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Allahabad High Court · body

2013 DIGILAW 557 (ALL)

SHAILENDRA PANDEY v. STATE OF U. P.

2013-02-18

UMA NATH SINGH, VIRENDRA KUMAR DIXIT

body2013
ORDER (ORAL) By the Court.—We have heard learned counsel for parties and perused the pleadings of writ petition. 2. Vide our order dated 9.1.2013, State was granted a week’s time to seek instructions but till date no instructions have been received from the Department. However, learned State counsel took objection to the maintainability of the writ petition on the ground that the matter relates to Nagar Panchayat Basti which comes within the territorial jurisdiction of Allahabad Bench. 3. As the relevant order which is impugned herein namely Annexure 3 has been passed by the Special Secretary, Government of U.P., Nagar Vikas Vibhag, the part of cause of action has arisen in terms of judgment of a Constitution Bench of Hon’ble the Apex Court passed in the matter of Sri Nasiruddin v. State Transport Appellate Tribunal, (1975) 2 SCC 671 . Paragraphs 37 and 38 of the judgment are reproduced as under : “37. The conclusion as well as the reasoning of the High Court is incorrect. It is unsound because the expression “cause of action” in an application under Article 226 would be as the expression is understood and if the cause of action arose because of the appellate order or the revisional order which came to be passed at Lucknow then Lucknow would have jurisdiction though the original order was passed at a place outside the areas in oudh. It may be that the original order was in favour of the person applying for a writ. In such case an adverse appellate order might be the cause of action. The expression “cause of action is well-known. If the cause of action arises wholly or in part at a place within the specified oudh areas, the Lucknow Bench will have jurisdiction. If the cause of action arises wholly within the specified oudh areas, it is indisputable that the Lucknow Bench would have exclusive jurisdiction in such a matter. If the cause of action arises in part within the specified areas in oudh it would be open to the litigant who is the dominus litis to have his forum conveniens. The litigant has the right to go to a Court where part of his cause of action arises. In such cases, it is incorrect to say that the litigant chooses any particular Court. The litigant has the right to go to a Court where part of his cause of action arises. In such cases, it is incorrect to say that the litigant chooses any particular Court. The choice is by reason of the jurisdiction of the Court being attracted by part of cause of action arising within the jurisdiction of the Court. Similarly, if the cause of action can be said to have arisen part within specified areas in oudh and part outside the specified oudh areas, the litigant will have the choice to institute proceedings either at Allahabad or Lucknow. The Court will find out in each case whether the jurisdiction of the Court rightly attracted by the alleged cause of action. 38. To sum up, our conclusions are as follows. First there is no permanent seat of the High Court at Allahabad. The seats at Allahabad and at Lucknow may be changed in accordance with the provisions of the order. Second, the Chief Justice of the High Court has no power to increase or decrease the areas in oudh from time to time. The areas in oudh have been determined once by the Chief Justice and, therefore, there is no scope for changing the areas. Third, the Chief Justice has power under the second proviso to paragraph 14 of the order to direct in his discretion that any case or class of cases arising in oudh areas shall be heard at Allahabad. Any case or class of cases are those which are instituted at Lucknow. The interpretation given by the High Court that the word “heard” confers powers on the Chief Justice to order that any case or class of cases arising in oudh areas shall be instituted or filed at Allahabad, instead of Lucknow is wrong. The word “heard” means that cases which have already been instituted or filed at Lucknow may in the discretion of the Chief Justice under the second proviso to paragraph 14 of the order be directed to be heard at Allahabad. Fourth, the expression “cause of action” with regard to a civil matter means that it should be left to the litigant to institute cases at Lucknow Bench or at Allahabad Bench according to the cause of action arising wholly or in part within either of the areas. If the cause of action arises wholly within oudh areas then the Lucknow Bench will have jurisdiction. If the cause of action arises wholly within oudh areas then the Lucknow Bench will have jurisdiction. Similarly, if the cause of action arises wholly outside the specified areas in oudh then Allahabad will have jurisdiction. If the cause of action in part arises in the specified oudh areas and part of the cause of action arises outside the specified areas, it will be open to the litigant to frame the case appropriately to attract the jurisdiction either at Lucknow or at Allahabad. Fifth, a criminal case arises where the offence has been committed or otherwise as provided in the Criminal Procedure Code. That will attract the jurisdiction of the Court at Allahabad or Lucknow. In some cases depending on the facts and the provision regarding jurisdiction, it may arise in either place.” 4. Thus, we reject the objection raised by the learned State Counsel. 