# Surendra Prasad Rai v. Addl.Commissioner & Ors

- **Citation:** (2013) 2 ILRA 1067
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-05-02
- **Case number:** Civil Misc. Writ Petition No. 24778 of 2013
- **Bench:** Ran Vijai Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/surendra-prasad-rai-v-addl-commissioner-ors-42547
- **Pages:** 7

## Headnote

1068 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

 Sri P.K. Rai.

Code of Civil Procedure-Order XIV Rule
2(2)-all
issues
including
jurisdictiondecided
simultaneously-argument
about
deciding the issues of jurisdiction as
preliminary issues-held-in view of amended
provision of C.P.C. courts below rightly
decided all issues relating to question of law
and facts be decided together.

Held: Para-21
The learned counsel for the petitioner,
except expressing his anxiety to save the
time of the court, has not placed any
material before the Court from which it
can be inferred that Sub-Rule 2 of Order
14 of the Code of Civil Procedure
mandate that the question of jurisdiction
is to be decided first even if investigation
of fact is required. In this case both the
courts below have held that the issue no.
6 be decided along with other issues and
the
conclusion
is
based
on
sound
reasoning i.e. to decide the bar of
jurisdiction,
investigation
of
fact
is
required which can only be arrived at
after availability of evidence. The view
taken by the courts below since are
based on sound reasoning, therefore the
same cannot be faulted with.

Case Law discussed:
1993 Allahabad civil Journal 216; AIR 1993
Allahabad 2; AIR 1999 Allahabad 304; AIR
1952 SC 181; AIR 1961 SC 751; AIR 1965 SC
895; AIR 1975 SC 2190; AIR 1980 SC 303;
(1999) 1 SCC 354; AIR 2002 SC 2031; (2003)
3 SCC 433; AIR 2003 SC 511; AIR 2004 SC
2036

## Text

2 All] Surendra Prasad Rai Vs. Addl.Commissioner & Ors.

1067
petitioner to pay could be that the
petitioner should bear the cost of
construction of line beyond 300 meters.
However, in this regard, we find that as
per line chart and approved report
containing sanction of the estimate, a sum
of Rs.11,775/- has been made chargeable
to the consumer ( petitioner) which
includes Rs.2,250/- towards cost of 15
meters line @ 150 per meter which is
mentioned as cost of line in the order
19.2.2011. A sum of Rs. 11,775/-
alongwith security of Rs.2,400/- total
Rs.14,175/- has been deposited by the
petitioner
on
21.2.2011
which
is
undisputed. Under the circumstances it
appears to be not justifiable for the
respondent-corporation to require the
petitioner to construct the line from the
materials provided by the corporation.

12. The learned counsel for the
respondents has also submitted that as per
order dated 19.2.2011 ( Annexure No.3)
the petitioner was to enter into agreement
and thereafter he has to construct the line
from the materials provided by the
corporation and as per Line Order/ Work
Order dated 20.6.2011 also the line is to
be constructed by the petitioner. We find
that the order dated 19.2.2011 and Line
Order/ Work Order dated 20.6.2011 are
on printed proforma and as such it has to
be
read
harmoniously
with
the
description/ calculation of charges given
therein,
the
contents
of
sanctioned
estimate under the normal scheme and the
circular of the Managing Director dated
31.8.2010
(Annexure
No.
SCA-1A)
which we have already discussed in
preceding paragraphs. This circular is
wholly undisputed rather it has been
referred and relied by the respondents in
paragraph 8 of the short counter affidavit
contending that consumer is to deposit the
amount mentioned in the terms and
conditions which includes cost of line in
excess of 300 meter, system loading
charges, meter charge, security charge
and processing fee. It is also evident from
the report dated 31.1.2011, line chart and
the order dated 19.2.2011 that the
petitioner has deposited a sum of
Rs.2,250/- towards cost of line of 15
meters i.e. beyond 300 meters. Thus there
is no force in the submission of learned
counsel for the respondents.

