# Ziaul Islam v. Union of India & Ors

- **Citation:** WRIT-C No. 3973 of 2020
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-04
- **Case number:** WRIT-C No. 3973 of 2020
- **Bench:** Ramesh Sinha, Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ziaul-islam-v-union-of-india-ors-46235
- **Pages:** 5

## Headnote

A. Constitution of India - Article 226 -
Scope of Interference - Petition barred by Time
- If a relief otherwise has become barred by
time under common law, would not be granted
in writ jurisdiction under Article 226 of the
Constitution of India except where the case is of
violation of a fundamental right. (Para 10)
B. Right to Property - Fundamental Right -
Common Law Remedy - The right to property or
for that matter, any other right flowing from any
agreement by itself is not a fundamental right -
It is all dependent upon the enforcement of
such agreement and getting the right declared
as maintainable only through common law
remedy. (Para 10)
C. Validity of Document - Competent Court -
If the rights between the litigating parties
flow from an instrument, it is necessary to get
it declared valid by a Court of Law competent
to pass a declaratory decree to that extent -
Similarly, if the validity of a document on the
basis of which rights are claimed by the
parties and being objected to by a third party
to such document, then such a document is
also required to be declared as void by a
Court of Law competent to pass a declaratory
decree to that effect. (Para 9)
Held -

## Text

3-5 All. Ziaul Islam Vs. Union of India & Ors.
1815
were amended and a different procedure for
promotion to Group D employees has been
adopted and till then earlier Government
orders, in our view, held the field hence
promotion of petitioners made thereunder
cannot be said to be vitiated in law and
illegal, hence impugned orders cannot be
sustained.

27. In view of the fact that writ
petitions can be allowed on above ground
also, we do not find necessary to go into
other aspects of the matter and, therefore,
we leave other questions open to be
considered in some appropriate time.

28. For the reasons stated above, writ
petitions are allowed. Orders impugned in
the writ petitions cancelling promotion of
petitioners and reverting them from Group
C to Group D post, are hereby set aside.
Petitioners shall be treated to be validly
promoted Group C employees and entitled
for all consequential benefits.
----------
(2020)03-05ILR A1815
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.02.2020

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE AJIT KUMAR, J.

WRIT-C No. 3973 of 2020

Ziaul Islam ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Sri Prabhakar Awasthi, Sri Azizur Rahman
Khan

Counsel for the Respondents:
A.S.G.I., Sri Anand Tiwari
A. Constitution of India - Article 226 -
Scope of Interference - Petition barred by Time
- If a relief otherwise has become barred by
time under common law, would not be granted
in writ jurisdiction under Article 226 of the
Constitution of India except where the case is of
violation of a fundamental right. (Para 10)
B. Right to Property - Fundamental Right -
Common Law Remedy - The right to property or
for that matter, any other right flowing from any
agreement by itself is not a fundamental right -
It is all dependent upon the enforcement of
such agreement and getting the right declared
as maintainable only through common law
remedy. (Para 10)
C. Validity of Document - Competent Court -
If the rights between the litigating parties
flow from an instrument, it is necessary to get
it declared valid by a Court of Law competent
to pass a declaratory decree to that extent -
Similarly, if the validity of a document on the
basis of which rights are claimed by the
parties and being objected to by a third party
to such document, then such a document is
also required to be declared as void by a
Court of Law competent to pass a declaratory
decree to that effect. (Para 9)
Held -
9. ... The common law remedy are meant to
resolve such disputed rights between the parties
by inviting evidence both written and oral and in
the absence of any challenge to an instrument,
a person is equally entitled to get his rights
perfected through law of acquiescence or
permissive action and conduct of the other
party. It is when the right of one party pitted
against the rights of the others which might
have accrued due to passage of time, the law of
limitation steps in.

Writ Petition dismissed (E-1)
Cases relied on :-
1. Venkatlal Baldeoji Mahajan Vs. Kanhiyalal
Jankidas & ors. (AIR 1763 MP 153)
1816 INDIAN LAW REPORTS ALLAHABAD SERIES
2. P. S. Sadasivaswamy Vs. St. of T.N. (AIR
1974 SC 2271)
(Delivered by Hon'ble Ramesh Sinha, J.
&
Hon'ble Ajit Kumar, J.)

