# U.P. Congress Committee v. State of U.P. & Ors

- **Citation:** (2023) 10 ILRA 1133
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-05
- **Case number:** Writ-C No. 3740 of 1998
- **Bench:** Vivek Chaudhary, Manish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/u-p-congress-committee-v-state-of-u-p-ors-49266
- **Pages:** 11

## Headnote

C.S.C.,
D.K.
Srivastava,
M.
Chandra,
Prabhu Ranjan Tripathi, T. Somwanshi,
Vishal Singh

A. Recovery Law - UP Public Moneys
(Recovery of Dues) Act, 1972 - Section
3(1)(d) - Recovery proceeding - Nonpayment of dues occurred due to the use
of buses of UPSRTC by the UP Congress
Committee
-
Non
existence
of
agreement as required u/s 3(1)(d) -
Effect
-
Validity
of
proceeding
challenged - Held, UPSRTC is running on
public money and provides services to
public at large. It is a government
corporation and is under total control of
State Government - There is no doubt
that question of recovery of public
money is involved in the present case,
which is used for political purposes by
the petitioner, therefore, petitioner is
bound to pay the said amount - High
Court
directed
the
UP
Congress
Committee to pay entire due of Rs. 266
Lacs along with an interest of 5%. (Para
10, 11 and 19)

B. Constitution of India - Article 226 -
Writ - Judicial review - Recovery matter -
Scope of interference - Justice, equity and
good
conscience
-
Significance
in
exercising the discretionary power - Held,
while exercising discretionary jurisdiction
under Article 226, the High Court must
ensure that justice is done, equity be
upheld and injustice is eliminated - High
Court should exercise its discretionary
jurisdiction in such a manner which would
advance
end
of
justice
and
uproot
injustice.
It
should
exercise
power
conferred under Article 226 and 227 of the
Constitution of India in a manner that
provides complete and substantial justice
to parties. (Para 11 and 18)

Writ petition disposed. (E-1)

List of Cases cited:

## Text

10 All. U.P. Congress Committee Vs. State of U.P. & Ors.
1133
and consequently the said protection will
continue till final decision is made and
orders are passed by the Maintenance
Tribunal.

39. The writ petition stands allowed.
----------
(2023) 10 ILRA 1133
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.10.2023

BEFORE

THE HON'BLE VIVEK CHAUDHARY, J.
THE HON'BLE MANISH KUMAR, J.

Writ-C No. 3740 of 1998

U.P. Congress Committee ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
J.N. Mathur, I.H. Farooqui, Karunesh
Kumar Srivastava, Prabhat Kumar Tripathi

Counsel for the Respondents:
C.S.C.,
D.K.
Srivastava,
M.
Chandra,
Prabhu Ranjan Tripathi, T. Somwanshi,
Vishal Singh

A. Recovery Law - UP Public Moneys
(Recovery of Dues) Act, 1972 - Section
3(1)(d) - Recovery proceeding - Nonpayment of dues occurred due to the use
of buses of UPSRTC by the UP Congress
Committee
-
Non
existence
of
agreement as required u/s 3(1)(d) -
Effect
-
Validity
of
proceeding
challenged - Held, UPSRTC is running on
public money and provides services to
public at large. It is a government
corporation and is under total control of
State Government - There is no doubt
that question of recovery of public
money is involved in the present case,
which is used for political purposes by
the petitioner, therefore, petitioner is
bound to pay the said amount - High
Court
directed
the
UP
Congress
Committee to pay entire due of Rs. 266
Lacs along with an interest of 5%. (Para
10, 11 and 19)

B. Constitution of India - Article 226 -
Writ - Judicial review - Recovery matter -
Scope of interference - Justice, equity and
good
conscience
-
Significance
in
exercising the discretionary power - Held,
while exercising discretionary jurisdiction
under Article 226, the High Court must
ensure that justice is done, equity be
upheld and injustice is eliminated - High
Court should exercise its discretionary
jurisdiction in such a manner which would
advance
end
of
justice
and
uproot
injustice.
It
should
exercise
power
conferred under Article 226 and 227 of the
Constitution of India in a manner that
provides complete and substantial justice
to parties. (Para 11 and 18)

Writ petition disposed. (E-1)

List of Cases cited:

