# Smt. Shanti Devi v. Smt. Uma Devi and others

- **Citation:** (2008) 1 ILRA 309
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-02-29
- **Case number:** Civil Misc. Writ Petition No. 7391 of 2008
- **Bench:** Sunil Ambwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-shanti-devi-v-smt-uma-devi-and-others-41069
- **Pages:** 8

## Headnote

U.P. Punchayat Raj Act 1947-Section 12C-Election Petition-prescribed authority
decided to recounting of entire votes of
elected candidate and found 3 votes
invalid-request for re-counting of entire
votes refused-thus declared the looser
candidate
as
elected-held-process
adopted by prescribed authority-indeed
a mockery-court expressed its great
concern
about
functioning
of
administrative officer-as judicial dutylegislature to entrust these function to
the persons trained in law.

Held: Para 24 & 25

The
revisional
court
has
correctly
appreciated the law relating to recount
of votes in recording the findings. The
entire process adopted by the Prescribed
Authority was indeed a mockery on the
legal system.
310 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
Before parting with the case the Court
observes
that
India
is
a
mature
democracy and that courts have to play a
very important roll in developing election
laws. The Supreme Court and the High
Courts have interpreted and developed
the election law almost to perfection.
There is hardly any area left in election
disputes to be clarified by the courts. The
election tribunals presided by Officers
with judicial background are by and
large have advantage of the decisions of
the courts in delivering justice in election
matters.
The
executing
officers
are
however found to be severely lacking in
application of mind to these laws. A Sub
Divisional Magistrate is not trained to
understand or appreciate niceties of
election laws. Very often the cases are
coming to the court where election
tribunals manned by executive officers
are not in a position to understand or
appreciate the evidence and laws. It
gives rise to law of uncertainty and
provides an opportunity to the defeated
candidate
to
engage
the
winning
candidate in a battle for several years.
The lack of appreciation of law and
inconsistent decisions rendered by the
Prescribed Authorities under the UP
Panchayat Raj Act, leave the electorate
divided and leads to acrimony. The
legislature should consider to entrust
these powers to persons trained in law
who properly understand the election
laws. The persons with training in law
preferably a judicial officer will be better
equipped to discharge these functions.
Case law discussed:
2003 ACJ 840; 2004 ACJ 1762, AIR 1978 Alld.
260, 2003 (94) RD 108, 2003 (50) ALR 642,
AIR 2004 SC 541, 1985 ALJ 615 (Full Bench),
1992 RD 460, 1974 ALJ 371; 2006 ACJ 707;
2008 (104) RD 57 1986 ALJ 1446, 2002 (2)
AWC 954, AIR 1983 SC 848, AIR 1975 SC
2117

## Text

1 All] Smt. Shanti Devi V. Smt. Uma Devi and others
309
advertisement has been issued inviting
applications from eligible candidates and
holding of selection by a Body of Experts,
and any appointment made without
following the procedure, would be in
violation of the mandate of Article 16 of
the Constitution of India.

18. Therefore, it is evident that any
appointment made without advertising the
vacancy cannot be held to be in
conformity with the mandate of Articles
14 and 16 of the Constitution of India and
is a nullity.

19.

Appellants
claim
their
appointments in the year 1991 when the
1985 rules were already in force. Even
otherwise, if no statutory Rules providing
for the procedure of selection exist,
selections have to be based on a fair
procedure
and
in
consonance
with
Articles 14 and 16 of the Constitution of
India. It is for this reason that this Court
had called upon the appellants to file an
affidavit to support the selections on the
strength of any advertisement or any other
process which could justify the adoption
of a fair selection process. In spite of
lapse of almost 9 months, no affidavit has
been filed nor any material has been
brought on record to substantiate the
presumption of a fair procedure of
selection. On account of this lapse on the
part of the appellants, it is difficult for us
to assume that the appointment of the
appellants was made in accordance with
law.

20. Accordingly, even if the
contention with regard to the relegation of
the appellants to avail the alternative
remedy is entertained and the writ petition
is called upon to be assessed on merits,
even then the appellants have failed to
establish their rights and as such in this
view of the matter, they cannot ask this
Court for the issuance of a writ in their
favour. The appeal, therefore, lacks merit
and is accordingly dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.02.2008

BEFORE
THE HON'BLE SUNIL AMBWANI, J.

