Judicial_Transpiracy_Reformation

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2012-11-03T03:41:00.001-07:00

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Fundamental Rights Versus Basic Justiciable Human right enforcement mechanism absent in our Nation

2012-11-02T10:56:00.000-07:00

n India , as per constitution of india all citizens are

equal , have right to equal oppurtunity &

equitable justice irrespective of caste , creed , religion , etc. the

constitution has guaranteed these to every indian

citizen by way of CONSTITUTIONAL FUNDAMENTAL RIGHTS. Also , every

humanbeing on earth has got HUMAN RIGHTS, by virtue of

his / her birth.

However in india , CONSTITUTIONAL FUNCTIONARIES / PUBLIC

SERVANTS have forgotten this & are acting as lords ,

autocrats - unquestionable public masters. CONSTITUTIONAL

FUNCTIONARIES are PUBLIC SERVANTS appointed to serve the public,

public are the kings of democracy , they are the taxpayers &

paymasters of this very same public servants.

In India , corruption has spread it's tentacles far &

wide , it has not even spared the judiciary. The last

resort of commonman for seeking justice is judiciary , even there

corruption has spread.In present day India , if one

is rich , he can committ any type of crime & get away clean from

courts of law. there are corrupt police officials

who modify FIR , suppress evidences ,manipulate evidences , takes up

different line of investigation , fix innocents ,

coughs-up false confessions from innocents by 3rd degree torture ,

file B report closing the case , decides not to

appeal in higher court of law , etc , ALL FOR A PRICE. Just see the

list of millionnaire police officials who are

caught by karnataka lokayukta.

Next step , the prosecutor & defense advocate strikes a

deal , manipulates evidences , manipulates way

of presentation of case & way of argument favouring the rich crooks

for a price , as observed in high profile

BMW case involving public prosecutor IU KHAN & defense counsel RK

ANAND. In this way , if corrupt police & advocates ,

together manipulate the due process of law , the presiding judge is

left high & dry eventhough the judge is honest,

he is left helpless. to add to this , when the judge himself is

corrupt , people's last hope , democracy is dead. nowadays

we are hearing too many reports of irregularities in judiciary.

our publication has filed many appeals as PUBLIC INTEREST

LITIGATION before hon'ble supreme court of india,

but the vested interests there are not accepting it as PILs. WHAT DOES

PUBLIC INTEREST LITIGATION MEANS ?

ISSUES WHICH ARE OF PUBLIC CONCERN AFFECTING MANY NUMBER OF PUBLICS.

The issues raised by us for sample :

1. sale of fake medicines & adulterated food products , beverages ,

colas affecting the health of millions of indians

& public of importing nations who are importing the same dangerous

products from india .

2. demolition , eviction of houses , lands belonging to poor dalits ,

tribals , backward castes by government authorities

whereas regularising illegal land encroachments , illegal buildings

by high & mighty people in total disregard to law.

in some cases government has even made contempt of court , by defying

court orders & enacting special laws all to favour rich land grabbers.

3. take the cases corporate frauds, violation of labour laws ,

pollution board laws , tax laws , etc by companies.

4. The reports in media about certain highly placed public servants

leaking india's defense secrets to foreign countries

& some politicians , film stars attending parties hosted by anti

nationals DAWOOD IBRAHIM & underworld dons in gulf

countries & elsewhere.

these type of appeals are for public good , national

security , as public are affected by them. still supreme court of

india is not considering

our repeated PIL Appeals.the courts have the authority to consider

even a post card , e-mail as a PIL Appeal , the courts

even have the right to initiate suo-motto action for public good ,

inspite of absence of any appeals / complaints.

over & above this at the time of my very first appeal my income was

very low & i was a retrenched factory employee who was eligible

for free legal aid, even free legal aid was not given to me.

Now , even to my repeated RTI Appeals the Honourable chief

justice of India & H.E.Honourable President of India

are not giving the requested information . these action of CJI &

PRESIDENT OF INDIA is aiding high & mighty criminals , anti

nationals ,

amounts to suppression of information , truth , evidences , which is a

cognizable offence.We do have highest respect for all constitutional bodies ,

public servants , but it is an appeal to the

honest few in public service ,to bring to book their corrupt

colleagues.The Honourable Chief Justice of India & H.E.Honourable

President of India

have violated their oaths of office , failed in their constitutional

duties , suppressed material truths / informations & thereby

repeatedly

violated my Constitutionally guaranteed FUNDAMENTAL RIGHTS & BASIC

HUMAN RIGHTS & Obstructing me from performing constitutionally

prescribed FUNDAMENTAL DUTIES AS A CITIZEN OF INDIA.

Hereby , i do

request you to legally prosecute the below mentioned public servants
viz

For Varnadharma System Birth is Accidental We salute the NSG Commandos And Brave Soldiers on Kargil Pakistan Border Not Judges

2012-11-02T10:15:00.000-07:00

In india , till 1947 public life in the society was guided by four varnashrama system or Manu’s caste system. Birth is accidental not out of choice , just for being born in a particular caste the human beings were treated worse than animals. This caste system was designed & enforced by the village farming community (Gowdas , Thakurs , Reddys , different names are used to indicate those belonging to farming community in different states of india ) , Trading community and most importantly Brahmin community. Brahmin provided the ideological reasoning for this inhuman , barbaric act of DALIT OPPRESSION citing various religious texts . The physical enforcement of this oppressive act was done by those belonging to the farming community with their muscle power. Both the farming community & Trading community had complete control over the local economy and forced dalits economically too to slave it out for unjust labor charges at the farms of those same oppressors.

After independence of india , little has changed. The government has banned the practice of untouchability , provided various welfare measures for the upliftment of dalits through legislations. Now , the Brahmin community which was providing ideological base for “UNTOUCHABILITY” has been isolated and are at disincentive for getting seats in government colleges , scholarships , for getting government jobs , etc. Brahmins are paying the price for the past wrongdoings of their forefathers. This has been achieved by the government easily as the Brahmin community lacks numerical strength & muscle power.

What about the farming community & trading community ? both the communities have got numerical strength , muscle power & are the deciding electorate in the formation of governments. Previously those belonging to these two communities were village heads , ruled the villages & controlled local economy. Now the same community people are MLAs , MPs , Cabinet Ministers and are continuing with their practice at the subtle level. These two communities didn’t pay any price for their past wrong doings for practice of untouchability. They are also enjoying various reservation benefits , welfare measures , incentives from the government . Still they have not changed their mindset & are practicing discrimination against dalits at the subtle level – for them Dalits are just a vote bank . who will punish them ?

Even the society , media which reflects the majority view , reflects the discriminatory attitude at the subtle level. For all the terrorist crimes usually muslim community is targeted , does that mean whole of muslim community are terrorists in the view of government & majority community ? whenever a tribal person , a dalit struggles for his survival , existence – he is branded as a naxalite ?

when the persons belonging to majority community are involved plotting , execution of major , more heinous terrorist acts , he is let off freely , even media does not report , however if a muslim community person is caught he is slapped with TADA , POTA Charges , media gives much hype to it. When the terror master minds in government of india seeded , supported , financed Tamil Terrorists in srilanka , Bangla terrorists in East Bengal (now Bangladesh) – who killed lakhs of innocent srilankans & Bangladeshis , nobody not even media questioned it. See how film actor sanjay dutt got a favorable treatment from government , police & judiciary , media as he belonged to a forward caste & from an influential family although he stored the arms , ammunitions meant for Bombay bomb blasts . Nobody not even the media questions the attendance of film actors , politicians at the parties hosted by under world dons , terror master minds in gulf & south asian countries.

Still in india , practice of untouchability is there at the subtle level. The sad part is that few dalits who got education , job , economic benefits just due to the government legislation , who are now standing firm , capable , got respectable stature in the society themselves have become puppets in the hands of forward caste people. These progressed Dalits have taken sides with the forward caste oppressors & are suppressing their own Dalit Brothers. Now , take for instance the case of Justice Dinakaran rhe Dalit – he has got , education , incentives , reservation , job , etc , all due to the government legislations. Instead of working for the upliftment of his Dalit brothers in his greed for more money , more wealth he usurped the very land earmarked by the government for his Poor Dalit brothers. Thereby , JUSTICE DINAKARAN HIMSELF HAS PROVED THAT HE IS ANTI-DALIT. HE MUST BE PUNISHED , NOT JUST LET OFF WITH RESIGNATION FROM SERVICE or GAG ON MOUTH.

Media & Government has given much hype to JUSTICE DINAKARAN’S case as he is a DALIT. What about the more grave crimes done by high ranking judges belonging to upper castes ? what action government has taken ? why does not media give wide coverage for such upper caste judges caught , finally helping in hushing up the case ? Take for instance roost resort sex scandal involving Karnataka high court judges or the UP high court judge belonging to upper caste who got his official chambers cleaned , purified with GANGA JAL (as the official chamber was previously occupied by a dalit judge). WHY NOT MEDIA IS GIVING COVERAGE TO SUCH CASES INVOLVING UPPER CASTE JUDGES ? WHY NOT GOVERNMENT IS TAKING ACTION AGAINST ERRING UPPER CASTE JUDGES , WHO’S CRIMES ARE GRAVER THAN DINAKARAN’S ?

Government & Media should not practice double standards . TRUTH FOREVER – Attempts by vested interests to silence our publication , to silence a human rights activist , to silence the voice of Dalits

The police , judges , public servants , etc question the accussed persons , to ascertain the root cause of crime or dispute, to know the truth behind every actions. The police even apply 3^rd degree torture on commoners ( although it is illegal ) to elicit truth , information about crimes. When the same public wants to know the truth behind crimes involving police , judges & public servants , and seeking truth , answers , informations as per RTI ACT from police , judges & public servants , they are not answering lest the truth come out. They are citing one or the other technical reasons to hide information , to hide truth about crimes , to shield the criminals. If any of the following public servants truly stands for law , justice , truth , let them answer for the following questions publicly through media.

Salutes to our Freedom Fighters who enabled us to live in independence ,
salutes to our brave Jawans who are safe guarding our independence ,
salutes to our Kargil martyrs , salutes to our NSG Commondos , who are
protecting us from deadly Terrorists. Our head bows to you all – the
Brave sons of India.

After 63 years of india's independence the lives of commoners is far
worse than under britishers. The benefits of independence has reached
only few , thus creating islands of few ultra rich people surrounded by
vast sea of utterly poor. The rich people in nexus with those in power ,
are getting favourable laws enacted to suit their ends. Those in power
are shamelessly enjoying 5-star luxuries all at tax payer's expense ,
while more then 50 million are starving to death.

The criminalization of politics , executive & judiciary is almost
complete. The corruption has spread it's tentacles far & wide , there is
corruption from womb to tomb ,from maternity hospital to grave yard. The
injustices meated out , the atrocities perpetrated by by public servants
are worse than britishers.

Ideally in a democracy, the legal recourse of grievance redressal /
justice , when a commoner suffers injustice he can appeal to respective
government official or police for justice , still if doesn't get justice
he can appeal to court of law , further the aggrieved can get the
appropriate law enacted through his M.P / M.L.A. The sad part in India
is no public servant is neither aware of the value of our hard won
independence or the working of democracy.

When all the legal recourses to justice fail to respond , to provide
justice to the aggrieved , when corrupt judges-police-politician-public
servants act as a criminal nexus & block justice delivery, the commoner
has only 2 options , either to suffer in silence or to take law into his
own hands & get justice on his own.

Take for instance Bombay riots case several VVIPs – cabinet
ministers , police were found to be guilty of torture , murders of
innocents by justice sri Krishna enquiry commission. The government is
sitting over enquiry commission report. The court is not taking
suo-motto action in public interests a result , the guilty ministers &
police who are fit cases for death sentences are roaming free &
commiting more crimes , anti-national activities.

In some cases , involving the rich &mighty ,higher police officials ,
the cover-up begins right from start ie FIR Registration. Police conduct
name sake enquiry , investigation, suppress evidences , witnesses ,
destroy some of them , the prosecution takes a favourable stand putting
up weak arguments. Naturally, the guilty official , minister is
acquitted by court for lack of evidences. So, the guilty who should have
been rightfully put behind bars , hanged goes scot-free , to commit more
crimes , more anti-national activities.

In such cases , if the suffering public give the legal punishment to the
guilty , which should have been given by the court but failed. Are not
such acts of public, to uphold law & dignity , national security right &
patriotic ? if any body terms it as crime , that means guilty VVIPs ,
police , public servants should be left unpunished allowing them to
commit more crimes , anti-national activities. Is that right from
national security angle ? is it equality before law & equitable justice
?

Do remember that our freedom fighters ,martyrs ,sri.kudiram bose
,subhash Chandra bose , bhagath singh , veer savarkar others who took
violent path of independence struggle & killed inhuman british officers,
police & judges have contributed valuably ,immensely to our freedom
struggle. One of the main causes of origin of naxalism ,separatist
movements is the rampant corruption & unaccountability of public
servants in India.

In this back drop , in India anarchy is not far away. The days of
suffering public ,killing their tormentors corrupt police , corrupt
judges , corrupt tax officials ,etc is not far away. No police security
, no SPG cover can protect those corrupt , as police & SPG personnel
work for pay , perks and will be on the wrong side of law –
protecting criminals. The suffering public fighting for their survival ,
on the right side of natural justice , protecting the nation.

If the authorities term this act as illegal , crime then are the acts of
corrupt public servants legal ? is the cover-up of such corrupt acts by
police , vigilance officials & some judges by mis quoting
/misinterpreting , misusing law is right , legal ? the GOI has created ,
funded , supported , given training , arms & ammunition to various
terrorist outfits like LTTE , MUKTHI BAHINI ,MQM in foreign countries ,
resulting in destruction , mass murders of innocents there . In india
itself in assam , Kashmir , the GOI has created counter terrorist
outfits to reduce the reach of terrorist groups. The bihar , jharkhand ,
chattisgarh state governments have created armed gangs SALWA JUDUM to
counter naxal outfits , are all these acts of government right , legal ?
the days of dogs death for corrupt is quite nearby. it is high time , to
the corrupt to reform , repent themselves.

In our own experience, e-voice didn't get justice from authorities in
many cases of injustices brought before it , most shameful fact even
supreme court of India failed to register PILs , even shameful supreme
court of India even failed to give information as per RTI Act , utterly
shameful supreme court of India failed to protect the fundamental rights
of editor of e-voice & obstructed him from performing his fundamental
duties. Still, e-voice believes in peace , democratic practices. E-voice
firmly believes that violence should not be practiced by anybody –
neither state nor public.

Hereby, e-voice urges the corrupt public servants to mend their ways ,
to uphold law & dignity of democratic institutions. Atrocities ,
violence , corruption breeds more violence , invites dog's death. Peace
,truth , honesty is the harbinger of prosperous democratic nation.
Greetings to all my Indian brothers & sisters on the occasion of 63rd
independence day celebrations, let us build a true democratic India ,
free of corrupt public servants.

CHIEF JUSTICE MARKANDEY KATJU AND CHIEF JUSTICE A.K GAUNGALI REMAIN SILENT WHEN JUSTICE P.D. DINAKARAN Name Recomended for Chief Justice To CJI K.G. BALAKRISHANANA?. WHY TO SPEAK In ODD TIMES ?.

2012-11-02T10:08:00.001-07:00

COURT JUDGEMENTS FOR A PRICE ? MANIPULATION OF INDIAN LEGAL SYSTEM

- SHAME SHAME SHAMELESS CORRUPT PUBLIC SERVANTS

The strange case of Justice P.D. Dinakaran” has taken a strange turn. A group of advocates and activists in Tamil Nadu are alleging that the chief justice of the Karnataka High Court is the victim of a motivated vilification campaign. That his character is being assassinated because he is a Dalit.

“The real agenda is to prevent a member of a backward community from entering the ‘sanctum sanctorum’, now a monopoly of the upper castes,” K. Veeramani, general secretary of Dravida Kazhagam, the parent organisation of the DMK, has been quoted as saying.

The figleaf was provided by the veteran jurist Shanti Bhushan, who was among the legal eagles who brought the memorandum of charges prepared by the Madras-based Forum for Judicial Accountability to the notice of the chief justice of India, K.G. Balakrishnan, also a Dalit.

In an interview to The Pioneer, Delhi, Bhushan is reported to have said:

“It is inexplicable on the part of the CJI as to why he is not consulting the judges of the Supreme Court, like Justices M. Katju and A.K. Ganguly, under whom Dinakaran has served. So many lawyers are making allegations against him. Why is he (CJI) so keen to get him (Dinakaran) appointed? Perhaps the reason may be that he is a Dalit. We cannot say.”

An imputation of favouritism was also made by the SC lawyer Rajeev Dhavan in an article in Mail Today, after Justice Dinakaran excused himself from a tour to Australia once the scandal broke:

“Justice Dinakaran has declared that he will not accompany the ‘judges exchange’ delegation to Australia. There is a lot to doubt whethere he deserved to be a delegate over others in the first place. Someone seems to have a soft spot for him.”

Questions: Is Justice Dinakaran being because he is a Dalit? Or is this a lame attempt to give the controversy a caste colour to shield the judge? Should a Dalit be excused if he is accused of land grabbing, corruption, abuse of office and lack of probity merely because he is a Dalit? Is a Dalit entitled to take away lands of other Dalits, as is being alleged, because he is a Dalit?

Recently we have seen media reports about arrest of high ranking police officers by Karnataka lokayukta , many police are arrested by karnataka lokayukta . Many government officials are apprehended by Karnataka lokayukta in the past , on an average from each arrested corrupt government officials millions of rupees worth illegal wealth was confiscated from each criminal. This wealth is earned by selling their official duties , for preparing fake government reports , records in somebody’s favor. During the proceedings of the court , paradoxically the judge depends on those very same concocted government reports , records (prepared by corrupt official) as the gospel truth & gives his judgement. The corrupt police officials by taking bribe suppress evidences , leave criminals from FIRs , deviate from the line of investigation , purposefully delay investigations allowing for destruction of evidences / escape of criminals , close cases with B reports , delay arrests of criminals as not traceable , in the same way fix innocents , coughs up fake confessions from innocents , etc all to protect the real rich & mighty criminal in the background. During the proceedings of the court , the judge heavily relys on the investigation reports , records of these corrupt police officials & gives his judgment.

Recently a fortnight back , in an article written by Karnataka government law & justice minister Shri. Suresh Kumar has mentioned about an incident where in an innocent was illegally arrested by police , the public prosecutor demanding a FAT FEE from the innocent detainee to get his release. Nowadays , many of the government paid Public Prosecutors in understanding with the defense advocate strike a deal , present the government’s case in half hearted manner allowing the rich & mighty criminal to escape. During the proceedings of the court the judge relies on the stand of prosecution , the stand of corrupt public prosecutor as government is the party which has filed that very case.

In the court of law , judges follow the law enacted by parliament or state legislatures. However some of the criminals who have entered into the halls of parliament & legislatures are successful in getting certain illegal acts legalized . the courts of law blindly follow those illegal , unethical , immoral LAWS / ACTS / GOVERNMENT ORDERS as gospel truths , as guiding lines as they happen to be technically legal.

In a fresh twist to the controversy surrounding Justice Paul Diwakar Dinakaran, a collective of civil rights groups here has questioned his Dalit background, saying he ceased to be a member of the Scheduled Castes ever since he converted to Christianity.

Addressing mediapersons here, representatives of the organisations said the entire issue of elevation of Dinakaran is premised upon serious charges of corruption and those who try to rake up his caste background were unaware of what they are doing.

Going by the Constitution, the People’s Watch said, the judge was not an SC member, instead a Christian falling under the Backward Classes. The National Commission for the Scheduled Castes was “needlessly trying to jump into an issue, which basically stems from charges of corruption alone”, the NGO’s Executive Director Henri Tiphagne noted.

O Fernandes of the Human Rights Advocacy and Research Foundation and others representing Dalit forums said the issue was only about encroachment of public property, misuse of office, and “questionable” judicial orders in certain cases, besides violation of some provisions of the Motor Vehicles Act. “Most charges stand substantiated after our field visits.”

Justice Dinakaran has 527 acres of land in Kaverirajapuram village near Tiruttani. Of this, 230.19 acres come under government ‘poromboke’ and ‘adineenam’ category.

The locals used the lands for purposes like cattle grazing. Their misappropriation has affected the local poor, mainly Dalits and other backward people. “Let all charges be probed. If he is exonerated, then its fine,” Tiphagne said.

Asked how Dinakaran could continue as the Chief Justice of the Karnataka HC if the charges were true, he said, “Ideally he must not. But, we cannot ask everything at the same moment.” A detailed account of alleged misappropriation of wealth would be sent to the CJI and the collegium.

In some cases , the judges themselves happen to be corrupt , they sell all judicial orders for a price. Just remember the case of a TADA court judge issuing bail orders for a price , or a judge issuing arrest warrants against then CHIEF JUSTICE OF INDIA & PRESIDENT OF INDIA .

Due to all these cases , the rich & mighty criminals are manipulating the entire legal system to their own favor and innocent people , common folk are getting a raw deal in the courts of law. Where is Ram Rajya even after 62 years of India’s Independence.

By all these action can we expect justice from the corrupt mentioned in the following articles. SHAME TO SHAMELESS CORRUPT JUDGES , CORRUPT POLICE , CORRUPT PUBLIC SERVANTS of india . These corrupt must learn lessons of duty from their honest colleagues, honest few judges , police , public servants still left in service. These few honest judges , honest police & honest public servants must teach their corrupt colleagues how to behave. Corrupt must first learn to be human beings , to behave as human beings & to interact with the public as human beings.

SAVE INDIANS FROM CONGRESS ATTROCITIES : THE CONTROVERSY OF RAJIV GANDHI MURDER , NO OTHER ...

2012-11-01T07:21:00.001-07:00

SAVE INDIANS FROM CONGRESS ATTROCITIES : THE CONTROVERSY OF RAJIV GANDHI MURDER , NO OTHER ...: THE CONTROVERSY OF RAJIV GANDHI MURDER, NO OTHER THAN Smt. SONIA GANDHI Ms.Sonia Gandhi has also fully utilized the martyrdom of her h...

Bharatkalyan97: Beauty of the confluences of rivers

2012-06-10T01:11:00.001-07:00

Bharatkalyan97: Beauty of the confluences of rivers

Mohammed of Mecca by making the gift of ISLAMIC Pakistan to him. But it does not see any HINDU in Hindusthan

2012-06-10T00:33:00.000-07:00

FROM GOLD TO MUD

The Constitution has robbed the Hindus of IDENTITY, making them faceless like the terracotta figures in China. It does recognize Christianity and honoured the Pope as the State guest and gave state funeral in honour of Teresa, the nun from Albania. And it does “touch the feet” of Mohammed of Mecca by making the gift of ISLAMIC Pakistan to him. But it does not see any HINDU in Hindusthan. Hajj subsidies for them to Mecca, YES!, but Sri Ram’s RUINED temple in Ayodhya, for us, NO!

And finally, what does this Constitution say about the patriotic Sikhs? Well, they have their thumbs to suck till the next Operation “Blue Star”. The Constitution concedes them EQUALITY with the Hindus.

It would have been an ideal document for “Akhand” Bharat but it was imposed on “Broken” Bharat. It was the dress for a strong elephant that the jugglers tried to put on a lame goat.

All those writing it under the terror & awe of “Bandit” Jawaharlal Nehru were NOT even born in it. They were born in India that had Khyber Pass and Chittagong in it. But being dull and duffer, still the slaves and coolies of the previous Empire, they believed that the mud in their hands was gold.

It was the India in chaos, mayhem, massacres and communal frenzy with the promise of worse to come. But all this REALITY was ignored in the Document that is called “Constitution of India”.

CONSTITUTION THAT IS ROOT OF ALL EVIL

We all know that the current state of Bharat is not inspiring but, on the contrary, quite depressing. One can rightly point the finger at the very source of confusion and the prevailing chaos in the line, "Anarchy is embedded in our Constitution (sic) and no one is talking of this!" The sentence is profound.

If we are serious then this is a vital statement and the most important revelation. Constitution is like the rudder that gives DIRECTION to the ship. If it is defective or missing then the ship flounders on high seas and sinks. The crew and passengers are doomed.

A detailed look at Constitution is, therefore, urgently called for. But at present this Constitution by Nehru and his intimidated "Assembly of Stooges" is meant for the benefit of Muslims, to confer official recognition on their illegal and illegitimate Pakistan, to suppress the Hindus by taking "pride" out of their brains and by fixing quotas in jobs and education for certain communities while putting the majority at disadvantage.

The Constitution 'goes along' with the HIGH TREASON of Nehru in accepting unconditional surrender of vast territories of our Motherland without Transfer of Population or any condition. Obviously Nehru, the Traitor, did not "relate" to his country and people though he became Prime Minister with dictatorial rights and powers.

This Constitution is BLIND. It cannot tell the difference between an Italian and an Indian at the highest levels in government.

This Constitution goes PARTIAL and PARTISAN in ignoring the Hajj subsidies to MUSLIMS going to Mecca to "charge their batteries" against the Kafirs and Infidels. I confirms separate ISLAMIC identity on J & K State vide Article 370 of Constitution, leaving the other States green with envy and sense of impotence.

This Constitution did not expect or require Prime Minister MAIMOONA BEGUM to retain East Bengal after its capture in 1972.

This Constitution does not have a single word of praise or encouragement for the NATIVE faiths and religions of India.

This Constitution cares two hoots if the Supreme Commander or President is a MOHAMMEDAN, CHRISTIAN or ATHEIST who calls our religion "rubbish". It ignores and insults the 85% majority as if the Hindus were a mere 15% of population.

This Constitution is NO friend of the HINDUS of INDIAN origin living in Fiji, Uganda, Sri Lanka and even Pakistan and Kashmir who can be kicked, abducted, abused, raped, killed, beheaded or expelled.

This Constitution does not call NEPOTISM a crime. Father Nehru could pass on his chair to daughter MAIMUNA BAEGUM, married to a Muslim who quickly changed his surname to "Gandhi".

This Constitution does not say a good word about Sanskrit or even HINDI that is still in doldrums of confusion and rivalry with Urdu, Arabic and English.

This Constitution does not prevent the Government giving salaries to Imams while impoverishing the priests and granthis in temples and gurdwaras.

This Constitution permits the enemy to operate their Radio and Television stations to convert the Hindus in Partitioned India by the thousand every year.

This Constitution does NOT require, or even expect, a Muslim loafer seducing and marrying a Hindu maiden to embrace HER religion. But this Document of some "Hindu-Killer SHAITAAN" lets the Jehadi DEGRADE his Hindu bride by compelling her to kiss the foot of Mohammed of Mecca, renouncing her own Sri Krishna, Sri Ram and Guru Nanak Dev.

Like a "brain dead moron" this Constitution will go on watching silently even if all the remaining Hindus in Bharat desert their temples and gurdwaras and embrace Christianity or Islam and perish.

This Constitution INHIBITS the native Hindus doing what the foreigners like TERESA can do freely and easily across Bharat earning us the shameful title of "uncaring callous Hindus".

This cursed Constitution does not contain the word "PARTITION" that was the worst ever DEFEAT of India before the indigenous (home grown) ENEMY. For it, Lahore and Dhaka were NEVER in Bharat. Or if they were, then it does not mention as to HOW and WHY they went missing from the map of India!

This Document of "JACKALS" does not mention "Akhand Bharat" even once. According to it the "whole of India" and a "part of India" are the SAME.

Under the inhibiting negative inspiration given by this Constitution to the Secular Slaves, the Hindu nation merely watched when the only Hindu Kingdom of NEPAL became a secular "goat" like Hindusthan so that missionaries and mullahs could be given a free hand to convert the Nepalese, who were once proud Hindus.

This Constitution has not encouraged the Hindu nation to demolish all the statues of bogus leaders and build those of genuine patriots and freedom fighters like Shivaji, Guru Gobind Singh, Rani of Jhansi, Maharana Pratap, Maharaja Ranjit Singh, Gen Hari Singh Nalwa (who captured Khyber Pass), Rabindra Nath Tagore, Netaji and even Field Marshal Manecksaw and Gen JS Aurora who inflicted a crushing defeat on the enemy in 1972. In that historic hour of crushing victory over Pakistan, Prime Minister Maimoona Begum did not ask the Army to recover North Kashmir in order to put an end to the Islamic mischief and treason. We came to know too late that she herself was a MUSLIM CONVERT with her heart in Islam.

Above all, this Constitution of "blind CUCKOOS & subservient COOLIES" does not contain the word "ENEMY" though India is infested with the enemy WITHIN and ON TOP, and has placed them on EITHER side. If a secular fool does not even KNOW his ENEMY, how can he then prepare for him? That is why India was defeated and enslaved umpteen times while the (damn) fools were going out of their way to embrace the enemy, calling him "brother".

This Constitution cannot tell the difference between democracy and ONE DYNASTY'S rule lasting over several generations!

This Constitution has made even the upright and gallant armed forces obey the "Coterie of Corrupt Crooks" and Italian Mafia, dumping their loyalty to their country, claiming to "follow" Constitution to the letter in order to justify their own despicable cowardly INACTION.

Under this Constitution the Indian Armed Forces are NO different from the German armed forces who followed the WRONG LEADER and perished, destroying the country in the end.

This Constitution had to IDENTIFY the enemy and contain the warning, "BEWARE of those who captured West Punjab and East Bengal and still roam FREE across your Partitioned Indian Secular State with his eyes fixed on DELHI."

Those who understand the circumstances, reasons and motivations behind every military coup d’etat, CIVIL WAR or DEFEAT, can foresee the end of Broken Bharat that has so far escaped her total doom.

There is a saying, "Backray ki maan kab tak khair maange gi?" It translates as "How long can we put a "poodle under foreign female" in the top chair and hope all will be well.

We could not prevent the death of Akhand Bharat. Let us now try to save Bharat.

प्रथम महिला राष्ट्रपति प्रतिभा पाटिल चीनी मिल में ड्रग स्मगलिंग से लेकर कई बैंक घोटाले, जमिन घोटाले और हत्यारे भाई को सरंक्षण देने जैसे गंभीर गुनाहों में डूबी हुई

2012-05-25T09:05:00.001-07:00

भारत की प्रथम महिला राष्ट्रपति प्रतिभा पाटिल चीनी मिल में ड्रग स्मगलिंग से लेकर कई बैंक घोटाले, जमिन घोटाले और हत्यारे भाई को सरंक्षण देने जैसे गंभीर गुनाहों में डूबी हुई है ? जानिये और शेयर कीजिये प्रतिभा का काला सच:

1. प्रतिभा महिला सहकारी बैंक जिसे उन्होंने 1973 में अन्य महिलाओं के लिए अपने नाम से स्थापित किया था 1995 में भारतीय रिजर्व बैंक ने इसे "कमजोर बैंक" की सूची में शामिल कर लिया। उन्होंने अपने परिवार के कई लोगों को इसमें निदेशक बनाया। प्रतिभा पाटिल अंत तक इसकी संस्थापक अध्यक्ष बनी रहीं और रिश्तेदारों कों करोडो के कर्ज बाटकर घोटाले किये।
http://panchjanya.com/arch/2007/7/8/File7.htm

2. प्रतिभा पाटिल मुंबई के श्रम साधना ट्रस्ट की मैनेजिंग ट्रस्टी हैं। ट्रस्ट ने महाराष्ट्र में अपने द्वारा संचालित पॉलिटेक्निक से 2001 से 2003 के बीच 4.16 करोड़ रुपये निकाले जो नियमों का खुला उल्लंघन है। यह रकम इंस्टिट्यूट के विकास में इस्तेमाल की जानी चाहिए थी।'
http://navbharattimes.indiatimes.com/articleshow/2161853.cms

3. प्रतिभा के चेयरमन रहते हुये संत मुक्ताबाई चीनी मिल में ड्रग्स स्मगलिंग नेटवर्क पाया गया था, इस मिल में प्रतिभा ने काई घोटाले भी किये और मिल ने बैंक से लिया हुआ कर्ज भी डूबा दिया.
http://hindustan.org/forum/showthread.php?t=3639
http://hindi.webdunia.com/news/news/national/0706/23/1070623001_1.htm
http://panchjanya.com/arch/2007/7/8/File7.htm

4. कांग्रेस नेता व्ही.जी. पाटिल के हत्यारे अपने भाई को बचाने के लिए प्रतिभा ने राष्ट्रपति पद का दुरुपयोग किया था.
http://www.moneycontrol.com/news/politics/pratibha-patil-the-truth-behindallegations_289566.html
http://hindi.in.com/showstory.php?id=14429

5. राष्ट्रपति प्रतिभा पाटिल की विदेश यात्राओं में सरकारी खजाने का करीब 205 करोड रूपया खर्च हो गया। यह एक रिकॉर्ड बन गया है। खर्च का ब्यौरा आरटीआई से हुआ है। प्रतिभा पाटिल ने अपने कार्यकाल में 12 विदेश यात्राएं कीं। इन विदेश यात्राओं के दौरान वह 79 दिन तक विदेशों में रहीं। उन्होंने सरकारी खजाने से अपने कई रिश्तेदारों कों भी विदेश यात्राए करवाई.
http://www.khaskhabar.com/editors-pick/National-pratibha-patil-foreignh-tours-2254709.html
http://articles.economictimes.indiatimes.com/2012-03-25/news/31236682_1_foreign-trips-president-pratibha-patil-foreign-visits

6. राष्ट्रपति प्रतिभा पाटिल के रिटायरमेंट निवास के लिए पुणे में सैनिकों की 5 एकड़ से अधिक 2.60 लाख रुपए वर्ग फुट की कीमत वाली जमीन आबंटित कर दी गई । प्रतिभा पाटिल पर आरोप है कि बंगला बनाने के लिए उन्होंने तय सीमा से 6 गुना अधिक सेना की जमीन कथित रूप से ‘हथिया’ ली। बाद में विवाद के चलते प्रतिभा अपना फैसला बदल लिया.
http://navbharattimes.indiatimes.com/articleshow/12634979.cms
http://economictimes.indiatimes.com/news/politics/nation/President-Pratibha-Patil-gives-up-post-retirement-home-in-Pune/articleshow/12901250.cms

7. प्रतिभा पाटिल एक जमाने में इंदिरा गांधी के घर रसोई बनाने का काम करती थी. नेहरू-गांधी परिवार की वफादार होनी के नाते सोनिया गांधी ने उन्हें भारत का राष्ट्रपति बना दिया.
http://navbharattimes.indiatimes.com/articleshow/7461664.cms
http://economictimes.indiatimes.com/articleshow/7460425.cms

8. प्रतिभा पाटिल और उनके पारिवारिक सदस्यों की अंडमान-निकोबार द्वीप की तीन दिवसीय यात्रा को सुरक्षित बनाने के लिए सैकड़ों पेड़ों को बलि चढ़ा दिया गया। राष्ट्रपति के हेलिकॉप्टर के लिए हेलीपेड बनाने में 400 से ज्यादा पेड़ काट दिए गए। पोर्ट ब्लेयर में विमानतल से राज निवास के बीच कम से 60 पेड़ इसलिए बलि चढ़ गए, क्योंकि ये जहाँ राष्ट्रपति ठहरेंगी, वहाँ से बीच का नजारा देखने में बाधा खड़ी करते।
http://www.dnaindia.com/india/report_400-trees-chopped-down-for-presidents-visit_1141498

9. राष्ट्रपति प्रतिभा पाटिल से जुड़े अन्य गुनाहों की जानकारी के लिए पढ़े:
http://www.thepunjabkesari.com/blog.aspx?blog_id=295

कुछ सच्चाइयाँ....!!! शेयर करें...

Share Please. मित्रों क्या आप जानते है की शांत स्वभाव और साफसुथरे व्यक्तित्व के ...