1. Jodhey Vs State; AIR 1952 All 788

2. Gadde Venkateswara Rao Vs Govt. of A.P.;
AIR 1966 SC 828

3. Commissioner of Income Tax, Madras & ors.
Vs Vinod Kumar Didwania and Ors.; AIR 1987
SC 1260

4. Mohammad Swalleh Vs Third Additonal
District Judge, Meerut; (1988) 1 SCC 40

5. Shangrila Food Products Ltd. Vs LIC; (1996) 5
SCC 54

6. Roshan Deen Vs Preeti Lal; (2002) 1 SCC 100

7. Ramesh Chandra Sankla & ors. Vs Vikram
Cement & ors.; (2008) 14 SCC 58

(Delivered by Hon'ble Vivek Chaudhary, J.
&
Hon'ble Manish Kumar, J. )
1134 INDIAN LAW REPORTS ALLAHABAD SERIES

1. Heard Sri I.H. Farooqui, learned
counsel for petitioner, learned counsel for
respondent no.4 U.P.S.R.T.C. and learned
Standing Counsel for the State. Learned
counsel for petitioner along with his oral
submissions has also provided written
submissions dated 23.08.2023.

2. Petitioner, a national political party
has approached this Court challenging the
recovery notice dated 10.11.1998 issued by
Tehsildar, Sadar, Lucknow. The said
proceedings are initiated at the instance of
respondent no.4 Managing Director, U.P.
State
Road
Transport
Corporation
(U.P.S.R.T.C.) which claims that an
amount of Rs.2,68,29,879.78/- is due on the
petitioner which U.P.S.R.T.C. is entitled to
recover. The amount due is claimed to be
of bills raised against petitioner for use of
buses and taxies from U.P.S.R.T.C. by
petitioner for its purposes when its
Government was in power in State of U.P.

3. When the petition was filed, the
sole ground taken in the writ petition was
that the amount cannot be recovered under
Section 3 of the U.P. Public Moneys
(Recovery of Dues) Act, 1972, (hereinafter
referred to as 'Act of 1972') as there is no
agreement relating to any loan to be
recovered as land revenue or advance or
grant or relating to credit in respect of, or
relating to higher purchase of goods sold to
petitioner by U.P.S.R.T.C. which would
empower the respondents to recover the
said sum under Section 3(1) of Act of 1972.
Though, in paragraph-1 of the writ petition
it was claimed that the amount is neither
due to be paid by petitioner to the
respondents nor is the same recoverable as
arrears of land revenue, however, there are
no details in the writ petition as to why the
said amount is not due to be paid by the
petitioner to the respondent Corporation.
Only submission made in paragraph-17 of
the writ petition is that the amount is being
recovered as political vendetta and with a
view to bring petitioner under political
pressure. When the petition was placed
before this Court for the first time on
26.11.1998 this Court passed the following
order:-

"The
petitioner's
counsel
is
permitted to amend the designation of the
opposite party no.1.

Sri Vishal Singh accepts notice
on behalf of opposite party no.4. The
learned Standing Counsel accepts notice on
behalf of opposite party no.1 to 3.

The parties counsel agree that
their client will sit and settle their dispute
amicably. In these circumstances, the
opposite party no.4 is directed to show the
accounts to the petitioner on a fixed date as
agreed by the parties.

List in January, 99. The recovery
proceedings shall remain stayed till the
next listing."

4. The matter is pending since the
year 1998 and after 25 years also it could
not be settled between the parties. Hence,
this Court has taken up the matter to be
decided on merits.

5. Counter affidavits are filed by
respondent no.1 State of U.P. as well as
respondent no.4 U.P.S.R.T.C. in support of
the demand. The counter affidavit filed by
Sri
Mazid
Ali,
Principal
Secretary,
Transport Department of Government of
U.P.
along
with
application
dated
02.11.2011 provides a detailed chart of the
demand raised against the petitioner and
claims that between the years 1981 and
10 All. U.P. Congress Committee Vs. State of U.P. & Ors.
1135
1989 vehicles in the nature of buses, taxi
etc. were provided to the petitioner party by
U.P.S.R.T.C., on directions of Chief
Minister and Minister concerned, who all
belonged to petitioner party, for which bills
were regularly raised and were liable to be
paid by petitioner. The same remained
pending
and,
hence,
now
recovery
certificate is issued against petitioner. Total
amount as per chart filed as annexure CA-1
is
Rs.266.72
lakhs.
(Dues
were
of
Rs.268.30 Lakhs out of which Rs.1.58
Lakhs was recovered through Tehsildar in
2003.) Number of communications made
by the officers of respondent U.P.S.R.T.C.
to the petitioner from the year 1981 to 1990
are also filed raising bills and repeatedly
requesting for payment of the same.
Similarly a counter affidavit is filed by Sri
P.K.
Srivastava,
General
Manager
(Passenger Facility), U.P. State Road
Transport Corporation, Lucknow along
with an application dated 16.08.1999 and
along
with the same
also
different
bills/reminders sent to the petitioner by
corporation are annexed. Communications
were also filed in furtherance of the order
of this Court dated 26.11.1998 requesting
petitioner to sit and settle the matter. A
rejoinder affidavit dated 23.04.2003 is filed
by the petitioner to the counter affidavit filed on
behalf of respondent no.4. The stand taken by
the petitioner is reflected in paragraph 4 and 7
of the said rejoinder affidavit which reads as
follow:-

