# Yudhveer @ Bata v. State of U.P

- **Citation:** (2008) 3 ILRA 757
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-07-11
- **Case number:** Criminal Misc. IInd Bail Application No. 13238 of 2008
- **Bench:** A.P. Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/yudhveer-bata-v-state-of-u-p-41166
- **Pages:** 4

## Headnote

758 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
A.G.A.

High Court Rules -Chapter V rule 10(2)-
Second Bail Application-the bench who
earlier rejected first bail application-in
absence of Counsel ordered for listing
with previous papers-during vacationthe
senior
most
Judge
nominated
another Hon'ble Judge-cannot be treated
to be tied up with the Judge who heard
first Bail Application.

Held: Para 7 & 9

The
case,
therefore,
stood
automatically released from my Bench
with the aforesaid fresh nomination.
There was no point in treating the
case to be tied up to this Bench. It
was a 2nd Bail Application and for
which a special request was made by
the learned counsel to hear it during
vacation.

It appears that the aforesaid rule of
Chapter V of The Allahabad High Court
Rules was not brought to the notice of
the learned Single Judge nor the
decisions in this regard that the Chief
Justice is the master of the roster and
he can resume the matter from any
Bench and nominate it to another
Hon'ble Judge. There was no occasion
for me to pass any fresh orders for
release after the fresh nominations
referred to hereinabove.
Case Law discussed:
AIR 1998 SC 1344, 2000(1) AWC 392 (S.C.),
2006 (8) SCC 294 Pr 19, 2008 (1) AWC 673,
2008 (1) AWC 1050.

## Text

3 All] Yudhveer @ Bata V. State of U.P.
757
It is this object which is to be fulfilled.
The allotment order itself indicates that
in case of any default, the authorities
would be entitled to charge penal
interest.

6. The normal interest payable as
per the allotment order is 15% per
annum. The authorities could have
charged such interest, or any penal
interest, on default, if any, of the
allottee, for which the petitioner should
have been given notice, and in case he
still defaulted in payment of the said
amount, the allotment could then have
been cancelled by the authorities. A
reasonable opportunity has to be given
to the allottee prior to the cancellation
of
allotment.
Imposition
of
such
condition that after the cancellation of
allotment, fresh allotment shall be
made on payment of the entire amount
at enhanced rates within 15 days, is
wholly unreasonable and arbitrary, as
the same clearly shows that the
respondent authorities are acting like
profit
making
bodies
or
land
dealers/builders.

7. Keeping in view that the last
date for payment of last installment has
not yet expired even today and the
petitioner has made substantial deposit
prior to the passing of the impugned
order, even though there has been
default
in
payment
of
some
installments
by
the
petitioner,
cancellation order could have been
passed
only
after
notice
to
the
petitioner
to
make
such
payment
alongwith normal or penal interest, if
any. In such view of the matter, we are
of the firm view that the order dated
26.3.2008 is unjustified and arbitrary.
We accordingly quash the same. In
case the respondents have not encashed
the draft dated 19.3.2008 for a sum of
Rs.25,350/-, the same may be encashed
or returned to the petitioner and in
case, if it has been encashed by the
Development
Authority,
the
said
amount shall be adjusted towards the
payment
made
by
the
petitioner.
Whatever amount is then found due
from the petitioner, that may be
intimated to the petitioner within 15
days from today and the petitioner be
provided an opportunity to make such
payment within a month thereafter. It is
made
clear
that
the
amount
so
demanded from the petitioner shall be
in terms of the allotment order dated
5.5.2006 and not on the enhanced rate,
which the respondents may now be
charging from the new allottees.

8. Accordingly, the writ petition
stands allowed to the extent indicated
above.

No order as to costs.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.07.2008

BEFORE
THE HON'BLE A.P. SAHI, J.

Criminal Misc. IInd Bail Application No.
13238 of 2008

Yudhveer @ Bata

...Applicant
Versus.
State of U.P.

 ...Respondent

Counsel for the Petitioner:
Sri Daya Shanker Mishra
Sri Chandra Kesh Mishra

Counsel for the Respondents:
Sri Mewa Lal Shukla
758 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
A.G.A.

