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Allahabad High Court · body

2014 DIGILAW 3676 (ALL)

MOHD. HASHIM v. STATE OF U. P.

2014-12-09

RAJES KUMAR, VIVEK KUMAR BIRLA

body2014
JUDGMENT By the Court.—Heard Sri K.S. Amist, learned counsel for the petitioner, learned Standing Counsel appeared on behalf of respondent Nos. 1, 2, 3, 4 and 5, Sri Ramendra Asthana, learned Advocate, appears for respondent No. 6 and Mohd. Isa Khan, learned counsel, appears on behalf of respondent No. 7. 2. By means of the present petition, the petitioner has challenged the order dated 27.7.2007, Annexure-9 to the writ petition, passed by the Commissioner, Allahabad Division, Allahabad whereby the Theka settled in favour of the petitioner regarding fishery rights over Pond No. 819 situated in Nagar Panchayat Lalgopalganj, Allahabad has been cancelled and further the consequential order dated 3.8.2007, passed by the Additional District Magistrate, (Administration), Allahabad whereby a direction has been issued for the fresh auction. 3. Brief facts of the case are that the petitioner was a Class-IV Central Government employee in the Postal Department in the year 2007. He retired in the month of January, 2008. The petitioner participated in an auction held for the fishery operation of the Pond No. 819 on 24.5.2007 at 3.00 PM. Being the highest bidder, the bid of the petitioner has been accepted and a lease of the said Pond No. 819 of Nagar Panchayat Lalgopalganj, Tehsil Soraon, Allahabad has been executed by Nagar Panchayat, Lalgopalganj, Allahabad through the Chairman, Nagar Panchayat, Lalgopalganj, Allahabad for the period of ten years for the purpose of fishery operation. The copy of the lease deed is Annexure-7 to the writ petition. It appears that complaint has been made by respondent No. 7 about the various irregularities committed in granting the lease in favour of the petitioner. On which enquiry was made and a report was submitted by the Sub-Divisional Magistrate on 20.7.2007. On the basis of the said report, the Commissioner, Allahabad Division, Allahabad, vide order dated 27.7.2007, has cancelled the lease and directed the Additional District Magistrate for fresh auction. In pursuance thereof the Additional District Magistrate, (Administration), Allahabad, vide its letter dated 3.8.2007, directed the Sub-Divisional Magistrate, Soraon, Allahabad to initiate the proceeding of auction. 4. Two counter-affidavits dated 29.10.2014, 18.11.2014 and one supplementary counter-affidavit dated 9.11.2014 have been filed by the respondent No. 6. One counter-affidavit has been filed by the respondent No. 7. In pursuance thereof the Additional District Magistrate, (Administration), Allahabad, vide its letter dated 3.8.2007, directed the Sub-Divisional Magistrate, Soraon, Allahabad to initiate the proceeding of auction. 4. Two counter-affidavits dated 29.10.2014, 18.11.2014 and one supplementary counter-affidavit dated 9.11.2014 have been filed by the respondent No. 6. One counter-affidavit has been filed by the respondent No. 7. The petitioner filed rejoinder-affidavit in reply to the counter-affidavit filed by the respondent No. 7 in the month of September, 2007 and one rejoinder-affidavit dated 7.11.2014 has been filed in reply to the counter-affidavit filed by the respondent No. 6. With the consent of the parties, the present petition is being disposed of. 5. When the matter was taken up on 13.10.2014 it was found that although there is no interim order in favour of the petitioner still the petitioner has been allowed to continue the fishery operation. Therefore, the District Magistrate, Allahabad has been directed to make an enquiry and file his own affidavit. In pursuance thereof an affidavit of compliance has been filed wherein in paragraph 11 it is stated that the petitioner was permitted to continue the fisheries right in pursuance of the aforesaid Theka which is not justified at all. In paragraph 13, it is stated that the original file is also not traceable in the office of Executive Officer, Nagar Panchayat, Lalgopalganj, Allahabad. The deponent vide his letter dated 20.10.2014, requested to the Director, Directorate Local Bodies, Indira Bhawan, Lucknow to initiate the disciplinary proceedings against Smt. Minakshi Chaturvedi, who was the then Executive Officer, Nagar Panchayat Lalgopalganj, Allahabad. In paragraph 14, it is stated that FIR was also lodged in year 2013 against Sri Dharam Pal Singh for misplacement file as Case Crime No. 192 of 2013, under Sections 409, 419, 420, 467 & 468 IPC for which the investigation is going on. It is also stated that the petitioner has not been permitted for fishery operation with effect from 1.4.2014. 6. Learned counsel for the petitioner submitted that without giving any reason and opportunity, the lease agreement has been cancelled by the Divisional Commissioner, Allahabad and, therefore, it is liable to be quashed. 7. Sri Ramendra Asthana, learned counsel for the respondent No. 6, submitted that the petitioner was Class-IV employee in the Post Office situated at Village Anapur, Pargana Nawabganj, Tehsil Soraon, District Allahabad. 7. Sri Ramendra Asthana, learned counsel for the respondent No. 6, submitted that the petitioner was Class-IV employee in the Post Office situated at Village Anapur, Pargana Nawabganj, Tehsil Soraon, District Allahabad. In paragraph 4 of the rejoinder-affidavit, this fact has been accepted by the petitioner himself. Central Civil Services (Conduct) Rules, 1964 (hereinafter referred to as ‘Rules’) was applicable to the petitioner being Central Government employee. Rule 15 completely prohibits the engagement directly or indirectly in any trade or business to a Government servant except with the previous sanction of the Government. The Government means the Central Government. The petitioner has not obtained any sanction from the Central Government for participating in a commercial activity namely for fisheries operation. Therefore, the petitioner was not eligible to participate in an auction. In the circumstances, the lease granted in favour of the petitioner, has rightly been cancelled. 