1. Sri Ishan Shishu, learned Advocate,
has filed his memo of appearance on behalf
respondent no.1-Union of India today in
Court, which is taken on record.

2. Heard Sri Prabhakar Awasthi,
learned counsel for the petitioner, Sri
Anand Tiwari, learned counsel appearing
for the respondents Corporation, Sri Ishan
Shishu, learned counsel appearing for
respondent
no.1-Union
of
India
and
perused the record.

3. By means of this writ petition,
under Article 226 of the Constitution of
India, the petitioner has questioned the
order dated 21st August, 2019 (Annexure
No.17 to the writ petition) passed by the
Executive Director, UPSO-II of the Indian
Oil Corporation, namely, the respondent
No.3 disposing of the complaint of the
petitioner dated 1st August, 2018 in
compliance of the order of this Court dated
23rd
May,
2019
passed
in
Writ-C
No.17850 of 2019, holding the complaint
to be devoid of any merits besides being
barred by limitation and laches.

4. The facts of the case can be drawn
in a narrow compass like this that a
partnership firm constituted as M/s. Siyana
Filling Station, Garh Siyana Road was
commissioned with a retail outlet of the
petroleum products on 1st January, 1970.
The partnership firm had partners, namely,
Ziaul Islam and Sri Viquarul Islam. On 9th
August, 1990 a request was made to the
Corporation for recognizing the change in
the constitution of the firm with Sri
Mashqoorul Islam as a new partner with
existing partner Sri Ziaul Islam having
partnership of 49 % and 51% respectively
and Sri Viquarul Islam was shown as to
have resigned from the partnership firm.
The approval was accorded to the request
of the new partnership firm by the
Company vide its letter dated 28th March,
1992 and a dealership agreement got
executed with new set up on 25th March,
1992. It appears that soon thereafter on
12th May, 1994 another request was made
on behalf of the firm M/s. Siyana Filling
Station of the reconstitution of the firm
with existing partners Sri Mashqoorul
Islam and Smt. Tahira Choudhary, W/o
Mashqoorul Islam as a new partner with
share of 49% and 51% respectively and this
time Ziaul Islam, who is the petitioner
before this Court, was shown to have
resigned from the firm. Ever since then the
firm started working in the name of M/s.
Siyana Filling Station with new partnership
firm with Sri Mashqoorul Islam and Smt.
Tahira Choudhary as partners.

5. This above partnership agreement
between the firm and the Oil Company
came to be questioned, it appears for the
first time by the petitioner and for the
redressal of their grievance they even
approached the Delhi High Court invoking
extraordinary writ jurisdiction vide Writ-C
No.13964 of 2018 which, however, came to
be dismissed on 21st December, 2018.
Thereafter, the petitioner filed another writ
petition before this Court bearing number
Writ-C No.17850 of 2019 seeking a
direction for the disposal of his complaint
dated 1st October, 2018 in accordance with
law and this Court passed an order on 23rd
May, 2019 directing the respondents
competent authority to consider and decide
the matter within a period of two months.
3-5 All. Ziaul Islam Vs. Union of India & Ors.
1817
The competent authority of the respondent
Oil Company has finally disposed of the
objection/complaint of the petitioner under
its order dated 28th August, 2019 holding
the complaint of petitioner to be baseless
and devoid of merits and hence this
petition.

6. Assailing the order rejecting the
objection of the petitioner, it has been
vehemently urged by the learned counsel
for the petitioner that the complaint and the
point raised in the complaint has virtually
remained unaddressed to in the order
passed by the respondent competent
authority and, therefore, on merits the order
is quite unsustainable. It is argued that the
respondents have got carried away by the
order passed by the Delhi High Court
dismissing the writ petition and the delay
involved in the matter in approaching the
authority.

