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

- **Citation:** (2024) 1 ILRA 1331
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-12-22
- **Case number:** Writ-C No. 31940 of 2023
- **Bench:** MRS. MANJU RANi CHAUHAN
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-ramshri-v-state-of-u-p-ors-50895
- **Pages:** 8

## Headnote

Enquiry Rules, 1997 - Petitioner challenged
the order dated 21.08.2023 ceasing her
financial
and
administrative
powers
as
Pradhan, alleging the complaint lacked proper
affidavits as required under Rule 3 of the
1997 Enquiry Rules - Held, while Rule 3(2)
and
(3)
mandate
that
complaints
be
accompanied by verified affidavits, noncompliance is an irregularity, not an illegality,
and does not vitiate proceedings, as the
District Magistrate has suo motu powers
under Rule 4 to initiate a preliminary enquiry
even without a compliant complaint, per
Vivekanand Yadav Vs St. of U.P.. (Paras 4, 5,
15, 19, 20, 23, 24, 26, 27, 28)

B. Suo Motu Powers of District Magistrate
Under Rule 4 - Petitioner argued that the
complaint's non-compliance with Rule 3(2) and
(3) rendered the proceedings void - Held, the
term "otherwise" in Rule 4 grants the District
Magistrate authority to order a preliminary
enquiry suo motu, even in the absence of a
valid complaint or report, and the Pradhan has
no right to object to the complaint's format, as
established in Vivekanand Yadav Vs St. of U.P..
(Paras 20, 21, 22, 24, 26, 27)

C. Procedural Irregularities vs. Illegality -
Petitioner contended that the complaint's lack of
proper verification under Rule 3(3) invalidated
the proceedings - Held, non-filing or improper
verification of affidavits is a curable technical
defect, not an illegality, and should not defeat
substantive rights or cause injustice, as per
Uday Shankar Triyar Vs Ram Kalewar Prasad
Singh and A. Manju Vs Prajwal Revanna. The
petitioner's failure to raise this objection at the
initial stage further weakens the claim. (Paras
28, 29, 32, 33)

D. Natural Justice and Consideration of
Reply - Petitioner argued that the District
Magistrate's order was passed casually without
considering her reply to the show-cause notice -
Held, the court found no merit in this claim, as
the complaint and preliminary enquiry report
provided a basis for the order under Section
95(1)(g) of the U.P. Panchayat Raj Act, 1947,
and
the
petitioner's
reply
was
deemed
considered, with no evidence of procedural
unfairness. (Paras 3, 11, 34)

E. Purpose of Verification and Democratic
Principles - Petitioner claimed that improper
complaints undermine the democratic role of an
elected Pradhan - Held, the purpose of
verification is to ensure genuineness, but minor
procedural defects by complainants, often
illiterate voters, should not obstruct enquiries
into allegations of abuse of position, as the Act
aims to protect public interest, and technicalities
should not defeat justice, per Uday Shankar
Triyar Vs Ram Kalewar Prasad Singh. (Paras 9,
10, 29, 30, 31, 32)

Writ Petition Dismissed.

List of Cases cited:

## Text

1 All. Smt. Ramshri Vs. State of U.P. & Ors.
1331
(2024) 1 ILRA 1331
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.12.2023

BEFORE

THE HON'BLE MRS. MANJU RANi
CHAUHAN, J.

Writ-C No. 31940 of 2023

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

Counsel for the Petitioner:
Ms. Suchita Tripathi, Sri Naresh Chandra
Tripathi

Counsel for the Respondents:
C.S.C., Sri Jay Singh Yadav

A. Panchayat Raj - Validity of Complaint
Under U.P. Panchayat Raj (Removal of
Pradhans, UP-Pradhans and Members)
Enquiry Rules, 1997 - Petitioner challenged
the order dated 21.08.2023 ceasing her
financial
and
administrative
powers
as
Pradhan, alleging the complaint lacked proper
affidavits as required under Rule 3 of the
1997 Enquiry Rules - Held, while Rule 3(2)
and
(3)
mandate
that
complaints
be
accompanied by verified affidavits, noncompliance is an irregularity, not an illegality,
and does not vitiate proceedings, as the
District Magistrate has suo motu powers
under Rule 4 to initiate a preliminary enquiry
even without a compliant complaint, per
Vivekanand Yadav Vs St. of U.P.. (Paras 4, 5,
15, 19, 20, 23, 24, 26, 27, 28)