Civil Misc. Writ Petition No. 7391 of 2008

Smt. Shanti Devi

...Petitioner
Versus
Smt. Uma Devi & others ...Respondents

Counsel for the Petitioner:
Sri B.D. Mandhyan
Sri Satish Mandhyan

Counsel for the Respondents:
Sri Ramesh Chandra Tiwari
S.C.

U.P. Punchayat Raj Act 1947-Section 12C-Election Petition-prescribed authority
decided to recounting of entire votes of
elected candidate and found 3 votes
invalid-request for re-counting of entire
votes refused-thus declared the looser
candidate
as
elected-held-process
adopted by prescribed authority-indeed
a mockery-court expressed its great
concern
about
functioning
of
administrative officer-as judicial dutylegislature to entrust these function to
the persons trained in law.

Held: Para 24 & 25

The
revisional
court
has
correctly
appreciated the law relating to recount
of votes in recording the findings. The
entire process adopted by the Prescribed
Authority was indeed a mockery on the
legal system.
310 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
Before parting with the case the Court
observes
that
India
is
a
mature
democracy and that courts have to play a
very important roll in developing election
laws. The Supreme Court and the High
Courts have interpreted and developed
the election law almost to perfection.
There is hardly any area left in election
disputes to be clarified by the courts. The
election tribunals presided by Officers
with judicial background are by and
large have advantage of the decisions of
the courts in delivering justice in election
matters.
The
executing
officers
are
however found to be severely lacking in
application of mind to these laws. A Sub
Divisional Magistrate is not trained to
understand or appreciate niceties of
election laws. Very often the cases are
coming to the court where election
tribunals manned by executive officers
are not in a position to understand or
appreciate the evidence and laws. It
gives rise to law of uncertainty and
provides an opportunity to the defeated
candidate
to
engage
the
winning
candidate in a battle for several years.
The lack of appreciation of law and
inconsistent decisions rendered by the
Prescribed Authorities under the UP
Panchayat Raj Act, leave the electorate
divided and leads to acrimony. The
legislature should consider to entrust
these powers to persons trained in law
who properly understand the election
laws. The persons with training in law
preferably a judicial officer will be better
equipped to discharge these functions.
Case law discussed:
2003 ACJ 840; 2004 ACJ 1762, AIR 1978 Alld.
260, 2003 (94) RD 108, 2003 (50) ALR 642,
AIR 2004 SC 541, 1985 ALJ 615 (Full Bench),
1992 RD 460, 1974 ALJ 371; 2006 ACJ 707;
2008 (104) RD 57 1986 ALJ 1446, 2002 (2)
AWC 954, AIR 1983 SC 848, AIR 1975 SC
2117

(Delivered by Hon'ble Sunil Ambwani, J.)

1. The elections to the post of
Pradhan
of
village
Medara,
Post
Karchhana,
District
Allahabad, were
notified in the year 2005 and held on
20.8.2005. In the counting of votes among
the three contestants on 29.5.2005, that
both Smt. Shanti Devi-the petitioner and
Smt. Uma Devi-respondent no. 1, secured
237 votes each and that Smt. Rajwanti
Devi-respondent no. 2 polled 235 votes.
35 votes were found to be invalid. In a
lottery held in accordance with the Rules
between the petitioner and respondent no.
1 securing equal number of votes, Smt.
Uma Devi-respondent no. 1 was the draw
and was declared elected.

2. The petitioner preferred an
election petition under Section 12C (b) of
UP Panchayat Raj Act 1947 (in short the
Act). The written statement was filed on
7.2.2006. The proceedings were delayed
on which the petitioner filed a writ
petition in which a direction was issued
by this Court to decide the election
petition within a period of one year.

3. The Sub Divisional Magistrate,
Karchhana, exercising delegated powers
of the Election Tribunal under the Act,
summoned the entire election records. By
his order dated 12.2.2007, after taking
evidence the tribunal held on issue Nos. 1
and 2, that the draw was held in
accordance with the procedure prescribed
under the Rules, with the consent of both
the parties. On issue No. 3, the tribunal
held on the statement of Indrawati
Nishad, son of Shambhu Nath, examined
as DW-1, that Smt. Uma Devi-the
petitioner had polled 239 votes but the
agents of Smt. Shanti Devi exercised
undue pressure on the officers and got the
ballots counted again in which two votes
counted in favour of Smt. Uma Devi was
declared as invalid. The Tribunal found
that prima facie there was sufficient
evidence to show improper rejection of
1 All] Smt. Shanti Devi V. Smt. Uma Devi and others
311
the two votes in favour of Smt. Uma Devi
and directed recount of votes.

