# Sri Gurudwara Committee, Chakeri v. Union of India & Ors

- **Citation:** (2015) 1 ILRA 495
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-02-26
- **Case number:** Writ-C No. 69020 of 2014
- **Bench:** B. Amit Sthalekar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sri-gurudwara-committee-chakeri-v-union-of-india-ors-43210
- **Pages:** 8

## Headnote

Constitution
of
India,
Art.-226Alternative
remedy-Revision-order
passed
by
District
Judge
rejecting
objection
under
section
3-A(4)
of
National High way Act, 1956-only the
Principal
Judge
of
Civil
Court
has
jurisdiction, hence reference bad-heldPrincipal Civil Court as defined under
section 3(15) of General Clause Act
1897-'District Judge' being judge of
Principal Civil Court having original
jurisdiction-order
passed
by
District
Judge
remedy
to
evoke
revisional
jurisdiction writ either under Article 226
or 227-not maintainable-conversion of
Writ Petition into revision permitted.
Held: Para-17 & 18

## Text

1 All]
Sri Gurudwara Committee, Chakeri Vs. Union of India & Ors.
495
13. Division Bench of this Court in
the case of Lal Sharan Vs. State of U.P.
and others (Supra) has held that mere
intention to obtain sanction for initiating
disciplinary enquiry could not be basis for
withholding the post retiral dues unless
sanctioned, granted and the disciplinary
proceedings started.
14. Apex Court in the case of State
of Punjab and another Vs. Iqbal Singh,
(Supra) has further held that since the cut
of the pension and the gratuity adversely
affects the retired employee as such order
can not be passed
without giving
reasonable opportunity of making his
defence.
15. We have also perused the
Government Order dated 28.10.1980,
annexure-CA-1 to the counter affidavit,
which
has
been
made
basis
for
withholding the part of the pension and
allowing
the
interim
pension.
This
Government Order provides the payment
of interim pension where the departmental
proceeding are pending. None of the
circular, Government Order or any
provision has been referred before us,
which
provides
that
where
no
departmental proceeding is pending, still
the pension can be withheld."
8. It is also not the case of
respondents that in the criminal case,
there is any allegation of loss to the
Government and there is recovery to be
made from the petitioner, which is the
only exception recognized by this Court
in the above mentioned authorities where
final pension etc. may not be paid and
respondents may withhold the same.
9. For the reason stated therein, and
in view of the above authorities, the writ
petition is allowed and the impugned
order dated 16.1.2014 is set aside. The
respondents are directed to pay retiral
benefits and final pension to petitioner
forthwith within a period of two months
from the date of production of a certified
copy of this order.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.02.2015
BEFORE
THE HON'BLE B. AMIT STHALEKAR, J.
Writ-C No. 69020 of 2014
Sri Gurudwara Committee, Chakeri
 ...Petitioner
Versus
Union of India & Ors.
...Respondents
Counsel for the Petitioner:
Sri B. Dayal, Sri Niraj Agarwal, Sri Vishnu
Sahai
Counsel for the Respondents:
C.S.C., A.S.G.I., Sri Ishan Shishu, Sri
Ramesh Chandra Agrahari
Constitution
of
India,
Art.-226Alternative
remedy-Revision-order
passed
by
District
Judge
rejecting
objection
under
section
3-A(4)
of
National High way Act, 1956-only the
Principal
Judge
of
Civil
Court
has
jurisdiction, hence reference bad-heldPrincipal Civil Court as defined under
section 3(15) of General Clause Act
1897-'District Judge' being judge of
Principal Civil Court having original
jurisdiction-order
passed
by
District
Judge
remedy
to
evoke
revisional
jurisdiction writ either under Article 226
or 227-not maintainable-conversion of
Writ Petition into revision permitted.
Held: Para-17 & 18
17. It is noteworthy and not denied by
the petitioner that when his case was
not referred to the Court but a reference
had
been
made
by
the
competent
496
 INDIAN LAW REPORTS ALLAHABAD SERIES
authority to the principal civil court of
original jurisdiction by the impugned
order dated 21.09.2014 under Section 3H (4) of the Act, 1956, the petitioner had
filed
his
own
claim
petition
on
18.01.2013 claiming that he was a
person entitled to receive compensation
(as averred in paragraph 9 of the writ
petition). Thus the petitioner had himself
submitted to the jurisdiction of the
District
Judge,
Kanpur
being
the
principal
civil
court
having
original
jurisdiction in the matter and it is not
that the District Judge did not have
jurisdiction to entertain the reference
and examine the dispute since the
statutory provision of Section 3-H (4)
confers such power upon the principal
civil court having original jurisdiction.