B. Suo Motu Powers of District Magistrate
Under Rule 4 - Petitioner argued that the
complaint's non-compliance with Rule 3(2) and
(3) rendered the proceedings void - Held, the
term "otherwise" in Rule 4 grants the District
Magistrate authority to order a preliminary
enquiry suo motu, even in the absence of a
valid complaint or report, and the Pradhan has
no right to object to the complaint's format, as
established in Vivekanand Yadav Vs St. of U.P..
(Paras 20, 21, 22, 24, 26, 27)

C. Procedural Irregularities vs. Illegality -
Petitioner contended that the complaint's lack of
proper verification under Rule 3(3) invalidated
the proceedings - Held, non-filing or improper
verification of affidavits is a curable technical
defect, not an illegality, and should not defeat
substantive rights or cause injustice, as per
Uday Shankar Triyar Vs Ram Kalewar Prasad
Singh and A. Manju Vs Prajwal Revanna. The
petitioner's failure to raise this objection at the
initial stage further weakens the claim. (Paras
28, 29, 32, 33)

D. Natural Justice and Consideration of
Reply - Petitioner argued that the District
Magistrate's order was passed casually without
considering her reply to the show-cause notice -
Held, the court found no merit in this claim, as
the complaint and preliminary enquiry report
provided a basis for the order under Section
95(1)(g) of the U.P. Panchayat Raj Act, 1947,
and
the
petitioner's
reply
was
deemed
considered, with no evidence of procedural
unfairness. (Paras 3, 11, 34)

E. Purpose of Verification and Democratic
Principles - Petitioner claimed that improper
complaints undermine the democratic role of an
elected Pradhan - Held, the purpose of
verification is to ensure genuineness, but minor
procedural defects by complainants, often
illiterate voters, should not obstruct enquiries
into allegations of abuse of position, as the Act
aims to protect public interest, and technicalities
should not defeat justice, per Uday Shankar
Triyar Vs Ram Kalewar Prasad Singh. (Paras 9,
10, 29, 30, 31, 32)

Writ Petition Dismissed.

List of Cases cited:

1. Kesari Devi Vs St. of U.P., 2005 (4) AWC
3536

2. M/s. Sukhwinder Pal Bipan Kumar Vs St. of
Punjab, AIR 1982 SC 65

3. A.K.K. Nambiar Vs U.O.I., AIR 1970 SC 652
1332 INDIAN LAW REPORTS ALLAHABAD SERIES
4. Amar Singh Vs U.O.I., (2011) 7 SCC 69

5. Smt. Jagbiri, Pradhan Gram Panchayat Vs St.
of U.P., 2009 (106) RD 646

6. Bhagwan Deen Verma Vs St. of U.P., 2005
(4) AWC 3281

7. Vivekanand Yadav Vs St. of U.P., 2010 (10)
ADJ 1 (FB)

8. Uday Shankar Triyar Vs Ram Kalewar Prasad
Singh, (2006) 1 SCC 76

9. A. Manju Vs Prajwal Revanna, (2022) 3 SCC
269

(Delivered by Hon'ble Mrs. Manju Rani
Chauhan, J.)

1. Heard Mr. N.C. Tripathi along with
Suchita Tripathi, learned counsel for the
petitioner and learned Standing Counsel for
the State-respondents.

2. The writ petition has been filed
assailing the order dated 21.08.2023 passed
by respondent no.3 vide which the financial
and administrative powers of the petitioner
Pradhan has been ceased.