4. The Sub Divisional Magistrate,
Karchhana,
Allahabad
proceeded
to
recount the ballots on 17.2.2007. He
opened the sealed bundles of ballots of
Smt. Uma Devi-the elected candidates
and found that out of 237 ballots, three
ballots
namely
4AA6456113;
4AA6456122 and 4AA6456216 were
stamped on both the election symbols of
the election petitioner and the elected
candidate. He found that all these three
invalid ballots should have been placed in
the bundle of invalid ballots and not in the
bundles of the elected candidate.

5. In the meantime, a transfer
petition was filed by the elected candidate
before the then Revenue Officer, who
restrained the Sub Divisional Magistrate
to pass any final order in the election
petition. Aggrieved a revision was filed
under Section 192 of the Land Revenue
Act before the Commissioner, Allahabad
Division, Allahabad.

6. The interim order could not be
extended and thus the Sub Divisional
Magistrate proceeded to hear the matter.
The elected candidate requested for
recounting the entire ballots. The Sub
Divisional Magistrate in his order dated
7.3.2007, did not accept the request and
relying upon recount of votes of elected
candidate on 17.2.2007, in which he had
found three invalid votes in the bundle of
the elected candidate, declared that since
she had polled only 234 votes and Smt.
Shanti Devi had polled 237 votes she is
declared as elected. The election petition
was decided accordingly on 8.3.2007.

7. The Sub Divisional Magistrate
did not accept the request to recount the
entire ballot papers on the ground that the
elected candidate did not make any such
request before the recount of the ballot
papers and that her request for recount of
the entire votes is only an opportunistic
attitude adopted by her to take advantage
of the situation. She could have made
such a request before the order of recount
on 17.2.2007.

8. Smt. Uma Devi-respondent no. 1
filed a revision under Section 12C (6) of
the Act. The revision was heard and
allowed by the Additional District Judge,
Court No. 1, Allahabad on 25.1.2008.

9. The revisional court allowed the
revision on the ground that in absence of
sufficient and foolproof evidence of any
irregularity in the counting the petition
itself was defective. In paragraph-8 of the
election petition, Smt. Shanti Devi the
elected Pradhan had alleged that on two
ballot papers votes were cast for her but
the same was placed among the votes
polled by Smt. Uma Devi. The Tribunal
should not have recounted of votes of
Smt. Uma Devi alone. It should have got
the votes of all the candidates recounted.
The court below recorded a finding that
all three ballots were cast in a way that
created a doubt as to whether the same
were casted for Smt. Uma Devi or Smt.
Shanti Devi. The revisional court then
observed:- "the manner in which the Ld.
Court below decided the case has already
been discussed above where it has been
held that whenever any judgement is to be
given it should be given on all issues
together unless there is any legal issue
which requires findings earlier. In this
case the learned Court below gave
findings on issue Nos. 1, 2 and 3 on
312 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
12.2.2007, thereafter framed additional
issue on its own and gave his verdict on
the same on 7.3.2007. The entire process
appears to be mockery of the legal system.
As such the revision deserves to be
allowed and impugned judgement ought
to be set aside."

10. I have heard Shri Satish
Mandhyan, learned counsel for the
petitioner and Shri Ramesh Chandra
Tiwari learned counsel for the contesting
respondent.

11. The affidavits have been
exchanged. With the consent of parties,
the matter was heard at the admission
stage and is finally decided.

12. The short question that arises for
consideration in this writ petition is
whether
Sub
Divisional
Magistrate/Election Tribunal adopted a
correct procedure in firstly deciding all
the issues for the order of recount, and
thereafter declared the result only on the
basis of re-counting of the votes in the
bundles of the elected candidate.

13. Shri Satish Mandhyan, learned
counsel for the petitioner would submit
that the impugned order is ex-facie illegal,
arbitrary, whimsical and against the
settled
position
of
law.
Various
irregularities were found in the counting.
The returning officer did not accept any
of the objection made by the petitioner.
The election officer himself made a parchi
for lottery and picked up himself. His
conduct was against the principle laid
down in Section 12-C of the Act. The
evidence was led by both the parties. The
trial court however framed a fresh issue
No.4 and directed recount of votes. It was
categorically found that three votes were
added to tally of opposite party no. 1, and
as a natural consequence of three invalid
votes found in the bundle of the elected
candidate, the election petition was
allowed. The revisional court was biased
and did not go behind the order of the trial
court. His findings are perverse and are
liable to be set aside.