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2012-05-25T04:03:00.002-07:00

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Author	Message
Topic: Engulfed by the darkness
yogrekha Replies: 0 Views: 2	Forum: Activities of Member Organizations Posted: Sun Sep 07, 2008 10:28 am Subject: Engulfed by the darkness
	In utter darkness shallow bandits cancer; The sound and fury of tumultuous episode; Unveiled in the course of emotive period; Missing sub conscious never brought to fore: Rudimentary question,un ...
Topic: Indians comprise 20% of the population of the world
yogrekha Replies: 11 Views: 1340	Forum: WPE 08 Posted: Wed Jun 04, 2008 6:46 pm Subject: our monuments and the place of worship have been demolished
	The extinction of Hindu race is evident by the bare factor that our monuments and the place of worship have been demolished or converted into different form by the followers of other religion. The at ...
Topic: Indians comprise 20% of the population of the world
yogrekha Replies: 11 Views: 1340	Forum: WPE 08 Posted: Wed Jun 04, 2008 6:44 pm Subject: Hindu religion is now on the verge of its extinction
	Hindu religion is now on the verge of its extinction as its foundations are based on non-aggressive trend and worship to other religion. The humanity is the sole criteria , and nothing like fanatic ...
Topic: Indians comprise 20% of the population of the world
yogrekha Replies: 11 Views: 1340	Forum: WPE 08 Posted: Wed Jun 04, 2008 6:41 pm Subject: Nature has the tremendous effect
	Nature has the tremendous effect by its own creation to fight against the prevailing disturbances created by the human errors. The tendency to provide an encroachment over the equilibrium, maintained ...
Topic: Indians comprise 20% of the population of the world
yogrekha Replies: 11 Views: 1340	Forum: WPE 08 Posted: Wed Jun 04, 2008 6:39 pm Subject: The ideals of peace and non-violence
	The ideals of peace and non-violence are good enough to be taught, but the same are not applicable for experience as there is complete deterioration of moral values and nobody is interested in a holdi ...
Topic: Indians comprise 20% of the population of the world
yogrekha Replies: 11 Views: 1340	Forum: WPE 08 Posted: Wed Jun 04, 2008 6:37 pm Subject: fire of hatred among the citizens
	India has now been engulfed by the fire of hatred among the citizens, by the fire of scam and corruption amongst bureaucrats, by the fire of greed, lust and passion through politician and this is a pa ...
Topic: Indians comprise 20% of the population of the world
yogrekha Replies: 11 Views: 1340	Forum: WPE 08 Posted: Thu Mar 13, 2008 4:36 pm Subject: Indians comprise 20% of the population of the world
	Sir, The European people are powerful and energetic. You have developed a system of society and life that works in Europe- its clean and no-one is above the rule of law. You're a receptive peopl ...
Topic: Please moderate yogrekha(and other statement) posts/votes
yogrekha Replies: 3 Views: 698	Forum: World Democracy? Posted: Thu Mar 13, 2008 4:04 pm Subject: What is Metabolic changes -based upon Conscience Chemistry
	You may agree or not, but the treetmemt or purported treatment of the dread desciese from a drug is prohobited under rule 106 of Drugs and Cosmetic Rules, 1945. Drug is the chemicals meant for treatme ...
Topic: Thanks for your Kind Gesture
yogrekha Replies: 0 Views: 517	Forum: A World Parliament can actually work! Posted: Wed Mar 12, 2008 7:58 pm Subject: Thanks for your Kind Gesture
	Dr. Rasmus and Mrs. Tenbergen, the memorial stay and taken me on drive was just like visiting in paradise amongest the angel in heaven. I can never forget my dream land. I have started learning GERMA ...
Topic: WPE Permanent working groups
yogrekha Replies: 20 Views: 3512	Forum: WPE 08 Posted: Wed Mar 12, 2008 7:53 pm Subject: Re: Enrolled me in Organising Team and Moderator
	[quote="yogrekha"]Dr. Rasmus Tenbergen I want to enrole my self as Thematic working groups with organising team to represent Asian Nations by participation in every activities. ...
Topic: WPE Permanent working groups
yogrekha Replies: 20 Views: 3512	Forum: WPE 08 Posted: Wed Mar 12, 2008 7:47 pm Subject: Enrolled me in Organising Team and Moderator
	Dr. Rasmus Tenbergen I want to enrole my self as Thematic working groups with organising team to represent Asian Nations by participation in every activities. ...
Topic: WPE 2008 Draft Schedule
yogrekha Replies: 4 Views: 1511	Forum: WPE 08 Posted: Mon Feb 04, 2008 4:39 pm Subject: Re: WPE 2008 Draft Schedule
	Sir, I will travel from India on 21st feb. 2008 with some simple present made of indian craftship for making a presentation to the team of organosing committee. I am not having any sleeping bag and ...
Topic: Alternative medicinal Threaphy discussion at forum
yogrekha Replies: 0 Views: 654	Forum: TEST FORUM Posted: Tue Jan 01, 2008 3:10 pm Subject: Alternative medicinal Threaphy discussion at forum
	Much re-legitimizing of traditional Indian medicine has already started recognitions.I may convey my thanks in part to many Western labs and scientists for their adoptability. Many multinationals no l ...
Topic: Water is one of the more serious problem
yogrekha Replies: 1 Views: 608	Forum: Topics that should be discussed in the chat! Posted: Tue Jan 01, 2008 2:25 pm Subject: Water is one of the more serious problem
	Water is one of the more serious problem areas of desert and many other parts of the world. There was an ancient system designed to collect and store rainwater for irrigation and for drinking. It was ...
Topic: globalizing economy is built on Western lifestyles
yogrekha Replies: 0 Views: 493	Forum: Topics that should be discussed in the chat! Posted: Tue Jan 01, 2008 2:15 pm Subject: globalizing economy is built on Western lifestyles
	The rapidly-expanding, globalizing economy is built largely on Western lifestyles and is homogenizing human 'wants' in unachievable ways. Across the world, people are being forced to accept that progr ...

Author

Message

Topic: Americans are in judging newcomers Indian with open-minded

yogrekha

Replies: 0
Views: 433

Forum: Topics that should be discussed in the chat! Posted: Tue Jan 01, 2008 2:04 pm Subject: Americans are in judging newcomers Indian with open-minded

There is the possibilities of seeing world parliament by Americans on the premises of the objectives of United Nation Organization. Every new immigrant group in the US has had to define itself in the ...

Topic: Indian is craving for indeginous world wide cooperation

yogrekha

Replies: 0
Views: 439

Forum: Topics that should be discussed in the chat! Posted: Tue Jan 01, 2008 1:45 pm Subject: Indian is craving for indeginous world wide cooperation

An immense transfer of wealth out of India to Europe has provided the worst impact upon our economy. From being the world's major exporting economy (along with China), India was reduced to an importe ...

Topic: World Technology and amazing achievements

yogrekha

Replies: 0
Views: 443

Forum: Topics that should be discussed in the chat! Posted: Tue Jan 01, 2008 1:34 pm Subject: World Technology and amazing achievements

Modern Western technology has produced amazing achievements, but we must analyze the wider implications of such technologies and their notions of progress. These technologies often bring huge negative ...

Topic: Crown rolling in the Gutter

yogrekha

Replies: 0
Views: 431

Forum: WPE 08 Posted: Tue Jan 01, 2008 10:43 am Subject: Crown rolling in the Gutter

Nepolian Bonaparte said that the Crown of France was rolinling inside the gutter. I came and saw it and put to my head????. wheher one of us may not get the crown of world goverance on their head. Let ...

Topic: Cultivate Opinion Pole At Different political forum

yogrekha

Replies: 0
Views: 772

Forum: Activities of Member Organizations Posted: Tue Jan 01, 2008 5:30 am Subject: Cultivate Opinion Pole At Different political forum

Sir,
As the Coordinator of "Hind Kishan Sangthan" being an organizing patron, I have the memberships of more than 30,000 farmers, who are craving to sale their products. However hoarde ...

Topic: Children come and Join World Parliament

yogrekha

Replies: 0
Views: 471

Forum: Proposals Posted: Tue Jan 01, 2008 5:13 am Subject: Children come and Join World Parliament

I am sending this message to join this message with the help of Children.
They are the future citizen and thus be allowed to listen the delibrations.
I and my elder sister with my mother are incline ...

Topic: projects

yogrekha

Replies: 0
Views: 537

Forum: Projects Posted: Sun Dec 30, 2007 6:11 pm Subject: projects

There may be the project to save enviornment. There must be another project to abolish Terrorism. The nuclear bombs must be defused. The army may be disbranded. There is the requirement for World Parl ...

Topic: What is purpose of WPE

yogrekha

Replies: 12
Views: 1630

Forum: World Democracy? Posted: Sun Dec 30, 2007 4:51 pm Subject: What is the purpose of World Parliament Experience 2008

Esteem Respected Members,
We live here in this world for each other. There is an objective and purpose of life. Our life is not merely the animal existence. Thus this is the best conc ...

Topic: poverty and the people of World Parliament

yogrekha

Replies: 0
Views: 406

Forum: World Democracy? Posted: Sun Dec 30, 2007 4:44 pm Subject: poverty and the people of World Parliament

It has been said that, those, who accumulate the wealth, are the black markting criminals; or they are hoarders. Thus excessive wealth be distributed in such a manner, as may be kept in captivity of a ...

Topic: How we can creat the world parliament

yogrekha

Replies: 0
Views: 477

Forum: How can we create a World Parliament! Posted: Sun Dec 30, 2007 4:37 pm Subject: How we can creat the world parliament

Esteem devotional guide and friends,
There is not to make reply, there is not to reason why; There is only do and Die.If I am not a solution, I will certainly not become a problem myself. Thus ...

Topic: Taking active support from every right thinking person

yogrekha

Replies: 0
Views: 509

Forum: Activities of Member Organizations Posted: Sat Dec 29, 2007 6:09 pm Subject: Taking active support from every right thinking person

Sir,
I assure you that now I have become fully educated to place my submission to all of you learned and respected citizen of world, who are gifted with wisdom to save this universe. I beg all of yo ...

Topic: Request for having financial Sponsorship from organisors

yogrekha

Replies: 0
Views: 445

Forum: WPE 08 Posted: Sat Dec 29, 2007 5:40 pm Subject: Request for having financial Sponsorship from organisors

I will ask from every Advocate having the good practice to participate and to finance other compnions for atleast to provide trevelling expenditures. The future is not safe of every individual living ...

Topic: World Parliament Experiences 2008

yogrekha

Replies: 0
Views: 417

Forum: WPE 08 Posted: Sat Dec 29, 2007 5:29 pm Subject: World Parliament Experiences 2008

This is a tremondus opportunity to disscuss problems. Its gives a sensation to meet people with brillient ideas. it is the revival of the potential for innovation; a project of utopean dream is visuli ...

Topic: World Parliament in Theory

yogrekha

Replies: 2
Views: 753

Forum: World Democracy in Theory Posted: Sat Dec 29, 2007 5:23 pm Subject: World Parliament in Theory

All the members of the court are considered as wounded, where justice is found wounded with inequity, and judges do not extract the dart of inequity from justice or remove its blot and destroy inequit ...

Topic: Success is not a destination, one may reach, but quality .

yogrekha

Replies: 0
Views: 369

Forum: World Democracy? Posted: Sat Dec 29, 2007 5:16 pm Subject: Success is not a destination, one may reach, but quality .

This world parliament experience is the breathing of fresh air by humen race before, we may extiguished for ever by natiral calamities. it is an enlightened idea. since there is no refutation of hopes ...

Author	Message
Topic: Ganga Water Pollution and World Parliament Topic
yogrekha Replies: 3 Views: 673	Forum: World Democracy? Posted: Sat Dec 29, 2007 1:12 pm Subject: Report of Yogesh Kumar saxena Submitted On Ganga Pollution
	- A REPORT SUBMITTED BY:- - YOGESH KUMAR SAXENA, ADVOCATE High Court - Appointed as Special Officer on Ganga pollution matter - Chamber No.139, High Court campus, Allahabad Civil Mics. Writ ...
Topic: A World Parliament Could actually Work
yogrekha Replies: 0 Views: 598	Forum: A World Parliament can actually work! Posted: Fri Dec 28, 2007 12:34 pm Subject: A World Parliament Could actually Work
	The power entrusted under the rule of law with the authority dealing with Govt. business is required to be discharge truly , objectively, expeditiously with personal responsibility and it should not ...
Topic: Writings of yogrekha
yogrekha Replies: 1 Views: 440	Forum: World Democracy? Posted: Thu Dec 20, 2007 12:28 pm Subject: Writings of yogrekha
	Edit by Ronin: Assorted writings of Yogesh Kumar Saxena- http://worldparliament.wiki-site.com/index.php/The_writings_of_Yogesh_Kumar_Saxena Dear Sir, It is an iron cage, not having any ventilati ...
Topic: Ganga Water Pollution and World Parliament Topic
yogrekha Replies: 3 Views: 673	Forum: World Democracy? Posted: Thu Dec 20, 2007 11:55 am Subject: Ganga Water Pollution and World Parliament Topic
	In The High Court Of Judicature At Allahabad Civil misc. writ petition no. 4003/2006 ...
Topic: Mahatma Gandhi
yogrekha Replies: 1 Views: 434	Forum: World Democracy? Posted: Thu Dec 20, 2007 11:45 am Subject: Mahatma Gandhi
	Mahatma Apostle of non-violence, A critic of cowardliness, A series of experiments, An evolved soul….. Anxious about the last man of the queue, Not a human-being… Rather an ideology of coexiste ...

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Schedule ’J ‘ incorporated under Rule 106 of ‘The Drugs and Cosmetics Rules, 1945 stating therein that diseases and ailments like Cancer and Benign Tumor, High / Low Blood pressure, Appendicitis, Bronchial, Asthma, Diabetes. Hernia, Spondylitis, Paralysis, Obesity, Leukemia and Aids etc. amongst the list of 51 diseases may not purport to cure by a drug and under the garb

2012-05-25T04:01:00.000-07:00

IN THE HON’BLE HIGH COURT OF JUDICATURE AT ALLAHABAD.

CIVIL MISC. WRIT PETITION NO. OF 2002

(Under Article 226 of the Constitution of India)

( DISTRICT ; VARANASI )

1. M/S D.S Research Centre,

147-A, Ravindrapuri, Varanasi,

through its Director, Sri S.S.Trivedi,

s/o Sri Mukh Ram Tiwari.

2. Sri S.S.Trivedi,

s/o Sri Mukh Ram Tiwari

147-A, Ravindrapuri, Varanasi …………………………. PETITIONER.

VERSUS

1. State of U.P. through Chief Secretary,

Govt. of U.P., Secretariat, Lucknow.

2. Drug Controller (India) Director General, Nirwan Bhawan,

New Delhi.

3. Union of India through Secretary, Ministry of Medical Science

And Health, Govt. of India, New Delhi.

4. Drug Controller & Director Medical Health,

U.P. Lucknow.

5. Senior Superintendent of Police, Varanasi.

6. Drug Controller, in the office of Chief Medical Officer, Varanasi

…………………………………..RESPONDENTS.

To,

The Hon’ble the Chief Justice and his other companion Judges of the aforesaid Court.

The humble writ petition of the abovenamed petitioner most respectfully showeth as under;-

1. That this is the first writ petition filed on behalf of M/S D.S. Research Centre, which is indulged in applying the Nutrient Energy Therapy extracted from as many as 1621 eatable substance for successful treatment of dreaded diseases including Cancer. The relief sought in the present writ petition is that since under Schedule ’J ‘ incorporated under Rule 106 of ‘The Drugs and Cosmetics Rules, 1945 stating therein that diseases and ailments like Cancer and Benign Tumor, High / Low Blood pressure, Appendicitis, Bronchial, Asthma, Diabetes. Hernia, Spondylitis, Paralysis, Obesity, Leukemia and Aids etc. amongst the list of 51 diseases may not purport to cure by a drug and under the garb of the aforesaid provision although the eatable nutrient do not fall within the definition of 3-B(2) , as such the respondents may be restraint from interfering in the research work and for providing indigenous Nutrient Energy Therapy eatable substance to the individuals suffering from such diseases, no other writ petition has been filed by the petitioner M/S D.S. Research Centre on the same cause of action, nor any notice of caveat application has been received so far by the petitioner.

2. That the petitioner no 1 and 2 are the same person as the society is represented through juristic identity while the petitioner no. 2 is representing himself in personal capacity in order to avoid the legal objection, if the same are raised in respect of the infringements of individual fundamental rights of the petitioner..

3. That at the very out set it is submitted that firstly we have to rely the possibility of applying Nutrient Energy Therapy for complete cure of dreaded diseases. In this regard the result reached a continuity and fell into a system from the zeal and enthusiasm of scientists involved in the indigenous research, have successfully cured Cancer patients through slow process of Nutrient Energy Therapy by stopping the growth of cell and replacement of the cell effected from Cancer by Nutrient Energy Therapy. Today the truth is that about thousands of human being have been completely cured from the rid of Cancer . It is submitted that the cure of the diseases is by such preventive process which will never allow Cancer is dare to stake upon the human organs infected by the abnormal growth of cell of Cancer. Every ancient ingredients of indigenous research based on our ancient traditional cultural heritage for cure of diseases by our great sent through Nutrient Energy Therapy prepared from extract of eatable vegetables and other herbal produce has let to complete eradication of shivering destructive diseases. It is submitted that in the due process ultimately the research centre based on indigenous nutrient energy therapy will become the culture for the treatment.

4. That success in genetic scientist in breaking of stone wall in Genetic Mystery by discovery that indigenous Nutrient Energy Therapy in word of Medical Science and expressed strong optimism. The diseases now alleged to have been that incurable under Rule 106 in Schedule ‘J’ and Drugs and Cosmetics Acts, 1945 like Cancer are proven to be incurable and Preventive Measurements on the principle of Nutrient Energy and conscious chemistry, which is contrary to Principle of Drug Therapies.

5. That the indigenous research of Nutrient Energy Therapy popularly known as “Servapisti” has been tried on the terminally advance cases of patients suffering from the incurable diseases like acute Leukemia, Cancer- Liver, Cancer- Gall bladder, Astrocytama, Cancer-Brain, Cancer- Bone and Sarcoma, which were considered to be most dreaded because of their disastrous nature. The result of achieving success in curing of 1000 of such patients by giving them a Cancer free life have taken the staunchest seceptics by surprise, which is evident by perusal of Book written in a simple and lucid style having exemplar 100 and even much cases suffering from such dreaded diseases in scientific and evidential corroboration named as “Cancer is Curable Now”.

6. That the message of D. S. Research Center sent across the world is “Cancer is being defeated”. This is on account of glaring evidence with irrefutable proves in documents. The ability of treatment at D. S. Research Center certainly improved due to contribution of generous human being who have experience the cure from the dreaded diseases and thus the D. S. Research Center has come out victorious against the psychological impact generated by referring such diseases as incurable and thereby provided the encouragement to all cancer patients and rekindle a new hope in them.

7. That the “ SCIENCE OF POISON” could never become the science of ambrosia. This movement, though rich with the trial of unimaginable and historic success has gained the reputation and number of well wisher of patients suffering from dreaded diseases use ot come to collect the indigenous eatable extract from the vegetable known as SARVPISTI according to condition of ailments. Neither the patients is required for examination at the centre, nor for getting any diagnosis in respect of ailment. The research work is comprising on the basis of report collected from the other centre dealing with scanning, X- Ray and other pathological report issued by Doctors to become conversant regarding the seriousness of the ailments. Thus the indigenous nutrient energy therapy administered to the person suffering from the ailment is neither administered as drug, nor there is any manufacturing of the drug from the centre.

8. That for the convenient perusal of this Hon’ble Court, the relevant extract of definition of Drug as contemplated in section 3 (b) (ii) of The Drugs and Cosmetics Act, 1940 is reproduced as under :-

“ 3 (b) (ii) such substance (other than food) intended to

effect the structure or any function of the human body or

intended to be used for the destruction of (vermin) or insects

which cause disease in human beings or animals, as may be

specified from time to time by the Central Government by

notification in the Official Gazette.”

9. That since the drug is the substance other that food, and as such the indigenous nutrient energy therapy administered for the cure of the diseases by preventive measurement from the eatable food substance extracted from 1621 eatable vegetables nutrients and 16 type of mineral water, are neither drug, not the provisions of Drugs and cosmetics Act, 1940 are applicable on the aforesaid centre.

10. That fear is an inherent characteristic of human being. This is for the obvious reason as every minite 10 people die of cancer. 10 in every minite means of 50 Lac in a year from such dreaded disease. The World Health Organization is anxious by having an apprehension that toll of cancer is double itself by 2015 A.D.. This be a threatening to vary existing whole human race. Thus the man may not be completely helpless and be left at mercy of killer disease.

11. That there is no illusion about the ability of M/S D.S. Research Centre to fight cancer. The result of the complete cure has witnessed by the latest book published in 2000 known as cancer is curable now having the details of about 111 evidence of success. Thus any coercive action against the research centre by the officials of the drug controller by providing hindrance in research work and thereby depriving patients from their legitimate right to collect the nutrient energy therapy from the extract of eatable substance will be detrimental to the interest of the patients suffering from cancer as well as the same is unconstitutional and void.

12. That the objective behind conducting the indigenous research by Prof. S.S. Trivedi is that the brother of Sri Trivedi and Dr. Uma Shankar Tiwari namely Sri D.S. Trivedi who was serving in Active Army died a premature death from some unknown disease to which medical science could not even diagnose the nature of ailment. This incident has derivated Prof. S.S.Trivedi for the cure of incurable disease and thereafter he devoted the entire life from the year 1965 for conducting research through indigenous nutrient comprising of eatable substance and after great labour and pasence upto the year 1983, now by getting the extract of 1621 eatable substance and 16 type of water. The fruit of success come for cure of such diseases.

13. That a certificate of registration was issued in favour of Indra Deo Tripathi by Registrar, Indian Medical Council, Lucknow. The true copy of the certificate dated 6.8.1965 is being filed herewith and marked as Annexure no. 1 to this writ petition.

14. That there after the indigenous nutrient energy therapy for the cure of cancer and other so called as non curable ailments was developed at the M/S D. S. Research center after dedication of the service in the research work through edible nutrients develop from the extract of 1621 substances of food produces and any sort of Ayurvedic research has been left aside for administering to the patients after creation of the society in this regards.

15. That M/S D.S. research Centre is a society registered under Societies Registration Act on 23.6.1997 having its Head Office at 147-A, Ravindrapuri, New Colony, Lane no.8, Varanasi. The true copy of the registration certificate issued on 23.6.1997 is being filed herewith and marked as Annexure no. 2 to this writ petition.

16. That the Register Society Under Society Registration Act, Which is Indulged in The Research Of Getting the Extract From Indigenous Vegetable, Food And Other Natural Produce for the cure of such alleged incurable diseases. There is neither any dispensary nor the manufacturing of any chemicals used in the drugs and medicines. The patients suffering from such disease are neither examined nor are called upon for investigation and diagnosis of their ailments. The nutrient energy therapy in the form of article through the extract of natural vegetation in the form of the food are provided for the complete cure of the disease like cancer, acute leukemia, brain cancer/ tumor, and other fatal ailments in which the result of the complete cure from these diseases has been recognized by the public at large after the dedication and efforts made in this regard by the director of the institute.

17. That the objective of society registered under the societies registration act are as follows:-

To conduct the research from the different angle relating to health and cure of disease from the vegetable substance as per the food articles suitable according to geographical condition which may provide nutrient energy therapy to the human being suffering from disease;

To develop the research centre for analyzing result of nutrient energy for the cure of the disease by serving the people;

To conduct the Research and develop and expansion of the research indigenous method ;

To provide nutrient energy for extract of eatable substance for serving the people by realizing the investment cost from treatment;

To provide training, publish literature, seminar, symposium, deliberation and association of the scientists in field of nutrient energy therapy;

To find out the possible cure of the disease like cancer, Aids, leprosy through complete cure and prevention of such diseases by providing the nutrient therapy;

To prevent the human being from polluted atmosphere and for that purposes which may be helpful for security of life to develop the method and procedure for its development;

To implement by active cooperation, programme based on the policy of central Govt. and World Health Organization.

The true copy of memorandum of association alongwith bye laws of M/s D.S. Research Centre and the list of members associated therein are being filed herewith and marked as the Annexure no. 3 and 4 to this writ petition.

18. That initially the petitioner applied for the licence under the Ayurvedic Siddha or Unani before the Regional Ayurvedic and Unani Office, Varanasi in accordance with the provisions of Ayurvedic Siddha or Unani drug with the name of Baba Vishwanath Ayurvedic Sansthan in the year 1986. The application was duly received on 16.2.1985 in the office of Regional Ayurvedic and Unani Adhikari Varanasi. Thereafter the licence bearing no. A1285/1986 was granted by the licensing authority. The true copy of the application submitted on form 24/D and the licence issued thereunder in the name of then M/S Baba Vishwanath Ayurved Sansthan are being filed herewith and marked as the Annexure no.5 and 6 to this writ petition.

19. That subsequently by the Petitioner’s M/S D.S. Research center there are 1621 eatable substance used for the purposes of preparation of nutrient energy therapy known as SARVPISTI and also 16 type of mineral water is collected from the extract of germinated 205 cereals like wheat, Gram, Urad, Mung, Masoor, Makka etc. The leave categorty (76) comprising of Tulsi, Pan Maghai, Pan Meetha, Arhar, Sarson etc.Chhal category (55) comprising of Semal, Jamun, Langada Mango, Himsagar , Gulab etc., Medicine Vanaspthi category (51) comprising of Motha, Kastoori, Khas etc., Flower category (110) comprising of Kakari, Kheera etc., Vegetable category (190) comprising of Bhindi, Parval, Lauki, Phool Gobhi,etc., Fruit category (189) comprising of Imali, Amala, Bel, Sakarkand, etc., Sag category (57) comprising of Kamal, sarson, Mooli, Matar etc., Anna category (67) comprising of Moth, Bajra, etc., Beej category (55) comprising of Sada Lauki, Kakari Nariyal etc., Mool category (35) comprising of Shalparni, Gokhuru, Shatawari etc., Gond category (17) comprising of Babool, Jamun, Neem, Mahuwa, Vargad etc., Tadi category (4) Tad, Khajoor, etc., Oil Category(22) comprising of Kala til, Mungphali,Soyabin etc., Tusa Dal category (43) Pakar, Guava, Amla, Chana, Matar, Tulsi etc., Mewa category (14) comprising of Kaju, Kishmish, Badam, /Akharot, Pista etc., Rus category (46) comprising of Kala Ganna, Jwar, Makka, Bajari Kakari, etc., Kand category (10) comprising of Sakarkand, Chini, marchini, etc., Phal- Chhilka category (30) comprising of Anar ke Phal of Chhilka, Aam of Chhilka, Gulab Khas, Aphim chilka,etc., Masala Category (46) Jeera, Dhaniya, Kali Mirch, Methi etc., Banaspati Dugdh Varg (38) comprising of Vat, Mahuwa, Goolar, Pipal etc., Milk varg (50) of Cow, Bakari, etc., Kachche Phal (42) Imli, Jalpai, Angoor etc., Khamir varg (85) Moth, wheat, chana etc., Phaphund varg (22) Kukurmutta, Aam ka Phaphund etc., Honey varg (9) Basak phool of shahad, Kamal of shahad,etc., Vanaspati Dugdha (9) Bargad, Mathuwa etc., Kachche Dane (47) chana, Kabuli Chana, Matar etc., Water (16 type) of Gangotri, Narmada etc., The true copy of list of 1621 eatable substance and 16 type of water for preparation of Ambrosia is being filed herewith and marked as Annexure no.7 to this writ petition.

20. That under Rule 106 of Drugs and Cosmetics Rules, 1945, it has been provided that disease which a drug may not purport to prevent or cure. As submitted earlier the ambrosia Sarvpisti preparation for providing the indigenous nutrient energy therapy for prevention and complete cure of disease through remedial measurement is not the drug, nor the medicine to which the provisions of drugs and cosmetics act, 1940 or the Rule made therein in 1945 could have been attracted. For the convenient perusal of this Hon’ble court the provisions of Rule 106 of Drugs and Cosmetics Rules, 1945 are reproduced as under:-

“106. Diseases which a drug may not purport to prevent

or cure—(1) No drug may purport or claim to prevent or cure

or may convey to the intending user thereof any idea that it

may prevent or cure, one or more of the diseases or ailments

specified in Schedule J.

(2) No drug may purport or claim to procure or assist to

procure, or may convey to the intending user thereof any idea

that it may procure or assist to procure miscarriage in

women.”

That the petitioner is also annexing the extract of Schedule “J” incorporated under the provisions of Drugs and Cosmetics Rules, 1945 w.e.f. 11.1.1996. The true copy of the Schedule-“J” is being filed herewith and marked as Annexure no.8 to this writ petition.

21. That the achievement of the centre has been taken into consideration not only by the scientists conducting the research for cure and prevention of cancer at National Level, but also by the Minister Medical & Health Jaipur. A letter was written on 25.8.1978 by indicating the fact the new medicine known as Ambrosia, Rajubin, which was subsequently converted to ambrosia Sarvpisti has taken the attention of Tara Prakash Joshi working as Additional Director in Ayurved. The true copy of the letter dated 25.8.1978 is being filed herewith and marked as Annexure no. 9 to this writ petition.

22. That the Director of Central cancer Ayurvedic research and Siddha, New Delhi was informed by Dr. Shail Dubey Professor in Gynecology at Institute of Medical Science, B.H.U. for the commandable work through nutrient energy therapy. The true copy of the letter written by Dr.Shail Dubey dated 1.9.1987 is being filed herewith and marked as Annexure no.10 to this writ petition.

23. That the petitioner’s research centre has not only cured about 4000 patients suffering from cancer and other incurable diseases as alleged under Schedule “J” of rule 106 of Drugs and cosmetics Rules, 1945 , purported to be non-curable by drugs, but Mr. Ashutosh Kumar aged about 35 years s/o Hon’ble Justice Nagendra Rai of Patna High Court, R/o 2, Anne Marge, Patna got the nutrient energy therapy provided for the cure of disease of cancer. It is submitted that on the basis of report and the scan to a bone marrow transplant specialist, who discussed the issue with Dr. Roberts Motzer , a renal cell specialist at Memorial Sloan Kattering cancer centre at New Yark wherein it was diagnose that the presence of metastasis in lumber vertebrae 4^th rib has also infracted the lungs. The case was referred to Dr. Adwani of Jaslok Hospital for giving radio therapy to lunger spin and interferon ( Intron) injection. At this stage when Mr. Ashutosh Kumar s/o Hon’ble Justice Nagendra Rai of Patna High Court was having skeletal metastasis at vertebrae and multiple pleural mass lesions on 4^th rib and suggested for bone marrow transplantation in R.C.C.. At this stage the treatment was started at petitioner’s centre wherein as per the report submitted on 17.4.2002 there was the remarkable recovery from treatment. The true copy of letter of Dr.Vinod Prasad M.D. Bone Marrow transplant service based after consultation with Dr. Roberts Motzer at Memorial Sloan Kettering cancer centre New Yark and diagnosis as held on 27.9.1991, application form of Mr. Ashutosh Kumar dated 10.11.2002 and the recovery by administering Sarvpisti as shown in the letter dated 17.4.2002 for the ailment of cancer are being filed herewith and marked as Annexure no.11,12,13 & 14 to this writ petition.

24. That the petitioner is submitted a paper cutting of news item reported on 15.3.1985 in the news paper namely Indian Nation having the de-licensing of about 25 Industries in fulfillment of certain specified conditions, wherein at item no.15 even the anti-cancer drugs developed through indigenous research with de-licensed by the central govt.. Thus there was no occasion to adopt any coercive action against the petitioner by research centre conducting indigenous research for nutrient energy therapy. The true copy of report/ article published on 18.3.1985 in Indian Nation is being filed herewith and marked as Annexure no. 15 to this writ petition.

25. That pursuant to the aforesaid encouragement, the petitioner’s research centre sought for patronage of Govt. of India in furtherance of research work epeach making achievement form then Hon’ble Prime minister (Late) Rajeev Gandhi. The entire achievement which were highlighted in the said letter is to the aforesaid effect that nutrient energy is the sole prescription of nature for keeping of help, resisting unfavourable condition and curing ailments. One food is reserver of this energy. This was message conveyed by Dr.U.S. Tiwari and Prof. S.S.Trivedi who is now the Director of research centre. The true copy of the letter written to then Prime Minister (Late) Rajeev Gandhi on 30.9.1988 is being filed herewith and marked as Annexure no.16 to this writ petition.

26. That despite all these achievement conducted by the petitioner’s research centre in cure of alleged incurable diseases, the branch of research centre situated at 160, M.G. Road, 1st Floor, Kolkata was put to the arbitrary restriction in carrying on distributing the nutrient energy therapy (SARVAPISTI) to the person effected/ infected from alleged incurable disease under the garb of violation of certain provisions of Drugs and Cosmetics Act. 1940 and Magic remedial Act ( Objectionable advertisement ) Act, 1984. There has been the mass resentment against the action of Director of Drugs controller, 147, A.J.C. Bose Road, Kolkata-14. It is submitted that in the aforesaid action the nutrient energy therapy (sarvapisti) of about 1,50,000/- has alleged to be seized by the Inspector of Drugs and Director of Drugs control, Kolkata. By the aforesaid action the entire research work which was conducted from branch office of Kolkata has been adversely effected in respect of providing relief to the persons suffering from cancer. A large scale resentment was also conducted by the public due to non-supply of Sarvapisti to the patients.

27. That even the Doctors of the International reputation and Physician namely Sri Vasudev M. Patel settled at 3015, Sixteen street, Monaroe U.S.A. has reported the vital recovery from their ailment. Similarly one Doctor namely T.Jagannathan who completed M.B.B.S. in 1960 from Madras Medical college and F.R.C.S in 1968 from Canada and working from 1972 to 1998 as urologist has acknowledges that the administration of Sarvapisti does not have any side effect as the aforesaid Dr. has started taking the nutrient energy therapy acknowledged the positive result . Thus the centre of petitioner for its service to humanity. Similarly one Prakash Chuganey s/o Mrs. Kavita Chuganey c/o Memorial Gift Shop, 2 Glouster Avenue, Montego Bey Jamica has reported that the nutrient energy therapy (medicine) of D.S. research centre has done wonders to cancer patients and sought for sending it for cure of her mother. The true copy of the letter written by N,R.I. on E-mail dated 12.6.2002, 27.6.2002 and the letter of T.Jaggannathan M.D. from U.S.A. are being filed herewith and marked as Annnexure no.17,18 & 19 to this writ petition.

28. That similarly Dr. P.G. Rath M.D., D.M. (Cardiology) Vellore Senior consultant Director at Apolo Hospital, Hyderabad sought for providing the nutrient energy therapy of Sarvapisti to his wife Dr. Savita Panda and send the demand draft of Rs.2350/- for aforesaid purposes. The true copy of the letter written on 9.7.2002 to research centre is being filed herewith and marked as Annexure no.20 to this writ petiton.

29. That even the cancer surgeon of Jaslok Hospital and Research Centre namely Dr. Vijay V.Haribhakli M.S. has recommended the patient namely Sri Shivaji Gupta suffering from tongue cancer for administering Sarvapisti therapy. The true copy of the letter written on 8.11.2001 by Cancer Surgeon of Jaslok Hospital to the petitioner’s research centre is being filed herewith and marked as Annexure no.21 to this writ petition.

30. That Dr. Sheela P.Naik M.D. D.G.O. of Dr. Desai Hospital at Mumbai wrote a letter regading the infection to her husband for advance metastatic prostate cancer from last three years. He was operated for removal of testies three years back and radiotherapy. There was involvement of lumphordes liver and thus the advise was sought from petitioner’s research centre for treatment and thereafter he was given nutrient energy therapy from the centre, the true copy of the letter dated 11.4.2002 of Sr. Sheela P.Naik of Dr. Desai Hospital is being filed herewith and marked as Annexure no.22 to this writ petition.

31. That the lecturer of surgical archeology of Gujrat cancer Research Institute, Ahemdabad has submitted report of his perfect health and stated for completing the Kailash- Mansarowar Yatra successfully after administering the Sarvapisti for which a Bank Draft of Rs.2350/- was sent to the petitioner’s centre. The true copy of the letter of Dr. Shubha Sharma M.S. Surgery Lecturer in Gujrat Cancer Research Institute, Ahemdabad dated 17.2.2002 is being filed herewith and marked as Annexure no. 23 to this writ petition.

32. That Sri Shamir Kr. Shah M.D.B.M. R.D. consultant Radiologist and Sonologist of Hon’ble Smt. B.C.J. General Hospital Santakruj submitted the report of his sister-in-law Miss. Neeta N. Shah and sought for the cure of disease of infleterating Duct Carcinoma. The true copy of the letter written by Dr. Shamir Kr. Shah on 19.2.2002 is being filed herewith and marked as Annexure no.24 to this writ petition.

33. That the letters written from Mahatma Gandhi Institute of Medical Science by the Dean of the institution stating therein that after reading the book that cancer is now curable the international conference of Ayurveda, Yoga and naturopathy sought to invite Prof. S.S. Trivedi of D.S. Research Centre. The true copy of the letter dated 11.6.2001 of Dr. O.P. Gupta of Institute of Medical Science is being filed herewith and marked as Annexure no.25 to this writ petition.

34. That there are number of patients recommended by the prominent doctors and respectable citizens indulged relative of the Hon’ble Judge and one such letter has been written by SR> S.K.Prasad, Joint Directore of General of Foreign Trade Ministry of Commerce has reported significant recovery of condition of patient suffering from cancer through C.T. Scan and thereafter the liver function and kidney function were reported successfully and sought for sending the Sarvapisti through courier. The true copy of aforesaid letter dated 16.7.2002 is being filed herewith and marked as Annexure no.26 to this writ petition.

35. That there are number of news articles part from the articles published in different news papers as contained in the Book-let, published from time to time in the leading newspapers of the country regarding the achievement shown through indigenous nutrient energy therapy for cure of the cancer. It has been reported in the aforesaid articles that how the sarvapisti has provided the new dimension for curing the cancer. It has been stated that the person cured would have been in Lakhs if the proper incentives were given to the proper centre. The true copy of the paper cutting highlighting the positive result regarding the cure of cancer in different newspapers by administering the sarvapisti to the person effected by the cancer are being filed herewith and marked as Annexure no,27 collectively to this writ petition.