18. Therefore considering the matter in
its entirety and with regard to the facts
of the case and the case law referred to
hereinabove , I am of the view this writ
petition
under
Article
226
of
the
Constitution of India is not maintainable
and the only remedy for the petitioner is
by way of a revision as held by the
Supreme Court in the case of Sadhana
Lodh (supra).
Case Law discussed:
(2003) 3 SCC 524; (1976) 3 SCC 719; AIR
1977 SC 747 [1977 (2) SCC 457]; AIR 1981 SC
701[1981(2) SCC 103]; (1972) 4 SCC 168.
(Delivered by Hon'ble B. Amit Sthalekar, J.)
1. The petitioner in this writ petition
is seeking quashing of the order dated
21.09.2012 passed by the Prescribed
Authority under the National Highways
Act, 1956 (hereinafter referred to as the
Act, 1956) under Section 3-H (4) and the
order dated 05.12.2014 passed by the
Additional Judge, Kanpur Nagar.
2. Briefly stated the case of the
petitioner is that he is the owner of two
plots, namely, plot no.48 measuring 53.55
sqm. and another plot no.49 measuring
136.50 sqm. situated in Village Safipur,
Kanpur Nagar which he purchased from
one Kallu by means of a registered sale
deed dated 06.11.1952. The said two plots
were acquired for widening of the
National
Highway
No.25.
The
compensation for the two plots was
determined at Rs.42,89,237/-. There being
several claimants a notice was issued to
the President of the Guru Singh Sabha
Harjender Nagar, President Gurudwara
Committee, Chakeri, Aerodrome, Kanpur
Nagar, Niyantrak Pradhikari, Principal
Harjender Nagar Inter College and the
Manager,
Khalsa
Vidyalaya
Sabha
Harjender Nagar. No notice is stated to
have been issued to the petitioner and the
petitioner remained in the dark about the
proceedings.
On
21.09.2012
the
impugned order was passed by the
Authority under Section 3-H (4) of the
Act, 1956 making a reference to the
District Judge, Kanpur Nagar. When the
petitioner came to know about this, he
filed a claim petition on 18.01.2013 with
a prayer for a declaration that he was a
person
entitled
to
receive
the
compensation amount. Along with the
claim petition the petitioner is stated to
have filed the Khatauni 1360 Fasli of
village Safipur, Tehsil and District
Kanpur Nagar in respect of Khata No.12
and also the copy of the registered sale
deed dated 06.11.1952. He also filed a
copy of the registered sale deed which
was executed in favour of the Khalsa
Degree College by the petitioner on
25.09.2006. The reference was heard by
the Additional District Judge, Court
no.24, Kanpur Nagar along with the claim
petition of the petitioner. The petitioner's
claim petition was rejected on the ground
that his name was not mentioned as one of
the claimants in the reference order and as
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Sri Gurudwara Committee, Chakeri Vs. Union of India & Ors.
497
such his case could not be considered. An
allegation has also been made by the
petitioner of collusion between the claimant
Harjendar Nagar Inter College, Harjendar
Nagar, Kanpur Nagar and Guru Singh
Sabha, Harjendar Nagar, Kanpur Nagar and
it is also stated that an application was filed
by the Manager, Harjendar Nagar Inter
College, Harjendar Nagar, Kanpur Nagar
who gave up his claim and prayed that the
amount be awarded in favour of the
Gurdwara, Guru Singh Sabha, Harjendar
Nagar, Kanpur Nagar and in pursuance of
the said collusive compromise the impugned
order dated 05.12.2014 was passed directing
that the amount of compensation be paid to
the Gurdwara, Guru Singh Sabha, Harjendar
Nagar, Kanpur Nagar.
3. The case of the petitioner, further,
is that according to the competent
authority notice was issued to the
petitioner (as stated in paragraph 14 of the
writ petition) and the name of the
petitioner was also mutated in the revenue
records in pursuance of the sale deed
dated 06.11.1952 and therefore making a
reference
only
in
respect
of
two
organisation, namely Harjendar Nagar
Inter College, Harjendar Nagar, Kanpur
Nagar and Guru Singh Sabha, Harjendar
Nagar, Kanpur Nagar was illegal and
without jurisdiction. It is also stated that
the sale deed was in the name of
Gurdwara
Committee,
Chakeri,
Aerodrome, Kanpur Nagar and the claim
of Gurdwara Committee was also mutated
in the revenue records and therefore the
dispute at the most could only be between
the petitioner and the Khalsa Girls Degree
College in whose favour a lease deed was
executed by the petitioner on 25.09.2006.