High Court Rules -Chapter V rule 10(2)-
Second Bail Application-the bench who
earlier rejected first bail application-in
absence of Counsel ordered for listing
with previous papers-during vacationthe
senior
most
Judge
nominated
another Hon'ble Judge-cannot be treated
to be tied up with the Judge who heard
first Bail Application.

Held: Para 7 & 9

The
case,
therefore,
stood
automatically released from my Bench
with the aforesaid fresh nomination.
There was no point in treating the
case to be tied up to this Bench. It
was a 2nd Bail Application and for
which a special request was made by
the learned counsel to hear it during
vacation.

It appears that the aforesaid rule of
Chapter V of The Allahabad High Court
Rules was not brought to the notice of
the learned Single Judge nor the
decisions in this regard that the Chief
Justice is the master of the roster and
he can resume the matter from any
Bench and nominate it to another
Hon'ble Judge. There was no occasion
for me to pass any fresh orders for
release after the fresh nominations
referred to hereinabove.
Case Law discussed:
AIR 1998 SC 1344, 2000(1) AWC 392 (S.C.),
2006 (8) SCC 294 Pr 19, 2008 (1) AWC 673,
2008 (1) AWC 1050.

(Delivered by Hon'ble A.P. Sahi, J.)

1. Heard Sri D.S. Mishra learned
counsel for the applicant and Sri Mewa
Lal Shukla, learned A.G.A. for the
State.

2. The first bail application was
rejected by me on 29.4.2008 whereafter
this second bail application was moved
and came before me on 19.5.2008 on
which date the learned counsel for the
applicant
was
not
present
and
therefore, the case was listed with
previous papers before the appropriate
Bench in the next cause list. Learned
counsel for the applicant moved an
urgency application in the matter and it
is stated that the Hon'ble Senior
Vacation Judge Hon'ble Justice Rafat
Alam passed an order for listing it
before the appropriate Bench on 3rd
June, 2008. During vacations, the
Bench dealing with minor bails was
presided over by Hon'ble Justice
Surendra Singh, who passed an order to
list the case before the appropriate
Bench, whereafter the matter was listed
before Hon'ble Justice Arun Tandon.
On 3rd June, 2008 an order was passed
calling upon Government Advocate to
seek instructions on the second bail
application. On 6th June, 2008, Hon'ble
Arun Tandon passed an order that it
would be appropriate that the records
be placed before the Senior Vacation
Judge for examining as to whether the
second bail application is to be heard
by me or by some other Judge
nominated by Hon'ble the Senior
Vacation Judge, as I was not sitting
during vacations.

3. In the aforesaid circumstances,
the then Senior Vacation Judge, who
exercises the powers of Hon'ble Chief
Justice during vacations, passed an
order
for
nomination,
nominating
Hon'ble Justice S.K. Jain and fixed the
case for 18th June, 2008. The aforesaid
powers are exercisable under Chapter
V Rule 10(2) of the Allahabad High
Court Rules. The rule is quoted herein
below:-
3 All] Yudhveer @ Bata V. State of U.P.
759

"Subject to any general or special
order of the Chief Justice, the senior
most vacation Judge at Allahabad or
Lucknow, as the case may be, shall in
the absence of the Chief Justice
exercise jurisdiction at Allahabad or
Lucknow, as the case may be, in
connection with the arrangement of
Benches, listing of cases and other like
matters."

4. It is now well settled by the
Apex Court that the power to nominate
or decide the jurisdiction of Hon'ble
Judges of the Court vests in the Chief
Justice as he is the master of the roster.
This stands reflected in following
judgments of the Apex Court:-

1.
State of Rajasthan Vs. Prakash
Chand, AIR 1998 SC 1344.

2.
A.H. Ansari & others Vs. High
Court of Judicature at Allahabad,
2000(1) AWC 392 (S.C.)

3.
Jasbir Singh Vs. State of Panjab,
2006 (8) SCC 294 Pr 19

5. Apart from the above, our
Court has reiterated the said view in
the following two decisions:-

1.
Awadh Naresh Sharma Vs. State,
2008 (1) AWC 673

2.
Sanjai Mohan Vs. State 2008 (1)
AWC 1050

6. It is in exercise of such powers
that the Senior Vacation Judge passed
the orders for nomination.

7. The case, therefore, stood
automatically released from my Bench
with the aforesaid fresh nomination.
There was no point in treating the case
to be tied up to this Bench. It was a 2nd
Bail Application and for which a
special request was made by the
learned counsel to hear it during
vacation.