36. That the petitioners are seeking the direction from this Hon’ble Court restraining the respondent from interfering in the charitable/ research center indulge in the process for cure of the Cancer by using herbal and other vegetables in the form of diet to such patients who are suffering from disease of Cancer.

37. That it has also been written in some of newspapers on the basis of research conducted that the noble prize winner scientists Dr. Kary Giloz has claimed that disease of Aids has been created as the hox for the implied reason for earning by the person associated with medical and health services and also dealing with the drug business. The true copy of the report published in Sanmarg at West Bengal to the aforesaid effect is being filed herewith and marked as Annexure no. 28 to this writ petition.

38. That inspite all these positive effect of indigenous research in preparation of sarvapisti for cure of cancer, there has been a further measurable condition suffered by the person under going the ailment of cancer. The desperate patient on account of providing the ban by the office of Drug controller and Enforcement Branch have contacted the petitioner’s vcentre at Varanasi from Kolkata wherein restriction was enforced in the branch office at 160, M.G. Road, Kolkata, the matter was highlighted by the association for protection of cancer patients rights through its Secretary Ranjan Dutta at Kolkata to West Bengal Human Right Commission Chairman SR. Mukut Gopal Mukarjee with a prayed to resume the supply. The true copy of the article published in different news papers regarding ban imposed at the branch office of Kolkata by Drug Controller is being filed herewith and marked as Annexure no. 29 to this writ petition. The extract of articles published in different newspapers throughout the country regarding the cure of cancer by the petitioner’s research centre which were compiled as book let and the book of Research cencer namely the cancer is curable shall be produced at the time of argument, if directed by the Hon’ble court to the counsel for the petitioner.

39. That It is Irony of fate that we have won our independence on the basis of original and novel experience but those ideals and philosophy for emancipation of Indian masses for social reconstruction’s have not been taken into consideration. After all, we are at present the product of our personal prejudices, great, lust and power which has ultimately resultant in maintaining the British domination for about two centuries on the policy of “Divide and Rule” which has been convincible adopted by an politicians for ruling over the illiterate masses.

40. That A picture of disharmony in the epic of progress has never imperiled the fundamental of duty and obedience, which is the basis of social discipline. A disaster, chaos, confusion, murdering the fellow citizen in brutal manure just not satisfying the carnal desire has now emerged in society. The impact of working of our legal system in political set up, in an anarchic conditions prevailing, terrorism, brutal Killing, violence, lawlessness, religious fantasia, regionalism and psychological retardation of men-counter productive policy for reaching effect detrimental to public exchequer may protest the country.

41. That the Association for Protection of Rights of Patients having its Head quarter at b-1/84 B Assi, Varanasi (an un-registered society) has filed a writ petition with the prayer sought from this Hon’ble court restraining the respondents union of India, Director General Drug control, Drug Control Medical Health U.P., Licensing Authority of Ayurvedic Medicine, U.P. , Medical council of INDIA< U.P., Incharge Drug Section Enforcement branch Kolkata seeking writ of mandamus for restraining the respondents from interfering in any manner with the research centre of the petitioner providing nutrient energy therapy through the extract of vegetable and other natural environmental natural produces by administering the nutrient energy therapy to the patients suffering from cancer etc. at the petitioner’s research centre. The provisions of schedule “J” of Rule, 1945 stating 51 diseases as incurable and direction issued therein not purport to prevent / cure of such disease as unconstitutional or in the alternative the right of patients suffering from such diseases and taking herbal nutrient energy therapy given in the form of extract of vegetable and indigenous nutrient energy therapy as eatable fruit may not be attracted with the aforesaid provision of drug and cosmetics Act, 1940.

42. That Justice is the end of government in order to enjoy the peace of mind. Law is a means to an end. The essence of law is duty. It is a result of constraint struggles and conflicts with a view to attain the peace of mind. Law is the guarantee of condition of life is society assured by State power of constrain as legal institution may provide stability in the social and political affairs. The essential principle to learn is the basic principle of jurisprudence by adopting a positive approach for imparting the real justice to the individual in the society. The legal system is immolation of the legal invention for protections of Human behavior, which may maintain infuse relationship for the advancement of mankind.

43. That in the aforesaid writ petition no. 33289 of 2002, the Association for Protection of Patients Right has submitted that on one hand the indigenous research like that of research conducted at the petitioner’s centre are put to the arbitrary restriction for upliftment of cause of down trodden citizens, suffering from cancer who are taking nutrient energy therapy through indigenous natural vegetation under the garb of provisions of Drug and Cosmetics Act, 1940, while on the other hand the toxic substance under the authority of giving the license to coca-Cola abd Pepsi which is causing ulcer, reanal failure and also cancer in some of cases are advertised through Audio visible Media like Door Darshan. These commodity are sold under the banner of soft drinks known as Coca-cola, Pepsi, Thumsup, Mirrinda in utter violation of food adultation Act. Thus the Door Darshan through its Director and Managing Director of Pepsico India Pvt. Ltd and Hindustan Coca-Cola Beverage Pvt. Ltd. Were impleaded as the respondent no. 1 to 11 in the aforesaid Public Interest Litigation. The aforesaid P.I.L. has been admitted by the Hon’ble Chief Justice and Hon’ble Mr. Justice Ashok Bhushan on 12.8.2002. The true copy of the order passed in writ petition no. 33289 of 2002 dated 12.8.2002 is being filed herewith and marked as Annexure no. 29 to this writ petition.

44. That in this manner since the petitioner’s research centre has been impleaded as the proforma respondent in the aforesaid writ petition no. 33289 of 2002 and it has came to the knowledge of the petitioner through his counsel that notices have been issued to the respondents including the petitioner of present writ petition, the present writ petition may also be directed to be heard alongwith aforesaid writ petition.

45. That recently on 14.8.2002 an article has been published in Pioneer news paper that the scientists in America is now claiming that cancer is now curable. On the other hand the American scientists on the basis of research conducted by our indigenous nutrient energy therapy are getting the cure of cancer in their country , while on the other hand in order to achieve the commercial advantage upon the innocent citizen having the Phobia created by the Govt. of India regarding the diseases of cancer as incurable are indulged in the research for cure of cancer. The true copy of the news item published on 14.8.2002 is being filed herewith and marked as Annexure no. 30 to this writ petition.

46. That The effect of globalization on our legal system shall lead to a situation as the frames of our constitution have miserable forgotten the basic and elementary principle of jurisprudence and legal theory that every right implies the forbearance on the part of others to performing his duty. Every right is co-related and co-existence with duty.

47. That since the respondents after receiving the information in respect of the filing of public Interest Litigation by the Association craving for protection of patients right has sought for issuance of notice to the respondents, similar to the treatment given to the branch office of centre at Kolkata, the respondents have started harassment by alleging that provisions of Drugs and Cosmetics Acts and Rules therein including Rule 106 and Schedule”J” are applicable for taking action against the advancement of research from the petitioner’s research centre. The respondents under the garb of law Enforcement Agencies aided by the Police authority are providing the detrimental effect upon the right of patients by providing unreasonable restriction for conducing research and survival of the research centre through the cost realised from the patients by this charitable institution only to the extent of the investment incurred in this regard. The aforesaid action of the respondents is violative of Article 14, 19(1)(a))g) and 21 of the constitution in respect of the rights of the patients. Thus the respondents may be restraint from interfering in any manner from the rights of petitioner’s society to carry on the research for the complete cure of dreaded disease of cancer which are alleged by the respondents as incurable from the drugs.

48. That the petitioner has been advised to submit that since the research conducted at D,S. Research Centre is for the protection of our cultural heritage by preventive measurements and thereby saving the patients suffering from the alleged incurable disease from its side effect and as such the performance of research centre is for the achievement of such indigenous advancement of the scientific temperament amongst the citizen as to provide them the feeling of security from the alleged propaganda created on the behest of multi-national companies supporting the drugs and medicine on the trend of British India Company under whom the country remain in clutches of slavery for a considerable period.

49. That the birth of socialistic pattern of society and mixed economy with confounded speculation about India’s starvation of our potential of unlimited reservoir of skilled labor and abundance trader’s skill, which have been reserved with diversification, of vertical political interest, not in favour of people, but for the interest of political ambitions. This has provided an obstacle to our inherited great skilled splendor intelligence and our superior perennial sprit to naught. That it is the duty of every citizen to cherish and follow the noble ideas to promote the harmony and the spirit of sensational diversities to preserve the rich heritage of our composite culture. There is an endeavor to develop the scientific temper, humanism and spirit of enquiry and reform to strive towards excellent in all spheres including the development in the process of using indigenous products for the eradication of the prevailing ailments, where is ordinary medical service has yet to invent proper medicines.

50. That still now the Fight is between Man and Cancer: it should have been between treatment and Cancer: Let us study the present state of affairs. Ten in every minute dies in cancer . This means more than 50 lakh a year- a large chuck of the population—that can even create a panic in a metro city. That too is not the extreme point of worry for the nation.

51. That the graph is continuously rising giving signal of more dangerous time ahead. The World Health Organization is anxious about it. It apprehends the toll of Cancer will double itself by 2015 A.D. Even then the situation will not come to a static position. The trend of the graph reflects that this will be a disastrously continuous process—threatening the very existence of the whole human race. So, it appears man is completely helpless and is at the mercy of the killer disease. Where does man really stand vis-à-vis this situation? On the other side of this rising trends, Cancer graph in the whole human race, who have no role, as is enunciated by mathematical rules, to play in the behavior of the graph for the eradication of the trouble.

52. That the petitioner has been advised to submit that the effect of globalization to invite the drugs manufactured in the western country, which are suitable to do geographical condition of having low temperature, but in the country like India the circulation of such drugs, which are generally prepared through toxic and poisonous substance is not only detrimental to the health and hygienic condition of patient, but ultimately it may lead for getting so many side effects, which creates a psychological effect in the mind of patients that they have come across to a situation where there is no other alternative except to commit suicide in view of fact that even the Govt. has taken into consideration that these disease are incurable.

53. That in order to maintain solidity and integrity in the nation and as the vary foundation on which our freedom struggle was fought by the father of our nation could have been saved, it is necessary that respondents may be restraint from providing the interference to the rights of the petitioner’s research centre providing restraint from supporting the indigenous nutrient energy therapy to the persons suffering from ailments of cancer and other alleged incurable diseases.

54. That the power entrusted under the rule of the law with authority is required to discharged truly, objectively, expeditiously and with individual responsibility failing which cost should have been imposed for committing public injustice. This time is flying. Implementation of strong idea for betterment of mankind requires stead fast wisdom. An Iran cage not having a single window for its ventilation and the inmates lying in the sound sleep, and, if we shout ,whether we are doing a good turn to same lighter sleeper?

55. That Let us begin with a new and triumphed idea to burst every chain which tends to paralyze the effects to push forward. A single day light may shallow the darkness of night. Every power tends to corrupt, which is opposed to democracy and social order and thus absolute power tends to corrupt absolutely. Thus our constitution demarcates the three major instruments of power in their jurisdiction minutely and expects them to exercise their respective powers without overstepping their limits. The doctrine of separation of powers in its absolute rigidity is not recognized in the constitution. The functions of different branches of the government have been sufficiently differentiated and our constitution does not contemplate assumption, by one organ or the part of the State of functions that essentially belong to another.

56. That the duties imposed on the functionary of the government in the chapter of fundamental rights are being carried by interpreting them on the rights of citizens and thus being enforceable by the superior judiciary and even the liability of Executive functions is regulated by the court of justice through judicial activism. The range of judicial review recognized in India is perhaps widest and most extensive.

57. That the dividing line between an administration power and quasi-judicial power is quite thin and is being gradually obliterated. The concept of quasi-judicial power has been under going a radical change. Let the executive may also give up its privilege orientations and start building nation through there utmost potential. The higher bureaucrats may fix their responsibility and public accountability. Towards and unless this responsibility in nipped in the bud, it is likely to cause turbulence shaking the entire socio-economic political system in an otherwise healthy, wealthy, effective and vibrating society.

58. That the feeling of guardian of patients suffering from the diseases of cancer has already been demonstrated by the perusal of contents of writ petition no. 33289 of 2002 filed by the Association for Protection to Patients Rights when the cloud of restrain provided to the centre at Varanasi was foresighted by the aforesaid association. This was in anticipation of the factor that since the branch office of Kolkata has been closed by the action of respondents, let the patients suffering from cancer and diagnose on the basis of test who are under going the indigenous nutrient energy therapy from petitioner’s research centre may not suffer irreparable loss at Varanasi. However, the respondents instead of going through the sentiments of public at large who wanted to get complete cure of disease of cancer through Sarvapisti, the respondents have not provided harassment to the Incharge of Research Centre. Thus the petitioner has come forward for the protection of its right in conducting the research work for complete cure of cancer through the efforts of petitioner charitable society, which is realizing only the cost incurred in preparation of sarvapisti and the investment made in respect of conducting the research work, management of centre and other expenditures regarding the salary to the employees are realized from the guardians of such patients. There is also encouragement in respect of financial support from the charitable oriented minded citizens and other institution for the upliftment of cause of the patients.

59. That Progress is ensured and development helped if each performs his role in the common endeavor. Fairness is a fundamental principle of good administration “State has descended into the communal field as men the State of public exchange is also large justifying larger social audit, judicial Central and service by opening of public gaze.

60. That Justice is a psychological yearning in which men seek acceptance of their view point. Our independent Nation has chosen political system. The vitality of democratic process the ideals of social and economic egalitarianism the imperatives of socio-economic transformation envisioned by the constitution as well as the rule of law and great values of liberty and equality are all dependent on the tone of judicious place in judicial process. There is innovation of new devise and strategies for the purpose of presiding occurs to denied basic human rights to down trodden or socially and economically disadvantageous individual unable to approach the court for relief. The narrow concept of cause of action and person aggrieved and individual litigation is becoming dissent. The maxim of ill justice is remedies have now enlarged to embrace all interests of public minded citizens.

61. That article 14 has a pervasive potency and versatile quality, equilitarian in its soul and allergic to the discriminatory dictates. Since equality is antithesis to arbitrariness, any action which repugnant to the fundamental rights provided to the charitable society indulge in the cause of research for the cure of fatal diseases like Cancer, AIDS etc shall be deprivation of the right expression and to impose an arbitrary restriction upon a scientific temper of an individual indulged in the research such an important function of the society.

62. That on 6-7 August 1987 the center Ayurved and shidh research center council new Delhi invited the Director of D. S. Research Center for conducting the research upon one girl namely Km. Poonam Sinha aged about 15 years suffering from acute leukemia (Blood Cancer) undergoing the treatment at All India Institute Of Medical Science. This patient was lying on death-bed and waiting for the death. It was directed to get her cure by the indigenous nutrients energy therapy and the formation there of known as ‘Servapisti’. After 8 month of continuous administration of the nutrients energy therapy, the girl not only completely recovered from the alleged incurable ailment but she has also started playing and attending the school regularly. The Director of All India Institute of Medical Science wrote the personal letter to D. S. Research Center for getting the nutrient energy therapy known as Servapisti and to get an copyright but in absence of not attracting the definition of as contemplated under the Drugs and Cosmetic Act 1914, the registration of the ‘Servapisti’ could not become possible. It is in the year of 1989 that Km. Poonam was completely cured from the alleged incurable ailment of Blood Cancer known as Acute Leukemia and thereafter attending the higher education, she was married. This was the case which has created the history in the research conducted through indigenous nutrient energy therapy for the cure of the Cancer. The detail of the aforesaid achievements is displayed in the book ‘ Cancer is Curable now’ on page no. 72 which is filed herewith and marked as Annexure no. 31 to the Writ Petition.

63. The State Government of Bihar organized a seminar and a conference at Patna Medical College and Hospital. It was on account of the failure of the government that such a indigenous research could not get the proper recognition. It is submitted that in case the government would have provided the attention for obtaining the positive result by administering the nutrient energy therapy to the patient suffering from the Cancer, there would have been the remarkable achievements in the aforesaid research. There would have been the following advantage to the citizens and also to the Central Government by the encouragement of the research center.

I- That lakhs of patients suffering from cancer would have been completely cured.

II - There world the import of the medicine from the foreign country in the tune of thousands of million dollars every year in the form of Indian currency. The public exchequer would have been changed through such nutrient energy therapy provided to the patients instead of being dependent on the Allopathic Drugs which are mostly made up of toxic and poisonous substance and thus having its side effect upon the other portion of the body.

III - There would have been the export of the indigenous nutrient energy therapy known as ‘Servapisti’ which could have been able to extract thousands of millions dollars per month as the foreign currency amenable to the country. This would have been to provide a substantial relief from the debt already tend a mounting to the monstrous inflation resulting in steep fall in the value of money. The government is responsible for such apathetically attitude adopted by neglecting the outcome of indigenous nutrient energy therapy in our country.

64. That there has been persistent request made by the D. S. Research Center to the Central Government. State of U.P., State of Bihar, State of Kolkata and the achievement of the indigenous nutrient energy therapy for the cure of cancer has been highlighted in the Newspaper Hindi, English, Bangla, Marathi and Gujrati language but no attention has been provided so far and the Central Government as well as State Government has put a curve through the deep here without providing any heed to the aforesaid achievement conducted by the D. S. Research Center. There has been the assessment of the achievement conducted through such indigenous nutrient energy therapy and the matter is highlighted to the aforesaid extant in the different newspaper-

I That the scientist and the government may get the proper assessment of the

achievement conducted through its research by administering the nutrient energy therapy known as ‘ Servapisti’.

II The aforesaid indigenous nutrient energy therapy research would have provided a revolutionary steps. Unfortunately neither the State Government nor the Administration has taken any consideration to our indigenous cultural heritage and absence of proper documentation of the research conducted in this regard the country has under gone a tremendous and irreparable loss in the form of the achievements conducted by the D. S. Research Center.

65. That the D. S. Research Center has not indulge in itself for making the advertisement for the sell of indigenous nutrient energy therapy in any one of the newspaper till date. It is on account of the good-will of the patients who have been remarkably cured by such the indigenous research and it is after collecting the report from them the publicity by the well-wisher has been highlighted in the different newspaper. There is neither any sell conducted from the D. S. Research Center nor the patients are examined. There is no investigation and the diagnosis conducted at the symptoms. It is only basis of report of the pathology department and the history of the patients and the disease diagnosis through Scan and other Radiology Center that the ‘Servapisti’ is given to the well-wisher of the patients at the research and development cost from the center. There is neither any money extracted as a profit earning business but every sort of the donation which are provided through the well-wisher after getting the positive results for the cure of there relatives, the D. S. Research Center is functioning as the charitable institution in consonance with the objective of the society. There has been the full descriptions of the details at the page no. 50 of the book titled as’ cancer is curable now’ which may kindly taken into the consideration.

66. That it has been highlighted by the patients in their writ petition no. 33289 of 2002 filed on behalf of the association for protection of patients right that it is on the behest of the international multinational company indulged in the sell of the Drugh and cosmetic through the import license from the Central Government that the raid was conducted at the Kolkata Center. The indigenous nutrient therapy known as’ Servapisti’ is neither a drug nor the drug controller was having any authority to conduct the raid upon the functioning of the branch office of D. S. Research Center. The Hon’ble Court after admitting the aforesaid writ petition has directed the issuance of the notice to all the concerned party who have been impleaded as the respondents in the aforesaid writ petition.

67. That it appears that as soon as the notices were received by the answering respondents of the writ petition no. 33289 of 2002 as the Chief Secretary of the State of U. P., Drugs Controller through its Director General, New Delhi as well as Lucknow, Ministry of Medical Science, New Delhi as the respondents. It is in view of the aforesaid facts that a notice have been received from the office of C. M. O. Varanasi making certain enquiry about the functioning of the petition center. There is no authority vested with the C. M. O. to make an enquiry as to what are the qualification of the person indulged in the research. There would have been no occasion to enquire about the ingredients and the nature of the drug as the indigenous nutrient energy therapy a simply the food articles wherein a particular ratio of its ingredients may be able to get the preventive and curable quality over the patients suffering from the alleged incurable disease known as Cancer. It is submitted that it is only by providing the nutrient for the resistance over the spreading of the disease cancer that after the consistent efforts, the patient is completely cured without any side effect and other ailments to the human body. Thus the action of the C. M. O. Varanasi by issuance of the notice to the petitioner center is wholly arbitrary, illegal and void.

1. That the notice has been given by the drug controller in the office of the Chief Medical officer stating therein that after receiving the letters of the Patients submitted in the office of the District Magistrate, he went to make the contact at the Petitioner’s centre but could not meet to shri Trivedi. Thus a notice is given to show as to whether the D.S. Research Centre is indulged in the business of administering the drugs to the patients after realisation the cost thereof and whether the Nutrient Energy Therapy known as Sarvpisti is available in the market for purchase. This notice dated 22/8/2002 has been replied by Sri S.S.Trivedi, Director of the Research Centre on 31/8/2002. It has been said that Sarvpisti is neither the medicine nor a drug and this is prepared from the extract of vegetable substances comprising of 1621 natural vegetation and is an edible substance. Thus the same does not fall within the definition of the drug nor is being used as a drug. There is neither any distribution of Sarvpisti in the market, nor it is available to any one for purchase except to the volunteer coming at the centre for providing the proper nutrition to the patients suffering from the dreaded disease as the best cure of the disease is to proved resistance in the body to get the preventive cure of the alleged incurable disease through indigenous nutrient energy therapy. The true copy of the notice dated 22.8.2002 and the reply submitted on 31.8.2002 are filed herewith and marked as Annexure no.32 to this writ petition.

2. That from no stretch of imagination, it could have been taken that whether cancer has yet not became weak or it is still a deceptive, dangerous, painful and cruel, which quickly destroy the life and its health system. Thus no laxity can be allowed in tackling the diseases. Servapisti is in its nascent stage of research and testing and it is not available in the open market, but is provided to such person having failed to cure the dreaded disease like Cancer on the cost of administrative expenses without having any commercial transaction in the process.

3. That some of the silent feature of D. S. Research Center are enumerated to highlight that the research centre is indulged in promoting the research and to test them on such patients where the allopathy and other medical research have failed is provide as improvement. It is only the analysis on the basis of diagnosis conducted at different Pathological Centre and the opinion derivated out of them to ascertain the stage of the diseases infested upon the patients and after getting such report from the well-wisher of the patients according to the requirement, the Servapisti, the indigenous N.E.T. is supplied to the patients through their relatives. There is neither diagnosis conducted at centre nor in hospital or nursing home nor there are residential arrangement for patients, nor is the facility for examining patients. The patients are brought, nor allowed to be examined for the treatment of the dreaded diseases.

4. That at the time of registration the history of diseases, treatment done, medicine treatment Zerox copy of all document having scientific test must be submitted alongwith the best photograph of patient. Only the nominal expenditure incurred on research and development and for preparation of Servapisti are charged from the person carrying the said N.E.T. for being administered to the patients. Thus on account of not being sold in the market for being manufactured from the substance used of manufacturing drug, Servapisti does not fall within the definition of “Drug” as defined U/S 3 (b). It is purely food articles comprising of 1621 type of vegetation and 16 type of mineral water, which are already annexed as Annexure-4 to the writ petition.

5. That the preparation of Servapisti is thus from indigenous Nutrient Energy vegetation extinct from human edible substance like- germinated grains, leaves, flower, vegetables, fruits and laguminaceae plants and also from the spices commonly used for preparation of the food. The basic element of the medicine is the milk and carbohydrate which are themselves food of human being.

6. That the effect of Servapisti, indigenous N.E.. is not directly to destroy the cancer cells and the drug medicines, thus once the infected portion. The medical exercises control over cancer by removing it through Radio-therapy and other curative measurement which has its own side effects upon the normal cell of the body. Consequently if the cancer is weakened the normal cell is also effected. However by administering “Servapisti” it controls upon the growth of cancer and thereafter rather regularizes the normal cells is the very foundation of the cancer crumbled down and all the cancer cells become non-existent.

7. That in this manner neither Servapisti is a drug nor it is available in the market. It is not been used in the hospital or at nursing home for treatment of the patients but on the other hand it is edible food produced comprising of 1621 substance by which the indigenous the N. E. T. is giving to the body of patient who is suffering from dreaded disease. The packing of Servapisti is done manually and once it supplied to the person, it is not taken back for given it to any other patient. Thus miraculous effect in changing hygienic condition may be seen after 3-4 weeks after applying Servapisti to the patient. There are report of effective improvement which is being published in different newspaper as the other patients in the dire need for cure of their diseases may be benefited and the cancer’s nature may be stopped to spread. The effect is seen by the glaring example of cure mention in the book namely “Cancer is Now Curable” which is now resistant the spread of the disease and is being stigmied . the overall effect of Servapisti is not clearly discriminatory where the harmony between the life’s utility and health condition is seriously damaged. Thus despite being used from last 19 years, there has not been any side-effect of the indigenous N.E. administered to the patients suffering from dreaded disease.

8. That on account of all these facts it appears that when the cloud of uncertainty has been prevalent in the mind of the people fighting for the protection of their patients right. On account of threat provided by respondent 8 and 9 at Kolkata Centre. The present public interest litigation for seeking enforcement of their fundamental right i.e. “Right of Life” guaranteed under article 21 of the Constitution of the India to the patients suffering from chronic ailments and dreaded disease .like- Cancer. It has been prayed that as far as the answering respondent are concerned there may not be any interference in administering the N.E.T. prepared through the extract of vegetables and other human edible substance as displayed in the list of food articles. (Annexure No - 4) may not be stopped from being administered the patients suffering from cancer and if the indigenous N.E.T. comprising of the edible food vegetable is having a positive impacts for cure of the patients suffering from cancer and other diseases, the provisions of Rule 106 of Drugs and Cosmetics Rules, 1945 having its Schedule ‘J’ may be declared as not attracted for administering Servapisti. The herbal N. E. T. , otherwise it may be declared unconstitutional in ultra-vires to the right of the patients conferred under article 14 and 21 of the Constitution of the India. Since the applicant / Respondent No. 13 has been impleaded as the Performa respondent , the applicant prays for passing appropriate decision after taking all such facts and circumstances which could have not been brought to the notice of this Hon’ble Court for the advancement of research and for providing it due promotion with scientific skill and temper as it may provide remarkable success for complete cure of dreaded disease like – Cancer.

9. That under our Constitution it has been provided that there shall be the humane conditions and it will be the duty of State to raise the level of nutrition and standard of living and improved public health under article 47 read with article 21 of the Constitution of the India. There is fundamental duties casted upon every citizen of the India to uphold the ideals and to cherish such noble ideas, which are meant to promote harmony in the sprit of common brotherhood amongst all the people of India and to value and preserve the rich heritage of our composite culture which including indigenous N.E.T. being administered to the patients suffering from alleged incurable disease like- Cancer.

10. That as submitted earlier under article 51 A(h) in itself cast a duty of every citizen to develop scientific temper, humanism and the sprit of enquiry and reform and to strive towards excellence in all spheres of individual and collective activities so that the nations consistently rises to higher level of endeavour and achievement. Thus in no circumstances the research conducted at the centre and preparation of indigenous N. E. substance extracted from 1621 edible vegetables known as Servapisti could have been restrained by the respondents rather there should have been adequate promotion research and other activities associated for the cure of Cancer as per the endeavour of the fundamental duties and reciprocal obligations there from upon the respondents.

11. That the work of D.S. Research Centre and the cure of Cancer invited the attention of International Ayurveda Fraternity who invited Shri Shiva Shankar Trivedi for delivering a guest lecture in the International Symposium on Ayurveda, Yoga and Naturopathy held on Feb 1 / 2 , 2002 at Mahatma Gandhi Institute of Medical Science Sevagram, Wardha. The extract of the invitation and extract of booklet issued International Symposium were Annexed as Annexure No. 12 and 13 but the entire correspondence and the participation thereof by the Director of D.S.R.C. has not been brought to the notice of this Hon’ble Court which is being filed here with as Annexure A-32(collectively)

12. That the message of D.S.R.C. is having the scientific temper intellectual and social enthusiasm of the crucial hour for the cure of dreaded disease. The message of D.S.R.C. is not a commercial advertisement but is inspiring call for a revolution to serve suffering humanity in the most humanitarian scientific way. The theme of the Centre is based on cherished and noble ideas of indigenous N.E.T. research which is an endeavour to value and preserve the rich heritage of our composite culture and to develop scientific temper, humanism and sprit of energy and reform for excellence of the human being .

13. That there has been a feeling of danger to the person indulge in making the profit for the traditional drug therapies which mostly prepared medicine from poison and toxic substance. The advancement of the research has provided sound and tested foundation of curative era by the nutrient energy preparation for curing the diseases. The N.E.T. Servapisti has never been sold in the market and there has a strict condition and mutual agreement under the words of patient coming voluntarily under proving of Servapisti. The applicant is filing the extract of all such message relating to scientific intellectual and social enthusiasm by D.S.R.C. in this regards are being filed and marked as Annexure no. A-33

14. That the Centre council of research Ayurveda and Sidha studied file of cancer cases which were cured by Servapisti than the penal of C.C.R.A.S was setup and the matter was discussed keenly in Kolkata. The Director of Centre himself supervise the proving and trial of Servapisti on Km. Punam Sinha a terminally advance case of acute leukemia who was going treatment A.I.I.M.S. , New Delhi. it was reported that Km. Punam Sinha could not survived one month, but she got perfectly cured by Servapisti of the dangerous disease. This was first case of acute leukemia to be ever cured. Now Km Punam Sinha has been leading an active and healthy life. The difficulty is that Ayurveda itself stands on the footing of drugs and indigenous N.E.T. which was administered earlier prior to Angle Saxon Allopathy medicine could not fit for bureaucrats to its present frame work. There has been a sinister design which has completely eroded the basic foundation on the existence on which our cultural heritage were dependent by the pressure of multi-national companies indulge into the business of drugs which are now being imported by providing much more lucrative incentives to the officers dealing with the drug business and as such nothing so far is provided to encourage the indigenous N.E.T. research conducted at D.S.R.C . it is strongly recommended by the Association of Protection of Patients Right that there may be the proper encouragement to the N.E.T. research and the respondent may not restrained the preparation of Servapisti which is helpful and rather the answer for complete cure of the dreaded disease which are considered incurable under Drugs and Cosmetics Act, 1940

15. That the representations were given to the respondents requesting them and their concern agencies to evaluate their approach and achievement as they may come forward to promote and patronize the historical achievement as the country may glorified before the entire world as to explain that what the Indian’s have done with the scientific skill , temperament and research of D.S.R.C. Nothing has been done so far although the letter were received from the high dignities including Prime Minister office, Hon’ble Governor of West Bengal’s office and from the office of Ministry of Health and Family Welfare to the aforesaid representation. The true copy of the aforesaid representation are being filed and marked as Annexure no. A-34

16. That apart from being getting the cure of cancer from research conducted by D S R C, there could have been saving of millions of crore of rupees which are paid to the multi-national companies having there international market for importing the drugs in our country every year. The country have earned millions of crore of dollars by now from the successful cure of cancer and other dreaded diseases. The research is being carried on from D S R C for the cure of patients suffering from the AIDS . this is indulged anticipation that positive result shall be highlighted within a very short period. Thus the question arises whether instrumentality of Govt. is not accountable for illegal omission committed by them through the respondent in the aforesaid regards.

17. That on one hand the incentive are given by offering the prestigious Shri S.S.Bhatnagar award for 2001 or the work conducted by Dr. T.A.Chandrashekhar on Photo Dynamic Cancer Therapy while the D.S.R.C. indulged for the complete cure of cancer has been subjected to undergone the criminal prosecution launched by respondent no. 7 and 8 at Kolkata Centre. The provision of Drugs and Cosmetics Act, 1940 has been stated to be violated. It was with the great mental agony and humiliation on the part of the person indulged into the research that anticipatory bail should have been granted at Kolkata. There are so many researches conducted at D S R C which may not only cure cancer but the cardio-vascular problem to the patients suffering from the heart diseases, gastro-intestine trouble and also the gynecological problem to the women suffering from incurable diseases like- leukemia . Thus the protection is required to be given by issuance of the appropriate direction by this Hon’ble Court. The true copy of the report published in Hindustan Times dated 5/9/2002 regarding Photo Dynamic Cancer Therapy is filed here with and marked as Annexure no 35

18. That it has been revealed after the research through the scientific process that there is neither any steroid mixed providing the accumulation in the body indicating the remedial cure and the energetic trend for the time being in the patients which is generally observed by administration of the drugs and other medicines. Since there is the indigenous N.E. provided to the patient which helps in generating the resistance from fighting the foreign elements like – Bacteria and other Virus and as such by the consistent use of the Servapisti, there has been a remarkable trend for the cure of the disease through preventive measurements. Thus the administration of the N.E. to the patient is not having any side-effect upon the body of the patients suffering from the alleged incurable disease like – Cancer

19. That maintaining normal health of the patient is the best treatment. N.E. is the sole prescription of the nature for keeping up health, resisting unfavourable condition and curing ailments. Our food is the reservoir of this energy. This was the noble idea flashed in the mind of the scientist indulged in preparation of indigenous N.E.T. which has opened a vast landscape for an investigation. the common daily diet, may keep the burning of life and thereby develop resistance against unfavourable conditions. This is the remedial answer to the genetic disease. Thus after being fully convinced of an inherent efficacy of food substance a massive diet to unravel the truth behind the conviction from the work and research was systematized with the emergence of D.S. R.C. in 1965. It was after a long chain of an experiment for 13 years that research centre in 1978 in awakening the potential of food substance and thereby the results are astonishing.

20. That the patients suffering from the dreaded disease like- Cancer have been belonging to the poor and economically down trodden section of the society. There is no financial resources available to them to meet out the expenses of the drugs mostly supplied by or licences under the multi-national company. The N.ET enrich the normality of the economy and in this manner it enriches the immune system towards off changes of abnormality and simultaneously providing a indigenous effort for boosting the economy under the incongruous inflation having steep far in the value of money. Thus the positive efforts through incentives and promotions by the Govt. Agencies to the person of scientific caliber is the reciprocal obligation casted upon the instrumentality of the respondents. No such efforts have been made so far for the advancement the noble principle of indigenous N.E.T even after being convinced with the results and prospects by International Symposium and other Ayurveda Research Centre situated at Wardha and Mumbai. There has been a certificate of co-operation and affiliation with the Indian Board of Alternative Medicines at Kolkata. The true copies of Ayurvedic Research Centre correspondence and the certificate of co-operation issued by the President of Indian Board of Alternative Medicines are filed here with and marked as Annexure no 36.

21. That being it a chronic disease or a malignant one, a person entrapped into either of these is destined to remain ensnared in it till his last breath. No medication has ever succeeded in breaking this deadlock. Medical treatment rather adds its as an essential chronic enchaining. It is like this, because medicines are incapable of treating the basic disease, which works at the central regime of life and goes on deranging the biochemistry of the Physique continuously. Medicines simply try to maintain or readjust this disturbed chemistry from time to time, trying to grant only temporary relief to the sufferer. Hence a medical practitioner is called a physician, treating the body in place of the disease.

22. That the basic cause behind all these failure is the principle of drugs. All the prevailing medical sciences, without any exception, develop and prepare, their medicines from only toxic and poisonous substances selected from the vegetables kingdom, minerals or chemicals. Therapies have been alternated in their postures and manners of applying these drugs, but the drug principle has remained unaltered. It is self-evident that every bit of every drug on being inserted into the chemistry of life invariably decreases vitality, deviates metabolism, stunts creative growth and corrupts the all- important chemistry of living organism. How then can a cure be expected from these disease creating drugs? Treating diseases with these drugs, therefore, entails great risk. Obviously it has become a matter of compulsion on all medical professionals to be properly trained, then obtain licenses and legal registration before pursuing their profession. However, inspite of such restrictions and strict surveillance more than one million people are being killed and millions more are being dragged into grave disease-conditions every year due to missing in prescribing and applying these drugs. And that in itself is a great tragedy.

23. That the Servapisti is not a drug as it is put into the loose packet as a edible substance taken every day with the empty stomach. It is influenced of our ancient system of science of healing, which is growing the influence all over the world in some form or the other as alternative medicine. The WHO has out rightly testified that such indigenous NET Doctrine is an outstanding as compared to the other system of individual countries. The indigenous research has a deep history and well-documented in our scriptures like- Vedas in Sanskrit. What was realized as good and useful to the humanity, ages ago is still good and beneficial even to this day.

24. That the history repeats as such the science of healing which was considered from known to the unknown a few decades / centuries ago is considered for its return as our ancestors practiced help, care principle as our integral part of our life. Thus they could have lived more healthier than most of us today. Our science through the scripture of documentation embodied in our religious script was more scrupulous and there by observed strictly the prescriptions and proscriptions in day-today life which is now considered more scientific in its living habit instead of shouting aloud the science of poison through drugs and medicine. Peoples are realizing its simplicity and usefulness. Its preaches that prevention is better than cure.