4. The case of the petitioner further
is that under the provisions of Section 3-H
(3) of the Act, 1956 the competent
authority was required to first determine
the persons who in its opinion are entitled
to receive the amount payable to each of
them and only if a dispute arises then he
may refer the same under Section 3-H (4)
of the Act, 1956 to the decision of the
principal
civil
court
of
original
jurisdiction within whose limits the land
in question is situated.
5. Section 3-H (3) and Section 3-H
(4) of the Act, 1956 read as under:-
"3H.
Deposit
and
payment
of
amount. (1) ...........
(3) Where several persons claim to
be interested in the amount deposited
under subsection (1), the competent
authority shall determine the persons who
in its opinion are entitled to receive the
amount payable to each of them.
(4) If any dispute arises as to the
apportionment of the amount or any part
thereof or to any person to whom the
same or any part thereof is payable, the
competent authority shall refer the
dispute to the decision of the principal
civil court of original jurisdiction within
the limits of whose jurisdiction the land is
situated. "
6. At the outset a preliminary objection
was raised by Sri Anoop Trivedi, learned
counsel appearing on behalf of the Caveator
along with Ramesh Chandra Agrahari that
since the petitioner had challenged the order
dated 05.12.2014 passed by the Additional
District Judge, Kanpur Nagar, therefore, the
writ petition is not maintainable and the only
remedy available to the petitioner is by way
of a revision under Section 115 of the Civil
Procedure Code.
498
 INDIAN LAW REPORTS ALLAHABAD SERIES
7. In support of his submission
reliance has been placed upon a judgment
of the Supreme Court reported in (2003) 3
SCC 524, Sadhna Lodh Vs. National
Insurance Company Ltd., wherein it has
been held that where the statutory right to
file an appeal has been provided for it is
not open to the High Court to entertain the
petition
under
Article
227
of
the
Constitution of India. Even if where
remedy by way of appeal has not been
provided against the order and judgment
of the District Judge, the remedy available
to the aggrieved person is to file a
revision before the High Court under
Section 115 of the Code of Civil
Procedure. Where the remedy for filing a
revision before the High Court under
Section 115 of the Civil Procedure Code
has been expressly barred by a State
Enactment only in such a case a petition
under Article 227 of the Constitution of
India would lie and not under Article 226
of the Constitution of India. Paragraph 6
of the judgment reads as follows:
"[6] The right of appeal is a
statutory right and where the law
provides remedy by filing an appeal on
limited grounds, the grounds of challenge
cannot be enlarged by filing a petition
under Article 226/227 of the Constitution
on the premise that the insurer has limited
grounds available for challenging the
award given by the Tribunal. Section
149(2) of the Act limits the insurer to file
an appeal on those enumerated grounds
and the appeal being a product of the
statute it is not open to an insurer to take
any plea other than those provided under
Section 149(2) of the Act (see National
Insurance Co. Ltd, Chandigarh vs.
Nicolletta Rohtagi and others 2002(7)
SCC 456). This being the legal position,
the petition filed under Article 227 of the
Constitution by the insurer was wholly
misconceived. Where a statutory right to
file an appeal has been provided for, it is
not open to High Court to entertain a
petition
under
Article
227
of
the
Constitution. Even if where a remedy by
way of an appeal has not been provided
for against the order and judgment of a
District Judge, the remedy available to
the aggrieved person is to file a revision
before the High Court under Section 115
of the Code of Civil Procedure. Where
remedy for filing a revision before the
High Court under Section 115 of CPC has
been expressly barred by a State
enactment, only in such case a petition
under Article 227 of the Constitution
would lie and not under Article 226 of the
Constitution.
As
a
matter
of
an
illustration, where a trial Court in a civil
suit refused to grant temporary injunction
and an appeal against refusal to grant
injunction has been rejected, and a State
enactment has barred the remedy of filing
revision under Section 115 C.P.C., in
such a situation a writ petition under
Article 227 would lie and not under
Article 226 of the Constitution. Thus,
where the State legislature has barred a
remedy of filing a revision petition before
the High Court under Section 115 C.P.C.,
no petition under Article 226 of the
Constitution would lie for the reason that
a mere wrong decision without anything
more is not enough to attract jurisdiction
of High Court under Article 226 of the
Constitution."
8. Sri Vishnu Sahai, learned counsel
for the petitioner on the other hand
submitted that the provisions of 3-H (3) of
the Act, 1956 were mandatory and before
a reference could be made to the principal
civil court having original jurisdiction, the
competent authority under Section 3-H
1 All]
Sri Gurudwara Committee, Chakeri Vs. Union of India & Ors.