14. Shri Ramesh Chandra Tiwari has
supported the reasons given by the
revisional court. He submits that the order
of recount of ballots could not be
confined to recounting of the votes of the
elected candidate alone. If three ballots
created doubt the entire ballots should
have been counted to declare the result.
The petitioner had agreed to draw a
lottery and had signed on the proceedings.
She cannot thereafter turn around and
challenge a procedure of draw of lottery.
He would further submit that though the
order of the Sub Divisional Magistrate
was implemented but then after the
revisional court order, Smt. Uma Devi
elected as pradhan in the year 2005 was
given charge and that the District
Magistrate has implemented the order on
5.2.2008 implementing the order of the
revisional court and that Smt. Uma Devi
is functioning as Pradhan.

15. Shri Satish Mandhyan has relied
upon judgements in Om Prakash vs. Ist
Additional District Judge, Ballia and
others, 1999 ACJ 668; Smt. Bhoori vs.
Additional Sub Divisional Magistrate
Amroha, and others 2003 ACJ 840; and
Bhagauti vs. State of UP and others
2004 ACJ 1762 in support of his
submissions to justify the recount of votes
on the evidence led by the election
petitioner and declaration of result in her
favour. He has also cited judgement in
case of Modi Spinning & Weaving Mills
1 All] Smt. Shanti Devi V. Smt. Uma Devi and others
313
Co. and another vs. M/s Ladha Ram &
Co. AIR 1978 Alld. 260 in which it was
held that the power to frame additional
issue is a discretionary power. If the court
thinks necessary for determining the
matter in controversy, it may frame
additional issue, which is a matter only of
procedure. The framing of such issue does
not decide right of any parties and thus it
has to be treated as interlocutory order
against which a revision under Section
115 is not maintainable.

16. Shri Ramesh Chandra Tiwari has
relied upon judgements in Smt. Hazzee
vs. Prescribed Authority & others 2003
(94) RD 108; Sabir vs. Additional
District Judge, Bulandshahar & others
2003 (50) ALR 642; M. Chinnasami vs.
K.C. Palanisamy and others AIR 2004
SC 541; Ram Adhar Singh vs. District
Judge Ghazipur and others 1985 ALJ
615 (Full Bench); Hamraj vs. Sub
Divisional Officer 1992 RD 460; Dhanai
Prasad vs. Sub Divisional Magistrate
Chunar, District Mirzapur 1974 ALJ
371; Tanaji Ramchandra Nimhan vs.
Swati Vinayak Nimhan 2006 ACJ 707;
Smt. Susma Devi vs. State of UP and
others 2008 (104) RD 57 and Raifaqat
Hussain vs. Rama Shanker Kaushik
1986 ALJ 1446 and Anwar Ali vs.
Prescribed Authority 2002 (2) AWC
954. He has also relied upon Gujarat
State Financial Corporation vs. M/s
Lotus Hotels Private Ltd AIR 1983 SC
848 on promissory estoppel.

17. The substance of all these
decisions is set out in Bhabhi Vs. Sheo
Govind (AIR 1975 SC 2117) as follows:

"(1) That it is important to maintain the
secrecy of the ballot which is acrosant
and should not be allowed to be violated
on
frivolous,
vague
and
indefinite
allegations:
(2) That before inspection is allowed, the
allegations made against the elected
candidate must be supported by adequate
statements of material facts;
(3) That the Court must be prima facie
satisfied on the materials produced before
the Court regarding the truth of the
allegations made for a recount;
(4) That the Court must come to the
conclusion that in order to grant prayer
for inspection it is necessary and
imperative to do full justice between the
parties;
(5) That the discretion conferred on the
Court should not be exercised in such a
way so as to enable the applicant to
indulge in a roving inquiry with a view to
fish materials for declaring the election to
be void and
(6) That on the special facts of the given
case sample inspection may be ordered to
lend further assurance to the prima facie
satisfaction of the Court regarding the
truth of the allegations made for a
recount, and not for the purpose of fishing
out materials."

18. In S. Raghubir Singh Gill Vs. S.
Gurucharan Singh Tohra (1980 Supp.
SCC 53) it was held as under:

"True, re-count cannot be ordered
just for the asking. A petition for re-count
cannot be ordered after inspection of
ballot papers must contain an adequate
statement on material facts on which the
petitioner relies in support of his case and
secondly the Tribunal must be prima
satisfied that in order to decide the dispute
and to do complete justice between the
parties an inspection of the ballot papers
is necessary. The discretion conferred in
this behalf should not be exercised in such
314 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
a way so as to enable the applicant to
indulge in a roving inquiry with a view to
fishing out materials for declaring the
election void."

