragraph 3 of the short
counter affidavit the respondent no.2 has
stated as under :-

"That
in
this
regard
it
is
submitted that the case of the petitioner is
respondent no.2 has issued the family
certificate dated 04.03.2020, whereas in
this regard it is submitted that the
respondent no.2 has not issued any kind of
family certificate in favour of any person
annexed as Annexure No.9 of the writ
petition.

In this regard it is submitted that
the heading of that certificate is amended
family relation certificate, which has been
issued
by
In-charge
Officer/Deputy
Collector only to this extent that it relates
8 All. Smt. Ram Murti Devi Vs. State of U.P. & Ors.
831
to a matter of Rs. 5000/-. Apart from this if
any dispute arises it shall be suo-moto
deemed
to
be
cancelled,
therefore,
contention of the petitioner is apparently
absolutely incorrect."

Discussion and Findings

6. On 23.03.2021, this Court passed
an order in which the aforesaid Rules,
1970, was specifically referred and it was
observed that prima facie the order of the
District
Magistrate,
Mainpuri
dated
04.03.2020,
appears
to
be
without
jurisdiction and yet the respondent no.2 in
the aforesaid short counter affidavit dated
26.03.2021 has not disclosed his source of
power to issue the amended family
members certificate.

7.

The
U.P.
Panchayat
Raj
(Maintenance of Family Registers) Rules,
1970, reads as under :-

"1.
Short
title
and
commencement. (1) These rules may be
called the Uttar Pradesh Panchayat Raj
(Maintenance of Family Registers) Rules,
1970.

(2) They shall come into force
with effect from the date of their
publication in the Gazette.

2. Form and preparation of
family register.- A family register in Form
'A' shall be prepared containing familywise
the names and particulars of all persons
ordinarily residing iņ the village pertaining
to the Gram Sabha. Ordinarily on page
shall be allotted to each family in the
register. There, shall be separae section in
the register for families belonging to the
Scheduled Castes. The register shall be
prepared in Hindi in Devanagari script.

COMMENT

Family Register - Maintenance
of - Rule 2 is mandatory Panchayats to
maintain a Family Register containing
family-wise names and particulars of all
persons ordinarily residing in the village
which popularly known as kutumb Register.
[Krishna Dutt Mishra v. State of u., au
D986 at 1017 (LB)].

3.
General
conditions
for
registration in the register.- Every person
who has been ordinarily resident within the
area of the Gram Sabha shall be entitled to
be registered in the family register.

Explanation.- A person shall be
deemed to be ordinarily resident in a
village if he has been ordinarily residing in
such village or is in possession of a
dwelling
house
therein
ready
for
occupation.

4. Quarterly entries in the family
register- At the beginning of each quarter
commencing from April in each year, the
Secretary of a Gram Sabha shall make
necessary changes in the family register
consequent upon births and death, if any,
occurring in the previous quarter in each
family. Such changes shall be laid before
the next meeting of the Gram Panchayat for
information.

COMMENT

Family
Register-Necessary
changes in- Necessary changes in Family
Register to be made by the Secretary of
Gram Sabha consequent upon birth and
death if any. Such changes shall be laid
before next meeting of Gram Panchayat for
its information. [Kristna Dutt Mishra v.
State of U.P., 2005 (2) SCD 986 at 1017
(LB)].

5. Correction of any existing
entry.- The Assistant Development Officer
(Panchayat) may, on an application made
to him in this behalf, order the correction
832 INDIAN LAW REPORTS ALLAHABAD SERIES
of any existing entry in the family register
and the Secretary of the Gram Sabha shall
then correct the register accordingly.

COMMENTS

Maintenance of family register-
Rule 5 provides for coercion and inclusion
of names. As such family register shall be
under constant surveillance of the Gram
Panchayat. [Krishna Dutt Mishra v. State
of U.P, 2005 (2) SCD 986 at 1017 (LB)].

Safe custody of family register.-
The Secretary of the Gram Panchayat shall
be responsible for safe custody of family
register. [Krishna Dutt Mishra v. State of
U.P., 2005 (2) SCD 986 at 1017 (LB)].

6. Inclusion of names in the
register-(1) Any person whose name is not
included in the family register may apply
to the Assistant Development Officer
(Panchayat) for the inclusion of his name
therein.