"4. That the contents of para 2 are
incorrect, hence denied and those of para 1 of
the writ petition are reiterated. There has been
no liability of the petitioner to pay any due to
the opposite parties. It is denied that the
petitioners have ever hired bus, taxi or any
vehicle from the opposite party no.4 as claimed
by the said opposite party. Whenever the
petitioner has applied for hiring any vehicle
from the opposite parties, it has been after
following due process of requisitioning and
payments have been made as per rules of the
opposite party no.4. It may be relevant to point
out that the opposite party no.4 does not lend its
vehicle
to
the
private
individuals
or
Organizations without their depositing the
requisite amount of fair and without fulfilling
formalities such as making indent on forms
prescribed. Infact, the opposite party no.4
appears from documents filed alongwith the
counter affidavit Itself, especially Annexure No.
CA-1, letter dated 19-12- 1994 & 19-9-1994 as
well as Annexure No. CA-5 dated 17-4-1999
that the opposite party no.4 has provided
certain vehicles as per instructions/ orders
issued by the then Chief Minister/Transport
Minister/Transport Secretary etc. for the
purposes of meetings of the Prime Minister
which may be in pursuance of some decision of
the U.P. Government. In the circumstances, the
State Government was liable to pay the amount
fee due, if any against provision of those
vehicles. But instead making demand from the
State Government and the persons/officers
concerned. the opposite party no.4, acting on
instructions of the political leadership/Chief
Minister/Transport Minister has tried to
fasen liability on the petitioner in order to
malign it out of political vendetta and for
harassing the petitioner. It may be relevant
to point out that the impugned orders have
been passed at a time when the Chief
Minister and other Ministers have launched
a vilification complaint against the rival
political
parties/opposition
parties
including the Indian National Congress for
ulterior motives.

5. .........

6. .........

7. That the contents of para 5 & 6
are denied as incorrect and those of para 4
1136 INDIAN LAW REPORTS ALLAHABAD SERIES
& 5 of the writ petition are reiterated. The
opposite party had not sent any demand
letter prior to the receipt of impugned
order dated 10-11- 1998. The opposite
party no.4 may have concocted documents
for the purposes of their own or may have
kept some documents in file. The opposite
party has not come out with any proof or
evidence in support of their claim that any
letter claimed to have been sent to the
petitioner has Infact over been sent. Many
of the alleged letters infact even not
addressed to the petitioner. In any case,
there has been no liability of the petitioner
to pay anything to the opposite party no.4.
So far as the documents filed as Annexure
No.CA-1 are concerned, it is specifically
stated that they have not been sent to the
petitioner at all. However, the very first
letter dated 19-9-1994 refers to some letter
dated 6-11-1992 which has not been filed
by the opposite parties. Further, a vague
statement has been made in the said letter
by the opposite party no.4 that the opposite
party no.4 had made buses and taxies
available for the purposes of rallies
organized by the Congress Party on the
oral and written orders of the petitioner
and the U.P. Government as well as Chief
Minister/Ministers
of
the
then
U.P.
Government. So far as it claims that the
petitioner has issued any order or so for
making the buses available is denied. The
opposite parties have been filed any
document claimed to have been written by
the petitioner alongwith
the
counter
affidavit. So far as making buses available
on oral request is concerned, the same
appears to be wholly concocted. Infact, the
opposite party no.4 does not make any
vehicle available nor can it do so on the
oral request of anyone. It appears to be a
cover up story. However, the real part of
the story is clear from mentioning by the
opposite party no.4 itself that the vehicles
were made available on the orders of the
State Government and the then Chief
Minister/Ministers.
It
being
so
the
opposite party no.4 ought to have
demanded money for them from the
persons/officers who had placed orders. It
cannot be claimed any amount of money
against such orders of State Government
officials from the U.P.C.C. There has
been no privity of contract between the
petitioner and the opposite parties. Hence,
the opposite parties have got no right to
make a demand of money from the
petitioner.