3. Brief facts of the case are; that the
petitioner was elected Pradhan of Gram
Panchayat Tedhi, Tehsil Dataganj, District
Budaun, for a period of five years as per
the elections held in the year 2021. It
appears that a complaint was made against
the
petitioner
regarding
serious
irregularities in the development work in
the
concerned
village.
The
District
Magistrate by order dated 28.12.2022
directed the District Minority Welfare
Officer and Assistant Engineer to conduct a
preliminary enquiry, report of which, was
submitted before the District Magistrate, on
the basis of which a show cause notice
dated 04.05.2023 was issued to the
petitioner as to why the petitioner's
financial and administrative powers should
not be ceased in exercise of powers under
Section 95(1)(g) of U.P. Panchayat Raj
Act, 1947, (in short "Act of 1947"). The
petitioner submitted an application dated
31.05.2023 requesting to provide copy of
the complaint and enquiry report as
referred in the show cause notice. The
District Panchayat Raj Officer by letter
dated 03.06.2023 sent one page complaint
and photocopy of the preliminary enquiry
report along with a covering letter dated
25.02.2023 directing her to file a reply
within three days to the show cause notice
dated
04.05.2023.
As
the
petitioner
required all the documents for submission
of reply to the show cause notice, she
applied for a copy of complaint along with
affidavits filed in support thereof under
Right to Information Act and she has been
provided a copy of complaint along with all
affidavits filed in support thereof vide
covering letter dated 24.08.2023 issued by
District Panchayat Raj Officer, Budaun.
The petitioner submitted her reply in the
first week of June, 2023 and the District
Magistrate, without following the proper
procedure as prescribed under law, has
passed
the
impugned
order
dated
21.08.2023 ceasing the financial and
administrative powers of the petitionerPradhan, hence, the present petition has
been filed.

4. Learned counsel for the petitioner
has referred to Sub Rule 5 of Rule 3 of the
Uttar Pradesh Panchayat Raj (Removal of
Pradhans, Up-Pradhans and Members)
Enquiry Rules, 1947, (hereinafter referred
as "Enquiry Rules 1997") and submits that
the complaint is not in accordance with the
provisions as required under Rule 3 of the
Enquiry Rules, 1997 as Rule 3 Sub Clause
(2)
clearly
contemplates
that
every
1 All. Smt. Ramshri Vs. State of U.P. & Ors.
1333
complaint
shall
be
accompanied
by
complainant's own affidavit in support
thereof and also affidavits of all persons
from whom she claims to have received
information
of
fact
relating
to
acquisitions,
verified
before
notary,
together with all documents in her
possession
of
power
pertaining
to
acquisition.

5. As per Rule 3(3) of Enquiry
Rules 1997, every complaint and affidavit
as well as any Schedule or Annexures
thereto shall be verified in the manner
laid down in the Code of Civil Procedure,
1908 for the verification of pleadings and
affidavits respectively. The complaint as
made by the petitioner does not comply
with
the
aforesaid
rules,
thus,
no
proceedings under U.P. Panchayat Raj
Act could have been initiated on such a
complaint. In support of her submission,
she has relied upon a judgement of this
court passed in case of Kesari Devi Vs.
State of U.P. and Others, 2005 4 AWC
3536, wherein paragraph 167, Clause IX,
the Court has concluded that as the
complaint itself was not in accordance
with the rules in view of the Clause 5 of
Rule 3 of Rules of 1997, the Government
could not have proceeded with the
preliminary enquiry.

6.

Learned
counsel
for
the
petitioner, therefore, submits that as the
mandatory requirement of filing the
complaint supported by an affidavit as
laid down in detail in the 1997 Rules has
not been complied with, therefore, the
entire proceedings are bad. It is settled
law that where a statute requires to do a
certain thing in a certain way, the thing
must be done in that particular way or not
at all, thus, when the basic order is illegal,
the consequential order cannot be given
effect too.