25. That the gift bestowed upon us as a boon forms the divinity and nature, which is, prevents us from deterioration, degeneration and destruction of health. You may take a pinch of salt, a piece of ginger or pepper, do miracles in preventive disease will be the outcome. Since the people in ancient time were more dependent upon meditation, there had been the least of imperfection but in this era we are much more dependent on medication. Thus our body which is made up of Panch Maha Bhutas(Agni, Jal, Vayu, Akash, Earth) which are felt and imagine as they are actively exist in our body. Thus the cure of the ailment is dependent necessarily to maintained and safeguard equilibrium of the three Dhatus dys-function as it is termed as Doshas (Faulty or Wrong).

26. The physician diagnosis a patient by reading the functions or dys-functions or imbalances of the five elements through the three Dosh Theory (three Humors) Vwata; Pitha and Kapa. This is known as reading of Nadi or pulse. By this method we the people with the ancient knowledge of preventive cure can know whether the person is at ease (healthy), or at disease. Balancing the presence and functions of the five elements in our body, through three those theory, and its effect, is called treatment (to said right the wrong). This can be done only be natural means, and with natural materials or substances similar to the ones our body is made up of.

27. vL; ns’kL; ;ks tarqLrtk] rL;kslnk fure kk

bfr;sr vkS"k/ke~ izksDre vk;w"k ifjikyua

vfip;su LoLFkkuka LokLFkL; j{k.k ekrqjk.kke~ p jksxueqDrsfr kk

odkjks nks"k o"kE;a /kkrqlkE;ekjksxrk

lq[klaKd vkjksX;e~ fodkjks nq%[keso p kk

fgrkfgralq[knq%[ka vk;qjrL;fgrkfgra

Ekkua p rPp ;Drksrek;qosZZn l mP;rs kk

28. That the plants-life is nature’s contribution to serve the mankind and to over come all sorts of health hazards. Eminent indigenous scholars were having there infinite knowledge and great insight which they use for welfare of the society. out of them Charak, Sushrut and Vagbhata were few of the great scholars which is true through available documentation. The ancient science of treatment through preventive cure was dependent and the descriptions of which is quoted in Rigveda and Atharveda about 3500 B.C. while the Charak Samhita was written prior to 1000 B.C. Thus the attention is paid to the root cause of the disease and not the symptoms alone; treat the patient, and not the symptom alone; treat the ailment permanently as a curative measure. Thus holistic treatment is the right answer for the philosophy of the life and the treatment. There is a natural integral cohesion of digestive nervous, circulatory and respiratory system for which the treatment is aimed at and therefore it must tackle all such symptoms and as such the NET is only the right answer to the dreaded incurable disease like-Cancer with the positive result of success.

29. That Since certain plants, creepers, herbs resemble different part of human body, in shape, shade and texture and as such it is believed to be the useful and guiding factor to treat by them particularly over the resembling part of the body infested with the disease. In case of any health derangement the doctrine of signature which comprises of intelligently grouped ingredients and the whole some use of the extract of the plants and herbs for rendering treatment gives no adverse effects to the body of the individual suffering from the ailment.

30. That the plant and its produce like- Badam(almond) which resemblance the eye is useful for the eyesight. Yellow Saffron is useful in the treatment of Jaundice. Sandal-wood and its oil and Red Rose petals are useful in blood disease and Anemia. Milk and milk like substance are regarded as promotives and protoplasmic cell-fluids. Thus the resistance power of the body is used to combat the disease which is free from toxicity and the patient is not subjected to another ailment as the result of the treatment from the Allopathic medicine. This is the out standing wisdom gathered from indigenous NET since centuries and from generation to generations.

31. That there has been several chapters towards the philosophy of life suggesting the theories of Astro-medical, Magneto or Electro-waves treatment through wearing oriental metallic ornaments studded with Gems as there reflective effect casts a positive result on our system of health. Each Gem is prescribed and attributed to a planet and its influence has an everlasting effects upon the science of humanity. Metals and minerals in oxidized forms combined with herbal extracts through the methods of trituration, ionization, potentiazation or atomization processes through mantra (Taveez) Yantra, and Tantra since ages were prevalent from ancient times even to this day. We cannot blame the text on these subjects but we can only blame the practitioners of these theories who are unable to gives desired benefit of this theory due to certain lapses on their part. Thus the system of alternative medicine has got the wider implication and affect upon the science of human body.

32. That it is interesting to note that each of the five finger of human hand is associated to the different organic system of our body. This theory is connected with astro -palmistry science linked with the planets. The thumb with vitality and general debility, index finger with respiratory system and stomach, the middle finger with liver and intestine, the ring finger with kidney and circulatory system and the last the little finger denotes the states of the feet’s, the sexual glands; habits, conduct and character etc. it is in practice and scientifically well acknowledged that through palm reading and horoscope study there is solution to treat in health and providing to for suitable treatment as possible supported by clinical study. The system of accrue-pressure is dependent upon these researches which is indigenous and based on ancient science.

33. That the divine gift to the human race covers all other animals world bird world.

It has been discovered from the very stage of the life being conceived inside the womb of the female that the human body passes through al the several stages of 84 lakhs species and thereby it resembles to a particulars non-vertebrates class of the category to the Vertebrates known as Pisces, Amphibian, Reptile, Bird and there after the Mammals. Thus it has been rightly said that the human body is blessed after passing through the different 84 lakhs of the species. The aforesaid clearly indicates that whenever there is some defect in the system of the body it affects, the very origin of the stage which has undergone in the process prior to the birth. Thus the extracts of the plants and vegetables edible by all vertebrates (tetrapods) are the preventive cure of the dreaded diseases. The Hindu mythology has explains this science through quotes and words. Even an ordinary Pujari in the temple gives Tulsi Teerth of the God as Charanamrit with the blessing from his side by reading as “A MIRTYU HARANAM SEVA VYADHI NIVARANAM MRITYUNJAYA PADODAKAM PAVANAM SUBHAM” and further adds “AYURAROGYABHI VRIDDHI-RASTU”. Hindu Mythology prescribes, Sankh, Saligram, Yagyopaveetham, Recitation of Puranas, wearing of Gems and Ornamentals and particularly VRIKSHA POOJA (prayers to plants) in the up keepment of Good Mental and Bodily Health. We strongly do have faith in this.

34. That the maintenance of EQUILIBRIUM of VAAT, PITTA, & KAPHA, and failures in these 3-DOSHAS, are the root cause of HEALTH failure, according to AYURVED. Whereas, the alternative NET preaches that Mind is responsible for good and bad of HEALTH. Also, if internal Stamina OR Energy is lost, deterioration of Good Health starts. Naturopathy tells that we should have Balance of Nutrition. It is also said that superfluous diet, sleep, a waking, too much of labour, become the root cause for the debilitation. All these are Branches of the same Science. NAVRAS, PANCH TATVAS, PLANCETS, STARS, SEASONS, GEMS, MINERALS & METALS, have their own effect on the Human SYSTEM.

35. That the Puranas speak that everything in this UNIVERSE has come out from the Body of the GOD the Creator. We need not go into details in this, for the present Birth and Death are the two ends of a Materials. In a circle, if it starts from Birth, it ends with Death. Earth gets stimulates by the effect of SURYA, whereas by the effects of MOON, it gets peaceful and cools down. RAHU shadows EARTH, and KETU shadows MOON. The Drastic exposure from both RAHU & KETU, brings-in the DEATH of a HUMAN. Therefore, PANDITS, say that HUMANS need the sympathy from RAHU & KETU, through out their life, to ward-off unfavourable circumstances.

36. That when the moon is in the first half of the month, the skin infection and mental derailment cases get aggravated. It has been proved that the effect of the moon are cast on the menstrual cycle of women. It is also the known fact that Guru has special effect on the human and brightens the prospects. Nine planets and twelve Rashi’s have there individual effects on the human system. The star focus also effects on the human body which good health and bad health by gradual process. There is the effect on the skin eruptions when the effects of the SURYA and KUJA in aggravating PITHA and when SHANI, RAHU and KETU aggravated VAAT such person suffers usually obesity, rheumatism, arthritis. If the Rashi’s is also unfavourable the person suffers too much loss in the organs. According to some scholars while ciphering of this subject, certain guidance is provided regarding the effect of the Rashi’s. MESH is having it’s effect on head, face and brain system. VRISHABH has its effect on neck and throat, MITHUN on solder, hands muscle, blood and flesh, KARKATKA on chest and stomach; SIMHA on backbone, backside, waist and heart, KANYA on liver, TULA on skin, VRISCHAKI on sexual organs. DHANU on pulse and nervous system, MAKAR on knees and elbow, KUMBHA on feet and digestive system, MEEN underfeet.

37. That there has been the scientific endeavour through the analytical observation that the nav-grah focus on certain body parts. The Surya controls the activities of the heart, blood, brain, left eye of the lady and the man’s right eye. Chandra controls the left eye of the man and the rigth eye of the lady and her breast. KUJA rests upon nose, forehead and digestive system while Buddha controls nerve system, pulse, muscle, tongue, solder, face and hair. Guru controls right ear and liver while SHUKRA controls the complexion and the left ear. The SHANI regulates the bone system, dents and knees while RAHU is a regulatory factor of the mental weakness and depression like wise KETU regulates the skin affection and aggravate the trouble in the human body. Thus the association of all these factors are rigid for regulating the system.

38. There has been the further observation that if these are tied together so fast than the affect may become useful to the mankind as AKASH and Guru combined together enlightens , sound , hearing and speech the VAYU and SHANI provided senses (touch) skins , hands and stimulate them. AGNI and KUJA saves (complexion) eyes, and legs are smarten, JAL and SHUKRA provides useful effect to the speech through tongue and stimulation to the sexual organ while Earth and Buddha controls the smell of the nose, mood, knowledge, mind, life and food KOSHIKA . it has been said that the mood is related with AKASH and the knowledge is entangled with the VAYU and the mind is integrated with the AGNI . the life is associated with the JAL while the food is involved the Earth. Thus the medical treatise itself is a complicated and integrated system. One has to interloped with the other branches of the vast science and its effects. There are the influence of the GRAH and the planet on the persons health, life and death. As long as the people observe the principles of the nature which is the creation of that omnipotent power quiet unseen, it said by all the philosophers and the preachers that nothing can disturb the human life. Every disease has a remedy. so every error committed by us has a antidote as safety measurement. This is what is the faith and the believe which treats a person. Thus the search for this knowledge and to put into the practice through the researches and the scriptures in Sanskrit the NET herbal science has been developed in the forms of five elementary basic components which are more acceptable to the human being for repair of the system.

39. That all these facts have been enunciated in order to denounce the theory of Allopathy based on drugs. We may practice and preach the benefit of the NET indigenous therapy to the benefit of masses in our country and abroad. In this manner we may project our views vehemently and convinced antagonist to the great extent. There are number of the medical man associated with allopathic faculty who termed up a strong supporter of the NET. The common endeavour is based on the principle that the body and the mind are treated simultaneously to over come the problem as it is of no use of treating them in isolation. The slogan is that if the mind is health the body will also become healthy. Thus the D.S.R.C. associated as a torch-bearers in the form of a growing organizations for the cure of dreaded disease like-Cancer, Rheumatoid Arthritis, Brain Tumors, Leukoderma, leukorohea and also to the AIDS through the indigenous NET

40. That the assimilation and elimination processes is vitally important for the betterment of the health, as well as to ward-off disease. If one can digest what all he eats and free from evacuation problem, i.e. elimination process is perfect, then he is free any ailment. He possess in-built health. That is his inner strength. This person is not subjected any ill-health and can easily fight the dreaded disease caused by outside bacteria and other infections. That in NET the direct remedies are acting on the digestive system, circulatory system and our nervous system which are foremost important in this therapy and known as a Doctrine of Remedial Cure to the patient. It is known fact that almost all the ailments arises from something wrong digestion system, circulation system, nervous system. Disorder cropping up from the failure of these function arises in our body, can only be corrected through our treating the system primarily. Thus a blood purifier, a correct digestive process and a nervine tonic may be necessary from one of the ingredients of such a systems representations which gives effective treatments scientifically.

41. The circulatory and nervous disorder is scrutinize and selected for the research at D.S.R.C. according to the constitution of the patients. His ailment and the stage of the diseases known as the constitutional treatment is analyzed to combat the internal and defensive forces in the patients to rise up as they may cure the disorder and the ailment. Firstly the toxic effect on as a result of using medicine mostly poisonous in nature in insured to be read out from the body of the patient through self contained tonic and nutritive effect and its constituents. This is the process known as indigenous NET at D.S.R.C. ..

68. That under these circumstances, it is expedient in the interest of justice that this Hon’ble court may graciously be please to declare the schedule ”J” under Rule 106 of Drugs and Cosmetics Rules, 1945 contemplating 51 diseases as incurable to be unconstitutional and ultra vires to the constitution of India.

69. That it is prayed that respondents may be directed that since the petitioner charitable society is providing the indigenous nutrient energy therapy comprising of extract of 1621 vegetation procured from the nature as eatable substance alongwith 16 type of mineral water which do not fall within definition of Drug under section 3(b) of the Drug and Cosmetics Act, 1940. The aforesaid provisions of schedule “J” as incorporated in Rules, 1945 may be declared as not attracted in conducting the research work and providing nutrient energy therapy to the person suffering from cancer and other serious ailments.

70. That respondents may further be directed not to interfere in any manner in respect of indigenous research and also in administering the nutrient energy therapy to the patients suffering from cancer and other ailments.

71. That it is therefore most respectfully prayed that respondents may be restraint from conducting any coercive action over the functioning of M/S D.S Research centre associated for espousing the cause through a charitable registered society for the complete cure of the cancer and other alleged incurable disease as contemplated in schedule ‘J’ of Rule 106 of Drugs and Cosmetic Rules, 1940 as the aforesaid centre is neither having any commercial centre nor is providing any diagnosis of the disease by calling the patient at the centre except by proving the nutrient energy therapy in the form of the extract from the vegetables and other indigenous produce of the environment without having any use of the chemical, drugs and medicines.

72. That the present writ petition is filed on the following amongst other grounds.

GROUNDS

1. Because the objective of Petitioner’s society registered under the societies registration act are as follows:-

to conduct the research from the different angle relating to health and cure of disease from the vegetable substance as per the food articles suitable according to geographical condition which may provide nutrient energy therapy to the human being suffering from disease.

To develop the research centre for analyzing result of nutrient energy for the cure of the disease by serving the people.

To conduct the Research and develop and expansion of the research indigenous method .

To provide nutrient energy for extract of eatable substance for serving the people by realizing the investment cost from treatment.

To provide training, publish literature, seminar, symposium, deliberation and association of the scientists in field of nutrient energy therapy.

To find out the possible cure of the disease like cancer, Aids, leprosy through complete cure and prevention of such diseases by providing the nutrient therapy.

To prevent the human being from polluted atmosphere and for that purposes which may be helpful for security of life to develop the method and procedure for its development.

To implement by active cooperation, programme based on the policy of central Govt. and World Health Organization.

2. Because the petitioner’s research centre has not only cured about 4000 patients suffering from cancer and other incurable diseases as alleged under Schedule “J” of rule 106 of Drugs and cosmetics Rules, 1945 , purported to be non-curable by drugs, but Mr. Ashutosh Kumar aged about 35 years s/o Hon’ble Justice Nagendra Rai of Patna High Court, R/o 2, Anne Marge, Patna got the nutrient energy therapy provided for the cure of disease of cancer. It is submitted that on the basis of report and the scan to a bone marrow transplant specialist, who discussed the issue with Dr. Roberts Motzer , a renal cell specialist at Memorial Sloan Kattering cancer centre at New Yark wherein it was diagnose that the presence of metastasis in lumber vertebrae 4^th rib has also infracted the lungs. The case was referred to Dr. Adwani of Jaslok Hospital for giving radio therapy to lunger spin and interferon ( Intron) injection. At this stage when Mr. Ashutosh Kumar s/o Hon’ble Justice Nagendra Rai of Patna High Court was having skeletal metastasis at vertebrae and multiple pleural mass lesions on 4^th rib and suggested for bone marrow transplantation in R.C.C.. At this stage the treatment was started at petitioner’s centre wherein as per the report submitted on 17.4.2002 there was the remarkable recovery from treatment.

3. Because the drug is the substance other that food, and as such the indigenous nutrient energy therapy administered for the cure of the diseases by preventive measurement from the eatable food substance extracted from 1621 eatable vegetables nutrients and 16 type of mineral water, are neither drug, not the provisions of Drugs and cosmetics Act, 1940 are applicable on the aforesaid centre.

4. Because fear is an inherent characteristic of human being. This is for the obvious reason as every minite 10 people die of cancer. 10 in every minite means of 50 Lac in a year from such dreaded disease. The World Health Organization is anxious by having an apprehension that toll of cancer is double itself by 2015 A.D.. This be a threatening to vary existing whole human race. Thus the man may not be completely helpless and be left at mercy of killer disease.

5. Because there are 1621 eatable substance used for the purposes of preparation of nutrient energy therapy known as SARVPISTI and also 16 type of mineral water is collected from the extract of germinated 205 cereals like wheat, Gram, Urad, Mung, Masoor, Makka etc. The leave categorty (76) comprising of Tulsi, Pan Maghai, Pan Meetha, Arhar, Sarson etc.Chhal category (55) comprising of Semal, Jamun, Langada Mango, Himsagar , Gulab etc., Medicine Vanaspthi category (51) comprising of Motha, Kastoori, Khas etc., Flower category (110) comprising of Kakari, Kheera etc., Vegetable category (190) comprising of Bhindi, Parval, Lauki, Phool Gobhi,etc., Fruit category (189) comprising of Imali, Amala, Bel, Sakarkand, etc., Sag category (57) comprising of Kamal, sarson, Mooli, Matar etc., Anna category (67) comprising of Moth, Bajra, etc., Beej category (55) comprising of Sada Lauki, Kakari Nariyal etc., Mool category (35) comprising of Shalparni, Gokhuru, Shatawari etc., Gond category (17) comprising of Babool, Jamun, Neem, Mahuwa, Vargad etc., Tadi category (4) Tad, Khajoor, etc., Oil Category(22) comprising of Kala til, Mungphali,Soyabin etc., Tusa Dal category (43) Pakar, Guava, Amla, Chana, Matar, Tulsi etc., Mewa category (14) comprising of Kaju, Kishmish, Badam, /Akharot, Pista etc., Rus category (46) comprising of Kala Ganna, Jwar, Makka, Bajari Kakari, etc., Kand category (10) comprising of Sakarkand, Chini, marchini, etc., Phal- Chhilka category (30) comprising of Anar ke Phal of Chhilka, Aam of Chhilka, Gulab Khas, Aphim chilka,etc., Masala Category (46) Jeera, Dhaniya, Kali Mirch, Methi etc., Banaspati Dugdh Varg (38) comprising of Vat, Mahuwa, Goolar, Pipal etc., Milk varg (50) of Cow, Bakari, etc., Kachche Phal (42) Imli, Jalpai, Angoor etc., Khamir varg (85) Moth, wheat, chana etc., Phaphund varg (22) Kukurmutta, Aam ka Phaphund etc., Honey varg (9) Basak phool of shahad, Kamal of shahad,etc., Vanaspati Dugdha (9) Bargad, Mathuwa etc., Kachche Dane (47) chana, Kabuli Chana, Matar etc., Water (16 type) of Gangotri, Narmada etc.,

6. Because even the Doctors of the International reputation and Physician namely Sri Vasudev M. Patel settled at 3015, Sixteen street, Monaroe U.S.A. has reported the vital recovery from their ailment. Similarly one Doctor namely T.Jagannathan who completed M.B.B.S. in 1960 from Madras Medical college and F.R.C.S in 1968 from Canada and working from 1972 to 1998 as urologist has acknowledges that the administration of Sarvapisti does not have any side effect as the aforesaid Dr. has started taking the nutrient energy therapy acknowledged the positive result . Thus the centre of petitioner for its service to humanity. Similarly one Prakash Chuganey s/o Mrs. Kavita Chuganey c/o Memorial Gift Shop, 2 Glouster Avenue, Montego Bey, Jamica has reported that the nutrient energy therapy (medicine) of D.S. research centre has done wonders to cancer patients and sought for sending it for cure of her mother.

7. Because there is no illusion about the ability of M/S D.S. Research Centre to fight cancer. The result of the complete cure has witnessed by the latest book published in 2000 known as cancer is curable now having the details of about 111 evidence of success. Thus any coercive action against the research centre by the officials of the drug controller by providing hindrance in research work and thereby depriving patients from their legitimate right to collect the nutrient energy therapy from the extract of eatable substance will be detrimental to the interest of the patients suffering from cancer as well as the same is unconstitutional and void.

8. Because despite all these achievement conducted by the petitioner’s research centre in cure of alleged incurable diseases, the branch of research centre situated at 160, M.G. Road, 1st Floor, Kolkata was put to the arbitrary restriction in carrying on distributing the nutrient energy therapy (SARVAPISTI) to the person effected/ infected from alleged incurable disease under the garb of violation of certain provisions of Drugs and Cosmetics Act. 1940 and Magic remedial Act ( Objectionable advertisement ) Act, 1984. There has been the mass resentment against the action of Director of Drugs controller, 147, A.J.C. Bose Road, Kolkata-14. It is submitted that in the aforesaid action the nutrient energy therapy (sarvapisti) of about 1,50,000/- has alleged to be seized by the Inspector of Drugs and Director of Drugs control, Kolkata. By the aforesaid action the entire research work which was conducted from branch office of Kolkata has been adversely effected in respect of providing relief to the persons suffering from cancer. A large scale resentment was also conducted by the public due to non-supply of Sarvapisti to the patients.

9. Because the dividing line between an administration power and quasi-judicial power is quite thin and is being gradually obliterated. The concept of quasi-judicial power has been under going a radical change. Let the executive may also give up its privilege orientations and start building nation through there utmost potential. The higher bureaucrats may fix their responsibility and public accountability. Towards and unless this responsibility in nipped in the bud, it is likely to cause turbulence shaking the entire socio-economic political system in an otherwise healthy, wealthy, effective and vibrating society.

10. Because article 14 has a pervasive potency and versatile quality, equilitarian in its soul and allergic to the discriminatory dictates. Since equality is antithesis to arbitrariness, any action which repugnant to the fundamental rights provided to the charitable society indulge in the cause of research for the cure of fatal diseases like Cancer, AIDS etc shall be deprivation of the right expression and to impose an arbitrary restriction upon a scientific temper of an individual indulged in the research such an important function of the society.

11. Because Justice is the end of government in order to enjoy the peace of mind. Law is a means to an end. The essence of law is duty. It is a result of constraint struggles and conflicts with a view to attain the peace of mind. Law is the guarantee of condition of life is society assured by State power of constrain as legal institution may provide stability in the social and political affairs. The essential principle to learn is the basic principle of jurisprudence by adopting a positive approach for imparting the real justice to the individual in the society. The legal system is immolation of the legal invention for protections of Human behavior, which may maintain infuse relationship for the advancement of mankind.

12. Because Justice is a psychological yearning in which men seek acceptance of their view point. Our independent Nation has chosen political system. The vitality of democratic process the ideals of social and economic egalitarianism the imperatives of socio-economic transformation envisioned by the constitution as well as the rule of law and great values of liberty and equality are all dependent on the tone of judicious place in judicial process. There is innovation of new devise and strategies for the purpose of presiding occurs to denied basic human rights to down trodden or socially and economically disadvantageous individual unable to approach the court for relief. The narrow concept of cause of action and person aggrieved and individual litigation is becoming dissent. The maxim of ill justice is remedies have now enlarged to embrace all interests of public minded citizens.

13. Because the effect of globalization to invite the drugs manufactured in the western country, which are suitable to do geographical condition of having low temperature, but in the country like India the circulation of such drugs, which are generally prepared through toxic and poisonous substance is not only detrimental to the health and hygienic condition of patient, but ultimately it may lead for getting so many side effects, which creates a psychological effect in the mind of patients that they have come across to a situation where there is no other alternative except to commit suicide in view of fact that even the Govt. has taken into consideration that these disease are incurable.

14. Because since the research conducted at D,S. Research Centre is for the protection of our cultural heritage by preventive measurements and thereby saving the patients suffering from the alleged incurable disease from its side effect and as such the performance of research centre is for the achievement of such indigenous advancement of the scientific temperament amongst the citizen as to provide them the feeling of security from the alleged propaganda created on the behest of multi-national companies supporting the drugs and medicine on the trend of British India Company under whom the country remain in clutches of slavery for a considerable period.

PRAYER

It is, therefore, MOST RESPECTFULLY prayed that this Hon’ble court may graciously be pleased to;

i. issue a writ order or direction in the nature of mandamus restraining the respondents from interfering in any manner with the petitioner’s Research centre i.e. M/S. D.S. Research Centre providing the nutrient energy therapy through the extract of food vegetables and other natural environmental produces as displayed in the list of the food articles (Annexure 7) as none of the indigenous nutrient, taken by the persons suffering from diseases of cancer etc. is a food articles, and thus neither given as any drugs or medicine nor any chemical used therein.

ii. issue a writ order or direction in the nature of Mandamus commanding and directing the Schedule ’J’ under rule 106 of Drugs and cosmetic rule 1945 contemplating certain disease as incurable (Annexure-8) as unconstitutional and ultra vires to the right of the patients suffering from such diseases or in the alternative the food and vegetables indigenous herbal nutrient energy therapy given through the extract of the vegetable and other indigenous products in the form of eatable food may not be attracted for such restrictions.

iii. Issue any other suitable order or direction which this Hon’ble Court may deem fit and proper in the present circumstances of the case,

Dt/- AUGUST, 2002 (YOGESH KUMAR SAXENA)

ADVOCATE.

COUNSEL FOR THE PETITIONERS

CHAMBER NO. 139

HIGH COURT. ALLAHABAD.

IN THE HON’BLE HIGH COURT OF JUDICATURE AT ALLAHABAD.

Civil Misc. Ad- interim Mandamus Application of 2002

On behalf of

1 . M/S D.S Research Centre,

147-A, Ravindrapuri, Varanasi,

through its Director, Sri S.S.Trivedi,

s/o Sri Mukh Ram Tiwari.

2. Sri S.S.Trivedi,

s/o Sri Mukh Ram Tiwari

147-A, Ravindrapuri, Varanasi ……………Applicant/ Petitioner

CIVIL MISC. WRIT PETITION NO. OF 2002

(Under Article 226 of the Constitution of India)

( DISTRICT ; VARANASI )

1. M/S D.S Research Centre,

147-A, Ravindrapuri, Varanasi,

through its Director, Sri S.S.Trivedi,

s/o Sri Mukh Ram Tiwari.

2. Sri S.S.Trivedi,

s/o Sri Mukh Ram Tiwari

147-A, Ravindrapuri, Varanasi …………………………. PETITIONER.

VERSUS

1. State of U.P. through Chief Secretary,

Govt. of U.P., Secretariat, Lucknow.

2. Drug Controller (India) Director General, Nirwan Bhawan,

New Delhi.

3. Union of India through Secretary, Ministry of Medical Science

And Health, Govt. of India, New Delhi.

4. Drug Controller & Director Medical Health,

U.P. Lucknow.

5. Senior Superintendent of Police, Varanasi.

…………………………………..RESPONDENTS.

To,

The Hon’ble the Chief Justice and his other companion Judges of the aforesaid Court.

The humble writ petition of the abovenamed petitioner most respectfully showeth as under;-

1. That at the vary out set it is submitted that firstly we have to rely the possibility of applying Nutrient Energy Therapy for complete cure of dreaded diseases. In this regard the result reached a continuity and fell into a system from the zeal and enthusiasm of scientists involved in the indigenous research, have successfully cured Cancer patients through slow process of Nutrient Energy Therapy by stopping the growth of cell and replacement of the cell effected from Cancer by Nutrient Energy Therapy. Today the truth is that about thousands of human being have been completely cured from the rid of Cancer . It is submitted that the cure of the diseases is by such preventive process which will never allow Cancer is dare to stake upon the human organs infected by the abnormal growth of cell of Cancer. Every ancient ingredients of indigenous research based on our ancient traditional cultural heritage for cure of diseases by our great sent through Nutrient Energy Therapy prepared from extract of eatable vegetables and other herbal produce has let to complete eradication of shivering destructive diseases. It is submitted that in the due process ultimately the research centre based on indigenous nutrient energy therapy will become the culture for the treatment.

2 That the indigenous nutrient energy therapy for the cure of cancer and other so called as non curable ailments was developed at the M/S D. S. Research center after dedication of the service in the research work through edible nutrients develop from the extract of 1621 substances of food produces and any sort of Ayurvedic research has been left aside for administering to the patients after creation of the society in this regards.

3. That the petitioner’s research centre has not only cured about 4000 patients suffering from cancer and other incurable diseases as alleged under Schedule “J” of rule 106 of Drugs and cosmetics Rules, 1945 , purported to be non-curable by drugs, but Mr. Ashutosh Kumar aged about 35 years s/o Hon’ble Justice Nagendra Rai of Patna High Court, R/o 2, Anne Marge, Patna got the nutrient energy therapy provided for the cure of disease of cancer. It is submitted that on the basis of report and the scan to a bone marrow transplant specialist, who discussed the issue with Dr. Roberts Motzer , a renal cell specialist at Memorial Sloan Kattering cancer centre at New Yark wherein it was diagnose that the presence of metastasis in lumber vertebrae 4^th rib has also infracted the lungs. The case was referred to Dr. Adwani of Jaslok Hospital for giving radio therapy to lunger spin and interferon ( Intron) injection. At this stage when Mr. Ashutosh Kumar s/o Hon’ble Justice Nagendra Rai of Patna High Court was having skeletal metastasis at vertebrae and multiple pleural mass lesions on 4^th rib and suggested for bone marrow transplantation in R.C.C.. At this stage the treatment was started at petitioner’s centre wherein as per the report submitted on 17.4.2002 there was the remarkable recovery from treatment.

4. That there are 1621 eatable substance used for the purposes of preparation of nutrient energy therapy known as SARVPISTI and also 16 type of mineral water is collected from the extract of germinated 205 cereals like wheat, Gram, Urad, Mung, Masoor, Makka etc. The leave categorty (76) comprising of Tulsi, Pan Maghai, Pan Meetha, Arhar, Sarson etc.Chhal category (55) comprising of Semal, Jamun, Langada Mango, Himsagar , Gulab etc., Medicine Vanaspthi category (51) comprising of Motha, Kastoori, Khas etc., Flower category (110) comprising of Kakari, Kheera etc., Vegetable category (190) comprising of Bhindi, Parval, Lauki, Phool Gobhi,etc., Fruit category (189) comprising of Imali, Amala, Bel, Sakarkand, etc., Sag category (57) comprising of Kamal, sarson, Mooli, Matar etc., Anna category (67) comprising of Moth, Bajra, etc., Beej category (55) comprising of Sada Lauki, Kakari Nariyal etc., Mool category (35) comprising of Shalparni, Gokhuru, Shatawari etc., Gond category (17) comprising of Babool, Jamun, Neem, Mahuwa, Vargad etc., Tadi category (4) Tad, Khajoor, etc., Oil Category(22) comprising of Kala til, Mungphali,Soyabin etc., Tusa Dal category (43) Pakar, Guava, Amla, Chana, Matar, Tulsi etc., Mewa category (14) comprising of Kaju, Kishmish, Badam, /Akharot, Pista etc., Rus category (46) comprising of Kala Ganna, Jwar, Makka, Bajari Kakari, etc., Kand category (10) comprising of Sakarkand, Chini, marchini, etc., Phal- Chhilka category (30) comprising of Anar ke Phal of Chhilka, Aam of Chhilka, Gulab Khas, Aphim chilka,etc., Masala Category (46) Jeera, Dhaniya, Kali Mirch, Methi etc., Banaspati Dugdh Varg (38) comprising of Vat, Mahuwa, Goolar, Pipal etc., Milk varg (50) of Cow, Bakari, etc., Kachche Phal (42) Imli, Jalpai, Angoor etc., Khamir varg (85) Moth, wheat, chana etc., Phaphund varg (22) Kukurmutta, Aam ka Phaphund etc., Honey varg (9) Basak phool of shahad, Kamal of shahad,etc., Vanaspati Dugdha (9) Bargad, Mathuwa etc., Kachche Dane (47) chana, Kabuli Chana, Matar etc., Water (16 type) of Gangotri, Narmada etc.,

4. That all the facts and circumstances have been submitted in the writ petition, as such under these circumstances, it is expedient in the interest of justice that this Hon’ble court may graciously be please to stay the operation and declare the schedule ”J” under Rule 106 of Drugs and Cosmetics Rules, 1945 contemplating 51 diseases as incurable to be unconstitutional and ultra vires to the constitution of India.

5. That it is prayed that respondents may be directed that since the petitioner charitable society is providing the indigenous nutrient energy therapy comprising of extract of 1621 vegetation procured from the nature as eatable substance alongwith 16 type of mineral water, which do not fall within definition of Drug under section 3(b) of the Drug and Cosmetics Act, 1940. The aforesaid provisions of schedule “J” as incorporated in Rules, 1945 may be declared as not attracted in conducting the research work and providing nutrient energy therapy to the person suffering from cancer and other serious ailments.

6. That respondents may further be directed not to interfere in any manner in respect of indigenous research and also in administering the nutrient energy therapy to the patients suffering from cancer and other ailments.

7. That it is therefore most respectfully prayed that respondents may be restraint from conducting any coercive action over the functioning of M/S D.S Research centre associated for espousing the cause through a charitable registered society for the complete cure of the cancer and other alleged incurable disease as contemplated in schedule ‘J’ of Rule 106 of Drugs and Cosmetic Rules, 1940 as the aforesaid centre is neither having any commercial centre nor is providing any diagnosis of the disease by calling the patient at the centre except by proving the nutrient energy therapy in the form of the extract from the vegetables and other indigenous produce of the environment without having any use of the chemical, drugs and medicines.

Prayer

It is therefore most respectfully prayed that this Hon’ble Court may graciously be pleased to issue an ad- interim mandamus

1. To direct the respondents that since the petitioner society is providing the indigenous nutrient energy therapy comprising of extract of 1621 vegetation procured from the nature as eatable substance alongwith 16 type of mineral water, which do not fall within definition of Drug under section 3(b) of the Drug and Cosmetics Act, 1940, the aforesaid provisions of schedule “J” as incorporated in Rules, 1945 may be declared as not attracted in conducting the research work and providing nutrient energy therapy to the person suffering from cancer and other serious ailments.

2. Directing the respondents restraining them from conducting any coercive action over the functioning of M/S D.S Research centre associated for espousing the cause through a charitable registered society for the complete cure of the cancer and other alleged incurable disease as contemplated in schedule ‘J’ of Rule 106 of Drugs and Cosmetic Rules, 1940 as the aforesaid centre is neither having any commercial centre nor is providing any diagnosis of the disease by calling the patient at the centre except by proving the nutrient energy therapy in the form of the extract from the vegetables and other indigenous produce of the environment without having any use of the chemical, drugs and medicines.

Dt/- AUGUST, 2002 (YOGESH KUMAR SAXENA)

ADVOCATE.

COUNSEL FOR THE PETITIONERS

CHAMBER NO. 139

HIGH COURT. ALLAHABAD.

IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD,

AFFIDAVIT

CIVIL MISC. WRIT PETITION NO. OF 2002

(Under Article 226 of the Constitution of India)

( DISTRICT ; VARANASI )

M/S D.S Research Centre,

147-A, Ravindrapuri, Varanasi,

And another……………………. PETITIONER.

VERSUS

State of U.P. through Chief Secretary,

Govt. of U.P., Secretariat, Lucknow. and others……..RESPONDENTS.

Affidavit of S.S.Trivedi,aged about

s/o Sri Mukh Ram Tiwari , Director M/S D.S Research Centre, R/O 147-A, Ravindrapuri, Varanasi

( DEPONENT)

I, the above named Deponent, do hereby solemnly affirm and state as follows:

1. That the deponent is the petitioner no. 2 in the above noted writ petition and as such he is fully acquainted with the facts deposed to below.

That the contents of paragraph 1 of this affidavit and those of paragraphs no.1,2,3,4,7,9,10,12,13,15,16,23,33,35.36,37,44,45,47,48,50,52,53,56 of the writ petition are true to the personal knowledge of the deponent, those of paragraph no., 11, 14,18,19,20,21,22,24,25,26,27,28, 29,30,31,32,34,38,40,41,42,55 of the affidavit are based on perusal of records and those of paragraph no. 5, 6, 8, 17, 39, 43, 46, 49, 51, 54, 57, 58, 59, 60, 61, 62, 63 of the writ petition are based on legal advice, which also deponent believes to be true that nothing material has been concealed and that no part of this affidavit is false. So help me God.

( Deponent )

I, Yogesh Kumar Saxena Advocate High Court Allahabad do hereby identify the deponent from perusal of the papers in his possession and I am satisfied that he is the same person making this affidavit.