13. In view of the above, we are of
the view that the impugned order dated
18.10.2012 (Annexure No. 9) is wholly
unjustified and is accordingly set aside.
The respondent no. 2 is directed to
construct the line expeditiously preferably
within a period of three months from the
date a certified copy of this order is filed
before him by the petitioner.

14. In view of the discussions made
above, the writ petition is allowed.
However, there shall be no order as to
cost.
---------
ORIGINAL JURISDICTION
CIVIL- SIDE
DATED: ALLAHABAD 02.05.2013

BEFORE
THE HON'BLE RAN VIJAI SINGH, J.

Civil Misc. Writ Petition No. 24778 of 2013

Surendra Prasad Rai

 ...Petitioner
Versus
Addl. Commissioner & Ors...Respondents

Counsel for the Petitioner:
Sri Shamimul Hasnain, Sri Dhirendra Kr.
Srivastava

Counsel for the Respondents:
C.S.C., Sri Mahesh Narain Mishra
1068 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

 Sri P.K. Rai.

Code of Civil Procedure-Order XIV Rule
2(2)-all
issues
including
jurisdictiondecided
simultaneously-argument
about
deciding the issues of jurisdiction as
preliminary issues-held-in view of amended
provision of C.P.C. courts below rightly
decided all issues relating to question of law
and facts be decided together.

Held: Para-21
The learned counsel for the petitioner,
except expressing his anxiety to save the
time of the court, has not placed any
material before the Court from which it
can be inferred that Sub-Rule 2 of Order
14 of the Code of Civil Procedure
mandate that the question of jurisdiction
is to be decided first even if investigation
of fact is required. In this case both the
courts below have held that the issue no.
6 be decided along with other issues and
the
conclusion
is
based
on
sound
reasoning i.e. to decide the bar of
jurisdiction,
investigation
of
fact
is
required which can only be arrived at
after availability of evidence. The view
taken by the courts below since are
based on sound reasoning, therefore the
same cannot be faulted with.

Case Law discussed:
1993 Allahabad civil Journal 216; AIR 1993
Allahabad 2; AIR 1999 Allahabad 304; AIR
1952 SC 181; AIR 1961 SC 751; AIR 1965 SC
895; AIR 1975 SC 2190; AIR 1980 SC 303;
(1999) 1 SCC 354; AIR 2002 SC 2031; (2003)
3 SCC 433; AIR 2003 SC 511; AIR 2004 SC
2036

(Delivered by Hon'ble Ran Vijai Singh, J.)

1. Heard Sri Shamimul Hasnain,
learned counsel for the petitioner, Sri
R.N.Singh,
learned
Senior
Counsel
assisted by Sri P.K.Rai, learned counsel
appearing for the respondent no. 3,
learned Standing Counsel and learned
counsel for the Gaon Sabha.

2. Through this writ petition, the
petitioner has prayed for issuing a writ of
certiorari quashing the orders dated 4.4.2012
passed by Sub-Divisional Magistrate Chakia,
District Chandauli (the respondent no. 2) and
judgment and order dated 30.1.2013 passed
by
Additional
Commissioner
(Administration) Varanasi Division Varanasi
(the respondent no.1).

3. Vide order dated 4.4.2012, the
petitioner's application to decide the Issue
Nos. 6 and 7 as a preliminary has been
rejected on the ground that under the facts
and circumstances of the case it be decided
along with remaining issues. Whereas vide
order dated 30.1.2013, the petitioner's
Revision No. 14 of 2012 filed against the
order dated 4.4.2012 has been dismissed. Out
of these two issues one issue was relating to
the under valuation of the suit and payment
insufficient court fee and another was with
regard to bar of jurisdiction of civil court
under Section 49 of U.P. Consolidation of
Holdings Act, 1953.