It is further submitted that the socalled letter of the opposite party no.4 are
dated 1994 or so. The opposite partles have
not made clear that if they had any claim
why they did not issue proper demand letter
to the petitioner and got it served officially
and
received
its
acknowledgement.
Further, if there was any valid claim, the
opposite parties ought to have file a civil
suit for recovery of the same which has not
been done. No such step has been taken
which clearly indicates that the opposite
parties are trying to fasen liabilities of
others/its
own
Government
Officers/Ministers, Chief Ministers etc., if
any, on the petitioner for ulterior motives.
The contents of para 4 & 5 of the petition
are reiterated in this regard."

6. A supplementary affidavit along
with application dated 27.08.2018 on
behalf of respondent no.4 is also filed by
Sri Harmeet Singh Gaba, Chief General
Manager
(Operation),
U.P.S.R.T.C.,
Lucknow. Along with the same repeated
communications made are filed requiring
petitioner to clear the amount. Along with
the same a letter dated 18.08.2000 is also
filed specifically stating that as required by
petitioner a meeting has also taken place
10 All. U.P. Congress Committee Vs. State of U.P. & Ors.
1137
and all the required documents are already
provided to the petitioner. It also states that
petitioner had assured that after taking
advise from their chartered accountant they
shall report back. Along with the said
affidavit
a
communication
dated
29.03.1988 of U.P.S.R.T.C. pointing out
that vehicles were provided from time to
time to the petitioner and for that part
payment/advance payment was also made
by the petitioner and, therefore, now
petitioner should clear the said dues. The
said letter was replied on 23.04.1988 by Sri
Jagat Pal Singh, the General Secretary of
petitioner, which is filed as S.A.3. In the
said reply, General Secretary of petitioner
stated
that
the
remaining
dues
of
U.P.S.R.T.C. upon petitioner are being
arranged to be cleared as early as possible.

7. From the record filed by the parties
before this Court, more particularly,
documents
filed
along
with
counter
affidavit of Sri Mazid Ali along with
application dated 02.11.2011, it is apparent
that vehicles were provided on rent for the
political rallies and activities of petitioner
by U.P.S.R.T.C. Letter dated 02.04.1981
written
by
Up
Prahdan
Prabandhak
(Sanchalan), U.P.S.R.T.C. shows that a bill
of
Rs.6,21,692.55/-
was
raised
on
02.04.1981 for kisan rally organized by
petitioner on 16.02.1981; similarly another
communication dated 16.12.1984 shows
that a bill of Rs.8,69,045.31/- is due for
providing vehicles for ferrying people to
pay homage on 19.11.1984 to the ashes of
late Prime Minister Mrs. Indira Gandhi.
Another communication of December,
1984 is for carrying people on 20.10.1984
to a venue being visited by the Prime
Minister. Again by communication dated
09.09.1987 a bill is raised on account of
visit of Prime Minister on 01.08.1987 at
Allahabad. The said bills remained pending
upon
the
petitioner.
Again
a
communication dated 02.09.1987 is made
reminding petitioner for amount due
against petitioner and for payment thereof.
Again a communication dated 17.02.1989
was issued detailing all the pending bills,
which till then were of Rs.68,89,860.86./-
The same also notes that an advance earlier
given
by
receipt
no.527988
dated
27.10.1988 of Rs.10 Lakhs and vide receipt
no.527990
dated
29.10.1988
of
Rs.1,50,000, total 11,50,000/- is adjusted
and
thereafter
an
amount
of
Rs.57,39,860.86 is due. Thereafter, again
communication dated 18.12.1989 raising a
bill of Rs.1,29,981.65/- on account of visit
of
Prime
Minister
at
Kannauj
on
31.08.1989 was made. Further, a bill of
Rs.52,828/- for the same visit of Prime
Minister dated 31.08.1989 at Kannauj was
raised. All the said documents clearly
denotes that petitioner while being a ruling
party in the State of U.P. availed facilities
of vehicles for its political activities from
U.P.S.R.T.C. The same at times were on
the directions of the then Chief Minister or
Minister concerned. It had also paid some
advance
money
on
two
occasions.
However,
remaining
bills
were
left
pending, though, repeated reminders were
sent to the petitioner. There is nothing on
record denying specific details given in the
aforesaid communications. A very vague
stand is taken by the petitioner it its
rejoinder affidavit which is already quoted
above, that, bills are concocted and false.
There is no denial of the receipts
specifically
mentioned
to
in
the
communications as well as assurance letter
dated 23.04.1988 given by Sri Jagat Pal
Singh, General Secretary of petitioner for
payment of dues. Thus, petitioner fails to
satisfy on record that it had not utilized
vehicles provided by respondent no.4 on its
request, be it on direction of Chief Minister
1138 INDIAN LAW REPORTS ALLAHABAD SERIES
or Minister concerned, who also belonged
to the petitioner political party. The said
vehicles were used for the political
gatherings/activities of the petitioner.