( Yogesh Kumar Saxena)

Advocate

L.T.I. of the Deponent

Solemnly affirmed before me this------------------day of -----------------2002--------at A.M./ P.M. by the deponent who is identified by the aforesaid clerk/ Advocate.

I have satisfied myself examining the deponent that he understand the contents of this affidavit, Which have been read over and explained to him by me.

Oath Commissioner

25 industries delicensed

The government has de-licensed 25 industries in fulfillment of certain specified conditions. No industrial licence would be required for these industries under the Industries (Development and Regulation) Act, an official press released said yesterday.

With these industries total number of de-licensed industries goes upto 49.

The industries de-licensed are:-

1. Special alloy and malleable iron castings, sponge iron and pelletisation.

2. Steel structurals

3. Electrical equipment, namely (a) equipment for exploitation of alternative sources of energy like solar, wind power, bio-mass including biogas, geothermal energy, tidal power and sea power, (b) steam turbines of and below 20 MW and mini and micro hydel systems equipment, (c) power and distribution, transformers, power capacitors, switch gears, electrical motors and gls lamps and diesel generating sets.

4. Electronic components

5. Automatic ancillaries and

6. Cycles.

7. Industrial machinery including rubber machinery, printing machinery, footwear machinery, meat and poultry machinery

8. Machine tools

9. Agricultural implements

10. Miscellaneous mechanical and engineering industries (A) plastic moulded goods, (B) hand tolls, small tools and cutting tools, (C) pressure cooker, cutlery and steel furniture (D) lanterns of all types, (E) fuel efficient stoves (F) water pumps beyond 10 cms

11. Industrial sewing machines.

12. Office equipment as listed below: Multiplication and reproduction equipments, world processors, cash registers invoicing machines, ditaphone, micro filming micro ficherreaders

13. Surgical, Industrial and scientific instruments,

14. Industrial and medical gases.

15. Following drugs and durg intermediaries rifampicin, dapsone, clafazimine, primaquin, ethexy methylene malonic ester, neraldiamine, insulin, anti-cancer drugs, vitamin b6 norgestral, piperazine, new bulk drugs developed through indigenous research.

16. Paper and pulp namely writing printing and wrapping papre from agricultural residue, waste and bagasse and cotton seed linter pulp.

17. Canned fruit and vegetable products, protein and processed foods, vegetable based weaning food, jurine products and cattle food

18. Vegetable oils, namely Solvent extraction of oil, oil cakes from miner seeds excluding cotton seeds and rice bran oil.

19. Soap and cosmetics, namely soap, cosmetics perfumery and toilet preparations and detergents of ASI standard.

20. Leather goods

21. Surgical and medical rubber products

22. Glassware,

23. Ceramics, namely refractories and furnance lining bricks china ware, potter and sanitary ware, H.T. insulators, tiles and graphite ceramics.

24. Insulating boards, gypsum boards and the like and

25. Printing including litho printing.

IN THE HON’BLE HIGH COURT OF JUDICATURE AT ALLAHABAD.

I N D E X

CIVIL MISC. WRIT PETITION NO. OF 2002

(Under Article 226 of the Constitution of India)

( DISTRICT ; VARANASI )

M/S D.S Research Centre,

through its Director, Sri S.S.Trivedi,

and another ………………. PETITIONER.

VERSUS

State of U.P. through Chief Secretary,

and others ……………………………………RESPONDENTS.

………………………………………………………………………………………………

1. List of dates and events.

2. Ad-interim application.

3. Writ Petition.

4. Annexure –1 Copy of certificate dated 6.8.1965.

5. Annexure-2 Copy of registration certificate dt. 23.6.1997.

6. Annexure-3 Copy of Memorandum of Association and

Bye-laws.

7. Annexure-4 Copy of List of members.

8. Annexure-5 Copy of application Form 24-D.

9. Annexure-6 Copy of license.

10. Annexure-7 Copy of list of 1621 eatable substance & 16 type of

water.

11. Annexure-8 Copy of Schedule “J”.

12. Annexure-9 Copy of letter dt. 25.8.1978.

13. Annexure-10 Copy of letter dt.1.9.1987 written by Dr.Shail Dubey.

14. Annexure-11 Copy of letter of Dr. Vinod Prasad.

15. Annexure-12 Copy of letter dt. 27.09.2001.

16. Annexure-13 Copy of Application Form dt. 10.11.2001.

17. Annexure-14 Copy of letter dt. 17.4.2002.

18. Annexure-15 Copy of Article dt.18.3.1985 published in

INDIAN NATION.

19. Annexure-16 Copy of letter dt. 30.9.1988 written to Prime-

Minister (Late) Rejeev Gandhi.

20. Annexure-17 Copy of letter dt. 12.6.2002.

21. Annexure-18 Copy of letter dt. 27.6.2002.

22. Annexure-19 Copy of letter of Sri T.Jaggannathan.

23. Annexure-20 Copy of letter dt.9.7.2002.

24. Annexure-21 Copy of letter dt. 8.11.2001 written by Cancer Surgeon

of Jaslok Hospital.

25. Annexure-22 Copy of letter dt. 11.4.2002 of Dr. Sheela P.Naik.

26. Annexure-23 Copy of letter of Dr. Shubha Sharma dt, 17.2.2002.

27. Annexure-24 Copy of letter dt. 19.2.2002 of Dr. Shamir Kr.Shah.

28. Annexure-25 Copy of letter dt. 11.6.2002 of Dr. O.P.Gupta.

29. Annexure-26 Copy of letter dt. 16.7.2002 of Dr. S.K. Prasad.

30. Annexure-27 Copy of Paper Cutting.

31. Annexure-28 Copy of report published in SANMARG at West Bengal.

32. Annexure-29 Copy of order dt. 12.8.2002 passed in writ petition no.

33289 of 2002.

33. Annexure-30 Copy of news item dated 14.8.2002.

34. AFFIDAVIT.

35. VAKALATNAMA.

………………………………………………………………………………………………

Dt/- AUGUST, 2002 (YOGESH KUMAR SAXENA)

ADVOCATE.

COUNSEL FOR THE PETITIONERS

CHAMBER NO. 139

HIGH COURT. ALLAHABAD.

IN THE HON’BLE HIGH COURT OF JUDICATURE AT ALLAHABAD.

LIST OF DATES AND EVENTS

CIVIL MISC. WRIT PETITION NO. OF 2002

(Under Article 226 of the Constitution of India)

( DISTRICT ; VARANASI )

M/S D.S Research Centre,

through its Director, Sri S.S.Trivedi,

and another ………………. PETITIONER.

VERSUS

State of U.P. through Chief Secretary,

and others ……………………………………RESPONDENTS.

………………………………………………………………………………………………

1. 6.8.1965 Certificate issued by Registrar Indian Medical Council,

U.P. Lucknow .

2. 25.8.1978 Minister Medical & Health, Jaipur wrote a letter to the

petitioners research centre.

3. 18.3.1985 Article published in Indian Nation.

4. 1986 licensing authority issued license in the name of M/S

Baba Vishwanath Ayurved Sansthan.

5. 1.9.1987 letter written by Dr.Shail Dubey to the petitioners

Research centre.

5A. 30.9.1988 Letter written by Petitioners centre to then Prime Minister

(Late) Rajeev Gandhi.

6. 11.1.1996 Schedule “J” has been incorporated in provisions of

Drugs & Cosmetics Rules, 1945.

7. . 23.6.1997 Registration certificate issued under Societies

registration Act

8. 8.11.2001 Letter written by Cancer Surgeon of Jaslok Hospital

to the petitioners research centre.

9. 10.1.2002 Application form of Mr. Ashutosh Kr. S/o Hon’ble Justice

Nagendra Rai of Patna High court.

10. 17.2.2002 Dr. Shubha Sharma wrote a letter of the petitioners

Research centre.

11. 19.2.2002 Dr. Shamir Kr. Shah wrote a letter to the petitioners

Research Centre.

12. 11.4.2002 Dr. Sheela P.Naik wrote a letter to the Petitioners

Research centre.

13. 17.4.2002 letter showing the recovery after taking Sarvapisti by

Mr. Ashutosh Kumar s/o Hon’ble Justice Nagendra

Rai of Patna High Court.

14. 11.6.2002 Dr. O.P.Gupta wrote a letter to the petitioners Research

Centre.

15. 12.6.2002 Letter written by N.R.I. on E-mail t0 the petitioners research

centre.

16. 27.6.2002 Letter written by N.R.I. on E-mail t0 the petitioners

research centre.

17. 9.7.2002 letter written by Dr. P.G. Rath M.D., D.M. (Cardiology)

Vellore Senior consultant Director at Apolo Hospital,

Hyderabad to the petitioners research centre.

18. 16.7.2002 Dr. S.K.Prasad wrote a letter to the petitioners research

centre.

19. 12.8.2002 This Hon’ble court passed order in writ petition no.33289 of

2002 filed by Association for protection of patients Right.

20. 14.8.2002 News item published in the news paper Pioneer news paper

that the scientists in America is now claiming that cancer is

now curable.

………………………………………………………………………………………………

Dt/- AUGUST, 2002 (YOGESH KUMAR SAXENA)

ADVOCATE.

COUNSEL FOR THE PETITIONERS

CHAMBER NO. 139

HIGH COURT. ALLAHABAD.

IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD,

ANNEXURE NO.

CIVIL MISC. WRIT PETITION NO. OF 2002

(Under Article 226 of the Constitution of India)

( DISTRICT ; VARANASI )

M/S D.S Research Centre,

147-A, Ravindrapuri, Varanasi,

And another……………………. PETITIONER.

VERSUS

State of U.P. through Chief Secretary,

Govt. of U.P., Secretariat, Lucknow. and others……..RESPONDENTS.

M/S Dhirpur Multi Center, Mohammadabad, District Farrukhabad, through its proprietor , Shri Bhagwan Baksh Singh

2012-05-25T03:56:00.002-07:00

IN THE HON’BLE HIGH COURT OF JUDICATURE AT ALLAHABAD

LIST OF DATES IN CHROLOGICAL ORDER

CIVIL MISC. WRIT PETITION NO. OF 2009

(Under Article 226 of the Constitution of India)

(District –Farrukhabad)

M/S Dhirpur Multi Center, Mohammadabad, District Farrukhabad, through its proprietor , Shri Bhagwan Baksh Singh son of Shri Abiran Singh, r/o Village and Post Dheerpur, Tehsil Sadar, District Farrukhabad and another . ------------------Petitioners

Versus

Indian Oil Corporation, Ltd through its General Manager, Indian Oil Corporation Ltd. State Office, U.P-II, Noida. And others …………………………… Respondents

S.N.	Dates		Particulars of Case
1	16.5.1976		Sri R.K.Girdhar , General Manager himself admitted that dealership of petitioner was Commissioned in the year of 1976 (Vide LOI R/PNS/1621 dated 16/5/1976).The order dated 20.12.2007 has been passed in pre-medicated manner on account of legal malice and legal malafide, which smacks the capriciousness of power. This may be demonstrated in the reply submitted by Dy. General Manager on 5.3.2007 to the under secretary to the Govt. of India in furtherance of realization of excess amount of Rs. 1,98,433.00/- from petitioner as the price of round trip distance(RTD). Just to avoid the liability of repayment of these extra charges from petitioner out let from a duration of 1976 onwards, a false reply was submitted by sri Rakesh Jaiswal Then Dy. General Manager in his reply/correspondence with Govt. of India saying that the Retail out let of petitioner was commission in 1998, while in impugned order ,
2	16.8.2006		There was persistent demand to replace the crack seal, (as per the Inspection Report by the weight and measurement officer made on 19.6.2007) to have the other repairs by tightening the sealing wire through holes of seals of DU-MS (of MIDCO make) and HSD (of Avery Make) that there may not be even the apprehension upon the mind of inspection team that totaliser could be manipulated without breaking the seals, which is self contrary charge with earlier charge and suspicion. The responsibility was lying upon his officials to replace the crack seal of one of the DUs –HSD (Of Avery make), (as per the Inspection Report by the weight and measurement officer made on 19.6.2007),
3	16.8.2006		HSD-DU was connected to two tanks of the supply of HSD-DU (20 kl &15Kl ) as they may not be related with any irregularity in maintaining the supply of HSD-DU to the customers and to do adulteration in any manner, which may be imposed to disconnect the supply and to terminate the dealership. Subsequently these two tanks were disconnected by the Charge man of the respondent’s dept., as per the instruction given by respondent no. 2, and as such, the said allegation can not become the basis of termination of Dealership
4	16-8-2006.		The maintenance department of Indian Oil Corporation inspected the petitioners’ Dhirpur Multi Center filling station on 16-8-2006. The aforesaid inspection was made by the Divisional Engineer and the leakage was repaired by the charge Man deployed for the aforesaid purpose. It is submitted that the Divisional Engineer in furtherance of the aforesaid inspection blocked the interconnection and accordingly sealed the same and submitted a report indicating therein that the place of the pump is satisfactory and correct and acquit ant in its measurement
5	5-3-2007		The petitioner made the request from the department to refund the aforesaid amount. It was submitted that in case of making no return of the said amount the petitioner may be compelled to submit a complaint to the Divisional Manager. It is submitted that in spite the aforesaid complaints no heed to the request of the petitioner was made by the Divisional Manager then the petitioner approached to the Member of the Parliament Shri Chandra Bhushan Singh elected from his own District Farrukhabad. It is submitted that Shri Chandra Bhushan Singh raised the aforesaid question in the Parliament about the aforesaid irregularity committed by the department. The true copy of the letter issued to Shri Chandra Bhushan Singh, Member of Parliament by the Ministry of the State for Petroleum and Natural Gas and the reply submitted by the General Manager of the Indian Oil Corporation Ltd. On 5-3-2007 to the under Secretary of Government of India, Ministry of Petroleum and Natural Gas
6	24-5-2007		It is alleged The inspection of the petitioners’ filling station filling station took place at 1.00 p.m. on 24-5-2007 and the inspection team without giving any opportunity of being heard to the proprietor /petitioners’ firm, and, ,without looking the record available in the department in respect of allegation leveled against the petitioner were fully lying with their own department suggesting no dereliction and irregularities committed by the petitioner, suspended the licence
7	19-6-2007		The Weight and Measurement Officer who is required to verify the processing of the seal of high speed diesel and Weight and Measure seal as reported on 19-6-2007 itself that the high speed diesel Duary seal on its meter was not tampered and in the said inspection there was no tampering on with the read wire. It was also directed to put a set on the machine and nothing was found adverse which could have been resultant in non-supply of the high speed diesel and motor spirit to the retail outlet by suspending the license.
8	21-6-2007		There is no provision of conducting the post-decisional haring in the matter and the time prescribed for issuance of the suspension order to submit the reply in furtherance of the post decision suspension order dt.24.5.2007 notice issued on 12.6.2007. However, after lapse of more than 20 days a post decision suspension order dt.24.5.2007 notice issued on 12-6-2007 which was duly replied by the petitioner on 21-6-2007.
9	19-7-2007		The petitioner submitted his reminder on 19-7-2007 and 2-8-2007, wherein the petitioner categorically submitted that about 11000 liter of the high speed diesel amounting to Rs. 3.5 lacs and the Petrol in the quantity of 3,500 liter amounting to Rs. 4,400 and mobile oil amounting to Rs. 2 lacs has been sealed apart from depositing of Rs. 2,30,000/- with the depot. It was stated that the petitioner firm is suffering the loss of Rs. 9 lacs as the aforesaid amount has been blocked on account of the impugned order.
10	6-12-2007		Feeling aggrieved by the issuance of the suspension order the petitioner filed a writ petition n. 42692 of 2007. It is submitted that this Hon’ble Court was pleased to pass the order on 6-12-2007
11	20-12-07		It was brought before this Hon’ble Court first time by filing a supplementary affidavit being sworn by the clerk of the counsel appearing in the matter on behalf of the Indian Oil Corporation it was stated that there has been the termination of the dealership of the petitioner on 20-12-2007.The onus was shifted upon the respondent to record a finding regarding the veracity of the truthful meant of the contents of the inspection report dated 24-5-2007 and the contents of the post decision suspension order dt.24.5.2007 notice dated 12-6-2007 in the impugned termination of the dealership of the petitioners retail outlet’s order dated 20-12-2007 which has not been done in the impugned order saying that the report dated19.6.2007 as an after thought by the petitioner.
12	27 .8.2008		An application seeking withdrawal of the amendment application subject to the liberty granted to the petitioners to challenge of termination passed on 20-12-2007 has been filed by the petitioner in Writ Petition No. 42692 of 2007.
13	10.9.2008		The petitioners filed the writ petition no. 47182 of 2008, in which the direction issued to petitioner to approach the Appellate authority, and on ground of alternative remedy, writ petition was dismissed.
14	1.10..2008		The petitioners filed the departmental appeal by taken all such ground in compliance of the Judgement dated 10.9.2008 and the direction given in writ petition no. 47182 of 2008, the departmental appeal preferred to the Executive Director Of Indian Oil Corporation has not been Decided, even after completion of maximum time limit of 90 days prescribed under Clause 6.3.5 of the Marketing Discipline Guidelines
15	13. 11.2008		The petitioners through his representative went to the office of the appellate authority on 13.11.2008 at G-9 , Ali yavar Jung Marg, Bandra East, Mumbai, but it was told that the decision in the appeal filed by the petitioners shall be taken within 90 days and the appeal shall be decided after receiving the comments from the office of the respondent no. 1 and 2.
16	2.1.2009		The appellate authority has stated on the subsequent visit on 2.1.2009, that the fault is attributable on the part of the respondent no. 1, the decision shall be communicated in this regard from the union of India and as such the petitioner may approach to the Secretary, Petroleum and Natural Gas Department, Government of India, New Delhi of the Union of India.
17	10. 1. 2009		It was only on 10. 1. 2009 that the petitioner came to know that the contractor for dismantle of retail out let has already being deployed on 6. 10. 2008. The true copy of letter dated 6.10.2008, copy of which is supplied to the petitioner on 10.1 2009. It is Submitted that about 11000 liter of the high speed diesel amounting to Rs. 3.5 Lacks and the Petrol in the quantity of 3,500 liter amounting to Rs. 1,4 4,000/- and mobile oil amounting to Rs. 2 Lacks has been sealed apart from depositing of Rs. 2,30,000/- with the depot,
18	16.1.2009		A representation has been send to the union of India on 16.1.2009 Containing all such facts for the redressal of the grievances raised in this regard and it has been submitted that the order passed on 20.12.2007 may kindly be set aside and the directions may be issued to maintain the supply, as the order of termination of dealership is based upon the malafide intention of the respondent No. 1.
19	16.1.2009		All the charges leveled against the petitioners were totally baseless and having no corroborating evidence in support of the aforesaid charges as the petitioner demonstrated that subsequent to the aforesaid inspection , if the officials of the W &M department have recorded the inconsistent finding to the charges leveled against the petitioners , the onus was shifted upon the respondent to record a finding regarding the veracity of the truthful meant of the contents of the inspection report dated 24-5-2007 and the contents of the show cause notice dated 12-6-2007 in the impugned termination of the dealership of the petitioners retail outlet’s order dated 20-12-2007 which has not been done in the impugned order.
20		3.2.2009		That in the writ petition No. 5878/2009, the petitioners were challenging the order given to the contractor for dismantle of retail out let has already being deployed on 6.10.2008 and order dated 10.1.2009 passed during pendency of departmental appeal against the order dated 20.12.2007(Annexure No.10 )as per order in Writ petition No. 47182 of 2008. It is submitted that the departmental appeal preferred to the Executive Director Of Indian Oil Corporation was not been decided by that time, even after completion of maximum time limit of 90 days prescribed under Clause 6.3.5 of the Marketing Discipline Guidelines.
21		9.2.2009		That the harassment was done subsequent to the aforesaid action by making and intimation from the office of the Marketing Division of the Indian Oil Corporation from its Mumbai Office situated at G-9, Ali Yavar Jung Marg, Bandra on 09.02.2009 directing the petitioner to appear at 2^nd Floor of World Trade Centre, Baber Road, New Delhi on 20.02.2009.
22		21.2.2009		That subsequently in the letter received on 21.02.2009, the intimation of the change date has been communicated to the petitioner at the address of the retail outlet but by that time the petitioner along with his counsel had already left for appearing at World Trade Centre, Baber Road, New Delhi along with the member of the parliament Sri Chandra Bhushan Singh (M.P.) from District Farrukhabad for demonstrating the malafide intention of the respondent no. 1 in passing the order of termination of the dealership.
23		22.5.2009		That the petitioner received another letter having the date for his presence before the appellate authority dated 22.5.2009 fixing 3.6.2009 as the date fixed much after the expiry of time period of 90 days, as prescribed as outer limit for deciding the appeal preferred by the petitioner on 1.10.2008, as per the request made by the counsel for the respondent No. 1,2, to this writ petition.
24		27.6.2009		The petitioners were informed that there will be further inspection on 27.6.2009 and the intimation to this effect was given by Mr. Kukreja on the mobile of the dealer on 24.6.2009. There after the photocopies of the register maintain at the retail out let were taken by Rahul Jaidrath posted as ARMS Agra along with two other officers, as nothing was found to established the tempering of the W.M. SEAL of DUs –HSD (of AVERY MAKE) or in the sealing wire passed through holes even on 27.6.2009.These officers after the aforesaid inspection have assured the petitioner No. 2, but directed to meet Mr. Kukreja and Shri H.S. Bedi . It is submitted that there after the demand of an exorbitant money was made to resume the supply, when ever the petitioners approached to the regional office at Agra. The petitioners could not offer any bribe and lastly as a repercussion of it, their appeal has been dismissed.
25		21.7.2009		The order of appellate authority is perverse, obsolete and malafide, which has been passed contrary to the evidences on record and in excess of the power vested with appellate authority. Admittedly the termination order was passed without issuance of any Show Cause Notice and there was any Show Cause Notice ever issued by GM, UPSOIL dated 09.10. 2007, as there is even the mention regarding the service of the said notice in the termination order at any point of time and the same is in violation of the principles of Natural Justice. The appellate authority can not step in side the jurisdiction of the punishment authority. (AIR 1995 SC1053 Surjit Ghosh Versus Chairman & managing Director United Commercial Bank) The petitioner has stated that the inspection of the retail outlet was not done in presence of dealer, nor in presence of his representative, but the inspection, which was not done by any Grade C Divisional level officers and the members of Weight and Measurement Department by the Joint Inspection Team as per the requirement of 4.3 MDG 2005 and there has been the false accusation of regarding tempering of meter assembly seal , nor its wire was manipulated. That the penal action may only be taken, when the totaliser seals found tempered with as per MDG 2005 and not broken/ cracked.
26		3.8.2009		That on account of this inadvertent mistake and ignorance, the counsel for the petitioner could not remain present at the time of taken up the matter and as such the writ petition No. 5878/2009 has been dismissed due to the inadvertent mistake of counsel for not being informed regarding the transfer of listed matter of court no. 2 to court no. 32 on 3. 8. 2009. The proposed amendment and the application for recall of the said order passed on 3.8. 2009 was prepared on 24.8.2009 and 27.8.2009 respectively duly supported with the affidavit, but the same were not filed on account of the fact that certain observation in the writ petition No. 5878/2009 has been made on account of the fact of deciding the appeal by appellate authority.

Dated- 10.9.2009 (YOGESH KUMAR SAXENA)

ADVOCATE HIGH COURT

( Counsel for the Petitioner)

Chamber No. 139, High Court, Allahabad

IN THE HON’BLE HIGH COURT OF JUDICATURE AT ALLAHABAD

CIVIL MISC. STAY APPLICATION NO. Of 2009

(U/S 151 C.P.C read With Chapter XXII Rule 1 Of Allahabad High Court Rules, 1952)

CIVIL MISC. WRIT PETITION NO. OF 2009

(Under Article 226 of the Constitution of India)

(District –Farrukhabad)

1. M/S Dhirpur Multi Center, Mohammadabad, District Farrukhabad, through its proprietor , Shri Bhagwan Baksh Singh son of Shri Abiran Singh, r/o Village and Post Dheerpur, Tehsil Sadar, District Farrukhabad.

2. Shri Bhagwan Baksh Singh son of Shri Abiran Singh, proprietor, M/S Dhirpur Multi Center, Mohammadabad, District Farrukhabad,R/o Village and Post Dheerpur, Tehsil Sadar, District Farrukhabad. ….. Petitioners

Versus

1. Indian Oil Corporation Ltd through its General Manager, Indian Oil Corporation Ltd. State Office, U.P-II, Noida.

2. Sales Manager, Marketing Division, Indian Oil Corporation Ltd., Agra Division, Agra.

3. Executive Director(RS) Indian Oil corporation Limited , G-9, Ali yuvar Jung Marg, Bandra ( East), Mimbai- 400 051 ….. Respondents

To.

The Hon’ble the Chief Justice and his other companion Judges of the aforesaid Court.

The humble writ petition of the above-named petitioner most respectfully showed as under: -

1. That the full facts and circumstances of the case have been submitted in the writ petition, it is expedient in the interest of justice that this Hon’ble Court may graciously be pleased to stay the operation of the impugned orders having of termination of dealership of the petitioner passed on 21.7.2009(Annexure No.20 ) having affirmation of order of termination of dealership of the petitioner’s retail outlet and order dated 20.12.2007(Annexure No.10 ) and the respondents may be directed to maintain the regular supply of HSD and MS and other lubricants to the petitioner, as justice may be done with the right of petitioner.

PRAYER

It is, therefore, most respectfully prayed that Hon’ble Court may graciously be pleased to stay the operation of the impugned order 21.7.2009 (Annexure No.20) having affirmation of the order of termination of dealership of the petitioner’s retail outlet and order dated 20.12.2007(Annexure No. 10), termination of dealership of the petitioner and the respondents may be directed to maintain the regular supply of HSD and MS and other lubricants to the petitioner, as justice may be done with the right of petitioner.

Dated- 10.9.2009 (YOGESH KUMAR SAXENA) Advocate

( Counsel for the Petitioner)

Chamber No. 139, High Court, Allahabad

IN THE HON’BLE HIGH COURT OF JUDICATURE AT ALLAHABAD

CIVIL MISC. WRIT PETITION NO. OF 2009

(Under Article 226 of the Constitution of India)

(District –Farrukhabad)

2. Shri Bhagwan Baksh Singh son of Shri Abiran Singh, , proprietor, M/S Dhirpur Multi Center, Mohammadabad, District Farrukhabad, R/o Village and Post Dheerpur, Tehsil Sadar, District Farrukhabad. ….. Petitioners

Versus

1. Indian Oil Corporation Ltd through its General Manager, Indian Oil Corporation Ltd. State Office, U.P-II, Noida.

2. Sales Manager, Marketing Division, Indian Oil Corporation Ltd., Agra Division, Agra.

3. Executive Director(RS) Indian Oil corporation Limited , G-9, Ali yuvar Jung Marg, Bandra ( East), Mimbai- 400 051 ….. Respondents

To.

The Hon’ble the Chief Justice and his other companion Judges of the aforesaid Court.

The humble writ petition of the above-named petitioner most respectfully showeth as under: -

1. That this is the first writ petition and no other writ petition has been filed or pending against order dated 21.7.2009(Annexure No. 20), having affirmation of the order having affirmation of order of termination of dealership of the petitioner’s retail outlet and order dated 20.12.2007(Annexure No.10), termination of dealership of the petitioner, and the respondents may be directed to maintain the regular supply of HSD and MS and other lubricants to the petitioner, challenged in the present writ petition. The petitioners have not received any caveat application.

2. That by means of the present writ petition the petitioners are challenging the the impugned orders having of termination of dealership of the petitioner by the orders passed on 27.7.2009 (Annexure No.20 ) having affirmation of order dated 20.12.2007(Annexure No.10) passed by appellate authority even after completion of maximum time limit of 90 days prescribed under Clause 6.3.5 of the Marketing Discipline Guidelines and the respondents may be directed to maintain the regular supply of HSD and MS as the penal action may only be taken, when the totaliser seals found tempered with as per MDG 2005 and not broken/ cracked, as justice may be done with the right of petitioner.

3. That the petitioner No. 1 and the petitioner No. 2 are the same person. Both of them are impleaded in Juristic capacity as well as in personal capacity, as the submission made in support of writ petition may be enumerated in consonance with requirement to assail the impugned order on its merit to demonstrate the malafide intention. There has been the violation of principle of natural justice causing prejudices in passing the pre medicated order dated 20.12.2007.

4. That fraud and justice never dwell together as is being done by the respondent no. 1 otherwise, while passing the impugned order in pre-medicated manner on account of legal malice and legal malafide, which smacks the capriciousness of power. This may be demonstrated in the reply submitted by Dy. General Manager on 5.3.2007 to the under secretary to the Govt. of India in furtherance of the submission of realization of excess amount of Rs. 1,98,433.00/- from petitioner as the price of round trip distance(RTD). Just to avoid the liability of repayment of these extra charges from petitioner out let from a duration of 1976 onwards, a false reply was submitted by Dy. General Manager, in his reply/correspondence with Govt. of India saying that the Retail out let of petitioner was commission in 1998, while in order dated 20.12.2007 , General Manager, himself admitted that dealership of petitioner was Commissioned in the year of 1976 (Vide LOI R/PNS/1621 dated 16/5/1976).

5. That It is submitted that when some retail outlet continued to remain at a distance of 440 Kms. From the date of its installation and commission thereafter in 1998 upto 2003, instead of saying that a license was issued to the petitioner and it was commissioned in the year of 1976(Vide LOI R/PNS/1621 dated 16/5/1976) that how the destination of Mohammadabad does would have been re-certified and is being reduced to 397 Kms. In 2003. There was another discrepancy in the reply made to the Under Secretary to the Government of India in the said report that the dealers commission does not depends on the RSP of the product and the effect of higher RT cane (round trip kilometer) in the price is taken care by the higher RSP fixed for the location, but it does not have any effect in the dealer’s commission received by the dealer.

6. That instead of making any refund of the excess charges realized by having the effect directly due to the higher billing prices, the matter was subsided by saying that the same has the direct bearing in RSP of the location. The explanation given in this regard to the quarry made by the Member of Parliament has the direct bearing on the issuance of the order of termination of the dealership of the petitioner’s retail outlet. Thus there has been a legal malice lying in the functioning of the respondent no.1 in due discharge of its liability and as such the orders passed on 20-12-2007 and 21.7.2009 terminating the dealership of the petitioners has been passed with the malafide intention which smacks the capriciousness of discretionary power by transgression of the statutory functioning assigned to the respondents in furtherance of the power given to them by the Legislation the orders dated 20.12.2007 and 21.12.2009 are liable to be set aside.

7. That as such a false reply was submitted to the Union of India, the matter pertaining to their functioning conducted in realization of the excess money of Rs. 1,98,433.00/- from petitioner as the price of round trip distance(RTD) was enquired by the member of parliament from govt. of India and thus passing of impugned order is contrary to its objectives and passed with oblique motive and extraneous consideration.

8. That Indian Oil corporation is a Govt. Company having its financial and administrative Control of the Govt. Of India and Union of India has the pervasive control upon the functioning of the Respondents and as such it is an instrumentality of the state under Article 12of Constitution of India.

9. That the factum matrix pertaining to the controversy involved is submitted hereinafter that the petitioner is an authorized dealer of Indian Oil Corporation for supply and seal of high speed diesel and motor spirit (Petrol) and other lubricants as per the terms and condition of the agreement executed between the parties in pursuance thereof, a license was issued to the petitioner in the year of 1976(Vide LOI R/PNS/1621 dated 16/5/1976) and from such a long time the petitioners’ firm namely Dhirpur Multi Center situated at Mohammadabad, District Farrukhabad was conducting its business of sell of high speed diesel motor Spirit and other lubricants supplied to the petitioners on the basis of his authorized dealership given by Indian Oil Corporation without any complaint from any member of the public.

10. That the maintenance department of Indian Oil Corporation inspected the petitioners’ Dhirpur Multi Center filling station on 16-8-2006. The aforesaid inspection was made by the Divisional Engineer and the leakage was repaired by the charge Man deployed for the aforesaid purpose. It is submitted that the Divisional Engineer in furtherance of the aforesaid inspection blocked the interconnection and accordingly sealed the same and submitted a report indicating therein that the place of the pump is satisfactory and correct and accurate in its measurement. The copy of the report which was forwarded to the department after the inspection of the Divisional Engineer on 16-8-2006 is being filed herewith and marked as Annexure no.1 to this writ petition.

11. That the filling station of the petitioner is situated at a distance of 210 Kms. From Agra and the total distance of both the sides from Agra to Mohammadabad is about 420 Kms. The petitioner was asked to deposit the details of the distance calculating 440 Kms. on both the sides. Since the aforesaid calculation of the department was a wrong calculation and the charges were being made by calculating the wrong distance since 1997 from the petitioner and in this process according to the calculation made by the petitioner, he had deposited excess money of Rs. 1,98, 435/- to the department.

12. That the petitioner made the request from the department to refund the aforesaid amount. It was submitted that in case of making no return of the said amount the petitioner may be compelled to submit a complaint to the Divisional Manager. It is submitted that in spite the aforesaid complaints no heed to the request of the petitioner was made by the Divisional Manager then the petitioner approached to the Member of the Parliament Shri Chandra Bhushan Singh elected from his own District Farrukhabad. The true copy of reply submitted by the General Manager of the Indian Oil Corporation Ltd. on 5-3-2007 to the under Secretary of Government of India, Ministry of Petroleum and Natural Gas is being filed herewith and marked as Annexure no. 2 to this writ petition.

13. That it is submitted that Shri Chandra Bhushan Singh raised the aforesaid question in the Parliament about the aforesaid irregularity committed by the department. The true copy of the letter dated 26.4.2007 issued to Shri Chandra Bhushan Singh, Member of Parliament is being filed herewith and marked as Annexure 3 to this writ petition.

14. That on account of the aforesaid matter being highlighted, the respondent no.1 became annoyed with the petitioner. The respondents constituted a committee of three members namely Rajesh Sharma, AMRS, Rahul Jaidrath AMRS Agra and one of its members as Pankaj Kumar, who were not competent to make the inspection according to the Marketing guidelines of 2005.

15. That it appears the inspection of the petitioners’ filling station filling station took place at 1.00 p.m. on 24-5-2007 and the inspection team without giving any opportunity of being heard to the proprietor /petitioners’ firm, and, ,without looking the record available in the department in respect of allegation leveled against the petitioner were fully lying with their own department suggesting no dereliction and irregularities committed by the petitioner, suspended the license immediately there after on 24-5-2007 itself. A true copy of the suspension order passed on 24-5-2007 is being filed herewith and marked as Annexure no.4 to this writ petition.

16. That according to the guidelines enumerated in the relevant provision in Chapter 5 the inspection of the retail outlet can only be done by the field officer in ‘C’ grade and above in the Divisional /Territory /Regional /office within the jurisdiction once in a year under the random inspection. There was no power conferred upon the respondent no.2 to constitute the committee comprising of the three members, all of them were not the officer in the ‘C’ grade in the divisional level. The guidelines enumerated in the relevant provision in Chapter 5 the inspection of the retail outlet can only be done by the field officer in ‘C’ grade and above in the Divisional /Territory /Regional /office within the jurisdiction once in a year under the random inspection are being filed herewith and marked as Annexure no. 5 to this writ petition.

17. That the Joint team empowered to make the inspection is only empowered to do so on the direction of the Ministry on behalf of the Union of India or by the management of the Oil companies , but no such power has been conferred as per the regulation 5.2 of Chapter 5 of the Marketing Discipline Guidelines , 2005 and as such the order of suspension passed on 24-5-2007and the subsequent impugned order are in itself illegal and void.

18. That the adulteration is defined under the provisions of 6.1.1 of Chapter 5 of the aforesaid guidelines which could have been the ground for the suspension of the license and there after termination of dealership. But no such ground has been taken while passing the suspension order on 24-5-2007 and as such the issuance of the suspension order was beyond the scope and purview of the power conferred in the aforesaid guidelines.

19. That the other ground which was taken was in respect of the application of Rule 8 of U.P. High Speed Diesel Oil and light diesel oil (Maintenance of supply and Distribution) Order 1981, wherein the period of the suspension is prescribed and the requirement of providing an opportunity of being heard is contemplated as the condition precedent prior to issuance of the suspension order pending inquiry, which was already lapsed, while passing the termination order without application of independent mind by the respondent no. 1 to the reply submitted by petitioner on 21.6.2007 .

20. That even the guidelines prescribed in sub clause III in the booklet of the Indian Oil Corporation effective w. e. f. 1^st August, 2005 till the date of issuance of the suspension order does not empowered for taking the penal action without obtaining the explanation from the dealer. It is provided that the time stipulated in the show cause is for getting the reply received from the owner of the retail outlet and if the answer is received unsatisfactorily then only the penal action of suspending the license by issuance of the suspension order could have been passed by the competent authority.