19. In Tanaji Ramchandra Nimhan
(supra) it was held in para-9:-

"9. This Court after referring to a
number of prior decisions, has held in
Mahendra Pal v. Ram Dass Malanger
and others, JT 2002 (2) SC 396; (2002) 3
SCC 457, that an order for recounting
cannot be made as a matter of course.
Unless the election petition had laid the
foundation and there was clinching
evidence to support the case set up by the
election petitioner, a recount normally
could not be ordered. In Chandrika
Prasad Yadav v. State of Bihar and
others, JT 2004 (4) SC 264; (2004) 6 SCC
331), relying on an earlier decision in M.
Chinnasamy v. K.C. Palanisamy and
others, (JT 2003 (9) SC 161; (2004) 6
SCC 341), a bench of three Judges (to
which one of us S.B. Sinha, J. was a
party) held that an election petition
seeking a recount must contain a concise
statement of material facts and clear
evidence in support of the facts pleaded. It
was held that a small margin of victory by
itself was not a ground for ordering
recount. A roving and fishing inquiry was
not permissible while directing recount of
votes. The requirement of maintaining
secrecy of ballot papers had also to be
kept in mind before directing a recount."

20. The order of the Sub Divisional
Magistrate, Karchhana dated 12.2.2007
summoning of the election records for
recount of votes was not challenged. A
perusal of the order would show that the
Prescribed Authority did not consider the
pleadings and the evidence led on the
ground of improper acceptance and
improper rejection of the ballots. It did
not even discuss the evidence to record a
prima facie finding that there was any
irregularity in counting of votes and that
the recount is necessary, after holding,
that the procedure of lottery was correctly
followed and for which both the parties
had agreed in writing. The Prescribed
Authority proceeded to order recount for
the reasons that irregularity in counting
was accepted by the opposite party No. 2
and that Indrawati Nishad son of
Shambhu Nath examined by the elected
candidate (opposite party no. 1) as DW1,
had admitted that Uma Devi had secured
239 votes, but that after the agents of
Shanti Devi created pressure, the votes
were recounted and two votes of Uma
Devi were illegally declared as invalid.
These two reasons alone were given as
the reasoning for a finding that there was
irregularity in counting of votes. The Sub
Divisional Magistrate thereafter observed
that the irregularity in counting of votes
was accepted by all the parties and then
directed to summon the election records
to recount the votes on 17.2.2007.

21. The Sub Divisional Magistrate
did not consider the pleadings and discuss
the evidence before recording prima facie
findings of irregularity in the elections.
The pleadings to the effect that two valid
votes of the election petitioner were
counted in favour of elected candidate by
playing fraud was neither proved nor any
finding was recorded on this aspect. The
Prescribed Authority did not discuss the
evidence led in support of the allegations
of improper addition of two valid votes of
the election petitioner as the valid votes of
the elected candidate. The Supreme
Court, in its decision, beginning from
1975 and followed by High Court, has
1 All] Smt. Shanti Devi V. Smt. Uma Devi and others
315
reminded the election tribunals again and
again that the secrecy of the ballot papers
should not be lightly disturbed. The order
of recount of votes must be supported by
adequate statement of material facts and
evidence on which the court must be
prima facie satisfied regarding the truth of
the allegations for the recount. The court
must come to conclusion that in order to
grant prayer for inspection it is necessary
and imperative to do full justice between
the parties. In the present case this
mandate was ignored and that the
Prescribed Authority without discussing
the sufficiency of the statement of
material facts and evidence recorded
findings on the basis of admissions made
by a third candidate arrayed as opposite
party no. 2 and on a vague statement
given by one of the defendant witnesses.

22. It is apparent from the record
that the Prescribed Authority was swayed
upon the fact that both the election
petitioner and the elected candidate had
polled equal number of votes. It did not
record a finding regarding sufficiency of
evidence supporting the allegations made
in the election petition and proceeded to
direct recount only on suspicions. The
order of recount as such was not sustained
and was set aside by the revisional court.