(2). The Assistant Development
Officer (Panchayat) shall, if satisfied,
after such enquiry, as he think fit that the
applicant is entitled to be registered in the
register direct that the name of the
applicant, be included therein and the
Secretary of the Gram Sabha shall include
the name accordingly.

[6-A. Any person aggrieved by
an order made under Rule 5 or Rule 6
may, within 30 days from the date of such
order prefer an appeal to the Sub-
Divisional Officer whose decision shall be
final]

7. Custody and preservation of
the register.-(1) The Secretary of the Gram
Sabha shall be responsible for the sage
custody of the family register.

(2) Every person shall have right
to inspect the register and to get attested
copy of any entry or extract therefrom in
such manner and on payment of such fees,
if any, as may be specified in Rules 73 of
the U.P. Panchayat Raj Rules.

8. It is well settled that if the statute
provides to do a thing in a particular manner,
then that thing has to be done in that very
manner, vide Taylor Vs. Taylor, (1876) 1
Ch.D. 426; Nazir Ahmed Vs. King Emperor,
AIR 1936 PC 253; Deep Chand Vs. State of
Rajasthan, AIR 1961 SC 1527; Haresh
Dayaram Thakur Vs. State of Maharashtra
& Ors., (2000) 6 SCC 179; Dhanajaya
Reddy Vs. State of Karnataka etc. etc.,
(2001) 4 SCC 9; Commissioner of Income
Tax, Mumbai Vs. Anjum M.H. Ghaswala &
Ors., (2002) 1 SCC 633 as well as this Court
in Atar Singh Vs. State of U.P. And others,
2013(1)ADJ43, Bankey Lal and another Vs.
Deputy Director of Consolidation and
others,2013(5)ADJ51, Phoolpati Vs. State of
U.P. And others, 2014 2 AWC1291All, Paras
and
another
Vs.and
others,
2013(8)ADJ253,Ram Pratap vs. Deputy
Director of Consolidation and others 2013
(6)ADJ 457, Rambali and others vs. State of
U.P. and Others 2013 (2) ADJ 91.

9. Rule 6 A provides for appeal. The
appeal is creation of the Statute and once the
power of appeal has been conferred upon the
Sub Divisional Officer, that authority alone
could exercise that power. The District
Magistrate has no authority to pass an order as
he is not even the Appellate Authority under the
Rules 1970. The impugned order dated
04.03.2020, passed by the District Magistrate
amounts to transgression of power.

10. In Surjit Ghosh vs. United
Commercial Bank, AIR 1995 SC 1053,
the Apex Court observed as under:-

"5. ......It is true that when an
authority
higher
than
the
disciplinary
authority itself imposes the punishment, the
8 All. Smt. Ram Murti Devi Vs. State of U.P. & Ors.
833
order of punishment suffers from no illegality
when no appeal is provided to such authority.
However, when an appeal is provided to the
higher authority concerned against the order
of the disciplinary authority or of a lower
authority and the higher authority passes an
order of punishment, the employee concerned
is deprived of the remedy of appeal which is a
substantive right given to him by the
Rules/Regulations. An employee cannot be
deprived of his substantive right. What is
further, when there is a provision of appeal
against the order of the disciplinary authority
and when the appellate or the higher
authority against whose order there is no
appeal,
exercises
the
powers
of
the
disciplinary authority in a given case, it
results
in
discrimination
against
the
employee concerned. This is particularly so
when there are no guidelines in the
Rules/Regulations as to when the higher
authority or the appellate authority should
exercise the powers of the disciplinary
authority. The higher or appellate authority
may choose to exercise the power of the
disciplinary authority in some cases while not
doing so in other cases. In such cases, the
right of the employee depends upon the
choice of the higher/appellate authority
which patently results in discrimination
between an employee and employee. Surely,
such a situation cannot savour of legality.
Hence we are of the view that the contention
advanced on behalf of the respondent-Bank
that when an appellate authority chooses to
exercise the power of disciplinary authority,
it should be held that there is no right of
appeal provided under the Regulations
cannot be accepted. The result, therefore, is
that the present order of dismissal suffers
from an inherent defect and has to be set
aside."

11. Similar view dealing with the
transgression of power has been taken by
the
Apex
Court
in
Amar
Nath
Chowdhury
vs.
Braithwaite
and
Company Ltd. and Ors., (2002) 2 SCC
290 and in Civil Appeal No. 1217 of 2011
Brij Bihari Singh vs. Bihar State
Financial
Corporation
decided
on
20.11.2015.