499
(3) of the Act was required to determine
the persons who in its opinion are entitled
to receive the amount payable to each of
them and only if dispute arises at to the
apportionment of the amount payable to
each of the claimants a reference was
required to be made under Section 3-H (4)
to the principal civil court having original
jurisdiction within whose jurisdiction the
land is situated.
9. The submission of Sri Vishnu
Sahai further is that if the initial order
dated 21.09.2012 is itself bad making the
reference to the principal civil court and
the same is quashed the subsequent order
of
the
Additional
District
Judge
05.12.2014 would automatically become
nonest and stand quashed and therefore
the writ petition was maintainable so far
as the order dated 21.09.2012 was
concerned. In any case the said order
could not be quashed in revisional
proceedings
and
therefore
the
writ
petition was maintainable. He has referred
to certain decisions.
10. Reference has been made to the
judgment reported in (1976) 3 SCC 719,
Shri Farid Ahmad Abdul Samad and
Another Vs. The Municipal corporation of
the City of Ahmedabad and Another. This
was a case where land belonging to the
appellants had been acquired by the
Corporation
under
compulsory
acquisition. The appellants had recorded
for a personal hearing with regard to their
objections but the same was denied to
them. After the acquisition was confirmed
the appellants preferred an appeal to the
City Civil Court at Ahmedabad. The civil
court rejected the claim of the appellants
and appellants thereafter took the matter
to the High Court of Gujarat under Article
227 of the Constitution of India. The High
Court refused to interfere holding that
Section 5 of the Land Acquisition Act
was duly complied with. Hence the SLP.
In the S.L.P. the Supreme Court held that
hearing objection under Section 5-A of
the Land Acquisition Act to be given by
the Commissioner under the Bombay Act
cannot be replaced by a kind of appeal
hearing by the City Civil Judge. The
Bombay Act assigned the duty of hearing
objections to the Commissioner who
alone can hear them and not the City Civil
Judge
even
assuming
that all
the
objections could be entertained by him in
appeal. From these observations it is
sought to be submitted by the learned
counsel that since the petitioners had not
been heard by the competent authority
under Section 3-H (3) this Court could
interfere with the order of reference made
under Section 3-H (4). In my opinion the
jurisdiction which is exercised by the
principal civil court having original
jurisdiction is not an appellate jurisdiction
and the reference made under Section 3-H
(4) is not by way of appeal and if the Act,
1956 does not provide for any further
appeal against the order of the principal
civil court passed under Section 3-H (4)
the remedy before the aggrieved party
would only be by way of revision.
11. Reference was then made to the
case reported in AIR 1977 SC 747 [1977
(2) SCC 457], Mysore State Road
Transport Corporation Vs. Mirja Khasim
Ali Beg and Another. This was the case
disciplinary
proceedings
against
the
respondents-Conductors of the Road
Transport Department in the State of
Hyderabad. Disciplinary action was taken
against the respondents herein in certain
cash and ticket irregularities and they
were dismissed from service by the
Divisional Controller of the Mysore
500
 INDIAN LAW REPORTS ALLAHABAD SERIES
Government Road Transport Department
in December, 1960. The dismissal order
was affirmed by the General Manger of
the Mysore Government, Road Transport
Department.
They
filed
suits
for
declaration of their order of dismissal
from service as illegal. The suits were
decreed in favour of the respondents on
the ground of contravention of Article 311
(1) of the Constitution of India.
12. The submission on behalf of the
respondents in the case was that the
original order of dismissal was without
jurisdiction
and
void
being
in
contravention of Article 311 (1) of the
Constitution of India and the order passed
in Departmental Appeal by the General
Manager could not cure the initial defects.
13. In my opinion the said judgment
is absolutely no application to the facts of
the present case as in this case there is no
statutory right of appeal provided by the
Act, 1956 and the jurisdiction exercised
by the principal civil court was an original
jurisdiction
and
not
an
appellate
jurisdiction or by way of departmental
appeal. The appeal preferred before the
General Manager and the order passed by
him were orders passed in exercise of
quasi judicial powers and the same cannot
be held to be akin to the original
jurisdiction exercised by the principal
civil court under Section 3-H (4) of the
Act, 1956 nor is it an order passed under
any provision of the Civil Procedure
Code.