8. The sole submission raised through
written
submission
as
well
as
oral
arguments is that there was no agreement
between the parties to recover the dues as
arrears of land revenue as mandated under
Section 3(1)(a) of the Act of 1972, hence,
amount cannot be recovered from the
petitioner.

9. On the other hand counsel for
respondent corporation strongly submits
that it is public money which is involved in
the present matter and, hence, the Court,
while looking into the technical arguments
of the petitioner, should also consider the
equities involved.

10. By Notification No.U.P.423/1-776 Rev.-7, Lucknow, dated, July 30, 1975
respondent no.4 U.P. State Road Transport
Corporation stands notified under Section
2(a) of the Act of 1972 for the purposes of
the said Act. However, admittedly, there is
no agreement between the parties that the
aforesaid amount can be recovered as
arrears of land revenue under Section
3(1)(d) of the Act of 1972, which requires
"Agreement providing that any money
payable
thereunder
to
the
State
Government (or the Corporation) shall be
recoverable as arrears of land revenue."
Thus, technically speaking, the amount
claimed by respondent no.4 is not covered
by Section 3. of the Act of 1972.

11. However, it is also not in dispute
that petitioner while being party in power
and running its government in the State of
U.P. being in a dominant position utilized
services of respondent no.4 U.P.S.R.T.C.
All the bills were duly raised at the relevant
time only against petitioner but it never
settled the said bills. Even when the writ
petition was placed before this Court for
the first time, petitioner showed its
inclination to sit and settle the matter, but
with passage of time petitioner has totally
changed its stand and now is raising
submissions only on technicalities. In the
entire writ petition not even a single word
is stated with regard to liability of
petitioner to pay the said amount. In the
rejoinder affidavit stand is taken for the
first time that the said facilities were
provided to the petitioner on the directions
of Chief Minister, Minister concerned or
the Secretary concerned which must be
under some directions of the State
Government and, thus, amount is to be paid
by the State Government. There is no
evidence filed in support of the said
submission. There is nothing on record to
show that any decision was ever taken by
the State Government to pay the said dues.
The documents filed along with the counter
affidavit
show
that
the
concerned
Ministers/Secretary
only
directed
for
providing the said vehicles to the party on
its applications. Thus, it is not in dispute
that petitioner had utilized services of
vehicles of respondent no.4 for its political
activities and has not paid bills raised for
the same. Admittedly, U.P.S.R.T.C. is
running on public money and provides
services to public at large. No doubt it is a
government corporation and is under total
control of State Government. It is bound to
comply with the direction of Chief Minister
or the Minister concerned and, thus, was
not in a position to refuse vehicle to
political party which was running the
Government. In the given circumstances,
the question before this Court is as to
whether in exercise of its extraordinary
discretionary jurisdiction this Court should
10 All. U.P. Congress Committee Vs. State of U.P. & Ors.
1139
interfere in the recovery proceedings
initiated by respondent no.4. The law in
this regard is very well settled. In a catena
of judgments, both this Court and Supreme
Court
have
emphasised
that
while
exercising discretionary jurisdiction under
Article 226, the High Court must ensure
that justice is done, equity be upheld and
injustice is eliminated. In Jodhey vs State,
reported as AIR 1952 All 788, this Court
considered the discretionary and equitable
jurisdiction of the High Court and the
manner in which the same ought to be
exercised. Relevant portion of the same
reads:-

"There are no limits, fetters or
restrictions placed on this power of
superintendence in this Clause and the
purpose of this Article seems to be to make
the High Court the custodian of all justice
within
the
territorial
limits
of
its
jurisdiction and to arm it with a weapon
that could be wielded for the purpose of
seeing that justice is meted out fairly and
properly by the bodies mentioned therein.
"(emphasis supplied)

12. In Gadde Venkateswara Rao v.
Govt. of A.P.; AIR 1966 SC 828, a three
judges Bench of the Supreme Court
affirmed the judgment of the Andhra
Pradesh High Court where it refused to
interfere into a matter on merit even when
the appellant alleged violation of principles
of natural justice. The Supreme Court
observed that if the impugned order passed
by the Government would have been set
aside by the High Court, it would have
restored an illegal order. Paragraph 19 of
the judgment reads:-