8. The respondent No. 7, in his counter-affidavit, pointed out several irregularities being committed in the auction and the acceptance of the bid in favour of the petitioner. Learned counsel for the respondent No. 7 submitted that on the complaint being made by respondent No. 7 and enquiry was made by the SDM and a report dated 20.7.2007 was submitted by SDM to the Divisional Commissioner pointing out several irregularities in the auction and acceptance of bid, and on the basis of report learned Commissioner has cancelled the lease, which is wholly justified 9. We have considered the rival submissions and perused the record. 10. Various irregularities have been pointed out in the auction held on 24.5.2007 and the lease granted in favour of the petitioner which are the basis for the cancellation of lease. However, we do not propose to deal with such irregularities in view of the admitted fact that on the date when the petitioner participated in the auction, he was not eligible to participate. Admittedly, the petitioner was Class-IV employee in the Postal Department and Central Civil Services (Conduct) Rules, 1964 was applicable. However, we do not propose to deal with such irregularities in view of the admitted fact that on the date when the petitioner participated in the auction, he was not eligible to participate. Admittedly, the petitioner was Class-IV employee in the Postal Department and Central Civil Services (Conduct) Rules, 1964 was applicable. Rule 15 (i) reads as follows : (1) Subject to the provisions of sub-rule (2), no Government servant shall, except with the previous sanction of the Government,- “(a) engage directly or indirectly in any trade or business, or (b) negotiate for, or undertake, any other employment, or (c) hold an elective office, or canvass for a candidate or candidates for an elective office in any body, whether incorporated or not, or (d) canvass in support to any business of, insurance agency, commission agency, etc., owned or managed by any member of his family, or (e) take part except in the discharge of his official duties, in the registration, promotion or management of any bank or other company registered or required to be registered, under the Companies Act, 1956 (1 of 1956) or any other, law for the time being in force, or of any co-operative society for commercial purposes. (f) participate in or associate himself in any manner in the making of— (i) a sponsored media (radio or television) Programme; or (ii) a media programme, commissioned by Government media but produced by a private agency; or (iii) a privately produced media programme including video magazine: Provided that no previous permission shall be necessary in case where the Government servant participates in a programme produced or commissioned by Government media in his official capacity.” 11. Rule 15 prohibits the Government servant from engagement directly or indirectly in any trade or business except with the previous sanction of the Government. The petitioner is not able to demonstrate that any sanction has been granted by the Central Government, permitting the petitioner to participate or to engage himself in any trade or business and, therefore, the petitioner was not eligible to participate in the bid and engage himself in a fishery trade. 12. The petitioner is not able to demonstrate that any sanction has been granted by the Central Government, permitting the petitioner to participate or to engage himself in any trade or business and, therefore, the petitioner was not eligible to participate in the bid and engage himself in a fishery trade. 12. We are of the view that the participation of the petitioner in an auction and taking lease of pond for fishery operation amounts to engaging himself in any trade or business which was in violation of the Provisions of Central Civil Services (Conduct) Rules, 1964 for which Departmental action is required to be taken under the Rule. 13. We direct the District Magistrate, Allahabad to refer the matter to the Postal Department for taking necessary action in this regard. 14. Learned counsel for the petitioner referred RA-1 which is a letter written by the petitioner to the Deputy Divisional Nirikshak, Dakghar Uttari Up-Mandal, Allahabd seeking permission to participate in the auction wherein he has been permitted by the Deputy Divisional Nirikshak, Dakghar Uttari Up-Mandal, Allahabd on 20.5.2007. The petitioner has annexed the letter for the first time alongwith the rejoinder-affidavit. No verification of this document has been made. The document is only a photostat copy and as such not admissible. Even assuming that the Deputy Divisional Nirikshak has granted the permission but the said permission is not in accordance with Rule 15. Under Rule 15, it is the Central Government, who can grant the sanction and not any authority. Therefore, the petitioner is not entitled for the benefit of such alleged permission. 15. In the facts and circumstances, we decline to exercise our extra jurisdiction under Article 226 of the Constitution of India. 16. We direct that the necessary proceeding, which has been directed in the affidavit of the District Magistrate, may be concluded expeditiously and the District Magistrate is further directed to refer the matter to the Postal Department for necessary action against the petitioner in the light of the observation made above. 17. The writ petition fails and is, accordingly, dismissed. —————