7. The second set of argument as
raised by learned counsel for the petitioner
is with respect to the complaint being
vague. He
further
submits
that
the
complaint
should
be
such
that
the
allegations as made against an elected
member like Pradhan is in a position to
give a reply to the same. He further submits
that the allegations in the complaint should
be supported by an affidavit as required
under the relevant rules. In case, the
allegations in the complaint are not
supported by an affidavit as required under
law, then, only the necessary particulars of
the charge making out a prima facie case
can be looked into and replied by the
person against whom such a complaint is
made and as to whether the complaint is
genuine or a biased one.

8. In support of his submission,
learned counsel for the petitioner has relied
upon paragraph 12 of Supreme Court
judgement
passed
in
case
of
M/s.
Sukhwinder Pal Bipan Kumar v. State of
Punjab, AIR 1982 SC 65.

9. He has also relied upon Supreme
Court judgement, passed in case of A.K.K.
Nambiar v. Union of India and another,
AIR 1970 Supreme Court 652, wherein,
the reasons for verification of affidavits are
to enable the Court to find out which facts
can be said to be proved on the affidavit as
evidence of rival parties. Allegations may
be true to knowledge or allegations may be
true to information received from persons
or allegations may be based on record. The
importance of verification is to test the
genuineness
and
authenticity
of
the
allegations, thus, the complaint should be
1334 INDIAN LAW REPORTS ALLAHABAD SERIES
accompanied by proper and verified
affidavits.

10. Placing reliance upon paragraphs
29 and 64 of Supreme Court judgement
passed in case Amar Singh v. Union of
India And Others, (2011) 7 SCC 69,
learned counsel for the petitioner submits
that verification of affidavits are to enable
the Court to find out which facts can be
said to be proved on the affidavit as
evidence of rival parties, in essence,
verification is required to enable the
Court to find out as to whether it will be
safe to act on such affidavit evidence.
Learned counsel for the petitioner further
submits that ceasing the financial and
administrative powers of an elected
Pradhan virtually amounts to dethroning
an elected person in an undemocratic
manner. If such matters of ceasing
financial and administrative powers of
elected persons are dealt with in such a
casual manner, the very purpose of
having a democratically elected person
would be defeated, as they would always
be at the mercy of executive. Thus, the
same cannot be exercised in a routine
course or casual manner.

11. In the present case, the charges
are not specific and the reply as
submitted by the petitioner has not been
considered in detail, thus, not considering
the reply submitted in response to the
show cause notice means that the
impugned order has been passed in a very
casual
manner,
hence,
cannot
be
sustained in the eyes of law. In support of
his submission, he has relied upon the
judgement of this Court passed in case of
Smt. Jagbiri, Pradhan Gram Panchayat
v. State of U.P., 2009 (106) RD 646 and
Bhagwan Deen Verma v. State of U.P.,
2005 (4) AWC 3281.

12. Learned counsel for the petitioner
lastly submits that when the initial
proceedings i.e. complaint being filed as
per Rule 3(3) is bad, the consequential
proceedings on the basis of such complaint
are also vitiated. It is settled provisions of
law that the Act has to be done as required
by the statute or not at all, thus, impugned
orders are liable to be quashed.

13. Learned Standing Counsel on the
other hand submits that the Pradhan has no
right to object that complaint or report is
not in accordance with Rule 3 of the
Enquiry Rules. He submits that there is no
illegality and infirmity in the order as from
the records as placed before the Court, the
complaint has been made in accordance
with law and a notarized affidavit has been
submitted by the complainant.

14. Heard learned counsel for the
parties and perused the record.

15. Before discussion of the case on
merits, it would be appropriate to quote Rule
3 of Rules of 1997, which is hereunder:-

(1)
Any
person
making
a
complaint against a Pramukh, Up-Pramukh,
Adyaksha or Upadhyaksha may send his
complaint to the Secretary to the State
Government
in
the
Panchayati
Raj
Department, Vidhan Bhawan, Lucknow.

(2) Every complaint referred to in
sub-rule (1) shall be accompanied by the
complainant's own affidavit in support
thereof and also affidavits of all persons
from whom he claims to have received
information
of
fact
relating
to
the
accusation,
verified
before
a
notary,
together
with
all
documents
in
his
possession or power pertaining to the
accusation.
1 All. Smt. Ramshri Vs. State of U.P. & Ors.
1335

(3) Every complaint and affidavit
under this rule as well as any schedule or
annexure thereto shall be verified in the
manner laid down in the Code of Civil
Procedure, 1908 for the verification of
pleadings and affidavit respectively.