12. For the purposes of controversy
involved in the present writ petition Rules 6
and 6A are relevant. Perusal of Rule 6
would reveal that any person whose name
is not included in the family register may
apply to the Assistant Development Officer
(Panchayat) for the inclusion of his name
and if the Assistant Development Officer
(Panchayat) is satisfied, after such enquiry
as he thinks fit; that the applicant is entitled
to be registered in the register, he may
direct to include the name of the applicant
in the family register and thereupon the
Secretary of the Gram Sabha shall include
the name of the applicant accordingly. Rule
6-A provides for appeal within 30 days
from the date of the order, before the SubDivisional Officer whose decision shall be
final.

13. Facts of the present case clearly
reveal that neither the respondent Nos. 5, 6
& 7 have moved an application before the
Competent Authority i.e. the Additional
Development
Officer
(Panchayat)
for
inclusion of their name in the family
register nor the Assistant Development
Officer (Panchayat) has passed any order
for inclusion of their name after due inquiry
as required under Rule 6 of the Rules.
Under the circumstances the impugned
order dated 04.03.2020, passed by the
District Magistrate, Mainpuri, is wholly
without jurisdiction. Therefore, it can not
be
sustained.
Consequently,
the
consequential order dated 18.03.2020,
passed
by
the
Village
Development
834 INDIAN LAW REPORTS ALLAHABAD SERIES
Officer, incorporating the names of the
respondent nos. 5, 6 & 7, can also not be
sustained. Therefore, both the orders i.e.
the order dated 04.03.2020 passed by the
office of the District Magistrate and the
order dated 18.03.2020 making entries of
inclusion of names of the respondent nos.
5, 6 & 7 in the family register by the
Village
Development
Officer,
Village
Panchayat - Dostpur, are without authority
of law and are, therefore, quashed.

14. Liberty is granted to the
respondent nos. 5, 6 & 7 to move an
application in accordance with law before
the
Assistant
Development
Officer
(Panchayat). If such an application is filed
by the respondent nos. 5, 6 & 7 within three
weeks, then the Assistant Development
Officer (Panchayat) shall consider the
application of the respondent Nos. 5, 6 & 7
for inclusion of their names and after due
inquiry, pass an appropriate order, in
accordance
with
law,
expeditiously,
preferably within next six weeks, after
affording reasonable opportunity of hearing
to all the parties concerned and without
being influenced by any of the observations
made in this order.

15. It is made clear that we have not
expressed any opinion on merits of the case
of the petitioner for the respondent nos. 5, 6
& 7.

16. The writ petition is accordingly
allowed to the extent indicated above.
----------
(2021)08ILR A834
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.06.2021

BEFORE

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

Writ C No. 7652 of 2021

M/s. R.K. Road Lines Pvt. Ltd. ...Petitioner
Versus
Uttar Pradesh Cooperative Federation Ltd.
& Ors. ...Respondents

Counsel for the Petitioner:
Sri Bipin Lal Srivastava, Sri Liaqat Ali
Siddiqui, Sri Vinayak Verma, Sri S.K. Verma
(Senior Adv.)

Counsel for the Respondents:
C.S.C., Sri Liaqat Ali Siddiqui

Constitution of India - Art.226, Art.226 -
Writ petition - Mandamus - to enforce
contractual
rights against
State
-
maintainability - where the rights are
purely
of
a
private
character,
no
mandamus can be claimed, even if the
relief is sought against the State or any
of its instrumentality - pre-condition for
the issuance of a writ of mandamus is a
public duty - In a dispute, which is
purely contractual in nature, there is no
public duty element, to issue a writ of
mandamus - Exception - where the
amount is admitted & there is no
disputed
question
of
fact
requiring
adjudication of detailed evidence &
interpretation
of
the
terms
of
the
contract, is an exception to general
principle (Para 12, 22, 24)
Petitioner awarded contract for carrying &
handling fertilizers - After completion of work,
petitioner gave application submitting detail bills
- no payment made - claims strongly disputed -
Held - payments in respect of which petitioner
raised
claims
pertain
to
contractual
&
commercial obligations - pleadings & material on
record, do not indicate that it is a public law
remedy which the petitioners are seeking to
invoke so as to persuade Court to exercise its
discretionary jurisdiction
Dismissed. (E-4)
List of Cases cited: