# State of U.P. & Ors v. Rahmulla

- **Citation:** (2013) 2 ILRA 934
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-07-23
- **Case number:** First Appeal No. 670 of 1992
- **Bench:** Pankaj Mithal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-ors-v-rahmulla-42650
- **Pages:** 3

## Headnote

C.P.C. Section-107 Order 41 Rule 23/23 A-
Power of Remand by Reference Court-Land
acquisition-SLO-given
award-reference
against
that-in
absence
of
sufficient
material-no
enhancement
can
be
considered-under this background matter
remanded for fresh consideration-heldorder without jurisdiction-reference being
original jurisdiction-in absence of statutory
provision-reference
Court
ceased
with
jurisdiction of remand-order quashed.

Held: Para-11
In the light of the above decision, the
reference court acts as court of original
jurisdiction
and
does
not
exercises
appellate
powers
while
deciding
references under Section 18 of the Land
Acquisition Act. Therefore, it is denuded
of any power to remand the matter.

Case Law discussed:
AIR 1988 SC 1692

## Text

934 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
Uttar Pradesh Excise Act, 1910, read with
Section 21 of the U.P. General Clauses
Act, 1904. The Rule-5(8) of the said rules
provide that in urban areas, no new shop
shall be opened without notice to the
Nagar Mahapalika, Town area or notified
area, as the case may be.

28. As stated in foregoing paragraphs,
Nagar Nigam is a body that has to perform
certain obligatory duties. These duties are
provided under Section 114 of the Nagar
Nigam Adhiniyam. A cursory look at the
section will make it abundantly clear that
these duties are directly related to public
welfare, health, peace and well being.
Further, in order to carry out these duties
there is a huge financial burden that the
Nagar Nigam has to meet, this financial
burden is reduced by collecting taxes and
fees in lieu of these services. As averred
above, Rule 5(8) enshrines that in urban
areas, no new shop shall be opened without
notice to the Nagar Mahapalika, Town area
or notified area, as the case may be. Sending
of notice is not a mere formality. Requiring
of notice denotes that if any objection is
made by the Nagar Nigam it will be decided
by the collector. Thus the objections raised
by the Nagar Nigam cannot be ignored or
taken lightly.

29. Since we are concerned with a
regulatory fee there is no need for any quid
pro quo, though the fee cannot be excessive.
The assertion of the petitioners that charging
of Rs.12,000/- per annum is highly
excessive. The bye-laws have provided
Rs.6,000/- as licence fee for country-made
liquor and Rs.12,000/- for foreign liquor. In
our opinion, the fee of Rs.6,000/- for
country-made liquor and Rs. 12,000/per
annum is not excessive as it works out to
only about Rs.500/- and Rs.1,000/- per
month, which is a meagre amount.

30. In the result, we do not find any
merit in the writ petitions. Writ petitions
are accordingly dismissed. Costs easy.
---------

APPELLATE JURISDICTION
CIVIL- SIDE
DATED: ALLAHABAD 23.07.2013

BEFORE
THE HON'BLE PANKAJ MITHAL, J.

First Appeal No. 670 of 1992

State of U.P. & Ors.

...Appellants
Versus
Rahmulla

 ...Respondent

Counsel for the Petitioners:
S.C., Sri A.K. Mehrotra
Sri Sandeep Mukherjee

Counsel for the Respondent:
Sri P.C. Srivastava

C.P.C. Section-107 Order 41 Rule 23/23 A-
Power of Remand by Reference Court-Land
acquisition-SLO-given
award-reference
against
that-in
absence
of
sufficient
material-no
enhancement
can
be
considered-under this background matter
remanded for fresh consideration-heldorder without jurisdiction-reference being
original jurisdiction-in absence of statutory
provision-reference
Court
ceased
with
jurisdiction of remand-order quashed.

Held: Para-11
In the light of the above decision, the
reference court acts as court of original
jurisdiction
and
does
not
exercises
appellate
powers
while
deciding
references under Section 18 of the Land
Acquisition Act. Therefore, it is denuded
of any power to remand the matter.

Case Law discussed:
AIR 1988 SC 1692

(Delivered by Hon'ble Pankaj Mithal, J.)
2 All] State of U.P. & Ors. Vs. Rahmulla
935

1. Heard learned Standing counsel
for the State of U.P. Sri A.K. Malhotra
has appeared for UPSEB/U.P. Power
Transmission Corporation Limited for
whose benefit the land was acquired but
was not specifically impleaded.

2. No one has appeared for
respondent despite revised call.

3. The appeal is under Section 54 of
the Land Acquisition Act (hereinafter
referred to as the 'Act') against the
judgment,
order
and
award
dated
30.3.1989 passed by the III Additional
District Judge, Jaunpur in LAR No. 165
of 1985.

4. The land of village Muradganj,
Pargana-Haveli, Tehsil and District- Jaunpur
was acquired for establishing 220 KVA
Electricity Power Station vide notification
under Section 4 of the Act dated 5.11.1981.
The Special Land Acquisition Officer (in
short SLAO) made an award dated
29.5.1982. The claimant respondent not
satisfied by the compensation offered by the
SLAO preferred a reference under Section
18 of the Act. The reference has been
decided by the impugned judgment, order
and award and the matter has been remanded
to the SLAO for re-determination of the
compensation admissible to the claimant
respondent.

5. The remand has been made in view
of the award of the reference court passed in
LAR No. 73 of 1985 (Shamullah Vs. State)
in connection with same acquisition and the
sale deed alleged to have been executed by
Ram Saran in favour of one Devi Prasad
Upadhyaya, Advocate.

6. It is important to note that from
the same acquisition several references
were preferred which were separately
decided. In First Appeal No. 129 of 1988
(District
Magistrate Vs.
Majid
and
another) arsing from LAR No. 167 of
1985, the reference court had enhanced
compensation on the basis of the abovereferred sale deed executed by Ram Saran
in favour of Devi Prasad Upadhyaya but
without the said sale deed having been
produced in evidence.

7. Thus, in the absence of the
evidence or any other material on record
to prove that the award of the SLAO was
inadequate and that the claimants were
entitle to higher compensation, the appeal
was allowed and the judgment, order and
award of the reference court was set aside.

8. On the basis of the judgment,
order and award of the reference court
passed in the above case of Majid, several
other references were decided and the
appeals arising therefrom have all been
allowed by me including the one arising
from the decision in LAR No. 73 of 1985
(Shamulla Vs. State) by a separate
judgment of date as the enhancement was
based upon the decision rendered in
reference of Majid which was set aside.

9. In view of the above, both the
grounds on which the remand has been
made have ceased to exist.

10. This apart,the power of remand
is only available to the appellate court
under Section 107 read with Order XLI
Rule 23/23 A CPC and the said power is
not vested in any court seized of the
matter in its original jurisdiction. it is
settled vide Chimmanlal Hargovinddas
Vs. Special Land Acquisition Officer
AIR 1988 SC 1692 that a reference under
Section 18 of the Act is not an appeal
936 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
against an award of the SLAO but is in
the nature of original proceedings wherein
the claimant is in a position of the
plaintiff who is supposed to establish that
the price offered for his acquired land is
inadequate
by
producing
material
evidence before the reference court.

11. In the light of the above
decision, the reference court acts as court
of original jurisdiction and does not
exercises appellate powers while deciding
references under Section 18 of the Land
Acquisition Act. Therefore, it is denuded
of any power to remand the matter.

12. In view of the above, the order
of remand made by the reference court is
patently without jurisdiction and is
unsustainable in law for both the reasons
indicated above. The impugned judgment,
order and award of the reference court
20.3.1989 passed in LAR No. 165 of 1985
is set aside and the appeal is allowed.
---------
APPELLATE JURISDICTION
CIVIL- SIDE
DATED:ALLAHABAD 24.05.2013

BEFORE
THE HON'BLE SHIVA KIRTI SINGH, CHIEF
JUSTICE.
THE HON'BLE DILIP GUPTA, J.

Special Appeal No. 699 of 2013

Smt. Soniya

 ...Petitioner
Versus
State of U.P. and Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Pankaj Srivastava

Counsel for the Respondents:
C.S.C.
High Court Rules 1952-Chapter VIII Rule
5- special Appeal-against judgment of
Single
Judge-arises
out
from
order
passed by District Magistrate under
section 95(1)(g) of U.P. Panchayat Raj
Act-whether maintainable?-held-'NO' as
the power exercised by the District
Magistrate fulfill essential requirement
of Tribunal-in view of full Bench decision
of
Sheet
Gupta
case-appeal
not
maintainable.

Held: Para-24
In view of the legal provisions in the Act
and the Rules noted and discussed
above, it has to be held that the District
Magistrate
while
exercising
powers
under
the
first
proviso
to
Section
95(1)(g) of the Act is an authority
constituted by the State and clothed
with the inherent judicial power of the
State to deal with disputes between the
parties and to determine them on merits
fairly and objectively. In other words, in
such a capacity he satisfies the essential
requirements of a 'Tribunal'.

Case Law discussed:
2000(4) AWC 2834; AIR 1950 SC 188; AIR
1961 SC 1669; AIR 1963 SC 874; AIR 1965 SC
1595; 2003(1) AWC 44; 2003(1) AWC 508;
(1999) 1 UPLBEC 697; (2008) 1 UPLBEC 538;
2011(1) ALJ 694; 2011 (5) ESC 761 (SC)
(1994) 6 SCC 241; 2010 (1) CRC 285.

(Delivered by Hon'ble Shiva Kirti Singh, C.J.)

1. The appellant, who was elected as
Pradhan of Village Pali Mukimpur, Tehsil
Atrauli, District Aligarh in 2010, had filed
Writ Petition No.9932 of 2013 for
quashing the order dated 6th February,
2013 that was passed by the District
Magistrate, Aligarh exercising powers
under the first proviso to Section 95(1)(g)
of the U.P. Panchayat Raj Act, 1947
(hereinafter referred to as the 'Act') to
cease the financial and administrative
powers of the Pradhan with a further
direction that the said powers shall be
performed by a Committee of three
members. The learned Judge did not