(4) Not less than three copies of
the complaint as well as of each of its
Annexures shall be submitted by the
complainant.

(5) A complaint which does not
comply
with
any
of
the
foregoing
provisions shall not be entertained."

16. Accordingly, Rule 3 of the 1997
Rules provides, every complaint and
affidavit shall be verified in the manner laid
down in the Code of Civil Procedure, 1908
(hereinafter
called
'C.P.C.')
for
the
verification of the pleadings and affidavit
respectively. Order VI Rule 15 C.P.C.
Provides for verification of the pleadings. It
provides that every pleading shall be
verified at the foot by the party acquainted
with the facts of the case. The pleadings
have to be numbered in paragraphs and he
has to explain as to which paragraph is
being verified on his personal knowledge
and which upon information received and
believes it to be true. The person verifying
the pleadings shall also furnish an affidavit
in support of his pleadings.

17. At this juncture, it has to be seen
whether any provision is mandatory or
directory, in addition to-the language used
therein, the Court has to examine the
context in which the provision is used and
the purpose it seeks to achieve/ It may also
be necessary to find out the intent of the
legislature for enacting it and the serious
and general inconveniences or injustice to
persons
relating
thereto
from
its
application. The provision is mandatory if
it is passed for the purpose of enabling the
doing of something and prescribes the
formalities for doing certain things.

18. Whether a provision is mandatory
or directory, would, in the ultimate
analysis, depends upon the intent of the
law-maker and that has to be gathered not
only from the phraseology of the provision
but also by considering its nature, its design
and the consequence which would follow
from construing it in one way or the other.

19. Legislative intent is clear from
language of Rule 3 of the Enquiry Rules,
which is titled procedure relating to a
complaint and provides how a complaint
may be made. It provides two ways, one by
a private person that has to be supported by
an affidavit and has to comply other
conditions of sub-rule (1) to (4) of rule 3
{rule 3(1) to 3(4)}, the other by a public
servant, and in this case the restrictions of
the complaint by a private person do not
apply.

20. Rule 4 of Rules of 1997
provides;
that
DM
can
order
a
preliminary enquiry on the complaint or
report or otherwise. The word complaint
or report refers to the complaint by a
private person or to the report by a public
servant under rule 3. The report of the
public servant need not conform to the
restrictions of a complaint by a private
person. The question is what does the
word 'otherwise' in Rule 4 mean.

21. Words and Phrases Permanent
Edition Volume 30-A Page (230) explains,
'Otherwise means but for or under other
circumstances...one of the usual meanings
of otherwise is contrarily. The Black's Law
dictionary explains it to the mean, 'In a
1336 INDIAN LAW REPORTS ALLAHABAD SERIES
different manner, in another way, or in
other ways'.

22. The enquiry under rule 4 is a
preliminary or a fact finding enquiry. It has
to consider prima facie whether any
financial or other irregularities have been
committed by the pradhan or not. The final
enquiry is yet to be done. Considering the
object, there is no reason to give any
restricted meaning to the word 'otherwise'
in rule 4. The normal meaning of
'otherwise' should be adopted. The DM has
power to refer a case for preliminary
enquiry even if there is no complaint or
report or in other words he has powers to
act suo moto."

23. Rule 3(5) of the Enquiry Rules
provides that the complaint, which does not
comply with any of the preceding sub-rules
of rule 3 should not be entertained.
However, even if the complaint is not to be
entertained yet, the DM can always refer
the matter for the preliminary enquiry, if he
considers that it should be so enquired, he
can act suo moto.

24. This Court does not agree with
the submissions as made by learned
counsel for the petitioner that the Pradhan
has right to object to the format of the
complaint. If the DM can order for the
preliminary enquiry even in a case, where
a complaint could not to be entertained,
then what is the purpose of permitting a
Pradhan to object regarding its nonconformity with rule 3(1) to 3(4).