7. Per contra, learned counsel
appearing for the respondents has defended
the order for the reasons assigned therein.It
has been vehemently urged by the learned
counsel for the respondents that the matter
relates to the rights between the parties for
which the proper course would have been
to avail a common law remedy but since
the petitioner knew that any suit seeking
declaration of the partnership agreement to
be void had become barred by law of
limitation, the present writ petition has
been filed. It is thus argued that if the time
has run out and the suit is barred by
limitation, the civil rights flowing from any
document cannot now be tested in writ
proceedings and, therefore, it is submitted
that the writ petition deserves to be
dismissed.

8. Having heard learned counsel for
the parties, their arguments across the bar
and having perused the records, what we
find is that the basic question involved in
the matter is the validity of the partnership
agreement between the Sri Mashqoorul
Islam and Smt. Tahira Choudhary, namely,
the respondent nos. 5 & 6 respectively and
the agreement between the Oil Company
and the said firm for continuation of the
retail outlet dealership, entered on 13th
June, 2000. The question therefore is
whether such an agreement is void and no
right can flow from it and the earlier
partnership
agreement
to
which
the
petitioner was a party should
have
continued and consequently the dealership
agreement dated 13th June, 2000 should
also be rendered void.

9. The settled legal position is that in
civil jurisprudence if the rights between the
litigating parties flow from an instrument, it
is necessary to get it declared valid by a
Court of Law competent to pass a
declaratory decree to that extent.Similarly,
if the validity of a document on the basis of
which rights are claimed by the parties and
being objected to by a third party to such
document, then such a document is also
required to be declared as void by a Court
of Law competent to pass a declaratory
decree to that effect.The common law
remedy are meant to resolve such disputed
rights between the parties by inviting
evidence both written and oral and in the
absence of any challenge to an instrument,
a person is equally entitled to get his rights
perfected through law of acquiescence or
permissive action and conduct of the other
party. It is when the right of one party
pitted against the rights of the others which
might have accrued due to passage of time,
the law of limitation steps in. The
Limitation Act provides limitation for a suit
of declaratory decree to be 3 years from the
date of knowledge. In the present case what
1818 INDIAN LAW REPORTS ALLAHABAD SERIES
we find is that the new partnership firm
namely the respondent no 4 with partners
respondent nos. 5 and 6 entered into a
agreement with the Oil Company in the
year 2000, to be specific 13th June,2000
and since then the retail outlet of the
petroleum product is functioning. The
respondents cannot deny the knowledge of
functioning of the retail outlet by the firm,
to which he himself was a party prior to his
resignation in the year 1994 and yet he
remained silent for a pretty long time. A
person who has ceased to be partner in the
partnership firm and if he permits the firm
to continue with new partners and enter
into an agreement with the Oil Company, it
would attract the law of acquiescence qua
the
new
partnership
agreement
and
consequently fresh agreement with the Oil
Company. No representation business to an
authority of Oil Company would have
fetched the result of condoning the
limitation because there is no law as such
authorizing the authority to declare a
partnership agreement to be void except a
competent court of law having civil
jurisdiction to that count. The petitioner
remained silent and could be said to have
awakened from a long slumber only in the
year 2018 when he unsuccessfully knocked
the door of Delhi High Court. It is not
denied to the petitioner that the petition
filed by him before Delhi High Court, had
been dismissed. A second writ petition for
the same cause of action in the garb of a
representation/ complaint would not have
been maintainable, however, instead of
going into question of maintainability of
the second writ petition as the first one
having been dismissed by a High Court, we
hold that the petitioner now cannot be
granted relief in this petition for which a
proper course would have been to approach
the Civil Court of competent jurisdiction
and for which the limitation has already run
out.