21. That the Weight and Measurement Officer who is required to verify the processing of the seal of high speed diesel and Weight and Measure seal as reported on 19-6-2007 itself that the high speed diesel -DUs seal on its meter was not tampered and in the said inspection there was no tampering on with the read wire. It was also directed to put a set on the machine and nothing was found adverse which could have been resultant in non-supply of the high speed diesel and motor spirit to the retail outlet by suspending the license. The true copy of the report of the Weight and Measurement Officer dated 19-6-2007 is being filed herewith and marked as Annexure no.6 to this writ petition.

22. That there is no provision of conducting the post-decisional haring in the matter and the time prescribed for issuance of the suspension order to submit the reply in furtherance of has not been done. However, after lapse of more than 20 days a notice has been issued on 12-6-2007 which was duly replied by the petitioner on 21-6-2007. The true copy of the notice dated 12-6-2007 and the reply submitted by the petitioner on 21-6-2007 are being filed herewith and marked as Annexure no.7 and 8 to this writ petition.

23. That the petitioner submitted his reminder on 19-7-2007 and 2-8-2007, wherein the petitioner categorically submitted that about 11000 liter of the high speed diesel amounting to Rs. 3.5 Lacs and the Petrol in the quantity of 3,500 liter amounting to Rs. 1,4 4,000/- and mobile oil amounting to Rs. 2 Lacks has been sealed apart from depositing of Rs. 2,30,000/- with the depot. It was stated that the petitioner firm is suffering the loss of Rs. 9 lacks as the aforesaid amount has been blocked on account of the impugned order.

24. That the petitioner had already requested for making the supply of the seal from the headquarter as he may take the sample from the tanker at the time of its arrival which may bear the signature of the driver , however, no heed was provided to the aforesaid request made from the headquarter nor the inspection team has taken note into their account before taking the sample from the retail outlet of the petitioner.

25. That the job assigned to the inspection team was only confined to submit its report and they were not empowered to take the final decision in the matter for suspending the license. It is the basic elementary principles that the inspecting team cannot become the judge in its own cost as no one may become the judge to adjudicate the matter placed by the same authority or he may take action on its suo motto motion . Thus the power exercised by the inspecting team in suspending the license was contrary to the object sought to be achieved and there was extraneous reason with oblique motive which demonstrate the malafide intention of respondent no.1 and 2 and as such the termination order has been passed wholly without jurisdiction and the same was void ab initio.

26. That as per the application of the provision with a particular reference to Rule 8 of the U.P. High Speed Diesel Oil and Light Diesel Oil (Maintenance of Supply and Distribution ) Order, 1981 is concern it was only stated that the order of suspension was not passed by the licensing authority but by the corporation authority as per the provision contemplated in the Marketing Discipline Guidelines of 2005.

27. That feeling aggrieved by the issuance of the suspension order the petitioner filed a writ petition n. 42692 of 2007. It is submitted that this Hon’ble Court was pleased to pass the order on 6-12-2007. The true copy of the order passed on 6-12-2007 is being filed herewith and marked as Annexure no. 9 to this writ petition.

28. That the evasive reply was submitted by the contesting respondents in their counter affidavit filed in the writ petition no. 42692 of 2007 filed against the issuance of the suspension order on 24-5-2007, which is pending.

29. That it was brought before this Hon’ble Court first time by filing a supplementary affidavit being sworn by the clerk of the counsel appearing in the matter on behalf of the Indian Oil Corporation it was stated that there has been the termination of the dealership of the petitioner on 20-12-2007 stating and falsely writing therein the order has been served under postal certificate. The true copy of the impugned order passed on 20-12-2007 is being filed herewith and marked as Annexure no.10 to this writ petition.

30. That at the very out set , it is submitted that the petitioners did not get even the whisper of the order passed by the respondent no. 1 on 20.12.2007, nor the said order was ever posted through registered post or any other post as alleged in the order annexed by stating the fact that it was sent under postal certificate. The order of termination of license has not been communicated in the manner prescribed under Law. Thus the termination of dealership order is illegal and passed with legal malice.

31. That neither any show cause notice was issued, nor any opportunity of hearing was provided to the petitioners prior to passing of the order dated 20. 12. 2007. It is not mentioned in the order that any show cause notice was issued prior to passing of such order and as such the order is passed in violation of the principle of natural justice entailing the said order as void ab initio.

32. That a bizarre exercise of acquiring the power to dispense with the supply of the High Speed diesel/ motor spirit to the retail out let of the petitioner without any justification and account of grudge for raising the dispute before the parliament and as the principle of the natural justice has been violated as such the same entailing the said order as void ab initio.

33. That an application seeking withdrawal of the amendment application subject to the liberty granted to the petitioners to challenge of termination passed on 20-12-2007 has been filed by the petitioner. The Hon’ble court has been pleased to grant the permission to withdraw the proposed Amendment Application with the liberty to file a fresh writ Petition. The true copy of the order passed by this Hon’ble Court on 27 .8.2008 is ANNEXURE NO. 11 to this writ petition.

34. That there after the petitioners filed the writ petition no. 47182 of 2008. It is submitted that despite the direction given in writ petition no. 47182 of 2008 to avail alternative remedy and dismissal of the said writ petition on the ground of alternative remedy, even after completion of maximum time limit of 90 days prescribed under Clause 6.3.5 of the Marketing Discipline Guidelines enforceable w. e. f. 1^st August,2005, in order to demonstrate the illegality, violation of the principle of Natural Justice and malafide intention of respondents in passing the un-served premeditated order of termination dated 20.12.2007 and order of dismantle of retail out let subsequently passed after the judgement dated 10.9.2008. The true copy of the judgment dated 10.9.2008 is filed herewith and marked as Annexure no.12 to this writ petition.

35. That by the bare perusal of the correspondence made by the respondent no.1 in its order dated 24-5-2007, it is submitted that the inspection report conducted on 19-6-2007 having the request for inspection of the petitioners retail outlet in furtherance of the application dated 15-6-2007 by the team comprising of the members of the Measurement Department, discloses the facts contrary to the allegation leveled against the petitioner in respect of the contents of the order dated 24-5-2007 as on 19-6-2007 by the team comprising of the officials of Weight and Measurement Department has clearly recorded that the weight measurement seal of HLD( D. V. meter assembly) has not been found tampered , but there was the mark of crack on the said seal, which could have been done on account of the variation of the temperature in the open exposure to the sun light and the rainy water because the machine is installed without any shed upon the said retail outlet.

36. That the inspection team on 19-6-2007 found that tampering has not been done with the seal and the wire inside there and it was recommended to get the replacement of the seal as it may be broken in two pieces by the efflux of time. It has also been recommended that in order to avoid any untoward incident regarding the alleged detection of the irregularity on account of the crack in the seal and looseness of the wire, the recommendations for having a permanent shed upon the retail outlet is required.

37. That it has been categorically recorded that there has not been any tampering with the totalizer. This is the contents of the inspection report being conducted on 19-6-2007 which was not taken into consideration, while passing order on 20.12.2007. Thus the order passed on 20.12. 2007, which is the basis of the termination of the dealership of the retail outlet of the petitioner, is in itself based on the inconsistent finding regarding the discrepancy observed in the order. Thus the order passed on 20.12.2007 of termination of dealership is based upon the false and baseless allegations which are inconsistent with the evidence submitted by the petitioner in respect of the contents of the report submitted by another inspection team on 19-6-2007 itself.

38. That the petitioner in furtherance of the notice issued on 12-6-2007 had submitted on 21-6-2007 that the allegation leveled in para 1 regarding one every make (HSD-DU) was found connected to two tanks (one 20 Kl. And 15 Kl. ) with the help of two walls fitted on the top of the tanks. In reply to the aforesaid charge the petitioner made the categorical deny in his letter that the charge man of the respondent department was disconnected the aforesaid interconnection and the landline was cut down and as such there was no question of having the interconnection between the two tanks (one of 20 Kl. And another of 15 Kl. ), for which the allegation of the irregularity was reported by the aforesaid team during the inspection made on 24-5-2007 and the charges leveled in the notice issued on 12-6-2007.

39. That as per the allegation leveled in the suspension order dated 24-5-2007 and in the show cause notice dated 12-6-2007 having the charge leveled therein that W & M seals of HSD-DU every make on meter assembly found broken, for which the reply was given that the same was not broken but there had been the crack upon the aforesaid seal, which was sought to be replaced by the department on the persistent request made by the petitioner in this regard.

40. That It is submitted that if W& M seal of HSD-DU every make on meter assembly was found broken how does in the inspection made on 19-6-2007 only crack could have been found by the officials of the Weight and Measurement Department. Thus the allegation leveled in furtherance of the charge no. II recorded in the suspension order dated 24-5-2007 and in the show cause notice dated 12-6-2007 was based on the false allegation which is in itself contradictory as per the report submitted by the inspection team of the Weight and Measurement Department on 19-6-2007.

41. That charge leveled that one HSD-DU was connected to two tanks of the supply of HSD-DU (20 Kl &15Kl ) may not be related with any irregularity in maintaining the supply of HSD-DU to the customers and to do adulteration in any manner, which may be imposed after disconnection of the supply and to terminate the dealership of the petitioner No. 1 as the supply in two tanks is of the same commodity and if the two tanks were found Inter connected as per the instructions issued earlier by the official of the respondent No. 1 and 2, but subsequently these two tanks were disconnected by the Charge man of the respondent’s dept., as per the instruction given by respondent no. 2, and as such, the said allegation can not become the basis of termination of Dealership of the petitioner No. 1, as the said charge is based on no evidence and perverse finding.

42. That in reply to the charge no. 3 leveled against the petitioner that the totalize seals of MS & HSD-DUs were not proper. The said charge was incorrect as there was the proper seal on the machine as per the report dated19.6.2007 of the Weight and Measurement Department which was annexed along with the reply submitted to the respondent no.2 on 21-6-2007.

43. That in reply to the charge no. 4 regarding non-observation of the retention samples of MS & HSD which was not found available as per the contents written in the suspension order passed on 24-5-2007 and in the notice dated 12-6-2007, the categorical reply was made that the vacuolar sample were retain at the retail outlet but since there was no seal of the company available as the company seal was not provided to the petitioners retail outlet, when the earlier seal after previous inspection were already seized to remain in existence. The demand for getting the aforesaid seals was made on 13-5-2007, but the same were not made available to the petitioner’s retail outlet. Thus the charge no.4 was not made out in respect of the irregularity committed by the petitioner in furtherance of the notice.

44. That in this manner all the charges leveled against the petitioners were totally baseless and having no corroborating evidence in support of the aforesaid charges as the petitioner demonstrated that subsequent to the aforesaid inspection , if the officials of the W &M department have recorded the inconsistent finding to the charges leveled against the petitioners , the onus was shifted upon the respondent to record a finding regarding the veracity of the truthful meant of the contents of the inspection report dated 24-5-2007 and the contents of the show cause notice dated 12-6-2007 in the impugned termination of the dealership of the petitioners retail outlet’s order dated 20-12-2007 which has not been done in the impugned order. Thus the impugned order has been passed in a pre-medicated manner without assigning any cogent reason for having the foundation of the impugned order.

45. That the malafide intention of the respondents No. 8 and 9 being the officials representing the corporation remained on account of the fact that the General Manager was made accountable in furtherance of the quarry made by Shri Chandra Bhushan Singh, Member of Parliament on the question of making the refund of an amount of Rs. 1,98,433/- charged from the petitioners’ outlet on account of the excess price to revision in round trip distance.

46. That since the order dated 20.12.2007, based upon ex-parte averments and allegation leveled in suspension order, has been issued without giving any show cause notice by the competent authority and the products are being costs to the petitioner in due discharge of its functioning and thus since the suspension order passed on 24-5-2007 and the impugned order are having the civil consequences, the same could not be passed without affording any opportunity of being heard to the petitioner.

47. That the other ground which are enumerated in the aforesaid guidelines are in respect of the short delivery of the product with regard to the weight and measures seal intact and in case the Weights and Measures seal is tampered then only any penal action would have taken by the competent authority . Thus the issuance of the impugned order on 20-12-2007 has been also beyond the jurisdiction of the respondent no. 1.

48. That the dereliction in due discharge of observing the requirement pertaining to the non-adulteration of the product and tampering of the seal is not recorded (as provided in the aforesaid guidelines), while suspending the supply at the retail outlet of the petitioner and thereby terminating the dealership and thus the order of the termination is challenged on the ground that it could not be passed on the false and baseless allegation merely on the ground of suspicion in conducting the irregularity, which was not based upon any complaint of the customer by the inspecting team, and was inspected without taking the approval of the same from the competent authority.

49. That the order dated 20.12.2007 has been passed without giving any opportunity of being heard, nor the reply submitted, in respect of query made, has been taken into consideration. Thus passing of impugned order is in violation of Principle of natural justice. The same is liable to set aside.

50. That the Impugned order has been passed without application of mind and without even seeing the report dated 19.6.2007 submitted by the department of weight and measurement and as such the impugned order has been passed in an arbitrary manner.

51. That passing of impugned order is contrary to its objective and passed with ulterior motive and to take the revenge as the petitioner has started demanding the refund of excess money and the question was raised in parliament, which annoyed the respondent no. 8 and 9, thus passing of impugned order is with legal malice and malafide intention.

52. That the petitioners filed the departmental appeal by taken all such ground in compliance of the Judgement dated 10.9.2008 and the direction given in writ petition no. 47182 of 2008, the departmental appeal preferred to the Executive Director Of Indian Oil Corporation has not been Decided, even after completion of maximum time limit of 90 days prescribed under Clause 6.3.5 of the Marketing Discipline Guidelines enforceable w. e. f. 1^st August,2005. Passed. The true copy of the memo of the said appeal filed on 1.10..2008 is filed herewith and marked as Annexure no.13 to this writ petition.

53. That petitioners through his representative went to the office of the appellate authority on 13.11.2008 at G-9 , Ali yavar Jung Marg, Bandra East, Mumbai, but it was told that the decision in the appeal filed by the petitioners shall be taken within 90 days and the appeal shall be decided after receiving the comments from the office of the respondent no. 1 and 2. However the appellate authority has stated on the subsequent visit on 2.1.2009, that the fault is attributable on the part of the respondent no. 1, the decision shall be communicated in this regard from the respondent and as such the petitioner may approach to the Secretary, Petroleum and Natural Gas Department, Government of India, New Delhi of the Union of India.

54. That the malice of the respondent is demonstrated from the fact that the order dated 20.12.2007 was not even sent to the petitioner and a note has been made that the same has been send under certificate of posting in the hand writing of some one. It is submitted that that the corporation equipment , stationary & other materials at the R.O premises shall be taken over by our local field officer in the same order , which demonstrate the malafide intention of respondent no. 8 in passing the said order. It was only on 10. 1. 2009 that the petitioner came to know that the contractor for dismantle of retail out let has already being deployed on 6. 10. 2008. The true copy of letter dated 6.10.2008, copy of which is supplied to the petitioner on 10.1 2009, is filed herewith and marked as Annexure no.14 to this writ petition.

55. That the petitioner already submitted that about 11000 liter of the high speed diesel amounting to Rs. 3.5 Lacks and the Petrol in the quantity of 3,500 liter amounting to Rs. 1,4 4,000/- and mobile oil amounting to Rs. 2 Lacks has been sealed apart from depositing of Rs. 2,30,000/- with the depot, but still the order for disposal of the aforesaid commodities is not given prior to dismantle of the retail out let has not been given by the respondent no. 1 in the impugned order passed on 6. 10. 2008.

56. That it is submitted that there after a representation has been send to the union of India on 16.1.2009 Containing all such facts for the redressal of the grievances raised in this regard and it has been submitted that the order passed on 21.12.2007 may kindly be set aside and the directions may be issued to maintain the supply, as the order of termination of dealership is based upon the malafide intention of the respondent No. 1. The true copy of representation dated 16.1.2009 submitted to the union of India is filed herewith and marked as Annexure no.15 to this writ petition.

57. That the petitioner is submitting the relevant extract of the Marketing Discipline Guidelines which have been made effective w. e. f. 1^st August 2005 by all the major public sector oil marketing companies. The relevant extract of the aforesaid guidelines as enumerated in Chapter 2, 4 ,6 and appendix A are being filed herewith and marked as Annexure no.16 to this writ petition.

58. That in order to provide the substance to the argument on the point of malafide intention of the answering respondents it is submitted that the mandatory requirement of making the inspection of the retail outlet by the inspection team is in the presence of the dealer or his representative after obtaining the signature of the dealer, which has not been done. The suspension of the retail outlet belonging the petitioners was immediately done in such unauthorized manner on account of the fact that the questionnaire was raised by the member of the Parliament in the regard to the excess realization of the payment of Rs. 198435/- from the dealer by calculating the wrong distance of the retail outlet by the official of the Indian Oil Corporation and furnishing the incorrect reply to the Government of India in furtherance of the said question raised during zero hours in the proceedings of the parliament.

59. That the provision of filing the department appeal and disposal of the same within the out limit within a period of 90 days are transcribed as under –

6.3 (Notes) iii – Every penal action would be taken only after a show cause notice is issued and giving the dealer a minimum time of 7 days to submit his explanation. If the dealer’s reply is not received within the time stipulated in the show cause notice, or if the reply received is found to be unsatisfactory, penal action as given in Appendix-I to be taken. No penal action to be taken if the dealer’s explanation is found to be satisfactory.

iv. The decision taken on action against the dealer based on the reply received from him for the show cause notice has to be communicated to the dealer in writing and this should be a speaking order. In the event of termination, the dealer, within 30 days of the Order, will have the right to appeal before the appropriate authority who will be empowered to decide in the matter. The appeal must be disposed of within 90 days from the date of the appeal. The appropriate authority to hear the appeals shall be by an office not below the rank of Executive Director.

V. The cycle of calculating second and third instance shall be five years starting from the date of first irregularity. In other words, if an irregularity is established as on date, records of previous 5 year period from this date will be examined to determine whether the present irregularity is the first, second or third instance of irregularity.

60. That the only charge, out of the four charges leveled against the petitioners, for termination of this dealership is on account of the fault not attributable on the part of the petitioners but despite the demand for the replacement of the cracked weight and measure seal which was found at the time of the alleged inspection on 24.5.2007 in absence of mandatory requirement of conducting such inspection, which could be done only in presence of dealer or his representative; and also in presence of the official of the weight and measure department; but the fault and negligence attributed on the part of the official of the Indian Oil Corporation; and without doing any enquiry in the respect of the said dereliction; as to whether the seal of weight and measurement of the one of D Us-HSD ( of Avery make ) was actually observed to be the broken; or it was having crack, the order of the termination of the dealership has been done in the unauthorized manner. The provision of rectification of the defect in the dispensing unit is provided in clause 4.3 of the chapter pertaining to the maintenance of the company equipments at retail outlets.

61. That as per the guidelines the penal action of non supply of the commodity after the inspection made on 24.7.2007 can not be done without taking prior explanation from the dealer as per their own guide lines 6.3(notes iii) and as the notice was issued subsequently on 12.6.2007 the order dated 24.5.2007 was illegal and void in itself.

62. That guide line prescribed the maximum limit of 90 days in deciding the appeal as per guidelines 6.3 (notes iv ), but despite the appeal filed on 1.10.2008 and the date was fixed on 9.2.2009 fixing 20.2.2009 and there after 19.2.2009 and on 22.5.2009 fixing 3.6.2009, but the departmental appeal is decided on 21.7.2009 i.e after more than9 months, instead of mandatory maximum period of 3 months.

63. That there is no irregularity ever recorded in maintenance of the retail out let by any authority and there was no complained ever made since 1976 from the date of commission of retail out let and guidelines 6.3 ( notes V ) prescribed that this fact shall be mention in the order of punishment , but neither the punishing authority , nor appellate authority have taken the note to this provision , while passing the order of termination of dealership.

64. That the petitioner is also quoting the provision pertaining to the prescribed guidelines for making such inspection as contemplated in 2.4.3, 4.3, 4.2, 6.1 (b), 5.2, 6.1 & 6.4, which are reproduced as under –

2.4.3 Joint Industry Team Members should collect samples from retail outlets irrespective of results of indicative/suggestive tests like Marker/ Furfural test, density test, stock variation filter paper etc. during joint inspections. These samples should be sealed and labeled as per Annexure S-3 and jointly signed by the dealer/his representative and the members of the Joint Industry Tema who are drawing the samples.

4.3 RECTIFICATION OF DEFECTS IN DISPENSING UNITS / PIPELINE / TANKS

a) In case the Weights & Measures seal is found to be broken, the Company’s Maintenance Representative shall inform the concerned Company Official for further action and incorporate the same in the Pump maintenance Report, which should be duly singed by the dealer as well.

4.2.1.1 MAINTENANCE OF PUMPS AND OTHER EQUIPMENTS

a) While the Oil Company shall attend to breakdown maintenance of the Dispensing Pumps and other equipments belonging to the Oil Company, it shall be the responsibility of the dealer to ensure that these equipments are handled in just and proper manner and day to day upkeep are carried out. In case of any breakdown, the same shall promptly be informed by the dealer to the Oil Company.

6.1 (b) Sales and supplies of all products to be suspended immediately till such time investigations are completed. Meter and dip readings should be recorded in the Inspection Report duly signed by the Dealer or his representative together with rubber stamp of dealership and each page of the inspection report shall be initialed by Inspecting Officer and Dealer/Dealer’s representative. Dispensing Pumps and Tanks should be sealed.

65. That Fraud is committed by the respondent no. 2 in passing the impugned order, as the responsibility was lying upon his officials to replace the crack seal of one of the DUs –HSD (Of Avery make), (which is established as per the Inspection Report by the weight and measurement officer made on 19.6.2007), as the said charge is based on no evidence and perverse finding.

66. That the penal action may only be taken, when the totaliser seals found tempered with as per MDG 2005. In the present case, neither the inspection is being done in presence of the dealer or his representative nor has the seal of the dealer been taken by the inspection team in their report. The inspection was done by the team of three officers, who were not empowered to have such inspection. It was done in absence of any official of weight and measurement department. It has not been done in furtherance of any complaint from the public, or by the officials of the Government agencies. No irregularity was ever found by any official of the Indian Oil Corporation since 1976, when the present retail out let has been sanctioned.

67. That it is taken note of the fact that weight and measure seal of the dispensing unit was not broken, but CRACKED & totaliser seals of another dispensing units were in same, as they were put …….. Since seals were out of stock with Indian Oil Corporation. There is no question of saying that the said facts brought to the notice of department is an after thought, and no reason has been assigned in the impugned order in this regard. There is no finding recorded for arriving to the aforesaid conclusion. There is not even the finding recorded, as to how and in what manner, the crack of totaliser seal may be said to attract the penal action, when no complaint of irregularity is made by department against the petitioner till date.

68. That there was persistent demand to replace the crack seal, (as per the Inspection Report by the weight and measurement officer made on 19.6.2007) to have the other repairs by tightening the sealing wire through holes of seals of DU-MS (of MIDCO make) and HSD (of Avery Make) that there may not be even the apprehension upon the inspection in the mind of inspection team that totalize could be manipulated without breaking the seals, which is self contrary charge with earlier charge and suspension. It is submitted that suspicion, whatsoever, it may be strong, but the same could not become the basis of punishment. The sole charge is based on no evidence and perverse finding.

69. That the allegation in respect of having no retention samples of MS and HSD, the same were found at the retail out let of the petitioner no. 1, but since the seal of the department were not affixed upon them, due to non availability of such seals, in spite the demand of the same by the petitioner from the dept. of the respondent’s company on 13.5.2007, for which there is no denial in impugned order, the charge no. 4 is also based upon no evidence and perverse finding.

70. That it appears that since an order was issued on 6.12.2007 in Writ Petition No. 42692 of 2007, filed by petitioner No. 2 against Suspension of the dealership of petitioner directing the department to pass the final order within 2 weeks, and as such the respondent no. 1 passed the impugned order without looking into reply of the petitioner on 21.6.2007 (Already filed as Annexure 5 to Writ Petition No. 42692 of 2007, filed by petitioner No. 2 against Suspension of the dealership of petitioner). Thus the impugned order of terminating the dealership of petitioner is passed without any opportunity of hearing or being heard to the petitioner no. 2, nor has the copy of the Impugned order been supplied to the petitioner till date.

71. That the respondent has not permitted to sale 11000 liter of the high speed diesel amounting to Rs. 3.5 Lacks and the Petrol in the quantity of 3,500 liter amounting to Rs. 1,4 4,000/- and mobile oil amounting to Rs. 2 Lacks has been sealed apart from depositing of Rs. 2,30,000/- with the depot, but still the order for disposal of the aforesaid commodities is not given prior to dismantle of the retail out let has not been given by the respondent no. 1 in the impugned order passed on 6. 10. 2008. The threatening is given for dismantle of the retail out let by the respondents.

72. That in the writ petition No. 5878/2009, the petitioners were challenging the order given to the contractor for dismantle of retail out let has already being deployed on 6.10.2008 and order dated 10.1.2009 passed during pendency of departmental appeal against the order dated 20.12.2007(Annexure No. )as per order in Writ petition No. 47182 of 2008 . It is submitted that the departmental appeal preferred to the Executive Director Of Indian Oil Corporation was not been decided by that time, even after completion of maximum time limit of 90 days prescribed under Clause 6.3.5 of the Marketing Discipline Guidelines. No counter affidavit was filed in the writ petition No. 5878/2009 by any respondents.

73. That the following order was passed on the present writ petition No. 5878/2009 which is being reproduced as under-

Hon. V. M. Sahai, J.

Hon. Ran Vijai Singh, J.

Heard learned counsel for the petitioners learned standing counsel appearing for respondents no. 3 and 4, and Shri P. Paida, learned counsel appearing for respondents no. 1,2,5,6,7,8,9 and 10.

Three weeks’ time is allowed to file counter affidavit. Rejoinder affidavit, if any, may filed one week thereafter.

Until further orders of this Court, the respondents are restrained from demolishing or dismantling the petrol/diesel pump of the petitioner. Meanwhile, it shall be open to the respondent no. 7 (represented by Additional Solicitor General of India) to take decision in the matter of the petitioner.

3.2.2009 Sd/- Sri V. M. Sahai, J. Sri Ran Vijai Singh, J.

74. That since as per the directions given in the earlier writ petition no. 47182 of 2008, the appeal file by the petitioner on 1.10.2008 in furtherance of the judgement dated 10.09.2008 passed in the said writ petition, the same has not been decided even after the maximum period of 90 days. However, an order for dismantling the retail outlet ordered on 06.10.2008 and as such the writ petition No. 5878/2009 was filed for seeking the protection against the arbitrary action of the respondents. No counter affidavit was filed in the writ petition No. 5878/2009 by any respondents. That an order was issued on 21.7.2009 by the executive director, the respondent no.3, dismissing the appeal during the pendency of the present writ Petition and as such an application seeking proposed amendment in the writ petition No. 5878/2009 was prepared having the amendment/ incorporation of paragraphs no. 79 to 98 , grounds x to Aj and prayer No. V was prepared on 24 .8.2009 for filing the same before this Hon’ble Court. The same has not been filed in view of the order passed in the writ petition No. 5878/2009 on 3.8.2009.

75. That in order to prove the bonafide mistake of the counsel for not attending the case of Writ Petition No. 5878/2009 on 3.8.2009, in which no counter affidavit was filed. The copy of the Amendment application was served to the Counsel Sri Prakash Padia, then it was informed that the list of the court No. 2 was transferred on 3. 8. 2009 to the Hon’ble Court No. 32 on the said date and the present writ petition has been dismissed in default on the said date. It is Submitted that on enquiry, it has been revealed that Hon’ble Justice Krishna Murari has been shown in court No. 32 as the Hon’ble Single Judge, but by the order of the Hon’ble The Chief Justice, the Division Bench Presided over by Hon’ble Mr. Justice Syed Rafat Alam and Hon’ble Justice Krishna Murari was assigned with the Jurisdiction and on 3. 8. 2009 listed matter of Court No. 2 from Serial No. 30 onwards have been conferred with the jurisdiction of the Division Bench, in absence of the information regarding the transfer of the listed matter of court no. 2 to court no. 32 through his clerk, the writ petition No. 5878/2009 was dismissed.

76. That the harassment was done subsequent to the aforesaid action by making and intimation from the office of the Marketing Division of the Indian Oil Corporation from its Mumbai Office situated at G-9, Ali Yavar Jung Marg, Bandra on 09.02.2009 directing the petitioner to appear at 2^nd Floor of World Trade Centre, Baber Road, New Delhi on 20.02.2009. That when the petitioner along with his counsel appeared before the World Trade Centre, Baber Road, New Delhi, they were intimated by the General Manager of the Indian Oil Corporation (Marketing Division, New Delhi) that the date was already changed from 20.02.2009 to 19.02.2009 and the order/intimation of the aforesaid change was given to the Sales Manager of the Indian Oil Corporation at Agra but he did not intimated the correct date to the petitioner. The true copy of the order/intimation from the office of the Marketing Division of the Indian Oil Corporation from its Mumbai Office situated at G-9, Ali Yavar Jung Marg, Bandra on 09.02.2009 of the is filed herewith and marked as Annexure No.17.

77. That subsequently on 21.02.2009, the intimation of the change date has been communicated to the petitioner at the address of the retail outlet but by that time the petitioner along with his counsel had already left for appearing at World Trade Centre, Baber Road, New Delhi along with the member of the parliament Sri Chandra Bhushan Singh (M.P.) from District Farrukhabad for demonstrating the malafide intention of the respondent no. 1 in passing the order of termination of the dealership. The true copy of the intimation from the office of the Marketing Division of the Indian Oil Corporation from its Mumbai Office situated at G-9, Ali Yavar Jung Marg, Bandra received on 21.02.2009 is filed herewith and marked as Annexure No.18.

78. That it has already been submitted that there has been the stock of the huge quantity of the petroleum products about 11000 liter of the high speed diesel amounting to Rs. 3.5 Lacks and the Petrol in the quantity of 3,500 liter amounting to Rs. 1,44,000/- and mobile oil amounting to Rs. 2 Lacks has been sealed apart from depositing of Rs. 2,30,000/- with the depot, but still the order for disposal of the aforesaid commodities is not given prior to dismantle of the retail out let has not been given by the respondent no. 1 in the impugned order passed on 06.10.2008.

79. That the petitioner received another letter having the date for his presence before the appellate authority dated 22.5.2009 fixing 3.6.2009 as the date fixed much after the expiry of time period of 90 days, as prescribed as outer limit for deciding the appeal preferred by the petitioner on 1.10.2008, as per the request made by the counsel for the respondent No. 1,2, 9 and 10 to this writ petition. The true copy of the order/intimation from the office of the Marketing Division of the Indian Oil Corporation from its Mumbai Office situated at G-9, Ali Yavar Jung Marg, Bandra on 22.5,2009 is filed herewith and marked as Annexure No.19.

80. That since the Union Of India was assigned with the direction to look into the matter of the power exercisable by higher appellate authority over and above to the authority of respondent no. 10, the respondent no. 10 was having no jurisdiction to decide the appeal in defiance of the direction issued by this Hon’ble Court on 3.2.2009 as the interim measurement to protect the interest of the petitioner. Thus the respondent No. 10 became Ex officio to decide the Appeal and the order passed on 21.7.2009 is an order without Jurisdiction.

81. That at the very out set, it is submitted that the petitioner is an old man and he travel up to Mumbai without having the reservation in Railway and as such the authority letter was given to his counsel to appear and to demonstrate the order passed on 3. 2. 2009 in the present appeal. It is submitted that the counsel of the appellant was not allowed to make his respectful submissions by the respondent no. 2 and there after at the late hours was allowed to address the submission before the respondent No.3.

82. That it is falsely alleged that any Show Cause Notice was ever issued by GM, UPSOIL dated 09.10. 2007, nor there is any mention regarding the service of the said notice in the termination order at any point of time, nor in the short counter affidavit in compliance of the order dated 06.12.2007 passed in writ petition no. 42692 of 2007. The termination order was received along with the said short Counter affidavit, but still has not been served to the petitioners till date. Thus the order of appellate authority is perverse, obsolete and malafide, which has been passed contrary to the evidences on record and in excess of the power vested with appellate authority. Admittedly the termination order was passed without issuance of any Show Cause Notice and there was any Show Cause Notice ever issued by GM, UPSOIL dated 09.10. 2007, as there is even the mention regarding the service of the said notice in the termination order at any point of time. Thus the termination of the dealership of the petitioner is without any opportunity and the same is in violation of the principles of Natural Justice. The appellate authority can not step in side the jurisdiction of the punishment authority. (AIR 1995 SC 1053 Surjit Ghosh Versus Chairman & managing Director United Commercial Bank)

83. That the petitioner has stated that the inspection of the retail outlet was not done in presence of dealer, nor in presence of his representative, but the inspection, which was not done by any Grade C Divisional level officers and the members of Weight and Measurement Department by the Joint Inspection Team as per the requirement of 4.3 MDG 2005 and there has been the false accusation of regarding tempering of meter assembly seal , nor its wire was manipulated. There is neither the signature of any person having his associations with the retail outlet, nor there is the affixation of the genuine seal of the firm on the alleged (fabricated) inspection report.

84. That the report dated 19.06. 2007 has been relied upon where in neither the DUs-HSD ( OF AVERY MAKE ) was neither found broken , nor it could have been tempered as disclosed in future inspection report , relied upon by the petitioners. There is no denial of any such report in the Impugned order dated 21.7.2009 passed by the respondent no. 10. Thus the inspection report dated 24. 5. 2007 is the false report, which can neither become the piece of evidence, nor can be relied upon in presence of the report dated 19.6.2007.

85. That the petitioner was making the demand from the respondent no. 1 and 2 and their officials to replace the cracked seal vide letter dated 13. 05. 2007, for which there is no denial in the impugned orders passed on 21. 12. 2007 and 21.7.2009 and as such there was no irregularity ever found in the retail out let since its inception vide LO/R/PNS/1621 Dated 16.5.1976, for which false reply was given to parliament regarding its commissioned in 1998. Thus the allegation of tempering are totally absurd, false, fabricated and redundant concoction leveled against the petitioner, for which there is no evidence at any point of Time.

86. That neither Rajesh Sharma AMRS, Rahul Jaidarath, nor Pankaj Kumar comprises to be the member of Joint Inspection team ( INDUSTRY) along with the officers of weight and measurement department, nor these officers are the officers in grade “c” in the DIVISIONAL /TERRITORY/ REGIONAL OFFICES, nor they were authorized to fill up the inspection forms in absence of the petitioners or their representatives. The order dated 21. 7 2009 relying upon such ex parte report manufactured and fabricated is arbitrary and concocted order passed by the appellate authority namely Sri H.S. Bedi Executive Director on the dictation of Divisional manager Mr. Kukreja without looking into the fact that termination of the dealership of the petitioner can not be taken place in absence of the clear cut evidences of tempering done by the petitioners by adulteration in the H.S.D. or in Motor Spirit from his retail outlet. The termination order is passed in violation of natural justice without issuance of any show cause notice is a bizarre exercise of acquiring the power to dispense with supply of the H.S.D. or in Motor Spirit from his retail outlet, as it may be allotted to other party after realizing the exorbitant amount from new dealer.

87. That during the course of arguments in furtherance of the grounds taken in appeal, Sri H.S. Bedi, Executive director has reprimanded the conduct of then General Manager of the I.O.C. of realization of excess charges of 1,98,433/- in Round Trip distance and also condemned the false reply given by him to the government of india regarding commission of the retail out let in 1998, while it was sanction in 1976. He also asked from Mr. Kukreja , as to why not the supply be maintained from Kanpur depot to Mohamadabad instead of Mathura and Agra Depot and enquired about the distance from the counsel of the petitioners. He condemn the action of Mr. Kukreja in issuance of the order of dismantled of retail out let during the pendency of Appeal. Shri H.S. Bedi also said that why not the alledged issuance of the show cause notice does not find description there of in the termination order and sought for the receipt of dispatch of said Show Cause Notice to the petitioner. He said the guidelines of 2005 have not been followed in conducting the inspection and why not the report dated 19.6.2007 of weight and measurement department may not be treated as correct. He asserted that why the termination order was not communicated by registered post. Where is the receipt of the certificate of posting as mentioned in termination order along with the short counter affidavit. The appellate authority assured for resuming the supply and to sell the petroleum product stored at retail out let by giving authority to the petitioner. However the order was not passed on 3.6.2009, despite the request made by the counsel in this regard.

88. That the grounds taken in appeal, Sri H.S. Bedi, Executive director, the respondent no. 10 that there is no evidence to suggest the tempering done in supply of H.S.D. and Motor Spirit, nor evidence collected in this regard. Thus the termination order is void ab initio and passed without jurisdiction.