4. Sri Hasnain has very vehemently
contended that when the question of
jurisdiction is raised, it should be decided as
a preliminary issue for the reason that if it is
held that the court has no jurisdiction to
proceed with the matter, the proceeding will
come to an end and the valuable time of the
court as well as litigant will be saved. In
support of his submissions, he has placed
reliance upon the Division Bench judgment
of this Court in Mrs. Shahnaz Husain Vs.
Mohd. Yunus 1993 Allahabad Civil
Journal 216.

5. Refuting the submissions of learned
counsel
for
the
petitioner,
Sri
R.N.Singh,learned counsel appearing for the
respondent no. 3 submitted that Order 14 of
Code of Civil Procedure has been amended
2 All] Surendra Prasad Rai Vs. Addl.Commissioner & Ors.

1069
in the year 1976 and in view of Sub-rule 2 of
Order 14, all the issues have to be decided
together. He has also contended that there
can be no straight jacket formula to decide
the question of jurisdiction at the first
instance and it always depend upon the
discretion of the court either to decide the
question of jurisdiction as a preliminary issue
or to decide the same along with other issues.
In support of his submissions, he has placed
reliance upon another Division Bench
decision of this Court in Manager Bettiah
Estate Vs. Bhagwati Saran Singh AIR
1993 Allahabad 2. Particular attention has
been drawn towards para 12 of the aforesaid
judgment. Reliance has also been placed
upon the judgment of this Court in Mithlesh
Kumari and others Vs. Gaon Sabha,
Kishanpurand
others
AIR
1999
Allahabad 304. Learned Senior Counsel has
also submitted that in this phenomenon once
the discretion has been exercised by the
court, there can be hardly any ground to
interfere with the matter under Article 226 of
the Constitution of India as the writ petitions
are not entertained against an order
exercising the discretion this way or that
way. For entertaining the writ petition there
must
be
some
statutory
breach
or
jurisdictional error and in absence of that no
interference should be made with the orders
passed by the courts below.

6. I have heard learned counsel for
the parties and perused the record.

From the perusal of the record, it
transpires that as many as 13 issues were
framed by the court below. The issue nos.
6 and 7 are reproduced hereinunder

6- D;k okn nQk 49 tks0p0v0 ls ckf/kr gS\

7- D;k okn dk ewY;kadu de fd;k x;k gS
vkSj fn;k x;k U;k;'kqYd vi;kZIr gS\

7. The petitioner has given an
application for deciding the Issue Nos. 6
and 7 together. This application was
rejected on 4.4.2012 so far as it relates to
Issue No. 6 which relates to the
jurisdiction of the Court whereas with
respect to Issue No. 7, the valuation of the
suit and payment of court fees are
concerned, the court below held that
sufficient court fees has been paid.

8. The aggrieved petitioner has field
revision that too has been dismissed.

9. While assailing these order, Sri
Hasnain has placed reliance upon the
division bench judgment of this Court in
Mrs. Shahnaz Husain (supra). Relevant
para of the aforesaid judgment is
reproduced hereinunder :-

The above rule no doubt empowers a
Court to set aside an order for injunction,
but only if it comes to the conclusion that
the party in whose favour the order of
injunction was passed is delaying the
proceedings or is otherwise abusing the
process of the Court. The learned Civil
Judge had allowed both the amendment
applications. It cannot be said the
amendments sought were frivolous and
intended to delay the proceedings. If some
preliminary issues were raised, the Court
was bounds to decide it at the earliest
before it starts hearing the suit. The pleas
regarding jurisdiction which cut at the
very root of the suit should be decided as
preliminary issues. If such issues are left
to be decided at the final trial and after
evidence
the
court
comes
to
the
conclusion that it had no jurisdiction to
try the suit and returns the plaint for
presentation before another Court, then
the Court's valuable time will obviously
be lost. Hence it cannot be said that by
1070 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

asking
the
Court
to
decide
some
preliminary issues the defendants had
intended to delay the suit. We do not
agree with learned counsel for the
respondents that issues 14 and 18 could
have been decided along with the whole
suit.