8. Not only this, the matter was
nominated to Hon'ble Justice S.K. Jain
and Hon'ble Justice A.K. Roopanwal
who also released the matter. It is,
thereafter, that the order has been
passed for being placed before Hon'ble
Justice Shiv Shankar, who has passed a
detailed order on 2nd July, 2008 treating
the matter as to be still tied up to this
Bench in view of the two Supreme
Court decisions referred to therein.

9. It appears that the aforesaid
rule of Chapter V of The Allahabad
High Court Rules was not brought to
the notice of the learned Single Judge
nor the decisions in this regard that the
Chief Justice is the master of the roster
and he can resume the matter from any
Bench and nominate it to another
Hon'ble Judge. There was no occasion
for me to pass any fresh orders for
release after the fresh nominations
referred to hereinabove.

10. In view of this, the order
dated 2nd July 2008 may require
reconsideration by Hon'ble the Chief
Justice for passing fresh orders keeping
in view the face that I am regularly
sitting in a Division Bench.

Let the papers be placed before
Hon'ble the Chief Justice/Senior Judge
for passing appropriate orders.
---------
760 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.07.2008

BEFORE
THE HON'BLE AMITAVA LALA, J.
THE HON'BLE A.P. SAHI, J.

First Appeal from Order No. 1702 of 2008

The New India Assurance Co. Ltd.

...Appellant
Versus
Smt. Kamlesh @ Nangi and others

 ...Respondents

Counsel for the Appellant:
Sri Arun Kumar Shukla

Counsel for the Respondents:

(A) Workmen Compensation Act 1923Section 21(1)-Territorial jurisdiction
of
Commissioner-order
passed
by
Addl.
Commissioner
Firozabadaccident
took
place
at
Mainpuriadmittedly Firozabad being integral
part
of
Agra
Division-technical
objection unsustainable.

Held: Para 2

Hence, by virtue of distribution of
work
the
Assistant
Commissioner
sitting at Firozabad being integral part
of the Agra Division has rightly taken
up the matter. This allocation of
business is not in contravention of
proviso to sub-section (1) of Section
21 of the Act, which speaks for notice
to
the
Commissioner
having
jurisdiction where the accident took
place. This provision specifically deals
with different Commissioners not with
regard
to
different
Assistant
Commissioners
under
one
Commissioner when distribution of
works will be regulated under the
general or special order of the State.

(B) Practice of Procedure-Application
by legal representation of deceased
workman-presumption of legal heirs
always there-unless proved otherwise.

Held: Para 6

We are of the view that whenever any
application for compensation is made
by heirs and legal representatives of
the deceased, it shall be presumed
that
they
are
heirs
and
legal
representatives of the deceased until
and unless it has been challenged by
anyone. Therefore, the onus is lying
upon the contesting party to prove
that the claimants are not the legal
heirs and legal representatives of the
deceased which they failed to do
before the Commissioner. Hence, we
can not accept such submission.
Case law discussed:
2006 (108) FLR 351 2006

(Delivered by Hon'ble Amitava Lala, J.)

1. This appeal has been filed
challenging the impugned judgment
and order dated 24th April, 2008 passed
by
the
concerned
Workmen's
Compensation
Commissioner,
Agra.
The awarded amount is Rs.2,61,965.00.
The specific point has been taken by
the learned Counsel appearing in
support of the insurance Company that
by virtue of proviso to sub-section (1)
of
Section
21
of
Workmen's
Compensation Act, 1923 (hereinafter
called "the Act") no matter shall be
processed
before
or
by
the
Commissioner,
other
than
the
Commissioner having jurisdiction over
the area in which the accident took
place, without giving notice in the
manner prescribed by the Central
Government
to
the
Commissioner
having jurisdiction over the area and
the State Government concerned. He