89. That reiterated earlier that the appellate authority can not step in side the jurisdiction of the punishment authority. (AIR 1995 SC 1053 Surjit Ghosh Versus Chairman & managing Director United Commercial Bank). It is submitted that there is no averment made in the termination order that the dip of 15 KL HSD ( connected to a DU), which was 32.0 cm as on 1.1.2007 had changed to 19.0 cm during inspection on 24.5.2007 and therefore established that interconnection of tank was existing, is a baseless, false and manufactured allegation leveled by the appellate authority without application of mind that interconnectivity was not inoperative since more than 2 years, but on the other hand it was maintained by the department up to the previous year of inspection. It is submitted that this was not the ground in termination order , while the appellate authority has exceeded its jurisdiction in imposing such false accusation as no appeal against the termination order passé on 20. 12. 2007 was filed by the department.

90. That the petitioners were informed that there will be further inspection on 27.6.2009 and the intimation to this effect was given by Mr. Kukreja on the mobile of the dealer on 24.6.2009. There after the photocopies of the register maintain at the retail out let were taken by Rahul Jaidrath posted as ARMS Agra along with two other officers, as nothing was found to established the tempering of the W.M. SEAL of DUs –HSD (of AVERY MAKE) or in the sealing wire passed through holes even on 27.6.2009.These officers after the aforesaid inspection have assured the petitioner No. 2, but directed to meet Mr. Kukreja and Shri H.S. Bedi . It is submitted that there after the demand of an exorbitant money was made to resume the supply, when ever the petitioners approached to the regional office at Agra. The petitioners could not offer any bribe and lastly as a repercussion of it, their appeal has been dismissed. The true copy of the impugned order passed by Sri H.S. Bedi , Executive Director/ appellate authority, the respondent no. 3 on 21.7.2009 is filed herewith as Annexure No. 20 to this writ petition.

91. That in this manner, the order passed by the respondent no. 3 is perverse, arbitrary, redundant and obsolete and based on no evidence. The same has been passed in excess of the jurisdiction and without application of mind simply on the dictation of the respondent no. 1 and 2 through one Mr. Kukreja with malafide intension and just to wreck the vengeance of daring of the petitioner to raise the question regarding RTD in parliament for realization of excess charges of Rs. 1, 98, 433/- from the corporation. Such an order is contrary to the object and passed in ulterior consideration of non fulfillment of the demand of illegal gratification, can not be sustained as this exercises the pernicious influence through reprehensible conduct and has been passed against the spirit of the order dated 3.2.2009, wherein directions were given to respondent no. 7, not to respondent no. 10 for deciding the appeal after the expiry the of 90 days, which is not permissible under law. Thus the order dated 21. 7. 2009 is liable to be quashed.

92. That on account of this inadvertent mistake and ignorance, the counsel for the petitioner could not remain present at the time of taken up the matter and as such the writ petition No. 5878/2009 has been dismissed due to the inadvertent mistake of counsel for not being informed regarding the transfer of listed matter of court no. 2 to court no. 32 on 3. 8. 2009. The proposed amendment and the application for recall of the said order passed on 3.8. 2009 was prepared on 24.8.2009 and 27.8.2009 respectively duly supported with the affidavit, but the same were not filed on account of the fact that certain observation in the writ petition No. 5878/2009 has been made on account of the fact of deciding the appeal by appellate authority. The true copy of the order passed on 3. 8. 2009 (published and received on 8.9.2009) is filed herewith and marked as Annexure No. 21

93. That the petitioner has no other efficacious remedy, except to file the present writ petition on the following amongst other grounds.

GROUNDS

a. Because Fraud and justice never dwell together, as is being done by the respondent no. 1 in the present case, while passing the impugned order in pre-medicated manner on account of legal malice and legal malafide, which smacks the capriciousness of power as the penal action may only be taken, when the totaliser seals found tempered with as per MDG 2005 and not broken/ cracked..

b. Because this may be demonstrated in the reply submitted by Dy. General Manager on 5.3.2007 to the under secretary to the Govt. of India in furtherance of realization of excess amount of Rs. 1,98,433.00/- from petitioner as the price of round trip distance(RTD).

c. Because just to avoid the liability of repayment of these extra charges from petitioner out let from a duration of 1976 onwards, a false reply was submitted by then Dy. General Manager in his reply/correspondence with Govt. of India saying that the Retail out let of petitioner was commission in 1998, while in impugned order, General Manager himself admitted that dealership of petitioner was Commissioned in the year of 1976 (Vide LOI R/PNS/1621 dated 16/5/1976).

d. Because false reply was submitted to the Union of India, the matter pertaining to their functioning conducted in realization of the excess money of Rs. 1,98,433.00/- from petitioner as the price of round trip distance(RTD) was enquired by the member of parliament from govt. of India and thus passing of impugned order is contrary to its objectives and passed with oblique motive Indian Oil corporation.

e. Because, as per the guidelines the penal action of non supply of the commodity after the inspection made on 24.7.2007 can not be done without taking prior explanation from the dealer as per their own guide lines 6.3(notes iii) and as the notice was issued subsequently on 12.6.2007 the order dated 24.5.2007 was illegal and void in itself.

f. Because, guide line prescribed the maximum limit of 90 days in deciding the appeal as per guidelines 6.3 (notes iv ), but despite the appeal filed on 1.10.2008 and the date was fixed on 9.2.2009 fixing 20.2.2009 and there after 19.2.2009 and on 22.5.2009 fixing 3.6.2009, but the departmental appeal is decided on 21.7.2009 i.e after more than9 months, instead of mandatory maximum period of 3 months.

g. Because, there is no irregularity ever recorded in maintenance of the retail out let by any authority and there was no complained ever made since 1976 from the date of commission of retail out let and guidelines 6.3 ( notes V ) prescribed that this fact shall be mention in the order of punishment , but neither the punishing authority , nor appellate authority have taken the note to this provision , while passing the order of termination of dealership.

h. Because Fraud is committed by the respondents, in passing the impugned orders, as the responsibility was lying upon his officials of the respondent no. 1, to replace the crack seal of one of the DUs –HSD (Of Avery make), (as per the Inspection Report by the weight and measurement officer made on 19.6.2007), as the said charge is based on no evidence and perverse finding.

i. Because there was persistent demand to replace the crack seal, (as per the Inspection Report by the weight and measurement officer made on 19.6.2007) to have the other repairs by tightening the sealing wire through holes of seals of DU-MS (of MIDCO make) and HSD (of Avery Make) and there may not be even the apprehension upon the mind of inspection team that totalize could be manipulated without breaking the seals, which is self contrary charge with earlier charge and suspicion, whatsoever, it may be strong , but the same could not become the basis of punishment. The said charge leveled is based on no evidence and perverse finding.

j. Because the order dated 20.12.2007, based upon ex-parte averments and allegation leveled in suspension order, has been issued without giving any show cause notice by the competent authority and the impugned order are having the civil consequences, the same could not be passed without affording any opportunity of being heard to the petitioner.

k. Because the other ground which are enumerated in the aforesaid guidelines are in respect of the short delivery of the product with regard to the weight and measures seal intact and in case the Weights and Measures seal is tampered then only any penal action would have taken by the competent authority. Thus the issuance of the order on 20-12-2007 has been also beyond the jurisdiction of the respondent no. 1.

l. Because the order of the termination is challenged on the ground that it could not be passed on the false and baseless allegation merely on the ground of suspicion in conducting the irregularity, which was not based upon any complaint of the customer by the inspecting team, and was inspected without taking the approval of the same from the competent authority.

m. Because the Weight and Measurement Officer, who is required to verify the processing of the seal of high speed diesel and Weight and Measure seal as reported on 19-6-2007 itself that the High Speed Diesel DUs seal on its meter was not tampered and in the said inspection there was no tampering on with the read wire. It was also directed to put a set on the machine and nothing was found adverse which could have been resultant in non-supply of the High Speed Diesel and Motor Spirit to the retail outlet by suspending the license.

n. Because It is submitted that if W& M seal of HSD-DU every make on meter assembly was found broken how does in the inspection made on 19-6-2007 only crack could have been found by the officials of the Weight and Measurement Department. Thus the allegation leveled in furtherance of the charge no. II recorded in the suspension order dated 24-5-2007 and in the show cause notice dated 12-6-2007 was based on the false allegation, which is in itself contradictory as per the report submitted by the inspection team of the Weight and Measurement Department on 19-6-2007.

o. Because the order 20.12.2007 was not passed after giving any opportunity of being heard, nor the reply submitted in respect of query made has been taken into consideration. Thus passing of order is in violation of Principle of natural justice. The same are liable to set aside.

p. Because, the harassment is being done subsequent to the aforesaid action by making and intimation from the office of the Marketing Division of the Indian Oil Corporation from its Mumbai Office situated at G-9, Ali Yavar Jung Marg, Bandra on 09.02.2009 directing the petitioner to appear at 2^nd Floor of World Trade Centre, Baber Road, New Delhi on 20.02.2009. when the petitioner alongwith his counsel appeared before the World Trade Centre, Baber Road, New Delhi, they were intimated by the General Manager of the Indian Oil Corporation (Marketing Division, New Delhi) that the date was already changed from 20.02.2009 to 19.02.2009 and the order/intimation of the aforesaid change was given to the Sales Manager of the Indian Oil Corporation at Agra but he did not intimated the correct date to the petitioner.

q. Because, it is falsely alleged that any Show Cause Notice was ever issued by GM, UPSOIL dated 09.10. 2007, nor there is any mention regarding the service of the said notice in the termination order at any point of time, nor in the short counter affidavit in compliance of the order dated 06.12.2007 passed in writ petition no. 42692 of 2007. Admittedly the termination order was passed without issuance of any Show Cause Notice and there was any Show Cause Notice ever issued by GM, UPSOIL dated 09.10. 2007, as there is even the mention regarding the service of the said notice in the termination order at any point of time. Thus the termination of the dealership of the petitioner is without any opportunity and the same is in violation of the principles of Natural Justice. The appellate authority can not step in side the jurisdiction of the punishment authority. (AIR 1995 SC 1053 Surjit Ghosh Versus Chairman & managing Director United Commercial Bank)

r. Because, the petitioner has stated that the inspection of the retail outlet was not done in presence of dealer, nor in presence of his representative, but the inspection, which was not done by any Grade C Divisional level officers and the members of Weight and Measurement Department by the Joint Inspection Team as per the requirement of 4.3 MDG 2005 and there has been the false accusation of regarding tempering of meter assembly seal , nor its wire was manipulated. There is neither the signature of any person having his associations with the retail outlet, nor there is the affixation of the genuine seal of the firm on the alleged (fabricated) inspection report.

s. Because, the report dated 19.06.2007 has been relied upon where in neither the DUs-HSD ( OF AVERY MAKE ) was neither found broken , nor it could have been tempered as disclosed in future inspection report , relied upon by the petitioners. There is no denial of any such report in the Impugned order dated 21.7.2009 passed by the respondent no. 10. Thus the inspection report dated 24. 5. 2007 is the false report, which can neither become the piece of evidence, nor can be relied upon in presence of the report dated 19.6.2007.

t. Because, the petitioner was making the demand from the respondent no. 1 and 2 and their officials to replace the cracked seal vide letter dated 13.05. 2007, for which there is no denial in the impugned orders passed on 21. 12. 2007 and 21.7.2009 and as such there was no irregularity ever found in the retail out let since its inception vide LO/R/PNS/1621 Dated 16.5.1976, for which false reply was given to parliament regarding its commissioned in 1998. Thus the allegation of tempering are totally absurd, false, fabricated and redundant concoction leveled against the petitioner, for which there is no evidence at any point of Time.

u. Because, Sri H.S. Bedi, Executive director has reprimanded the conduct of then General Manager of the I.O.C. of realization of excess charges of 1,98,433/- in Round Trip distance and also condemned the false reply given by him to the government of India regarding commission of the retail out let in 1998, while it was sanction in 1976. He also asked from Mr. Kukreja , as to why not the supply be maintained from Kanpur depot to Mohamadabad instead of Mathura and Agra Depot and enquired about the distance from the counsel of the petitioners.

v. Because the action of Mr. Kukreja in issuance of the order of dismantled of retail out let during the pendency of Appeal. Shri H.S. Bedi also said that why not the allege issuance of the show cause notice does not find description there of in the termination order and sought for the receipt of dispatch of said Show Cause Notice to the petitioner. He said the guidelines of 2005 have not been followed in conducting the inspection and why not the report dated 19.6.2007 of weight and measurement department may not be treated as correct. He asserted that why the termination order was not communicated by registered post. Where is the receipt of the certificate of posting as mentioned in termination order along with the short counter affidavit. The appellate authority assured for resuming the supply and to sell the petroleum product stored at retail out let by giving authority to the petitioner.

w. Because. the grounds taken in appeal, Sri H.S. Bedi, Executive director, the respondent no. 10 that there is no evidence to suggest the tempering done in supply of H.S.D. and Motor Spirit, nor evidence collected in this regard. Thus the termination order is void ab initio and passed without jurisdiction.

x. Because, as reiterated earlier that the appellate authority can not step in side the jurisdiction of the punishment authority. (AIR 1995 SC 1053 Surjit Ghosh Versus Chairman & managing Director United Commercial Bank). It is submitted that there is no averment made in the termination order that the dip of 15 KL HSD ( connected to a DU), which was 32.0 cm as on 1.1.2007 had changed to 19.0 cm during inspection on 24.5.2007 and therefore established that interconnection of tank was existing, is a baseless, false and manufactured allegation leveled by the appellate authority without application of mind that interconnectivity was not inoperative since more than 2 years, but on the other hand it was maintained by the department up to the previous year of inspection. It is submitted that this was not the ground in termination order, while the appellate authority has exceeded its jurisdiction in imposing such false accusation as no appeal against the termination order passé on 20. 12. 2007 was filed by the department.

y. Because, the order passed by the respondent no. 3 is perverse, arbitrary, redundant and obsolete and based on no evidence. The same has been passed in excess of the jurisdiction and without application of mind simply on the dictation of the respondent no. 1 and 2 through one Mr. Kukreja with malafide intension and just to wreck the vengeance of daring of the petitioner to raise the question regarding RTD in parliament for realization of excess charges of Rs. 1, 98, 433/- from the corporation. Such an order is contrary to the object and passed in ulterior consideration of non fulfillment of the demand of illegal gratification, can not be sustained as this exercises the pernicious influence through reprehensible conduct and has been passed against the spirit of the order dated 3.2.2009, wherein directions were given to respondent no. 7, not to respondent no. 3 for deciding the appeal after the expiry the of 90 days, which is not permissible under law. Thus the order dated 21. 7. 2009 is liable to be quashed.

z. Because the order passed by the appellate authority after expiry of 90 days maximum period prescribed for deciding the appeal is an order by making an abuse of power in excess to the jurisdiction conferred with the appellate authority tantamount contempt of the order dated 3.2.2009 passed by this Hon’ble court, wherein the union of India was directed to decide the appeal, but not by the respondent No. 3 by passing the illegal order in excess of jurisdiction without application of Mind.

PRAYER

It is, therefore, Most respect fully prayed that this Hon’ble court may graciously be pleased to:-

I) Issue a writ , order or direction in the nature of Certiorari Quashing the Impugned order passed on 21. 7. 2009 (Annexure No. 20) by the respondent No. 3 rejecting the departmental Appeal filed on 1. 10 2008 beyond the prescribed period of limitation of 90 days prescribed under Clause 6.3.5 of the Marketing Discipline Guidelines of 2005, affirming the impugned order having affirmation of order of termination of dealership of the petitioner’s retail outlet and order passed on 20.12.2007 (Annexure No. 10) in excess of jurisdiction and also in flagrant violation of their own Marketing Discipline Guidelines of 2005.

II) Issue a writ, order or direction in the nature of Mandamus Commanding and directing the respondent to maintain the regular supply of HSD and MS and other lubricants to the petitioners as justice may be one with the right of petitioner.

III) Issue any other writ, order or direction as this Hon’ble Court may deem fit and proper under the circumstances of the case.

Dated- 10.9.2009 (YOGESH KUMAR SAXENA)

ADVOCATE HIGH COURT

(Counsel for the Petitioner)

Chamber No. 139, High Court, Allahabad

IN THE HON’BLE HIGH COURT OF JUDICATURE AT ALLAHABAD

Annexure – 3

CIVIL MISC. WRIT PETITION NO. OF 2009

(Under Article 226 of the Constitution of India) (District –Farrukhabad)

Indian Oil Corporation Ltd through its General Manager, Indian Oil Corporation Ltd. State Office, U.P-II, Noida. And others ………………………………….. Respondents

A Patel Government Seal

Minister of State for Petroleum & Natural Gas, Government of India, New Delhi – 110 001

April 26, 2007

Shri Singh ji,

Please refer to your D.O. letter No. MP/CBS/MOP&NG/2006 dated 30.11.2006 regarding release of payment to M/s. Dheerpur Multi was commissioned in 1998. Retail Selling Price (RSP) of this RO was fixed considering 480 RTKM, the certified Round Trip Kilo Meter (RTKM) at that time. RTKM any location from any supply point is not permanent. It varies with time as it gets … arranged due to development of new road, construction of bridges, culverts and bye pass road of town, cities etc.

In 2003 one more RO, belonging to BPC, was commissioned at Mohamadabad ….. to change of RTKM, the new RSP of the location was revised downward taking round Trip Destination as 397 KM.

IOC has further reported that the dealer’s commission does no depend on the SP of the product as the element of dealer’s commission per liter is constant factor respective of the final RSP. Secondly, the effect of higher RTKM in the price is taken are by the higher RSP fixed for the location and it does not have any effect in the dealer’s commission received by the dealer. The effect of higher billing price has direct bearing in the RSP of the location. In view of the above, IOC is unable to consider the request for refund.

A copy of the report dated 05.03.2007 received from IOC is enclosed for your kind appreciation.

With regards,

Encl ; As above. Yours sincerely

(Dinesh Patel)

Shri Chandra Bhushan Sinigh, M. P. (Lok Sabha), B-1, ‘A’ Block, M.S. Flats, Baba Kharak Singh Marg, New Delhi – 100 001

IN THE HON’BLE HIGH COURT OF JUDICATURE AT ALLAHABAD

Annexure – 4

CIVIL MISC. WRIT PETITION NO. OF 2009

(Under Article 226 of the Constitution of India) (District –Farrukhabad)

Indian Oil Corporation Ltd through its General Manager, Indian Oil Corporation Ltd. State Office, U.P-II, Noida. And others ………………………………….. Respondents

Indian Oil Corporation Limited, Regd. Office : Indian Oil Bhawan, G-9, Ali Yavar Jang Marg, Bandra (East), Mumbai – 400 051 (India)

Marketing Division…………………………………………………………………………………………………

Ref.No.4031/AM By Speed Post

Dated : 05.03.2007

To,

Under Secretary to the Govt. of India

Ministry of Petroleum & Natural Gas,

Government of India

Shashtri Bhawan,

NEW DELHI – 110 0010

Kind Attn. : Shri Tajbir Singh

Ref : Auto Generated Reference No. 200605671 dt. 18.01.2007

Sub : REG. REP of M/s. Dhirpur Multi Centre, IOC dealership at Mohmdabad, District – Farrukhabad regarding excess price charged from 1998 to 2004.

Dear Sir,

This has reference to DO letter dated 30.11.06 Shri Chandra Bhushan Singh, Hon’ble MP(LS) which has been acknowledged by Hon’ble Minister of P & NG vide his DO letter no. 2842/M (P&NG)/VIP/06 dated 06.12.2006.

Hon’ble MP has forwarded a representation of Shri Bhagwan Baksha Singh

judgment passed on 29.4.2010 in Special Appeal no. 651 of 2010 filed by respondent no.4, the present writ petition may be dismissed with exemplary costs

2012-05-25T03:50:00.001-07:00

IN THE HON’BLE HIGH COURT OF JUDICATURE AT ALLAHABAD

I N D E X

CIVIL MISC. APPLICATION NO. OF 2010

(Under Section 151 of the C.P.C.)

CIVIL MISC. WRIT PETITION NO. 8166 OF 2010

(DISTRICT – AURAIYA)

Committee of Management, Kisan Inter College, Bhagya Nagar, Auraiya through its Manager Sri Ashok Yadav and others

-------------------------------------Petitioners

Versus

State of U.P. and others-----------------------------------Respondents

Sl.no.	Particulars.	Dates.	Annx.	Pages.
1.	Misc. Application	--	--
2.	Affidavit in support of Misc. Application.	--	--
3.	Copy of the order passed in Special Appeal no. 651 of 2010.	29.4.2010	1
4.	Copy of the order passed in contempt application no. 1624 of 2010.	6.4.2010	2

Dt/- 9^th May, 2010 ( YOGESH KUMAR SAXENA )

Advocate.

Counsel for the Respondent no.4

Chamber no. 139, High Court,

Allahabad.

IN THE HON’BLE HIGH COURT OF JUDICATURE AT ALLAHABAD

CIVIL MISC. APPLICATION NO. OF 2010

(Under Section 151 of the C.P.C.)

On behalf of

Committee of Management, Kisan Inter College, Bhagya Nagar, Auraiya through its Manager Sri Shailendra Gupta.

--------------------Applicant/ Respondent no.4.

CIVIL MISC. WRIT PETITION NO. 8166 OF 2010

(DISTRICT – AURAIYA)

1. Committee of Management, Kisan Inter College, Bhagya Nagar, Auraiya through its Manager Sri Ashok Yadav.

2. Sri Ashok Yadav, Manager, Committee of Management, Kisan Inter College, Bhagya Nagar, Auraiya.

3. Sri Raj Narayan Saxena, President, Committee of Management, Kisan Inter College, Bhagya Nagar, Auraiya.

--------------------------------Petitioners

Versus

State of U.P. through Principal Secretary, Secondary Education, U.P. Lucknow.
District Inspector of Schools, Auraiya, District Auraiya.
Regional Joint Director of Secondary Education, Allahabad Region, Allahabad.
Committee of Management, Kisan Inter College, Bhagya Nagar, Auraiya through its alleged Manager Sri Shailendra Gupta.

-------------------------------Respondents.

To,

The Hon’ble the Chief Justice and his other companion Judges of the aforesaid Court.

The humble application of the abovenamed applicant/ Respondent no.4 most respectfully showeth as under :-

1. That this application will be filed on 10.5.2010 and it is to be listed on 12. 5. 2010.

2. That the full facts and circumstances of the case have been stated in the accompanying counter affidavit, it is expedient in the interest of justice that in view of the observations made in the judgment passed on 29.4.2010 in Special Appeal no. 651 of 2010 filed by respondent no.4, the present writ petition may be dismissed with exemplary costs and the interim order passed therein may kindly be vacated in the interest of justice.

P R A Y E R

It is, therefore, most respectfully prayed that in view of the observations made in the judgment passed on 29.4.2010 in Special Appeal no. 651 of 2010 filed by respondent no.4, the present writ petition may be dismissed with exemplary costs and the interim order passed therein may kindly be vacated in the interest of justice.

Dt/- 9^th May, 2010 ( YOGESH KUMAR SAXENA )

Advocate.

Counsel for the Respondent no.4

Chamber no. 139, High Court,

Allahabad.

IN THE HON’BLE HIGH COURT OF JUDICATURE AT ALLAHABAD

AFFIDAVIT

CIVIL MISC. APPLICATION NO. OF 2010

CIVIL MISC. WRIT PETITION NO. 8166 OF 2010

(DISTRICT – AURAIYA)

Committee of Management, Kisan Inter College, Bhagya Nagar, Auraiya through its Manager Sri Ashok Yadav and others

-------------------------------------Petitioners

Versus

State of U.P. and others-----------------------------------Respondents

Affidavit of Shailendra Gupta, aged about 29 years, son of Sri Prem Chandra Gupta, Manager, Committee of Management, Kisan Inter College, Bhagya Nagar, Auraiya, resident of Khanpur, Phaphund, Post office Bhagya Nagar, District Auraiya.

( Deponent )

I, the deponent above-named, do hereby solemnly affirm and state on oath as under: -

1. That the deponent has been impleaded as respondent no.4 in the abovenoted writ petition and as such the deponent is well acquainted with the facts of case deposed to below.

2. That the deponent has already filed a stay vacation application along with detailed counter affidavit in reply to the contents of writ petition, wherein the deponent has brought on record the existence of judgment passed on 10.8.2006 passed in writ petition no. 41453 of 2006 connected with writ petition no. 44489 of 2003 and also judgment dated 6.9.2006 passed in writ petition no. 47402 of 2006 having the direction to deposit Rs. 20,000/- in the account of institution by Ashok Yadav. Thus the very existence of Ashok Yadav As earst while manager in the election of 2003 and 2006 is based upon the forged-non existent, redundant and obsolete order filed as Annexure 1 In the present writ petition No. 8166 of 2010.

3. That the deponent has also brought on the record the counter stand taken by Ved Prakash Gupta filing the affidavit in support of writ petition no. 8166 of 2010 without disclosing any fact that how does he is empowered to represent as committee of management of the institution. It has also been disclosed that affidavit were filed in writ petition no. 36236 of 2008 by same Ved Prakash Gupta, wherein the Manager/ Secretary was shown as Ashok Saxena instead of Ashok Yadav to challenge the order of Prescribed Authority. The said writ petition was filed by saying that Ashok Yadav, filing the present writ petition as manager had ceased to remain in existence as Manager in the institution.

4. That the judgment passed in writ petition no. 9177 of 2010 passed on 19.2.2010 has also be brought to the knowledge of this Hon’ble Court by filing the counter affidavit in support of stay vacation application in present writ petition no. 8166 of 2010, which is pending before this Hon’ble Court, but no rejoinder affidavit has been filed by the petitioners till date.

5. That the deponent is filing the judgment passed in Special Appeal No. 651 of 2010 filed by deponent challenging the order dated 1.4.2010 extending the order dated 16.2.2010 obtained by petitioners by committing the fraud upon majesty of this Hon’ble Court. The Division Bench of this Hon’ble Court has observed that if the fraud has been brought by filing counter affidavit, then the deponent may approach before Hon’ble Single Judge to get the aforesaid interim order vacated as the same has been obtained by committing fraud and material in support of aforesaid contention has not been brought to the notice of this Hon’ble Court. The true copy of the order dated 29.4.2010 passed in Special Appeal no. 651 of 2010 is being filed herewith and marked as Annexure no.1 to this affidavit.

6. That the petitioner no.1 has filed the contempt application no. 1624 of 2010, alleging therein, notices have been issued fixing 26.5.2010 by an order dated 6.4.2010. The true copy of the order dated 6.4.2010 passed in contempt application no. 1624 of 2010 is being filed herewith and marked as Annexure no.2 to this affidavit.

7. That it is well settled law that the staying of the operation of the order under challenged by the interim order has a distinction with upholding for quashing the same order. The stay of operation of an order would not mean that the order has been wiped out, but is being kept in abeyance for the time being (M/s Shree Chamundi Moped Vs. Church of South India Trust reported in A.I.R. 1992 S.C. Page 1439). Thus the District Inspector of Schools proceeded to act upon in compliance of the specific directions for appointment of an observer in compliance of the judgment dated 19.2.2010 by passing an order appointing Sri Panna Lal on 11.3.2010 in furtherance of the judgment passed in writ petition no. 9177 of 2010.

8. That in view of the aforesaid facts and circumstances of the case, it is expedient in the interest of justice that this Hon’ble Court may graciously be pleased to fix an early date, so that exparte interim order granted on 16.2.2010 extended until further order on 1.4.2010 may be vacated and the writ petition may be dismissed by imposing exemplary cost against petitioners.

I, the deponent above named, do hereby verify that the contents of para nos. 1, 2, 3, 4,

of this affidavit are true to my personal knowledge and those the contents of para nos. 5, 6

of this affidavit are based on perusal of records and those the contents of para nos. 7, 8

of this affidavit are based on legal advise, which all I believe to be true that no part of it is false and nothing material has been concealed in it.

So help me God.

(Deponent)

I, Yogesh Kumar Saxena, Advocate, High Court, Allahabad, do hereby verify that the person making this affidavit and alleging himself to be the deponent is known to me from perusal of papers produced before me by him in this case.

(Advocate)

Solemnly affirmed before me on this th day of

May, 2010 at about a.m./p.m. by the deponent, who has been identified by the aforesaid person.

I have satisfied myself by examining deponent that he understands the contents of this affidavit, which have been readover and explained to him.

OATH COMMISSIONER.

correctness of the judgment passed in Special Appeal no.1454 of 2006 dated 27.11.2006 may be submitted by filling the special appeal and getting a reference made, is permissible as per the law laid down by the full bench in case of Rama Pratap Singh and others Vs State of U.P. and others 1995 (1) ACJ 200 (FB).

2012-05-25T03:47:00.000-07:00

IN THE HON’BLE HIGH COURT OF JUDICATURE AT ALLAHABAD

I N D E X

SPECIAL APPEAL NO. OF 2009

(Under Chapter VIII Rule 5 of High Court Rules, 1952)

(DISTRICT – ETAWAH)

Surendra Prasad Agnihotri S/o Sri Babu Ram Agnihotri , Officiating Principal, Shri Gandhi Adarsh Inter College, Labedi, Etawah. - Appellant /Petitioner.

Versus

The State of U.P. through Secretary Madhyamik Education, Government of U.P., Lucknow and others - - - - Opposite parties/ Respondents

Sl.no.	Particulars.	Dates.	Ann.	page
	List of dates and Events.	--	-
	Memo of Appeal (Under Chapter VIII Rule 5 of High Court Rules, 1952)	--	-
	Certified copy of the order passed by Hon’ble Single Judge in Civil Misc. Writ Petition No. 65694of 2009.	5.12.2009	-
	Type copy of the order passed by Hon’ble Single Judge in Civil Misc. Writ Petition No. 65694 of 2009	5.12.2009	-
	Affidavit of Service in Memo of Appeal.	--	-
	Form- 18	--	-
	Stay Application (Under Section 151 of the C.P.C.)	--	-
	Affidavit in support of Stay Application.
	Copy of order passed in Writ Petition No. 65692 of 2009 on 5.12.2009	5.12.2009	1
	Copy of the Order passed in writ petition No. 63808 of 2009	5.12.2009	2
	Copy of Writ Petition No. 65694 of 2009 filed on24.11.2009	24.11. 09	3
	Copy of the Writ petition No. 65692 of 2009	24.11. 09	4
	Copy of the Writ petition No. 63808 of 2009 filed 0n 21.11.2009	21.11. 09	5
	Copy of the Writ petition No. 12133 of 1997	9.4. 1997	6
	Copy of Interim order in Writ petition No. 12133 of 1997	11.4.1997	7
	Affidavit of Service in Stay Application.
	Form-18
	Vakalatnama.

Dt- 7^th Dec. ,2009 (YOGESH KUMAR SAXENA)

Advocate

Counsel for the Appellants

Chamber no.139, High Court,

Allahabad.

IN THE HON’BLE HIGH COURT OF JUDICATURE AT ALLAHABAD

LIST OF DATES AND EVENT

SPECIAL APPEAL NO. OF 2009

(Under Chapter VIII Rule 5 of High Court Rules, 1952)

(DISTRICT – ETAWAH)

Surendra Prasad Agnihotri S/o Sri Babu Ram Agnihotri , Officiating Principal, Shri Gandhi Adarsh Inter College, Labedi, Etawah. - - - - Appellant /Petitioner

Versus

The State of U.P. through Secretary Madhyamik Education, Government of U.P., Lucknow. And Others---------------------Opposite Parties/Respondents.

S,N.	DATE	PARTICULRS OF THE CASE
1	1962	The institution of the committee of Management namely Sri Gandhi Adarsh Intermediate College, Labedi, Etawah of respondent no. 6 is an intermediate College having grant in aid of the government and the provisions of U.P. Intermediate Act, 1921, Act No. 5 of 1982 and U.P. High School and Intermediate college (payment of Salary) Act, 1971 are applicable to the petitioner‘s No. 1 Institution.
2	19.08.1973	The petitioner was initially appointed on 30.06.1971 as untrained Assistant Teacher. Thereafter the vacancy on the post of the lecturer in Hindi was created on account of the retirement of Sri Krishna Pratap Shukla after due advertisement in the news paper and on the said post the petitioner was given appointment as the Lecturer in Hindi on 19.08.1973. The petitioner was kept under probation for a period of one year. The approval to the aforesaid appointment of the Lecturer in Hindi of the petitioner was given by the District Inspector of School, Etawah vide letter no.T.E.-Lay-1/979/73-74 dated 19.08.1973.
3	28.11.1974	The District Inspector of School, Etawah changed the aforesaid order of his approval on the post of the Lecturer in Hindi in the substantive capacity of the appointment to the ad hoc appointment. The petitioner as Lecturer and nine other L.T. grade teachers filed the writ petition no.7387 of 1973, which was allowed by this Hon’ble Court by the Judgment dated 28.11.1974 and as such the approval granted by the District Inspector of School, Etawah remained the approval as the Lecturer in Hindi in substantive capacity. The Special Appeal was filed against the aforesaid Judgment dated 28.11.1974 passed in writ petition no.7387 of 1973 which was dismissed by this Hon’ble Court with cost. the petitioner continued to discharge his duties as the Lecturer in Hindi and thereafter he became the senior most lecturers in the seniority list published on 01.07.1996, 01.07.1997, 01.07.1998 and 01.07.1999 respectively.
4	01.07.1999	On account of the retirement of Sri Chandra Shekhar Tripathi from the post of the Principal, the petitioner being the senior most Lecturer furnished all such documents to the District Inspector of School, Etawah for seeking approval from U.P. Madhyamik Shiksha Sewa Chayan Board, Allahabad (respondent no.2). The Service Book of the petitioner was also forwarded for taking approval to the aforesaid promotion on the post of the Principal of the institution. the appreciation certificate was given to the petitioner in due discharge of his duties and nothing has been found adverse against the conduct of the petitioner by anyone of the higher authority in the institution till date.
5	03.01.2001	The date of birth of the petitioner is 22.09.1947, which is shown in his service book. The petitioner has been duly approved on the post of the Principal by the District Inspector of School, Etawah vide his letter dated 03.01.2001. The petitioner is drawing the salary of Principal form the date of the aforesaid approval and he has been given the revise pay scale on the basis of the prescribed proforma filled up by the Principal.
6	24. 10. 2007	The matter pertaining to the seniority has been declined by the joint director without being having any power to decide the appeal in regulation 3 of chapter III of the Intermediate Education Act, 1921 and in view of the pendency of writ petition no. 10408 of 2000, connected with writ petition no. 12133 of 1997 filed by the respondent no.7 & order dated 24. 10. 2007 by the Joint Directors of Educations, where in respondent no.7 is claiming his seniority w.e. f. 1. 7. 1996 on account of the promotion of respondent no.7 as lecturer in Sanskrit in the institution .
7	22.1.2008	The respondent no. 4 has passed an order in contradiction to the order passed by the same authority on 24.10.2007 by then Joint Directors of Educations on 22.1.2008 stating therein that the respondent no. 8 is senior and the seniority determine on the length of services of lecturers in the institution on 03. 09. 2007 having the seniority assigned in favour of the respondent no.7 working as lecturer in Sanskrit w.e.f. 1. 7. 1996 after retirement of the incumbent posted on the said post as Mr. Suresh Chandra Tiwari ( now Retired) on account of his conviction u/s 302 I.P.C. was found unsuitable for the above promotion as per interim order passed in writ petition no. 12133 of 1997 filed by the respondent no.7, has been set aside by the order dated 22.1.2008 passed by the respondent no. 4.
8	15.10.2008	By the order of the Director of Education passed on 15.10.2008, it was provided that as per the provision of section 18(4)(5) of Chapter IV of the Act no.5 of 1982, it is provided that the senior most lecturer is entitled for promotion on the post of the principal in the vacancy cost in the institution. The similar prepositions have been laid down in Regulation 2(3) of Chapter II under the Intermediate Education Act, wherein the senior most teachers may be given appointment on the post of the Principal if the vacancy remained in existence for more than 30 days in the institution. It has been stated that in case of the said promotion, the incumbent shall only be entitled to draw his salary on the post of his working in the institution and he shall not be entitled to draw the salary of the higher post of the principal in the said institution.
9	20.6.2009	The respondent no. 6 has taken the decision on the representation of the petitioner filed on 20.6.2009 to provide the extension of his services up to 30.6. 2010 , as the petitioner has already faced the interview before Uttar Pradesh Madhymaki Shiksha Sewa Chayan Board, 23, Alen Ganj, Allahabad in the year of 2001 and his selection as regular principal is awaited on account of the fact that the other senior most lecturer after the seniority of petitioner namely Shri Kishan Yadav has retired from service in 2007.
10	October, 2009	The District Inspector of School, Etawah has given the salary of the month of October, 2009 to the petitioner duly sanctioned by his account officer and as such , it was anticipated that the petitioner will be allowed to continue in the extension period up to the end of the session.
11	16.11.2009	Surprisingly without even considering the proprietary, competency of District Inspector of School, Etawah in directing the respondent no. 8 to appoint respondent no. 6 and got his signature attested as officiating principal without any jurisdiction, simply on account of the order passed on 22.1.2008 by the respondent no. 4 in contravention of the earlier orders passed by the same authority on 24.10.2007 and the pending proceeding of this Hon’ble Court in pendency of writ petition no. 10408 of 2000, connected with writ petition no. 12133 of 1997 filed by the respondent no.7, the impugned order has been passed on 16.11.2009.
12	16.11.2009	The institution of the education are the cradle for children for enshrined their inherent competence to abide with the norms of discipline and these charitable services rendered by the teachers is not the play ground of the political affiliation and caste prejudices, but for the development of the personalities of the children. Thus if the individual without even being taken into his consideration, as to the factor of his being a teacher and student relationship and allure the IX class student running at a deplorable age of dilemma with him during the first probation period of such teacher by himself and later on started embezzlement of the funds and misappropriate the property of the institution, how does the management and the principal and the other senior lecturers may allow such individual to serve as officiating principal. Thus the present writ petition is filed by the Petitioner as he is adversely and individually affected by the impugned order passed on 16.11,2009.
13	25.11.2009	The present Writ petition is filed to challenge the order dated 16.11.2009 on the ground of jurisdiction, proprietary, competency of such order appointing officiating principal and attesting the signature of respondent no. 8 without any order or resolution of appointing authority. The case of the petitioner is pertaining to his selection on the post of the Principal of the institution in the officiating capacity and he continued to draw his salary on the said post and thereafter the revise pay scale has also been given to the petitioner on the post of the Principal in the institution. The petitioner is no more the Lecturer in Hindi, nor can be reverted back to the said post even after completion of the age of superannuation on 21^st September 2009. His service book has been shown in order to substantiate the right of the petitioner on the post of the Principal and all the post retirement benefit including gratuity, provident fund shall be amenable to the petitioner on the post of the Principal and not on the post of the Lecturer in Hindi in the institution. The impugned order passed on 4.9.2009 by the respondent No.2 and the order dated 16.11.2009 may be set aside. The petitioner may be permitted to complete this academic year as the officiating principal and the respondent No. 2,4, and 5 may provide him regularization and the extension sought for by the management up to 30. 6. 2010 and further Uttar Pradesh Madhymaki Shiksha Sewa Chayan Board, 23, Alen Ganj, Allahabad through its Secretary, respondent No.3 may declare the result of interview faced vide interview letter dated 16.10.2001 on 07.11.2001.
14	5.12.2009	The present Special Appeal has been filed in compliance of the observation made Hon'ble A.P. Sahi, J in Judgement dated 5.12.2009 in Civil Misc. Writ Petition No. 65694 of 2009 Surendra Prasad Agnihotri VERSUS The State of U.P. through Secretary Madhyamik Education, Government of U.P., Lucknow by observing that it is not within the realm of the Hon’ble judge sitting singly to comment upon the correctness of the decision rendered in special appeal no.1454 of 2006 in re Hari Om Tat Sath Brahma Shukla Vs State of U.P. and others decided on 27.11.2006 (A copy thereof is Annexure 14 of the writ petition no.65694 of 2009). However the Hon’ble single Judge has directed that the papers in respect of other two Writ Petition No. 65692 of 2009 and Writ petition No. 63808 of 2009 along with Writ Petition No. 12133 of 1997 be lay before the Hon’ble Chief Justice / Hon’ble Senior Justice
15	7.12.2009	The present Special Appeal has been filed in compliance of the observation made Hon'ble A.P. Sahi, J in Judgement dated 5.12.2009 in Civil Misc. Writ Petition No. 65694 of 2009 Surendra Prasad Agnihotri VERSUS The State of U.P. through Secretary Madhyamik Education, Government of U.P., Lucknow by observing that it is not within the realm of the Hon’ble judge sitting singly to comment upon the correctness of the decision rendered in special appeal no.1454 of 2006 in re Hari Om Tat Sath Brahma Shukla Vs State of U.P. and others decided on 27.11.2006 (A copy thereof is Annexure 14 of the writ petition no.65694 of 2009). However the Hon’ble single Judge has directed that the papers in respect of other two Writ Petition No. 65692 of 2009 and Writ petition No. 63808 of 2009 along with Writ Petition No. 12133 of 1997 be lay before the Hon’ble Chief Justice / Hon’ble Senior Justice may kindly be heard and decided along with the present Special appeal in exercise of Chapter v Rule 6 of Allahabad High Court Rules, 1952.
16	7.12.2009	The submission made in the writ petition no.65694 of 2009 in relation to the correctness of the judgment passed in Special Appeal no.1454 of 2006 dated 27.11.2006 may be submitted by filling the special appeal and getting a reference made, is permissible as per the law laid down by the full bench in case of Rama Pratap Singh and others Vs State of U.P. and others 1995 (1) ACJ 200 (FB).