10. In response thereto, the learned
Senior Counsel, apart from the decision
on which he has placed reliance, has also
invited attention of the Court towards the
amended provisions of Order 14 which is
reproduced hereinunder :-

Sub-Rule 2 of Order 14

Court to pronounce judgment on
all issues :- (1) Notwithstanding that a
case may be disposed of on a preliminary
issue, the Court shall, subject to the
provisions of Sub-Rule (2), pronounce
judgment on all issues.

(2) Where issues both of law and of
fact arise in the same suit, and the Court is
of opinion that the case or any part thereof
may be disposed of on an issue of law
only, it may try that issue first if that issue
relates to-

(a) the jurisdiction of the Court, or

(b) a bar to the suit created by any
law for the time being in force, and for
that purpose may, if it thinks fit, postpone
the settlement of the other issues until
after that issue has been determined, and
may deal with the suit in accordance with
the decision on that issue.

11. Sub-Rule 2 of Order 14 speaks
that Notwithstanding that a case may be
disposed of on a preliminary issue, the
Court shall, subject to the provisions of
Sub-Rule (2), pronounce judgment on all
issues and Sub-Rule 2 (2) of Order 14
speaks that Where issues both of law and
of fact arise in the same suit, and the
Court is of opinion that the case or any
part thereof may be disposed of on an
issue of law only, it may try that issue
first if that issue relates to the jurisdiction
of the Court, or a bar to the suit created by
any law for the time being in force.

12. The provisions contained in this
Sub-rule 2 (2) of Order 14 appears to be
directory in nature. From the bare reading
of the Rule aforesaid, it transpires that
although the statute requires that pure
question of law relating to jurisdiction be
decided first but where question of law
depends upon investigation of fact, the
Court may decide the same along with
other issues after availability of sufficient
material before the Court.

13. Hon'ble Supreme Court in
Dattatraya Moreshwar Vs. The State of
Bombay & Ors., AIR 1952 SC 181 has
observed that a law which creates public
duty is directory but if it confers private
rights, it is mandatory. Relevant passage
from this judgment is quoted below:-

"It is well settled that generally
speaking the provisions of the statute
creating public duties are directory and
those
conferring
private
rights
are
imperative. When the provisionof a
statute relate to the performance of a
public duty and the case is such that to
hold null and void acts done in neglect of
this duty would work serious general
inconvenience or injustice to persons who
have no control over those entrusted with
the duty and at the same time would not
promote the main object of legislature, it
has been the practice of the Courts to hold
such provisions to be directory only the
neglect of them not affecting the validity
of the acts done."
2 All] Surendra Prasad Rai Vs. Addl.Commissioner & Ors.

1071

14. A Constitution Bench of the
Hon'ble Supreme Court, in State of U.P.
& Ors., Vs. Babu Ram Upadhya, AIR
1961 SC 751, while considering the issue
as to whether a provision contained in a
Statute
is
mandatory
or
directory,
observed as under:-

"For ascertaining the real intention of
the Legislature, the court may consider,
inter alia, the nature and the design of the
statute, and the consequences which
would follow from construing it the one
way or the other, the impact of other
provisions whereby the necessity of
complying with the provisions in question
is avoided, the circumstance, namely, that
the statute provides for a contingency of
the non-compliance with the provisions,
the fact that the non-compliance with the
provisions is or is not visited by some
penalty,
the
serious
or
trivial
consequences that flow therefrom, and,
above all, whether the object of the
legislation will be defeated or furthered."

15. In Raza Buland Sugar Co.
Ltd., Rampur Vs. Municipal Board,
Rampur, AIR 1965 SC 895; and State
of Mysore Vs. V.K. Kangan, AIR 1975
SC
2190,
whether
a
provision
is
mandatory or directory, would, in the
ultimate analysis, depend 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.

