# State of U.P. and others v. Ram Prakash Batham

- **Citation:** (2009) 1 ILRA 93
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-10-06
- **Bench:** S. Rafat Alam, Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-and-others-v-ram-prakash-batham-41323
- **Pages:** 4

## Headnote

Constitution of India, Art. 226-Practic &
Procedure-grant of interim order-in the
garb of interim order final relief grantedheld-illegal-petitioner
challenging
the
retirement noticing challenging the age
of supranuation by interim order leaned
Single Judge allowed to continue till
achieving the age of 60 years-held
illegal.
94 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
Held: Para 7

In the present case, since one of the final
relief sought in the writ petition was that
the petitioner is entitled to be allowed to
continue till the age of 60 years, the
same could not have been granted by
way of an interim order. It is always
open to the Court to grant all reliefs
permissible
in
law,
when
the
writ
petition is finally decided and, therefore,
we are of the view that the order
impugned, insofar as it has stayed the
retirement notice dated 10.7.2007 and
further
permitted
the
petitioner
to
continue till he attains the age of 60
years unless the order or decision dated
20.6.2006 is modified cannot sustain.
Case law discussed:
Special Appeal No. 702 of 2005, Special
Appeal No. 74 of 2007

## Text

1 All] State of U.P. and others V. Ram Prakash Batham
93
under Section 173(1) of the Act lies only
against the award of the Motor Accident
Claims Tribunal but if the award is a
nullity it can be challenged in an appeal
under Section 173(1) of the Act and the
appeal would be maintainable. The
decision of the Apex Court in Bhanu
Kumar Jain vs. Archana Kumar and
another AIR 2005 SC 626 would apply
and the insurance company would not be
estopped from raising the question that
the award of the tribunal is a nullity in an
appeal under section 173 of the Act.

17. Before parting with the case we
may point out that Motor Accident Claims
Tribunal's in Uttar Pradesh are not
following the mandate of section 170 of
the Act and the law declared by the Apex
Court Jyotsnaben Sudhirbhai Patel's case.
While making the award the applications
under section 170 of the Act are not being
decided. Due to this approach of the
tribunals the insurance companies who
file an application under section 170 are
seriously prejudiced. Under the Act the
only right an insurance company has, is to
file an application under section 170 to
contest the claim on merits and also on
the grounds which are available to the
owner of the vehicle, if their application is
allowed. The presiding officers of the
Motor Accident Claims Tribunals are not
performing their judicial duty to decide
the application under section 170 first and
then pass an award within reasonable
time, so that if the insurance company is
desirous of challenging the order under
section 170 before a higher court, it may
have reasonable time. We do not propose
to direct any action at this stage.
However, we direct the Registrar General
to issue a circular forthwith to all Motor
Accident Claims Tribunal functioning in
State of Uttar Pradesh to pass appropriate
orders
by
giving
reasons
on
the
applications filed under section 170 of the
Motor Vehicles Act, 1988.

18. For the aforesaid reasons, we
allow this appeal. The award of the Motor
Accident
Claims
Tribunal
dated
6.10.2007 being nullity is set aside. The
claim petition is remanded back to the
Motor Accident Claims Tribunal with a
direction to decide the application filed by
the insurance company under section 170
of the Act in accordance with law and
thereafter decide M.A.C.P. No.142 of
2000 a fresh, only after a reasonable time.

Parties shall bear their own costs.
Appeal allowed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.11.2008

BEFORE
THE HON'BLE S. RAFAT ALAM, J.
THE HON'BLE SUDHIR AGARWAL, J.

Special Appeal No. (667) of 2008

State of U.P. and others ...Appellants

Versus
Ram Prakash Batham
...Opposite Party

Counsel for the Appellants:
Sri Pankaj Rai

Counsel for the Opposite Party:
Sri A.B. Singh

Constitution of India, Art. 226-Practic &
Procedure-grant of interim order-in the
garb of interim order final relief grantedheld-illegal-petitioner
challenging
the
retirement noticing challenging the age
of supranuation by interim order leaned
Single Judge allowed to continue till
achieving the age of 60 years-held
illegal.
94 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
Held: Para 7