14. Reference has also been made to
the judgment report in AIR 1981 SC 701
[1981 (2) SCC 103], Kshitish Chandra
Bose Vs. Commissioner of Ranchi. That
was a case where the trial court had
decreed the plaintiff's suit on the question
of title and adverse possession. The
defendant filed an appeal before the
Additional
Judicial
Commissioner,
Ranchi (Chota Nagpur) which affirmed
the finding of the trial court and
maintained the decree on both points. The
respondent then filed a second appeal in
the High Court which remanded the case
to the trial court for a decision only on the
question of title. After remand the
Additional Judicial Commissioner held
that the municipality had approved its title
to the land in dispute and dismissed the
plaintiff's suit. The plaintiff then went up
in appeal to the High Court which
affirmed the finding of the Additional
Judicial Commissioner and dismissed the
appeal by judgment dated 30.09.1967 (the
second judgment).
15. The submission of the learned
counsel in the case was that the finding so
far
as
the
adverse
possession
is
concerned, the same had become final as
the finding of the High Court in its first
judgment had not been challenged in the
Supreme Court. The said judgment also,
in my opinion, has no application to the
facts of the present case since against the
order of the trial court the defendant had
preferred an appeal before the High Court
on one point, namely, that of title,
therefore this court fails to see as to how
the said judgment has any application to
the facts of the present case on the
question of maintainability of the present
writ petition under Article 226 of the
Constitution.
16. The General Clauses Act, 1897,
in Section 3 (15), defines "District Judge"
as 'judge of principal Civil Court of
original jurisdiction but shall not include a
High Court in the exercise of its ordinary
or extraordinary original civil jurisdiction.
1 All]
Sri Gurudwara Committee, Chakeri Vs. Union of India & Ors.
501
This means that the principal Civil Court
of original jurisdiction contemplated in
Section 3-H (4) of the National Highways
Act, 1956 is the District Judge of the Civil
Court
within
the
limits
of
whose
jurisdiction the land is situated.
17. It is noteworthy and not denied
by the petitioner that when his case was
not referred to the Court but a reference
had been made by the competent authority
to the principal civil court of original
jurisdiction by the impugned order dated
21.09.2014 under Section 3-H (4) of the
Act, 1956, the petitioner had filed his own
claim petition on 18.01.2013 claiming
that he was a person entitled to receive
compensation (as averred in paragraph 9
of the writ petition). Thus the petitioner
had himself submitted to the jurisdiction
of the District Judge, Kanpur being the
principal civil court having original
jurisdiction in the matter and it is not that
the
District
Judge
did
not
have
jurisdiction to entertain the reference and
examine the dispute since the statutory
provision of Section 3-H (4) confers such
power upon the principal civil court
having original jurisdiction.
18. Therefore considering the matter
in its entirety and with regard to the facts
of the case and the case law referred to
hereinabove , I am of the view this writ
petition
under
Article
226
of
the
Constitution of India is not maintainable
and the only remedy for the petitioner is
by way of a revision as held by the
Supreme Court in the case of Sadhana
Lodh (supra).
19. In (1972) 4 SCC 168, The
Reliable Water Supply Service of India
Vs. Union of India and Others the
Supreme Court has held that the High
Court was competent to convert an appeal
into a revision. Similar view has been
taken by a Division Bench of the Kerala
High Court in Nafeesa Vs. Deputy
Collector and Special Land Acquisition
Officer. This was a case under the
National Highways Act, 1956 where a
reference
had
been
made
by
the
Competent Authority under Section 3-H
(4) of the Act to the principal civil court
of original jurisdiction and the learned
judges held that there is no provision in
the
National
Highways
Act
which
provides a right of appeal against the
decision by the Court on a reference
under Section 3-H (4). It was also held
that the principal civil court of original
jurisdiction is a court subordinate to the
High Court and since no appeal lies to the
High Court against that decision a
revision under Section 115 CPC would lie
and accordingly the Kerala High Court
had converted the regular first appeal into
a civil revision petition under Section 115
CPC.
20. Therefore on a conspectus of
facts and law discussed above this writ
petition
under
Article
226
of
the
Constitution of India is not maintainable.
However, the writ petition is ordered to be
converted as a Civil Revision Petition
under Section 115 CPC with a further
direction to the Registry of this Court to
give it a regular number as a civil revision
petition and thereafter list the case before
the appropriate Bench having jurisdiction
in the matter.
21. Sri Vishnu Sahai, learned
counsel for the petitioner also made
various submissions on the merits of the
case but since this Court has no
jurisdiction to enter into those questions
under Article 226 of the Constitution, no
502
 INDIAN LAW REPORTS ALLAHABAD SERIES
reference
is
being
made
to
those
submissions.
--------