"19. The result of the discussion
may be stated thus: The Primary Health
Centre was not permanently located at
Dharmajigudem. The representatives of the
said village did not comply with the
necessary conditions for such location. The
Panchayat Samithi finally cancelled its
earlier resolutions which they were entitled
to do and passed a resolution for locating
the Primary Health Centre permanently at
Lingopalem. Both the orders of the
Government, namely, the order dated
March 7, 1962, and that dated April 18,
1963, were not legally passed: the former,
because it was made without giving notice
to the Panchayat Samithi, and the latter,
because the Government had no power
under Section 72 of the Act to review an
order made under Section 62 of the Act and
also because it did not give notice to the
representatives of Dharmajigudem village.
In those circumstances, was it a case for
the High Court to interfere in its discretion
and quash the order of the Government
dated April 18, 1963? If the High Court
had quashed the said order, it would have
restored an illegal order it would have
given the Health Centre to a village
contrary to the valid resolutions passed by
the Panchayat Samithi. The High Court,
therefore, in our view, rightly refused to
exercise its extraordinary discretionary
power in the circumstances of the case."
(emphasis supplied)

13. In Commissioner of Income Tax,
Madras and Ors. vs. Vinod Kumar
Didwania and Ors.; AIR 1987 SC 1260,
Supreme Court deprecated the conduct of
the private respondent who first got the
interim injunction and then withdrew the
petition. It was held that the respondent has
abused the process of law and therefore he
could not be allowed to retain undue
benefits received by him under the garb of
interim injunction. Relevant portion of
paragraph 3 of the said judgment is quoted
hereafter:-
1140 INDIAN LAW REPORTS ALLAHABAD SERIES

"3. The learned Attorney General
appearing on behalf of the Deputy Director
of Inspection submitted before us that the
amount representing the value of the goods
removed from the three godowns should be
restituted by the 1st Respondent since the
goods were removed by him under an ex
parte order of injunction obtained from the
High Court of Calcutta in the Writ Petition
filed by him and the nefarious purpose of
filing the Writ Petition having been
accomplished by removal of the goods, the
writ petition was withdrawn. There is great
force in his submission of the learned
Attorney General. There is no doubt that
the 1st Respondent has abused the process
of the Court for securing removal of the
goods from the three godowns and he
cannot
be
allowed
to
retain
that
advantage....."

14. In Mohammad Swalleh v. Third
Additonal District Judge, Meerut; (1988)
1 SCC 40 the Supreme Court dismissed an
appeal against an order passed by the High
Court wherein the High Court refused to
interfere with the order of the District Court
which had no jurisdiction to entertain an
appeal from the Prescribed Authority under
the scheme of the Act on the ground that
setting aside District Court's order would
mean restoring the erroneous order of the
Prescribed Authority. Paragraph 7 of the
above referred judgment of the Supreme
Court reads:-

"7. It was contended before the
High Court that no appeal lay from the
decision of the prescribed authority to the
District Judge. The High Court accepted
this contention. The High Court finally held
that though the appeal laid (sic no appeal
lay) before the District Judge, the order of
the prescribed authority was invalid and
was rightly set aside by the District Judge.
On that ground the High Court declined to
interfere with the order of the learned
District Judge. It is true that there has been
some technical breach because if there is
no appeal maintainable before the learned
District Judge, in the appeal before the
learned District Judge, the same could not
be set aside. But the High Court was
exercising its jurisdiction under Article 226
of the Constitution. The High Court had
come to the conclusion that the order of the
prescribed authority was invalid and
improper. The High Court itself could have
set it aside. Therefore in the facts and
circumstances of the case justice has been
done though as mentioned hereinbefore,
technically the appellant had a point that
the order of the District Judge was illegal
and improper. If we reiterate the order of
the High Court as it is setting aside the
order of the prescribed authority in
exercise of the jurisdiction under Article
226 of the Constitution then no exception
can be taken. As mentioned hereinbefore,
justice has been done and as the improper
order of the prescribed authority has been
set aside, no objection can be taken."
(emphasis supplied)

15. In Shangrila Food Products Ltd.
v. LIC, (1996) 5 SCC 54 the Supreme
Court reiterated that while exercising
jurisdiction under Article 226 and 227 of
the Constitution, a duty is casted upon the
High Courts to see to it that equity is
upheld. High Court must ensure that any
undue advantage gained by a party prior to
invoking discretionary jurisdiction of the
High Court ought to be taken into account
before granting it any relief. Relevant
paragraph 11 of the same reads:-