In the present case, since one of the final
relief sought in the writ petition was that
the petitioner is entitled to be allowed to
continue till the age of 60 years, the
same could not have been granted by
way of an interim order. It is always
open to the Court to grant all reliefs
permissible
in
law,
when
the
writ
petition is finally decided and, therefore,
we are of the view that the order
impugned, insofar as it has stayed the
retirement notice dated 10.7.2007 and
further
permitted
the
petitioner
to
continue till he attains the age of 60
years unless the order or decision dated
20.6.2006 is modified cannot sustain.
Case law discussed:
Special Appeal No. 702 of 2005, Special
Appeal No. 74 of 2007

(Delivered by Hon'ble S. Rafat Alam, J.)

1. Heard Sri Pankaj Rai, learned
Standing Counsel for the appellant and Sri
A.B. Singh, who has appeared on behalf
of petitioner-respondent.

2. It is contended that the writ
petition was filed by the petitionerrespondent
challenging
notice
dated
10.7.2007, whereby he was informed of
his date of retirement on attaining the age
of 58 years though he was entitled to
continue till he attains the age of 60 years.
The learned Standing Counsel contended
that his final relief included a mandamus
directing the appellants to allow him to
continue till he attains the age of 60 and
by means of the interim order, the Hon'ble
Single Judge has granted the final relief,
which is not permissible in law in view of
various judgments of this Court as well as
the Apex Court.

3. Sri A.B. Singh, learned counsel
for the petitioner-respondent, however,
contended that in view of the Government
Order dated 17.3.1994, all the Rules
applicable to corresponding Government
servants have been applied to the
employees of District Rural Development
Agency
and,
therefore,
after
the
amendment of Fundamental Rule 58,
when the age of retirement was extended
from 58 years to 60 years, the petitionerrespondents was also entitled to continue
till the age of 60 years and for this reason,
the Hon'ble Single Judge has granted the
relief. However, he could not dispute the
legal position that by means of an interim
order, a relief which is sought as final
relief in the writ petition, ought not to
have been granted.

4. It is settled legal proposition that
no interim relief at the initial stage which
amounts to final relief should be granted.
The Hon'ble Apex Court has consistently
and persistently held that the Court should
not pass an order at the interim stage,
which can be granted only at the time of
disposal of the petition.

5. Following catena of decisions of
the Apex Court on this aspect, a Division
Bench of this court in Special Appeal No.
702 of 2005, District Judge Baghpat Vs.
Anurag
Kumar
decided
on
31st
December 2005 has held as under:

"It is settled that a final relief cannot
be granted at the interim stage. We are,
therefore, of the view that the interim
order under appeal is unsustainable.
It is settled legal proposition that no
interim relief at the initial stage which
amounts to final relief should be granted.
The Hon'ble Apex Court has consistently
and persistently held that the Court
should not pass an order at the interim
1 All] State of U.P. and others V. Ram Prakash Batham
95
stage, which can be granted only at the
time of disposal of the petition."

6. This very aspect was considered
by this Bench also in Special Appeal No.
74 of 2007 U.P. Power Corporation
Ltd. & others Vs. Suraj Bhan Sharma
& others decided on 30.1.2006 and after
quoting with approval the Division Bench
Judgement in Anurag Kumar (supra) we
further observed as under:

"Now coming to the merit of the
order, the part of the order under appeal
whereby the direction has been issued to
allow
the
petitioner
respondent
to
continue till attaining the age of 60 years
i.e. 31st January 2006, after staying the
operation of the order dated 12th
December 2005, amounts to granting
final relief to the petitioner respondent
and thus cannot be sustained. Whether the
petitioner
respondent
is
entitled
to
continue till the age of 60 years or 58
years is a matter subjudice in the
aforesaid writ petition and in case the
petitioner respondent succeeds he can be
compensated by directing the appellant to
pay his salary and other benefits as found
due in accordance with Rules. However, if
the petitioner respondent under interim
order is allowed to continue to discharge
duties till the age of 60 years and is paid
full salary, then after dismissal of the writ
petition, the salary already paid cannot
be recovered since he may claim that
since he has worked therefore salary
cannot be asked to be refunded. The
appellant cannot be compensated in such
case and the petitioner respondent will
enjoy the interim order like final order
without any risk of losing salary for the
extra period even if ultimately he has lost.
This court while passing interim order
has to adjust the interest and equity in
favour of both the parties, since it is a
settled law that the act of the court shall
prejudice none.
Further before passing an interim
order in favour of the petitioner, the
relevant considerations like prima facie
case,
balance
of
convenience
and
irreparable loss have to be considered.
In Morgan Stanley Mutual Fund Vs.
Kartick Das, (1994) 4 SCC 225, the Apex
Court held that ex-parte injunction could
be
granted
only
under
exceptional
circumstances. It has held that the factors
which
should
weigh
for
grant
of
injunction are - (a) whether irreparable
or serious mischief will ensure to the
plaintiff; (b) whether the refusal of exparte injunction would involve greater
injustice than grant of it would involve;
(c) even if ex-parte injunction should be
granted, it should only be for limited
period of time; and (d) general principles
like
prima
facie
case,
balance
of
convenience and irreparable loss would
also be considered by the Court.
In view of the discussion made above
we are of the view that such an order
could not have been passed and the order
under appeal to the aforesaid extent
cannot be sustained."

7. In the present case, since one of
the final relief sought in the writ petition
was that the petitioner is entitled to be
allowed to continue till the age of 60
years, the same could not have been
granted by way of an interim order. It is
always open to the Court to grant all
reliefs permissible in law, when the writ
petition is finally decided and, therefore,
we are of the view that the order
impugned, insofar as it has stayed the
retirement notice dated 10.7.2007 and
further
permitted
the
petitioner
to
continue till he attains the age of 60 years
96 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
unless the order or decision dated
20.6.2006 is modified cannot sustain.

8. In the result, this appeal is
allowed. The impugned order dated
17.12.2007 of the Hon'ble Single Judge,
insofar as it has granted the aforesaid
interim order, is hereby set aside and is
modified that in case, the writ petition is
allowed, the petitioner may be entitled for
all consequential benefits, if any, in
accordance with law.

9. However, since the petitionerrespondent was seeking two years further
continuance in service and one year has
already passed, therefore, we are of the
view that it is a case, which ought to have
been decided expeditiously. We are
informed that the pleadings have been
exchanged between the parties. Therefore,
as also requested by learned counsel for
the parties, we direct that the writ petition
shall be listed before the appropriate
Bench in the first week of December'
2008 and we request the Hon'ble Single
Judge
to
decide
the
writ
petition
expeditiously subject to His Lordship's
convenience and other business of the
Court. Learned counsels for the parties
are also granted liberty to make mention
before the Hon'ble Court, when the case is
listed before the Hon'ble Single Judge.

10. We, however, clarify that we
have not expressed any opinion on the
merits of the case and the Hon'ble Single
Judge shall consider the matter without
being prejudiced by observation, if any,
made in this judgment.

11. The special appeal is allowed
subject
to
the
above
observations/directions. No costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.01.2009

BEFORE
THE HON'BLE AMAR SARAN, J.
THE HON'BLE R.N. MISRA, J.

Criminal Misc. Writ Petition No. 784 of
2009

Kiran Pal and others
...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri P.P. Srivastava
Sri Shishir Prakash

Counsel for the Respondents:
A.G.A.

Constitution of India Art. 226-Quashing
of F.I.R.-offence under Section 2/3,
Gangsters Act-all the cases referred in
F.I.R. relates to minor offences-in one
arrest
stayed
by
High
Court-hence
lodging FIR a colorable exercise of
power-held-in
Kishan
Pal
Case-Apex
Court restricted interference by High
Court as the petitioners can appear
before Trail Court-prayer for quashing
refused-observation made for disposal of
bail application on same day.

Held: Para 4 & 5

In the decision of Kishan Pal alias K.P.
vs. State of U.P. and another, 2006 (54)
ACC, 1015, it has been held that it would
not proper in such matters for High Court
to
interfere
in
writ
jurisdiction
as
petitioners can always appear before the
Court concerned and make submissions
there.

In this view of the matter, we find no
ground
for
quashing
the
criminal
proceedings
under
Sections
2/3
of
Gangsters Act.