25. This Court feels that any objection
raised
by
Pradhan
regarding
nonconformity of complaint with Rule 3 of
Rules 1997 appears to be a futile exercise.
It is for the DM to consider whether he
should entertain the complaint or not.

26. This Court is of the opinion that
the word 'otherwise' in rule 4 means that
the DM has suo moto powers to order a
preliminary enquiry. In an appropriate case,
the DM may order a preliminary enquiry
even if there is no complaint or report or a
defective complaint, not in accordance with
rules 3(1) to 3(4). A pradhan has no right to
object that a complaint is not in accordance
with rule 3(1) to 3(4) of the Enquiry Rules,
1997.

27. A detailed discussion regarding
the aforesaid views as taken by this Court
finds place in Full Bench judgement passed
in case of Vivekanand Yadav vs. State of
U.P. and another reported in 2010(10)
ADJ 1 (FB).

28. This Court feels that the objection
as taken by learned counsel for the
petitioner that the complaint was not given
in proper format as prescribed in rule 3(3)
of Rules of 1997 would be taken as an
irregularity on the part of complainant and
in case, such a complaint has not been
given in proper format, it would not be an
illegal complaint. There is clear distinction
between irregularity and illegality, if
irregularities are curable, it should not been
allowed to defeat substantive rights and
cause injustice to the parties. The procedure
should never be a tool to deny justice.

29. The Hon'ble Apex Court in the
case of Uday Shankar Triyar vs. Ram
Kalewar Prasad Singh & Anr., (2006) 1
SCC 76, has held that procedural defects
and irregularities which are curable should
not be allowed to defeat substantive rights
or to cause injustice.

30. This Court finds that an
inadvertent mistake on the part of voter
who has elected the Pradhan has to be
1 All. Smt. Ramshri Vs. State of U.P. & Ors.
1337
ignored keeping in mind the purpose for
which he has elected Pradhan, who is
supposed to look into the development of
the village where the voter resides. The
financial and administrative powers of
Pradhan are ceased on following grounds:

"95. Inspection - (1) The State
Government may -

(g) remove a Pradhan, UpPradhan or member of a Gram Panchayat
or
a
Joint
Committee
or
Bhumi
Prabandhak Samiti, or a Panch, Sahayak
Sarpanch or Sarpanch of a Nyaya
Panchayat if he -

i-
absents
himself
without
sufficient cause for more than three
consecutive meetings or sittings.

ii- refuses to act or becomes
incapable
of
acting
for
any
reason
whatsoever or if he is accused of or
charged for an offence involving moral
turpitude.

iii- has abused his position as
such or has persistently failed to perform
the duties imposed by this Act or rules
made thereunder or his continuance as such
is not desirable in public interest, or

[iii-a has taken the benefit of
reservation under sub-section (2) of Section
11-A or sub-section (5) or Section 12, as
the case may be, on the basis of a false
declaration subscribed by him stating that
he is a member of Scheduled Castes, the
Scheduled Tribes or the backward classes,
as the case may be.]

iv- being a Sahayak Sarpanch or a
Sarpanch of the Nyaya Panchayat takes
active part in politics, or

v- suffers from any of the
disqualifications mentioned in Clauses (a)
to (m) of Section 5-A;

Provided that where, in an
enquiry held by such person and in such
manner as may be prescribed, a Pradhan or
Up-Pradhan is prima facie found to have
committed financial and other irregularities
such Pradhan or Up-Pradhan shall cease to
exercise and perform the financial and
administrative powers and functions, which
shall, until he is exonerated of the charges
in the final enquiry, be exercised and
performed by a Committee consisting of
three
members
of
Gram
Panchayat
appointed by the State Government."

31. In case a voter has pointed out in
his way not always being literate, the way
in which the Pradhan has abused his
position, the same has to be looked into
even if it has not been made in a proper
format.