16. In Sharif-Ud-Din Vs. Abdul
Gani Lone, AIR 1980 SC 303, the
Supreme Court, while considering the
provisions of Sub-section (3) of Section
89 of the J&K Representation of People
Act, 1957, held that the difference
between a mandatory and directory rule is
that the former requires strict observance
while in the case of latter, substantial
compliance of the rule may be enough
and where the statute provides that failure
to make observance of a particular rule
would lead to a specific consequence, the
provision
has
to
be
construed
as
mandatory. The Apex Court held as
under:-

"In order to find out the true
character of the legislation, the court has
to ascertain the object which the provision
of law in question is to sub-serve and its
design and the context in which it is
enacted. If the object of the law is
required
to
be
defeated
by
noncompliance with it, it has to be regarded
as mandatory.....Whenever the statute
provides that a particular act is to be done
in a particular manner and also lays down
that the failure to compliance with the
said requirement leads to a specific
consequence, it would be difficult to hold
that the requirement is not mandatory and
the specified consequence should not
follow."

17. Similar view has been reiterated
in Dinkar Anna Patil & Anr. Vs. State
of Maharashtra & Ors., (1999) 1 SCC
354; Shashikant Singh Vs. Tarkeshwar
Singh, AIR 2002 SC 2031; Balwant
Singh & Ors., Vs. Anand Kumar
Sharma & Ors., (2003) 3 SCC 433;
Bhavnagar University Vs. Palitana
Sugar Mill Pvt. Ltd. & Ors., AIR 2003
SC 511; and Chandrika Prasad Yadav
Vs. State of Bihar & Ors., AIR 2004 SC
2036).

18. In view of the various decisions
of the apex Court, it is clear that while
1072 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

holding a particular statute as mandatory
or directory, it would be necessary to look
into the intention of the Legislature. From
a bare reading of the rule it transpires that
it is the discretion of the Court either to
decide the question of jurisdiction at a
first instance or at the time of decision of
all other issues. The Divisional Bench of
this Court in Manager Bettiah Estate
(supra), on which Sri Singh has placed
reliance, has observed as under :-

Only an issue of law can be decided as
a preliminary only where it is such that its
decision does not necessitate investigation
into facts and it relates either to the
jurisdiction of the Court or to the suit being
barred under any prevailing law, and that, in
the opinion of the court the decision of the
issue will result in the decision of the whole
or a part of the suit. The discretion in this
regard must always be exercised on the basis
of sound judicial principles. It may however
be made clear that even if an issue of law can
be decided as a preliminary issue as aforesaid
the Court is not always bound to decide it as
a preliminary issue and can in its discretion,
postpone its decision also along with other
issues whether of law or fact. The whole
purpose behind the amended provision is to
restrict piecemeal decision and unnecessary
multi-tier appeals at intermediate stages on
preliminary issue alone and thus avoid
procrastination of litigation. The new
provision justly aims at abridging the
proceeding in the suit rather than permitting
prolongation thereof.

19. This view has been subsequently
taken by the learned Single Judge of this
Court in Mithlesh Kumari (supra). Here
in this case, from the perusal of the
judgment it transpires that the petitioner
has raised question of jurisdiction taking
shelter of Section 49 of the Act but the
otherside has made allegation of fraud. The
bar of jurisdiction in view of Section 49 of
the Act may be the question of pure law but
the pure law cannot be applied in air unless
the facts are investigated particularly where
there are allegations of fraud. Here the
revisional court in its judgment has observed
in categorical words that since the fraud has
been
alleged
therefore
it
would
be
appropriate to decide all the issues together
and taking note of that, the revisional court
has refused to interfere with the judgment
passed by the Sub-Divisional Officer and
rejected the petitioner's revision.