10. The legal position in this regard is
very sound that if a relief otherwise has
become barred by time under common law,
would not be granted in writ jurisdiction
under Article 226 of the Constitution of
India except where the case is of violation
of a fundamental right. The right to
property or for that matter, any other right
flowing from any agreement by itself is not
a fundamental right and it is all dependent
upon the enforcement of such agreement
and
getting
the
right
declared
as
maintainable only through common law
remedy. We are here reminded of a
judgement of Gwalior Bench of High Court
of Madhya Pradesh in Venkatlal Baldeoji
Mahajan Vs. Kanhiyalal Jankidas and
others (AIR 1763 MP 153) in which it has
been observed thus:-

"It is clear that the question of
laches comes in when the plaintiff seeks to
obtain an equitable relief. But the principle
of laches, which is based on the equitable
doctrine is not applicable to a case where
the Court has to determine the legal rights
of a party. An objection as to delay or
laches does not avail the defendant when a
legal relief is sought against him except as
a circumstance to show abandonment. He
can or course rely on the statute of
limitation but if the suit is instituted within
the period prescribed by the Limitation Act
his suit cannot be thrown out because of
any amount of laches or delay. This
position is plain enough. But if any
authority is needed 1 may quote with
respect a decision of Abdur Rehman J. in
Krishnamachari
v.
Chengalraya,
MANU/TN/0391/1938: AIR 1940 Mad
281."
3-5 All. Smt. Vimlawati Devi Vs. Tehsildar, Tehsil Hata, District Kushi Nagar & Ors.
1819

11.

In
the
case
of
P.S.Sadasivaswamy Vs. State of Tamil
Nadu (AIR 1974 SC 2271), the Apex
Court has held thus:-

"A person aggrieved by an order
or promoting a junior over his head should
approach the Court at least within six
months or at the most a year of such
promotion..

It is not that there is any period of
limitation for the Court to exercise their
powers under Article 226 nor is it that
there can never be a case where the Courts
cannot interfere in a matter after the
passage of a certain length of time. But it
would be a sound and wise exercise of
discretion for the Courts to refuse to
exercise their extraordinary powers under
Article 226 in the case of persons who do
not approach it expeditiously for relief and
who stand by and allow things to happen
and then approach the Court to put
forward stale claim and try to unsettle
settled matters. The petitioner's petition
should, therefore, have been dismissed in
limine.

12. In view of the above, we decline
to interfere with the order impugned in the
present writ petition. The writ petition fails
and is, accordingly, dismissed.
----------

(2020)03-05ILR A1819
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.02.2020

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.

WRIT-C No. 6407 of 2020

Smt. Vimlawati Devi ...Petitioner
Versus
Tehsildar, Tehsil - Hata, District - Kushi
Nagar & Ors. ...Respondents

Counsel for the Petitioner:
Sri Akhilesh K Dwivedi

Counsel for the Respondents:
C.S.C.

A.Civil Law- UP Revenue Code, 2006 -
Agricultural Dispute - Significance of need to
decide it expeditiously - State of Uttar Pradesh
has a substantial agrarian economy and
majority of its citizens live in villages -
Agricultural land is, therefore, of utmost
importance to the citizenry living in the villages
- Issues and disputes relating to agricultural
lands are to be dealt with by the revenue
courts/authorities - The fact that such large
number of writs are being filed only with the
prayer to expedite proceedings pending before
revenue authorities/courts is a matter of serious
concern - Apart from creating discord amongst
otherwise closely knit social set up it is one of
the
primary
cause
for
commission
of
crimes/offences in villages. (Para 3)
B.
Revenue
Court
-
Adjudication
of
agricultural disputes - Need of knowledge of
law and Separate Cadre of judicially trained
persons - Propriety of allocating the judicial
work
before
the
revenue
courts
to
administrative
officers
lacking
the
basic
awareness of law - Held, the Revenue Courts
also perform judicial functions and their
Presiding Officers are expected to be legally
trained persons who can work independently -
Knowledge in the field of Law is otherwise
expected of such officers as they interpret
various provisions of law and their decisions
attain finality - This aspect does not appear to
have been examined - Quality of determination
by those who even do not have a law degree is
likely to suffer. (Para 15 and 16)
C.
Revenue
Tribunal
and
Officers
-
Appointment - Independence of process - Need
of Consultation of Chief Justice - The Revenue
Courts established under the Code of 2006
apparently have all attributes of a Tribunal -
The officers manning Revenue Courts are