5. The brief facts giving rise to filing of this writ petition are that Nagar Panchayat, Babhnan Bazar, Basti, issued public notice for auction and award of contract/licence to collect the parking fee for the year 2012-13 at the taxi stands situated within the municipal limit of the Nagar Panchayat, in the newspaper. The petitioner is an enlisted civil contractor with Irrigation Department. According to him, due to some pre-occupations he could not participate in the auction held on 18.4.2012 and, as such, had authorised Shri Nagendra Kumar Singh, son of late Shri Shyam Nath Singh, resident of village Ramapur, district Basti, to participate on his behalf in the auction process. The petitioner quoted Rs. 2,99,100/- as the highest rate and, as such, vide order dated 18.4.2012, issued by the Executive Officer, Nagar Panchayat, he was awarded contract/licence for collecting the parking fees. In terms of the order dated 18.4.2012, the petitioner deposited 1/4th of the quoted amount with the Nagar Panchayat and started the work of collection in accordance with the Rules. A baseless and frivolous complaint was made by someone that the petitioner has been realizing entry fee from all the vehicles. The matter was enquired into by the Sub-Divisional Magistrate, Harriya, Basti. He submitted his enquiry report dated 2.12.2012 to the District Magistrate, Basti, holding that (i) entry fees from vehicles were being realised and (ii) the collection was being done by one Shri Paras Nath Yadav and not the petitioner. The matter was enquired into by the Sub-Divisional Magistrate, Harriya, Basti. He submitted his enquiry report dated 2.12.2012 to the District Magistrate, Basti, holding that (i) entry fees from vehicles were being realised and (ii) the collection was being done by one Shri Paras Nath Yadav and not the petitioner. On the basis of the above inquiry report, the Special Secretary, Govt. of U.P., Nagar Vikas Vibhag, Lucknow, issued the letter No. 4949/01-1-12-380 Sa/12 dated 13.12.2012 directing the District Magistrate, Basti, to take action against the petitioner/Shri Paras Nath Yadav. The District Magistrate, thus, vide letter No. 90/LBC dated 15.12.2012, directed the Nagar Panchayat, Babhnan Bazar, Basti, to take action against the petitioner/Shri Paras Nath Yadav, in terms of directions issued by the aforesaid Special Secretary, Government of U.P. Opposite parties 5 and 6 without application of mind in a mechanical manner issued the impugned letter/order No. 347 (6)/Na.pa.Ba.ba./2012-13 dated 20th December 2012 and letter/order No. 348/Na.pa.Ba.ba./2012-13 dated 20th December 2012. It is also the averment that the enquiry report is an ex parte report and it is illegal, arbitrary and against the principles of natural justice. Besides, though the impugned orders have been passed on the basis of the letter dated 13.12.2012 (Annexure 3) of the Special Secretary but he was not empowered to issue any direction in the matter and, as such, the impugned orders deserved to be quashed. It is submitted that the contract was given to the petitioner by the Nagar Palika and thus only the said Palika is empowered to take a decision in the matter. However, it has not taken any independent decision and in following the order of the Special Secretary, it has acted mechanically and without application of mind. Thus, according to the petitioner, the action of the State Government is in contravention of the provisions of Section 35 (1) of the Nagar Palika Adhiniyam, 1916. 6. Learned counsel for petitioner in oral submission before the Court reiterated the grounds taken in the writ petition. 7. On the other hand, learned State counsel submitted that the contract in question was not cancelled by the Special Secretary but he had only issued some directions to the District Magistrate, Basti, to take appropriate action on the enquiry report. 8. Learned counsel for petitioner in oral submission before the Court reiterated the grounds taken in the writ petition. 7. On the other hand, learned State counsel submitted that the contract in question was not cancelled by the Special Secretary but he had only issued some directions to the District Magistrate, Basti, to take appropriate action on the enquiry report. 8. On due consideration of rival submissions, we find considerable force in the grounds of writ petition as well as the arguments of learned counsel for petitioner that the Special Secretary, who passed the order, directing the District Magistrate, Basti, to take action against the petitioner where under the District Magistrate directed the Nagar Panchayat concerned to proceed, was not competent to pass the order for the reason that the Special Secretary was not a party nor an authority to grant the contract in favour of the petitioner and secondly, it would reflect upon and interfere with the independence/autonomy of local bodies. 9. Impugned order (Annexure 3) passed by the Special Secretary, Government of U.P., suffers from inherent infirmities of incompetence. Besides, the petitioner has not been left with any remedy of filing an statutory appeal or revision, if any, on the administrative side. The contract had been alloted by the Nagar Panchayat, Babhnan Bazar, Basti through the Executive Officer, therefore, the said officer should be the appropriate authority unless the law governing the field specifically prohibits. That apart, the enquiry and the enquiry report which formed the basis of further action were carried out ex parte without giving opportunity to the petitioner. 10. In view of all the aforesaid, the order dated 13.12.2012 and all other consequential orders leading to cancellation of the contract granted in favour of the petitioner are hereby quashed. Thus, the writ petition is allowed. 11. However, it would be open for the Nagar Panchayat-competent authority to start the proceedings afresh on the complaint made against the petitioner. ——————