20. Otherwise also, it is settled law
that if by reading of statute, two views are
possible to be taken and one view has
been taken by the court, that is not
amenable for interference under Article
226 of the Constitution of India unless
there is jurisdictional error or conclusion
has been drawn in ignoring the statute or
misreading/non
consideration
of
the
relevant materials available on record.

21. The learned counsel for the
petitioner, except expressing his anxiety
to save the time of the court, has not
placed any material before the Court from
which it can be inferred that Sub-Rule 2
of Order 14 of the Code of Civil
Procedure mandate that the question of
jurisdiction is to be decided first even if
investigation of fact is required. In this
case both the courts below have held that
the issue no. 6 be decided along with
other issues and the conclusion is based
on sound reasoning i.e. to decide the bar
of jurisdiction, investigation of fact is
required which can only be arrived at
after availability of evidence. The view
taken by the courts below since are based
on sound reasoning, therefore the same
cannot
be
faulted
with.
2 All] Kanta @ Ramakant Vs. State of U.P. and Ors.

1073

22. In view of foregoing discussions,
I do not find any ground to interfere with
the impugned orders. The writ petition
fails and it is hereby dismissed.

23. However, keeping in mind the
anxiety of counsel for both the parties and
pendency of the matter before the SubDivisional Officer for quite long time, it is
observed that the Sub-Divisional Officer
shall make his all endeavour to decide the
suit expeditiously, if possible, within a
period of one year from the date of
production of certified copy of the order
of this Court without granting any
unnecessary adjournments to the learned
counsel for the parties.
---------
ORIGINAL JURISDICTION
CIVIL- SIDE
DATED: ALLAHABAD 15.05.2013

BEFORE
THE HON'BLE RAN VIJAI SINGH, J.

Civil Misc Writ Petition No. 25772 of 2013

Kanta@ Ramakant

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

Counsel for the Petitioner:
Sri R.C. Singh, Sri Rituvendra Singh

Counsel for the Respondents:
C.S.C., Sri H.K. Dubey, Sri Mahesh Narain
Singh,Sri Vijai Bhan Singh, Sri Hemant
Kumar

U.P.Z.A.& L.R. Act, 1950, Section 198(4)-
Cancellation of lease-granted for agricultural
purpose-but can not be applicable for
cancellation of fisheries rights-admittedly
the District Magistrate empowered to take
such decision- mention of wrong provision or
section-shall not effect the order-if well
within
jurisdiction-against
cancellation
revision maintainable-can not be interfered
under writ jurisdiction status quo as
prevailing to day shall be maintained.

Held: Para-7
Here, the issue in question was validity of
fishery lease, on which finger was raised
that
during
the
settlement
of
lease,
irregularities have been committed. The
Collector has exercised its power may be
under section 198(4) of the Act, but that
will not vitiate the proceeding as the
Collector has power to cancel the lease,
either it is agricultural lease or fishery lease,
but under different provision.

Case Law discussed:
2005 (99) RD 823

(Delivered by Hon'ble Ran Vijai Singh, J.)

1. Heard Sri Rituvendra Singh,
holding brief of Sri R.C. Singh, learned
counsel for the petitioner, learned Standing
Counsel
appearing
for
the
Staterespondents, Sri Hemant Kumar, appearing
for respondent no. 4 and Sri Vijai Bhan
Singh, holding brief of Sri M.N. Singh,
learned counsel for the Gaon Sabha.

2. Through this writ petition, the
petitioner has prayed for issuing a writ of
certiorari
quashing
the
order
dated
15.4.2013 passed by the Collector,
Kushinagar, by which the petitioner's
fishery lease has been cancelled.

3. Sri Singh contends that the order
impugned, passed by the Collector, is
without jurisdiction as no application could
be entertain under sub-section (4) of section
198 of the U.P. Zamindari Abolition and
Land Reforms Act, 1950 (in short, 'the Act').

4. On being confronted as to
whether the Collector has power to cancel
the fishery lease or not, Sri Singh states
that the Collector has power to cancel the
fishery lease in view of the government