32. In the case of A. Manju vs.
Prajwal Revanna Alias Prajwal R And
others, (2022) 3 SCC 269, the Court has
held that non filing of affidavit or non
filing of proper verification is technical
defect which is curable by allowing
candidate/complainant
to
file
proper
affidavit.

33. Thus, non filing of complaint in
proper format is an irregularity which was
curable, in case, objection was raised at the
right stage, even while submitting the
reply, the petitioner has not raised any
objection with respect to the aforesaid fact,
any such objection should have been raised
at the initial stage and no subsequent or
new ground can be taken at that stage when
final orders have been passed wherein the
Court feels that there was no requirement
1338 INDIAN LAW REPORTS ALLAHABAD SERIES
of not entertaining the complaint on the
ground as taken by the learned counsel for
the petitioner.

34. In view of the discussions made
above, no grounds for interference is made
out,
the
writ
petition
is
dismissed
accordingly.

35. However, it is open to the
authorities to complete final enquiry within
a period of two months, in accordance with
law, by means of reasoned and speaking
order. The petitioner is directed to cooperate in the enquiry.
----------
(2024) 1 ILRA 1338
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.12.2023

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE MANOJ BAJAJ, J.

Writ-C No. 36361 of 2019
With
Writ C 4812 of 2020

M/s Nishant Traders, Basti ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Devbrat Mukherjee

Counsel for the Respondents:
C.S.C.

A. Mining Law - Forfeiture of Deposits
Under U.P. Minor Minerals (Concession)
Rules, 1963 - Petitioner challenged the
cancellation of the Letter of Intent (LoI) dated
13.11.2017 and forfeiture of earnest money,
security money, and first installment vide order
dated 22.01.2020, arguing that only a penalty
under Rule 59 could be imposed - Held, under
the unamended Rule 59 (pre-13.08.2019),
failure to submit a mining plan within one
month of the LoI subjected the petitioner to a
penalty of Rs. 1,00,000, deductible from the
security money, and no provision allowed
forfeiture of the entire deposits, rendering the
forfeiture illegal. (Paras 6, 9, 10, 18, 19)

B. Retrospective Application of Amended
Rule 59 - Respondents argued that the
amended Rule 59 (post-13.08.2019) permitted
forfeiture of the first installment and security
money for failure to execute the lease postenvironmental clearance - Held, the amended
Rule 59, effective from 13.08.2019, does not
apply retrospectively to the petitioner's case, as
the LoI was issued on 13.11.2017 and the
petitioner's
application
dated
18.01.2018
predated the amendment, per Commissioner of
Income Tax Vs Bajpur Co-operative Sugar
Factory Ltd., N.T. Devin Katti Vs Karnataka
Public Service Commission, and P. Mahendran
Vs St. of Karnataka - The unamended Rule 59
governs, limiting the penalty to Rs. 1,00,000.
(Paras 10, 14, 18)

C. Application of Rule 59 and Rule 34 -
Petitioner contended that failure to submit a
mining plan under Rule 34 within one month
triggered only a penalty under Rule 59, not
forfeiture - Held, Rule 59 (unamended) clearly
stipulates a penalty of Rs. 1,00,000 for noncompliance with Rule 34's requirement to
submit a mining plan within one month, and the
District Magistrate was required to impose this
penalty and refund the remaining deposits, as
no forfeiture clause existed in the 1963 Rules or
the LoI. (Paras 6, 9, 10, 12, 18)

D. Procedural Fairness - Non-Disclosure of
Enquiry Report - Petitioner alleged that the
enquiry report dated 26.02.2019, relied upon by
the Revisional Court's order dated 16.09.2019,
was not shared, violating natural justice - Held,
while the non-disclosure of the report was not
directly addressed, the court's focus on the
inapplicability
of
forfeiture
under
the
unamended
Rule
59
rendered
the
issue
secondary, as the penalty was limited to Rs.
1,00,000, and the remaining deposits were to
be refunded. (Paras 2, 18, 20)

E.
St.'s
Admission
in
Affidavit
-
Respondents' affidavit calculated a penalty of