"11. It is well settled that the
High Court in exercise of its jurisdiction
under Article 226 of the Constitution can
10 All. U.P. Congress Committee Vs. State of U.P. & Ors.
1141
take cognisance of the entire facts and
circumstances of the case and pass
appropriate orders to give the parties
complete and substantial justice. This
jurisdiction of the High Court, being
extraordinary, is normally exercisable
keeping in mind the principles of equity.
One of the ends of the equity is to promote
honesty and fair play. If there be any
unfair advantage gained by a party
priorly, before invoking the jurisdiction of
the High Court, the Court can take into
account the unfair advantage gained and
can require the party to shed the unfair
gain before granting relief. What precisely
has been done by the learned Single Judge,
is clear from the above emphasised words
which may be reread with advantage. The
question of claim to damages and their
ascertainment would only arise in the event
of
the
Life
Insurance
Corporation,
respondent, succeeding to prove that the
appellant Company was an unlawful subtenant and therefore in unauthorised
occupation of public premises. If the
findings were to go in favour of the
appellant Company and it is proved to be a
lawful sub- tenant and hence not an
unauthorised occupant, the direction to
adjudge the claim for damages would be
rendered sterile and otiose. It is only in the
event of the appellant Company being held
to be an unlawful sub- tenant and hence an
unauthorised occupant that the claim for
damages would be determinable. We see
therefore no fault in the High Court
adopting such course in order to balance
the
equities
between
the
contestants
especially when it otherwise had power of
superintendence under Article 227 of the
Constitution in addition. We cannot be
oblivious to the fact that when the
occupation of the premises in question was
a factor in continuation of the liability to
pay for the use and occupation thereof, be
it in the form of rent or damages, was also
a continuing factor. The cause of justice,
as viewed by the High Court, did clearly
warrant that both these questions be
viewed interdependently. For those who
seek equity must bow to equity." (emphasis
supplied)

16. In Roshan Deen vs. Preeti Lal;
(2002) 1 SCC 100, the Supreme Court
while setting aside an order passed by the
High Court observed that the High Courts
while exercising power of superintendence
under Article 226 and 227 should ensure
that such exercise must ensure that justice
is done and at the same time injustice is
eliminated. Paragraph 12 of the same
reads:-

"12. We are greatly disturbed by
the insensitivity reflected in the impugned
judgment rendered by the learned Single
Judge in a case where judicial mind would
be tempted to utilize all possible legal
measures to impart justice to a man
mutilated so outrageously by his cruel
destiny. The High Court non-suited him in
exercise of a supervisory and extraordinary
jurisdiction envisaged under Article 227 of
the Constitution. Time and again this Court
has reminded that the power conferred on
the High Court under Articles 226 and 227
of the Constitution is to advance justice and
not to thwart it (vide State of U.P. v.
District Judge, Unnao [(1984) 2 SCC 673:
AIR 1984 SC 1401]). The very purpose of
such constitutional powers being conferred
on the High Courts is that no man should
be subjected to injustice by violating the
law. The lookout of the High Court is,
therefore, not merely to pick out any error
of law through an academic angle but to
see whether injustice has resulted on
account of any erroneous interpretation of
law. If justice became the by-product of an
1142 INDIAN LAW REPORTS ALLAHABAD SERIES
erroneous view of law the High Court is
not expected to erase such justice in the
name of correcting the error of law,"

17. A Division Bench of the Supreme
Court in the case of Ramesh Chandra
Sankla and Others vs. Vikram Cement
and Others and other connected matters,
reported as (2008) 14 SCC 58 has
considered, affirmed, and reiterated all the
aforesaid judgments and held in paragraphs
98 that:-

"98. From the above cases, it
clearly transpires that powers under
Articles 226 and 227 are discretionary and
equitable and are required to be exercised
in the larger interest of justice. While
granting relief in favour of the applicant,
the Court must take into account balancing
interests and equities. It can mould relief
considering the facts of the case. It can
pass an appropriate order which justice
may demand and equities may project. As
observed by this Court in Shiv Shankar Dal
Mills v. State of Haryana, (1980) 1 SCR
1170, Courts of equity should go much
further both to give and refuse relief in
furtherance of public interest. Granting or
withholding of relief may properly be
dependent upon considerations of justice,
equity and good conscience."(emphasis
supplied)

18. The law repeatedly settled by the
Supreme Court is that the High Court
should
exercise
its
discretionary
jurisdiction in such a manner which would
advance end of justice and uproot injustice.
It should exercise power conferred under
Article 226 and 227 of the Constitution of
India in a manner that provides complete
and substantial justice to parties. The
Supreme Court in Shangrila (supra) has
held that "One of the ends of the equity is
to promote honesty and fair play. If there
be any unfair advantage gained by a
party,
priorly,
before
invoking
the
jurisdiction of the High Court, the Court
can
take
into
account
the
unfair
advantage gained and can require the
party to shed the unfair gain before
granting relief." From the law settled by
the Supreme Court it is clear that while
exercising power under Article 226 and
227 of Constitution of India, the Court
must give and refuse relief in furtherance of
public interest. Granting or withholding of
relief
must
be
dependent
upon
considerations of justice, equity and good
conscience.