23. Further the court finds that the
Prescribed Authority did not pass any
order for recount of votes only in favour
of election petitioner. An order of recount
is passed to ascertain the truth of the
allegations
made
to
challenge
the
elections. If it is found that the votes were
either improperly accepted or improperly
rejected or there was any material
irregularity in elections, the election
tribunal was required to recount the entire
votes, to arrive at a positive and just
conclusion of the result of the elections.
The order of recount cannot be carried out
partially in counting the votes of the
elected candidate or the person/s who
were defeated in the elections. The order
of recount also cannot be ordered only to
count the rejected ballots. If such an order
is passed, the election tribunal would
never come to a just conclusion of the
outcome of the elections. The recount
must ascertain the truth and should not be
confined to half truth. Once the Tribunal
is satisfied that there is sufficient evidence
to support the material facts with regard
to irregularity in counting, the recount
must be made of the entire number of
votes as if a fresh recounting is being
made. The recount of few votes would not
bring out the correct result. The object of
the election tribunal in such case would
be to find out and to declare the true result
and not to support the pleadings of only
one of the parties.

24. The revisional court has
correctly appreciated the law relating to
recount of votes in recording the findings.
The entire process adopted by the
Prescribed
Authority
was
indeed
a
mockery on the legal system.

25. Before parting with the case the
Court observes that India is a mature
democracy and that courts have to play a
very important roll in developing election
laws. The Supreme Court and the High
Courts have interpreted and developed the
election law almost to perfection. There is
hardly any area left in election disputes to
be clarified by the courts. The election
tribunals presided by Officers with
judicial background are by and large have
advantage of the decisions of the courts in
delivering justice in election matters. The
executing officers are however found to
316 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
be severely lacking in application of mind
to
these
laws.
A
Sub
Divisional
Magistrate is not trained to understand or
appreciate niceties of election laws. Very
often the cases are coming to the court
where election tribunals manned by
executive officers are not in a position to
understand or appreciate the evidence and
laws. It gives rise to law of uncertainty
and provides an opportunity to the
defeated candidate to engage the winning
candidate in a battle for several years. The
lack
of
appreciation
of
law
and
inconsistent decisions rendered by the
Prescribed Authorities under the UP
Panchayat Raj Act, leave the electorate
divided and leads to acrimony. The
legislature should consider to entrust
these powers to persons trained in law
who properly understand the election
laws. The persons with training in law
preferably a judicial officer will be better
equipped to discharge these functions.

26. The writ petition is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.02.2008

BEFORE
THE HON'BLE SUSHIL HARKAULI, J.
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 840 of 2005
Connected with

Writ Petitions Nos. 875 of 2005, 1080 of
2005, 1283 of 2005, 1414 of 2005, 1511
of 2005, 1565 of 2005, 1596 of 2005,
1597 of 2005, 1617 of 2005, 543 of 2006,
597 of 2006, 845 of 2006, 1009 of 2006,
1010 of 2006, 1059 of 2006, 1060 of
2006, 1061 of 2006, 1062 of 2006, 1063
of 2006, 1064 of 2006, 1124 of 2006,
1125 of 2006, 1301 of 2006, 1325 of
2006, 1381 of 2006
Oriental Bank of Commerce ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Bharatji Agarwal
Sri Tarun Verma
Sri Ashok Bhatnagar

Counsel for the Respondents:
S.C.

Constitution of India Art. 226-Alternative
Remedy-U.P.
Trade
Tax
Act-1948Whether transaction of renting lockersamount to sale or transfer of Rights?-
pure
question
of
law-No
disputed
question
of
facts
involved-if
this
question decided in favour of petitioner
impugned demand of Trade Tax-would
be
wholly
without
jurisdiction-heldalternative remedy 'No bar'-writ petition
can be directly decided on merit.

Held: Para 8

We propose to deal first with the
preliminary
objection
raised
by
the
respondents that the petitioners have a
statutory alternative remedy of appeal
and, therefore, the writ petitions are
liable to be dismissed on the ground of
availability of alternative remedy. From
the pleadings of the parties, it is evident
that the pure and simple question of law
involved in these cases is whether
renting
out
a
Locker
amounts
to
"transfer of right to use goods" and is
taxable under the Act. If it is not taxable
under the Act, the entire proceedings are
wholly without jurisdiction. One of the
exceptions to the principle of exhaustion
of alternative remedy is where the order
impugned is wholly without jurisdiction.
Since, there are no disputed questions of
fact involved in this case and pure legal
question
has
been
raised
which
if
decided in favour of the petitioners, the
entire proceedings and the impugned
orders
would
be
wholly
without
jurisdiction, we are of the view that the