19. In the present case, the political
party in power had exercised its dominant
position and utilized public property for its
political purposes. The bills were raised to
the petitioner political party but it ignored
to pay the same and, while the earlier dues
were pending, again being in power it
availed facilities from the respondent
U.P.S.R.T.C. without paying its dues.
Merely by stating that after change of
government due to political vendetta the
amount is wrongly being recovered or
taking a technical ground that amount
cannot be recovered as arrears of land
revenue, it can not be granted liberty to
escape its liability to pay its bills. There is
no doubt that question of recovery of public
money is involved in the present case,
which is used for political purposes by the
petitioner, therefore, petitioner is bound to
pay the said amount. The amount is
pending for last around 25-30 years and is
not cleared by the petitioner as yet.
Petitioner showed its intention when it had
filed the present writ petition and obtained
interim order but for last 25 years it has not
acted in furtherance of the assurance given
on the first date of hearing. Even though,
10 All. Hausila Prasad Vs. Addl. Commissioner (Admin.), Ayodhya Region, Ayodhya & Ors. 1143
the amount is not recoverable under the
provisions of Act of 1972 but for the
reasons discussed above, this Court does
not find it a fit case for exercising its
discretionary jurisdiction in favour of
petitioner. In view of the aforesaid
judgments of the Supreme Court, more
particularly in view of judgments passed in
Shangrila Food Products Ltd. (supra) and
Ramesh Chandra Sanka and Others
(supra), petitioner is directed to pay to the
respondents U.P.S.R.T.C. entire due of
Rs.266 Lakhs along with an interest of 5%
from the date it is due within a period of
three months.

20. With the aforesaid, the writ
petition is disposed of.

----------
(2023) 10 ILRA 1143
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.09.2023

BEFORE

THE HON'BLE SAURABH LAVANIA, J.

Writ-C No. 8185 of 2023

Hausila Prasad ...Petitioner
Versus
Addl. Commissioner (Admn.), Ayodhya
Region, Ayodhya & Ors. ...Respondents

Counsel for the Petitioner:
Brijesh Kumar

Counsel for the Respondents:
C.S.C.

Civil Law - U.P. Revenue Code, 2006 -
Sections 34, 207 & 210 - Code of Civil
Procedure, 1908 - Order 39 Rules 1, 2,
2A, 4 - Order 43 Rule 1(r) - Mutation
Proceedings - Interlocutory Order -
Recall of Interim Order - Maintainability
of Revision and Appeal
The petitioner, Hausila Prasad, challenged the
Tehsildar's order dated 06.02.2023, recalling
an ex-parte interim order dated 08.03.2022 in
a mutation case under Section 34 of the U.P.
Revenue Code, 2006, and the Additional
Commissioner's
order
dated
20.03.2023,
dismissing his revision under Section 210 as
non-maintainable, deeming the Tehsildar's
order interlocutory.

Held: (1) The writ petition was disposed of
without interference in the impugned orders.
(2) The order dated 06.02.2023, recalling an
ex-parte interim order, falls under Order 39
Rule 4 of the Code of Civil Procedure, 1908,
and is appealable under Order 43 Rule 1(r),
read with Section 207 of the U.P. Revenue
Code, 2006. (3) The Additional Commissioner's
dismissal of the revision as non-maintainable
was just, as an appeal under Section 207 was
the appropriate remedy. (4) The petitioner was
granted liberty to file an appeal under Section
207 against the order dated 06.02.2023. (5)
The court clarified that orders affecting
valuable rights, even in mutation proceedings,
may
be
appealable
if
they
possess
characteristics of finality, as per Qumar Jahan
Vs Board of Revenue and Kiran Bala Srivastava
Vs Jai Prakash Srivastava.

Case Law Cited:

1.
Raja
Ram
&
ors.
Vs
Additional
Commissioner, Faizabad Division, Faizabad &
ors., Misc. Single No. 3301 of 2006 (Allahabad
HC, 13.04.2015);

2. Jagdish Prasad Vs St. of U.P. & ors., Writ B778 of 2022 (Allahabad HC, 15.02.2023);

3. Raj Shri Agarwal & ors. Vs Sudheer Mohan &
ors.,
MANU/UP/2351/2022
(Allahabad
HC,
22.04.2022);

4. Qumar Jahan & ors. Vs Board of Revenue,
U.P., Lucknow, Writ-B No. 443 of 2023
(Allahabad HC, 23.05.2023);

5. Nanda Dulal Pradhan and another Vs Dibakar
Pradhan and another, 2023 (158) RD 452;