Dt- 7^th Dec,2009 (YOGESH KUMAR SAXENA)

Advocate

Counsel for the Appellants

Chamber no.139, High Court,

Allahabad.

IN THE HON’BLE HIGH COURT OF JUDICATURE AT ALLAHABAD

SPECIAL APPEAL NO. OF 2009

(UNDER CHAPTER XIII RULE 5 OF THE ALLAHABAD HIGH COURT RULES, 1952)

(DISTRICT-ETAWAH)

Surendra Prasad Agnihotri S/o Sri Babu Ram Agnihotri , Officiating Principal, Shri Gandhi Adarsh Inter College, Labedi, Etawah. - - - - Appellant /Petitioner.

VERSUS

1. The State of U.P. through Secretary Madhyamik Education, Government of U.P., Lucknow.

2. Director of Education ( secondary) , U.P. , Allahabad

3. The Uttar Pradesh Madhyamik Shiksha Sewa Chayan Board, 23, Alen Ganj, Allahabad through its Secretary.

4. The Regional Joint Director of Education, Kanpur Region, Kanpur.

5. The District Inspector of School, Etawah.

6. The Committee of Management, Sri Gandhi Inter College, Labadi, Etawah through its Manager Ishwar Chandra Tiwari S/o Shri Ram Nath Tiwari, Village and post Labedi, Etawah .

7. Satyendra Kumar Shukla Son of late Sri Krishna Kumar Shukla , Senior Most Lecturer in Sanskrit, Sri Gandhi Adarsh Inter College, Labadi, Etawah

8. Harindra Prasad Son of Sri Shiv Nath Ram , Lecturer in psychology, Sri Gandhi Inter College, Labedi, Etawah

- - - - Opposite parties/ Respondents

That the present Special Appeal has been filed in compliance of the observation made Hon'ble A.P. Sahi, J in Judgement dated 5.12.2009 in Civil Misc. Writ Petition No. 65694 of 2009, Surendra Prasad Agnihotri VERSUS The State of U.P. through Secretary Madhyamik Education, Government of U.P., Lucknow by observing that it is not within the realm of the Hon’ble judge sitting singly to comment upon the correctness of the decision rendered in special appeal no.1454 of 2006 in re Hari Om Tat Sath Brahma Shukla Vs State of U.P. and others decided on 27.11.2006 (A copy thereof is Annexure 14 of the writ petition no.65694 of 2009)

Between

Surendra Prasad Agnihotri …….Petitioner

And

The State of U.P. through Secretary Madhyamik Education, Government of U.P., Lucknow and 7 others ………Respondents The submission made in the writ petition no.65694 of 2009 in relation to the correctness of the judgment passed in Special Appeal no.1454 of 2006 dated 27.11.2006 may be submitted by filling the special appeal and getting a reference made, is permissible as per the law laid down by the full bench in case of Rama Pratap Singh and others Vs State of U.P. and others 1995 (1) ACJ 200 (FB).

The other two writ petition bearing writ petition no.65692 of 2009 and writ petition no.63808 of 2009 directed to be placed before the Hon’ble the Chief Justice /Senior Judge may also be decided along with the present special appeal as the common question of law and the factual controversy pertaining to the propriety competence and jurisdiction in passing the impugned order dated 16.11.2009 by the District Inspector of School, Etawah are mainly involved in all the three writ petitions for which the record of the writ petition no.12133 of 1997 may kindly be summoned by the Hon’ble Court pertaining to the question of determination of inter seniority between respondent no. 7 and 8.

The relief sought is to set-a-side the judgment passed by the learned single judge on 05.12.2009 only to the extent of offending portion having an observation pertaining to the denial of the right of the petitioner to challenge the order dated 16.11.2009 passed by the District Inspector of School even if the is passed without jurisdiction. The present Special appeal may be allowed by this Hon’ble Court.

The relief south in the writ petition no. 65694 of 2009 is for quashing the impugned orders passed on 04.09.2009 by the respondent No.2 and the order dated 16.11.2009 passed by the respondent no. 5 may be granted to the petitioner.

This Hon’ble Court further may be pleased to direct the respondents not to interfere in the functioning of the petitioner/Appellant as officiating principal and the petitioner may be permitted to complete this academic session year up to 30.06.2010 as the officiating principal .

The respondent No. 2,4, and 5 may provide extension sought by the management up to 30. 6. 2010 and further direct Uttar Pradesh Madhyamik Shiksha Sewa Chayan Board, 23, Alen Ganj, Allahabad through its Secretary., respondent No.3 to declare the result of interview faced by the petitioner on 07.11.2001 in furtherance of the interview letter dated 16.10.2001 as prayed in the present writ petition.

The valuation of the writ petition ………Rs.100/-

The valuation of the present Appeal …….Rs.100/-

Court fees paid …………………………Rs.100/-

The present Special Appeal is being filed on the following amongst other grounds:-

G R O U N D S

a. Because, a distinction is drawn between lack of jurisdiction and lack of error in exercise of jurisdiction; lack of jurisdiction strikes at the very root of exercise rendering the order therein a nullity and thus attesting the signature of respondent no.8, without having any resolution passed in his favour for appointment as officiating principal by the District Inspector of School himself, in passing the impugned order dated 16.11.2009 is without jurisdiction and a nullity within the eye of law. (Budhia Swain Vs Gopinath Deb (1999) 4 SCC Page 396 Para 8 & 9)

b. Because, the District Inspector of School despite being fully aware regarding the existence of the inquiry, in case of the embezzlement and appointing Assistant District Inspector of School vide order dated 28.03.2008 (filed as Annexure No.11), in respect of realization of Scout Guide Fund (filed as Annexure No.10) by the class teacher Harendra Prasad, the respondent no.8 and also regarding eloping a girl namely Deepa D/o Shri Sardev, studing in 11^th Class in the petitioners institution having co-education during the first probation period, resulting in extension of probation period for Two years with reprimand by the resolution of the committee of the management (filed as Annexure No.9) despite said disqualification being adhered with respondent no.8, attesting the signature of such person as officiating principal in the same institution by the District Inspector of School is a fraud on power which is not vested with the drawing and disbursement authority conferred with the District Inspector of School in passing the impugned order. (Mahanta Prasad Singh Vs State of U.P. 2002 Vol-II UPLBEC Page 1316)

c. Because, the District Inspector of School is only the approving authority and empowered to attest the signature of the lecturer recommended by the committee of management as officiating principal and the said authority in no manner can ascertain the interest of the institution in appointing the officiating principal having proficiency, competency and eligibility of the lecturer to function as officiating principal and as such the impugned order passed on 16.11.2009 is in itself a malafide and arbitrary order passed by the said authority. (Collector/District Magistrate Vs Raja Ram Jaiswal (1985) ALJ page 887).

d. Because, the Hon’ble Supreme Court while construing the interpretation, the term ‘a person in-charge of the post of Head Master/Principal also works and discharges the duties and functions of the post of which he has taken charge as officiating principal’ and as such acquire an equal amount of experience in the respective assignment. If the rule expressly did not make any differentiation between the person working as a confirm holder of substantive post of an in-charge or officiating holder of the post, Nonetheless both the holder of the post perform same duty, then any rider imposed upon regulation 21 of chapter 3 of the Intermediate Education Act will tantamount rider on legislative power (State of M.P. Vs Luxmi Shankar Mishra Para 9 & 10).

e. Because, it is well settled principal of law that the exercise of the power of appointment and promotion is only vested with the appointing authority in an institution managed by committee of management having grant in aid for which the power of disbursement of the salary is delegated by the state government to the District Inspector of School under section 3 of the payment of Salary Act, 1971 (Act no.24 of 1971) and since the District Inspector of School is not the appointing authority, the said authority was having no power to appoint the respondent no.8 as officiating principal.

f. Because, once the interpretation is taken in the light of the decision in case of R.C. Gupta Dr. Vs State of U.P. 2002 (1) UPLBEC 767, in relations to the officiating principal of degree college are applied. In case of Hariomtatsat Bramha Shukla Vs State of U.P. in special appeal No.1454 of 2006, in relation to the intermediate Education Act, 1921, the officiating principal will revert back as lecturer but in spite being the senior most lecturer duly entitled to continue up to the end of the session, shall be subjected to the supersession by the junior lecturer who remained under subordination of such officiating principal resulting in transgression of the discretionary power by misutilisation of such junior lecturer.

g. Because, in case of the reversion of a teacher from the post of the principal to the lecturer, the procedure is prescribed under section 16-G of the Intermediate Education Act and the provision of regulation 31 to 46 of chapter III of the Intermediate Education Act are required to be followed and as such no other liberal interpretation except for continuance of the officiating principal the end of the session, except in case of the denial or refusal by the same officiating principal two months prior from the time of attending the age of superannuation, could have been derivated from regulation 21 of Chapter III of Intermediate Education Act.

h. Because, unless and until a selected candidate from Uttar Pradesh Madhyamic Shiksha Seva Chayan Board, respondent no.3 may not recommended for substantive appointment, in which the petitioner him self had participated on 07.11.2001 in the interview on the post of the principal for the said appointment, the officiating principal may not be compel to revert back to his substantive post and the junior lecturer is appointed as officiating principal and as such this preposition of law is contrary to the statutory protection granted to the officiating principal who teaches the students of the intermediate classes like the other lecturers in the institutions.

i. Because, fairness in action must at least be perceptible in passing the impugned order dated 04.08.2009 by the Director of Education, the respondent no.2, stating therein that the order passed on 15.10.2008 is withdrawn on account of the decision in special appeal no.1454 of 2006, in spite the fact that the same authority is empowered to interpret ate the provision of sub section 4 and 5 of Section 18 in Chapter 4 of Act No.5 of 1982 and further having the further interpretation of the statutory provision of Section 3 and 16 G regulation 21 which was inserted on 08.08.1987 in chapter 3 of the intermediate Education act for which the Director of Education may not be empowered to withdraw the said Statutory provision and as such the order dated 04.08.2009 passed by the respondent no.2 is in itself null and void.

j. Because, the paper pertaining to the regularization and extension of the period of the services to be rendered by the petitioner till the end of Academic Session or till the declaration of the result by the board in pursuance of the interview conducted by the respondent no.3 of the petitioner on 07.11.2001 but the writ petition has been dismissed without considering the prayer No. II & III in writ petition no.65694 of 2009 filed by the petitioner.

k. Because, it was incumbent to decide all the three writ petitions filed together one by one bearing writ petition no.63808 of 2009 filed by Satyendra Kumar Shukla the senior most lecturer claiming his right to officiate as the principal in the institution and the other one bearing writ petition no.65692 of 2009 filed by the committee of management challenging the impugned order dated 16.11.2009 and 11.11.2009 passed in furtherance of the order of the respondent no.3 and passed on 22.01.2008 as well as order dated 04.08.2009 but the learned single judge declined to decide all the three writ petition by a common judgement and released two other writ petition without being taken as fresh writ petition in spite observing the incompetency of the respondent 8 for appointment in officiating capacity.

l. Because, the record of the other two writ petition referred to above may also be summoned for deciding all the three writ petitions by a common judgment in the present special appeal which is filed in order to protect the interest of the institution from an incompetent lecturer facing the inquiry in the matter of embezzlement and other misconduct pertaining to the moral turpitude as defined in regulation 32 of the Chapter 3 of the Intermediate Education Act.

m. Because, the matter pertaining to the entitlement of the senior most lecturer with effect from 01.07.1996 has been taken note by passing an interim order on 11.04.1997 in writ petition no.12133 of 1997 filed by Satyendra Kumar Shukla the senior most lecturer who sought for the inherent disqualification amenable to the teacher on account of his conviction in the offence under section 302 of IPC on account of the dictum in re Deputy Director of Collegiate Education (Admn) Vs S Nagoor Mira AIR 1995 SC 1364 and since the aforesaid convicted teacher is already retired, the writ petition no.12133 of 1997 filed by the respondent no.7 may also be decided for fixation of his seniority from his date of working on the said post.

n. Because, the Hon’ble Supreme Court in case of 1977 (8) SCC Page 59 has held that the promotional chance can not be nullified by any alternative delay which either may be lethargic or with ulterior motive and If the senior not appointed, they will regain their seniority even though the junior was earlier promoted as the seniority should be reckoned from the date of accrual of vacancy.

o. Because, Hon’ble Supreme Court in whirlpool Corporation Ltd. Case reported in 1998 Vol-VIII SCC Page 1 has laid down that if the order impugned is based upon the inherent lack of jurisdiction and having in its lethal radiation hitting to the root of the statutory protection granted to the petitioner under the legislative competence, the said order of the District Inspector of Schools passed on 16.11.2009 should have been out rightly set-a-side and the observation of the learned single judge that although the order of the District Inspector of Schools is without jurisdiction, the allowing of the writ petition may result in issuance of a futile writ is not a correct approach of the learned single judge.

p. Because the learned single judge although has recorded respondent no. 8 Harendra Prasad may not be suitable or he may not be entitled to join as officiating principal in view of the fact that the resolution of the committee of management remain in favour of Satyendra Kumar Shula imp leaded as respondent no.7 for which the petitioner may not challenge the order impugned passed without jurisdiction by the District Inspector of Schools is not a correct approach in the matter and in such circumstances all the three writ petitions may be heard and decided by a conjoint judgment as the perpetuity of the illegality may not be eroded the very foundation on the basis of which the interest of the educational institution may jeopardize and as such the judgment passed by the learned single judge on 05.12.2009 is liable to be set-a-side.

q. Because, the petitioner was initially appointed on 30.06.1971 as untrained Assistant Teacher and subsequently on the post of the lecturer in Hindi on 19.08.1973. The aforesaid appointment of the Lecturer in Hindi of the petitioner was given by the District Inspector of School, Etawah vide letter no.T.E.-Lay-1/979/73-74 dated 19.08.1973. The Service Book of the petitioner was also forwarded for taking approval to the aforesaid promotion on the post of the Principal of the institution. The appreciation certificate was given to the petitioner in due discharge of his duties and nothing has been found adverse against the conduct of the petitioner by anyone of the higher authority in the institution till date. The petitioner is drawing the salary of Principal form the date of the aforesaid approval and he has been given the revise pay scale on the basis of the prescribed proforma filled up by the Principal.

r. Because, the Division Bench of this Hon’ble Court in case of committee of Management ,Jagdish Saran Rajvansi, Kanya Inter College Vs. Joint Director of Education)reported in 2000 Vol. 1 ESC page 645 has laid down that when a teacher gets the benefit of the academic session after attaining age of superannuation, the said benefit may not be denied to the Principal as per the Regulation 21 of Chapter III of the Intermediate Education Act. A different preposition of law has been advanced in case of R.C. Gupta (Dr.) Vs. State of U.P. and others 2002 Vol-1 UPLBEC 767.

s. Because, by the order of the Director of Education passed on 15.10.2008, it was provided that as per the provision of section 18(4)(5) of Chapter IV of the Act no.5 of 1982, it is provided that the senior most lecturer is entitled for promotion on the post of the principal in the vacancy cost in the institution. The similar prepositions have been laid down in Regulation 2(3) of Chapter II under the Intermediate Education Act, wherein the senior most teachers may be given appointment on the post of the Principal if the vacancy remained in existence for more than 30 days in the institution. It has been stated that in case of the said promotion, the incumbent shall only be entitled to draw his salary on the post of his working in the institution and he shall not be entitled to draw the salary of the higher post of the principal in the said institution.

t. Because, by another order dated 04.08.2009 the Director of Education Madhyamik Uttar Pradesh has withdrawn the aforesaid Government order in furtherance of the Judgment passed in Special Appeal No.1454 of 2006 decided on 27.11.2006 by the Division Bench of this Hon’ble Court.

u. Because, the District Inspector of School, Etawah has given the salary of the month of October, 2009 to the petitioner duly sanctioned by his account officer and as such , it was anticipated that the petitioner will be allowed to continue in the extension period up to the end of the session.

v. Because, the respondent no. 4 has passed an order in contradiction to the order passed by the same authority on 24.10.2007 by then Joint Directors of Educations on 22.1.2008 stating therein that the respondent no. 8 is senior and the seniority determine on the length of services of lecturers in the institution on 03. 09. 2007 having the seniority assigned in favour of the respondent no.7 working as lecturer in Sanskrit w.e.f. 1. 7. 1996 after retirement of the incumbent posted on the said post as Mr. Suresh Chandra Tiwari ( now Retired) on account of his conviction u/s 302 I.P.C. was found unsuitable for the above promotion as per interim order passed in writ petition no. 12133 of 1997 filed by the respondent no.7, the incumbent posted on the said post as Mr. Suresh Chandra Tiwari ( now Retired) on account of his conviction u/s 302 I.P.C. was found unsuitable for the above promotion as per interim order passed in writ petition no. 12133 of 1997 filed by the respondent no.7.

w. Because, in case of Mahant pratap Singh Versus D.I.O.S. UPLBEC 2002 (2) 1316 , it has been laid down that if the management on account of the allegation of moral turpitude, embezzlement and misappropriation of funds did not consider fit to appoint some one as the principal in the institution as he may lack of the other teachers cooperation and his appointment on such post of principal is detrimental to the institution, it may appoint appropriate lecturer awaiting the joining of the candidate selected by the Uttar Pradesh Madhymaki Shiksha Sewa Chayan Board, 23, Alen Ganj, Allahabad.

x. Because, without even considering the proprietary, competency of District Inspector of School, Etawah in directing the respondent no. 8 to appoint respondent no. 8 and got his signature attested as officiating principal without any jurisdiction, simply on account of the order passed on 22.1.2008 by the respondent no. 4 in contravention of the earlier orders passed by the same authority on 24.10.2007 and the pending proceeding of this Hon’ble Court in pendency of writ petition no. 10408 of 2000, connected with writ petition no. 12133 of 1997 filed by the respondent no.7, the impugned order has been passed on 16.11.2009.

y. Because, the Hon’ble Apex Court In M.S. Mudhol (Dr.) Versus S.D. Helegkar (1993) 3 SCC 591has held that after having worked for more than a decade , it will not be seen that the incumbent was qualification at the time of appointment, as the individual has competed his entire tenure without any complaint. Thus the order passed the respondent no. 2 on 4.9.2009 is not based upon the correct proposition as the order passed on 16.11.2009 shall be deemed to be the reversion from the post of principal to lecturer without following the procedure prescribed for imposing punishment as per the requirement of section 16-G (3) (a) of Intermediate Act and passed in violation of Regulation 31 up to 46 of Chapter III of Intermediate Act.

z. Because, the impugned order passed on 4.9.2009 by the respondent No.2 and the order dated 16.11.2009 may be set aside. The petitioner may be permitted to complete this academic year as the officiating principal and the respondent No. 2,4, and 5 may provide him regularization and the extension sought for by the management up to 30. 6. 2010 and further Uttar Pradesh Madhymaki Shiksha Sewa Chayan Board, 23, Alen Ganj, Allahabad through its Secretary, respondent No.3 may declare the result of interview faced vide interview letter dated 16.10.2001 on 07.11.2001.

Dt- 7^th December,2009 (YOGESH KUMAR SAXENA)

Advocate

Counsel for the Appellants

Chamber no.139, High Court,

Allahabad.

IN THE HON’BLE HIGH COURT OF JUDICATURE AT ALLAHABAD

Civil Misc. Stay Application No. of 2009

(under Section 151 C.P.C. read with chapter IX Rule 10 Of Rules of the Court, 1952)

SPECIAL APPEAL NO. OF 2009

(Under Chapter VIII Rule 5 of High Court Rules, 1952)

(DISTRICT – ETAWAH)

Surendra Prasad Agnihotri S/o Sri Babu Ram Agnihotri , Officiating Principal, Shri Gandhi Adarsh Inter College, Labedi, Etawah.- - - - Appellant /Petitioner

Versus

1. The State of U.P. through Secretary Madhyamik Education, Government of U.P., Lucknow.

2. Director of Education ( secondary) , U.P. , Allahabad

3. The Uttar Pradesh Madhyamik Shiksha Sewa Chayan Board, 23, Alen Ganj, Allahabad through its Secretary.

4. The Regional Joint Director of Education, Kanpur Region, Kanpur.

5. The District Inspector of School, Etawah.

6. The Committee of Management, Sri Gandhi Inter College, Labadi, Etawah through its Manager Ishwar Chandra Tiwari S/o Shri Ram Nath Tiwari, Village and post Labedi, Etawah .

7. Satyendra Kumar Shukla Son of late Sri Krishna Kumar Shukla , Senior Most Lecturer in Sanskrit, Sri Gandhi Adarsh Inter College, Labadi, Etawah

8. Harindra Prasad Son of Sri Shiv Nath Ram , Lecturer in psychology, Sri Gandhi Inter College, Labedi, Etawah

- - - - Opposite parties/ Respondents

The Hon’ble the Chief Justice and his other companion Judges of the aforesaid Court.

The humble writ petition of the above-named petitioner most respectfully showeth as under: -

1. That the facts and circumstances of the case are given in the accompanied writ petition, the individual without even being taken into his consideration, as to the factor of his being a teacher and student relationship and allure the IX class student running at a deplorable age of dilemma with him during the first probation period of such teacher by himself and later on started embezzlement of the funds and misappropriate the property of the institution, how does the management and the principal and the other senior lecturers may allow such individual to serve as officiating principal. Thus the present writ petition is filed by the Petitioner as he is adversely and individually affected by the impugned order passed on 16.11,2009. The writ petition may kindly be accepted and the impugned order passed by the respondent no. 4 and 5 on 16.11.2009 may kindly be stayed.

2. That under these circumstances, it is expedient in the interest of justice that the impugned order passed on 4.9.2009 by the respondent No.2 and the order dated 16.11.2009 may be set aside. The petitioner may be permitted to complete this academic year as the officiating principal and the respondent No. 2,4, and 5 may provide him regularization and the extension sought for by the management up to 30. 6. 2010 and further Uttar Pradesh Madhymaki Shiksha Sewa Chayan Board, 23, Alen Ganj, Allahabad through its Secretary., respondent No.3 may declare the result of interview faced vide interview letter dated 16.10.2001 on 07.11.2001.

PRAYER

It is , therefore, most respectively prayed that this Hon’ble Court may graciously be pleased to stay the impugned order passed on 4.9.2009 by the respondent No.2 and the order dated 16.11.2009. The petitioner may be permitted to complete this academic year as the officiating principal and the respondent No. 2,4, and 5 may provide him regularization and the extension sought for by the management up to 30.6.2010 and further Uttar Pradesh Madhymaki Shiksha Sewa Chayan Board, 23, Alen Ganj, Allahabad through its Secretary., respondent No.3 may declare the result of interview faced vide interview letter dated 16.10.2001 on 07.11.2001.

Dt- 7^th Dec.2009 (YOGESH KUMAR SAXENA)

Advocate

Counsel for the Appellants

Chamber no.139, High Court,

Allahabad.

COPY OF IMPUGNED ORDER AND JUDGEMENT

IN THE HON’BLE HIGH COURT OF JUDICATURE AT ALLAHABAD

CIVIL MISC. WRIT PETITION No. OF 2009

(Under Article 226 of the Constitution of India)

(DISTRICT-ETAWAH)

Surendra Prasad Agnihotri S/o Sri Babu Ram Agnihotri , Officiating Principal, Shri Gandhi Adarsh Inter College, Labadi, Etawah.- - - -Petitioner.

VERSUS

1. The State of U.P. through Secretary Madhyamik Education, Government of U.P., Lucknow.

2. Director of Education ( secondary) , U.P. , Allahabad

3. The Uttar Pradesh Madhymaki Shiksha Sewa Chayan Board, 23, Alen Ganj, Allahabad through its Secretary.

4. The Regional Joint Director of Education, Kanpur Region, Kanpur.

5. The District Inspector of School, Etawah.

6. The Committee of Management, Sri Gandhi Inter College, Labadi, Etawah through its Manager Ishwar Chandra Tiwari S/o Shri Ram Nath Tiwari, Village and post Labedi, Etawah .

7. Satyendra Kumar Shukla Son of late sri Krishna Kumar Shukla , Senior Most Lecturer in Sanskrit, Sri Gandhi Adarsh Inter College, Labadi, Etawah

8. Harindra Prasad Son of Sri Shiv Nath Ram , Lecturer in psychology, Sri Gandhi Inter College, Labedi, Etawah - - - - Respondents

Court No.18

Civil Misc. Writ Petition No.65694 of 2009

Surendra Prasad Agnihotri Vs. The State of U.P. and others

***

Hon'ble A.P. Sahi, J

Sri Y.K. Saxena, learned counsel for the petitioner, has raised 7

fold contentions. Firstly, that the order is without jurisdiction as the District Inspector of Schools had no jurisdiction to render his opinion while attesting the signature of officiating Principal under the provisions of U.P. Act No.24 of 1971 Act; secondly, the District Inspector of Schools could not have proceeded to virtually induct a person as an officiating Principal without there being any resolution of the Committee of Management; thirdly, in view of the decision in the case of Ram Lal Prasad Vs. State of U.P. and others, 1987 AWC 1314, and other decisions relied upon, there is no occasion to eliminate the petitioner from the office of officiating Principal; fourthly, the impugned orderamounts to reverting the petitioner which is contrary to the legalprinciples as laid down in the case of Dr. M.S. Mudhol & another Vs. Shri S.D. Halegkar and others, JT 1993 (4) SC 143; fifthly, the choice of the District Inspector of Schools in relation to respondent No.8 Harindra Prasad is absolutely unwarranted as the said respondent is an unsuitable candidate and the Committee of Management has never recommended him for being appointed as such; sixthly, unless and until a selected candidate arrives from the Board, there is no occasion to bring about this transformation as this would result in arbitrariness and a junior person would be allowed to act as Head of the institution; and finally that the petitioner has to be regularized for which the information has been tendered in response to the letter sent by the District Inspector of Schools dated 28.7.2007, a copy whereof has been appended as Annexure-15 to the writ petition. It is urged that the petitioner's services have been recommended to be extended by the Committee of Management. The prayer is to quash the impugned order and restore the status of the petitioner as officiating Principal of the institution.

Sri Saxena apart from the aforesaid submissions, prayed that a

common judgment be delivered along with Writ Petition Nos. 65692 of 2009 and 63808 of 2009. These 2 writ petitions have been filed by the Committee of Management and one by the senior most Lecturer Sri Satendra Kumar, who is claiming his right to officiate as Principal of the institution.

I have considered all these submissions and it is not necessary to

call upon any of the respondents to answer the aforesaid submissions at this stage keeping in view the fact that the petitioner cannot succeed on any of the counts which arguments have been advanced before this Court.

The first issue is about the jurisdiction of the authority to pass the order. For this, in my opinion, the first issue before this Court is as to what is the legal right of the petitioner to claim such a relief. The petitioner was working as officiating Principal of the institution. It is not disputed by Sri Saxena that the date of birth of the petitioner is 27.9.1947. In this view of the matter, the petitioner has already attained the age of superannuation on 21.9.2009. Having become of 62years of age, the petitioner, therefore, as per Regulation 21 of Chapter III has retired from service.

The only issue which now remains to be considered in relation to

the claim of the petitioner is as to whether he can continue as officiating Principal or not. This issue has already been decided by a Division Bench of this Court in the case of Hari Om Tatsat Brahma Shukla Vs. State of U.P. and others, Special Appeal No.1454 of 2006 decided on 27.11.2006, a copy whereof is Annexure-14 to the writ petition. Sri Saxena contends that the said judgment proceeds on an erroneous assumption of law inasmuch as the earlier decision which was rendered in the case of R.C. Gupta (Dr.) Vs. State of U.P. and others, (2002) 1

UPLBEC 767, does not govern the issue at all and, therefore, the

Division Bench decision in the case of Hari Om Tatsant Brahma Shukla.

(supra) has been wrongly decided.

Having considered the aforesaid submissions, it is more than clear that there is a direct Division Bench answering the arguments advanced on behalf of the petitioner. The question as to whether the said decision has been correctly decided or not is not within the realm of this Court in as much as sitting singly, this Court cannot comment upon the correctness or otherwise of the said decision and it is open to the petitioner to advance his submission in relation to the said judgment by filing an appeal and getting a reference made if permissible in law in view of the law laid down by this Court in the Full Bench decision of this

Court in the case of Rama Pratap Singh and others Vs. State of U.P. and others, 1995 (1) ACJ 200 (FB).

The question as to whether the petitioner can be regularized or not is a question of framing of Rules by the State Government. No Rule has been framed which may confer any benefit to the petitioner keeping in view the contention raised in this regard. Merely because a communication has emanated from the District Inspector of Schools calling for certain information that by itself does not confer any right on the petitioner to claim regularisation. The said argument is also misconceived and is rejected.

Accordingly, the question as to whether the petitioner, after attaining his age of superannuation, has a legal right to claim the said post or not stands answered in the terms referred to herein above. Once this is held that the petitioner has no right to continue on the post of officiating Principal, this Court would not issue a futile writ in favour of the petitioner even if the order of the District Inspector of Schools is without jurisdiction. The petitioner, in my opinion, has not been reverted. He was holding the officiating charge and the charge has been taken away in view of the law which has been referred to herein above.

The question of suitability of Harindra Prasad, therefore, is irrelevant for the petitioner. The cause of action for the petitioner is entirely different from the other 2 writ petitions and, therefore, there is no necessity of

combining this writ petition along with the other 2 writ petitions.Whether the selected candidate has joined or not is not the concern of the petitioner in view of the conclusions drawn herein above and, therefore, the writ petition has no merit and is, accordingly, dismissed.

Dt. 5.12.2009 Sd A.P. Sahi J.

IN THE HON’BLE HIGH COURT OF JUDICATURE AT ALLAHABAD

AFFIDAVIT OF SERVICE

SPECIAL APPEAL NO. OF 2009

(Under Chapter VIII Rule 5 of High Court Rules, 1952)

(DISTRICT – ETAWAH)

Surendra Prasad Agnihotri S/o Sri Babu Ram Agnihotri , Officiating Principal, Shri Gandhi Adarsh Inter College, Labedi, Etawah. - Appellant /Petitioner.

Versus

The State of U.P. through Secretary Madhyamik Education, Government of U.P., Lucknow and others - - - - Opposite parties/ Respondents Affidavit of

Affidavit of Surendra Prasad Agnihotri aged about 62 years S/o Sri Babu Ram Agnihotri , Officiating Principal, Shri Gandhi Adarsh Inter College, Labedi, Etawah

(Deponent)

I, the deponent above named, do hereby solemnly affirm and state on oath as under: -

1. That the deponent is the appellant in the present Appeal and as such the deponent is well acquainted with the facts of case deposed to below.

2. That the copy of stay application, affidavit filed in support of stay application as well as its annexure has been served to the counsel representing respondent no.6 and the same has also been served in the office of Chief Standing Counsel on behalf respondent no.1 to 5 and endorsement to this effect has been obtained from them. The respondent no.7 and 8 is already represented in the writ petition no. 65694 of 2009 writ petition no. 63808 of 2009 through counsel for the appellant and as such need not be send the notice.

3. That under these circumstances, it is expedient in the interest of justice that present affidavit of service may kindly be accepted on record as the deponent has served all the respondents.

I, the deponent above named, do hereby verify that the contents of para nos. 1 and 2 of this affidavit are true to my personal knowledge and those the contents of para nos.

of this affidavit are based on perusal of records and those the contents of para no. 3 of this affidavit are based on legal advise, which all I believe to be true that no part of it is false and nothing material has been concealed in it. So help me God.

(Deponent)

(Advocate)

Solemnly affirmed before me on this 7th day of Dec., 2009 at about a.m./p.m. by the deponent, who has been identified by the aforesaid person.

I have satisfied myself by examining deponent that he understands the contents of this affidavit, which have been readover and explained to him.

OATH COMMISSIONER.

IN THE HON’BLE HIGH COURT OF JUDICATURE AT ALLAHABAD

Affidavit

in support of

Civil Misc. Stay Application No. of 2009

(under Chapter XXII Rule 1 of Rules of Court, 1952read with Section 151 C.P.C.)

On behalf of

Surendra Prasad Agnihotri S/o Sri Babu Ram Agnihotri , Officiating Principal, Shri Gandhi Adarsh Inter College, Labedi, Etawah. - - - - Appellant /Petitioner

SPECIAL APPEAL NO. OF 2009

(Under Chapter VIII Rule 5 of High Court Rules, 1952)

(DISTRICT – ETAWAH)

Surendra Prasad Agnihotri S/o Sri Babu Ram Agnihotri , Officiating Principal, Shri Gandhi Adarsh Inter College, Labedi, Etawah. - Appellant /Petitioner.

Versus

The State of U.P. through Secretary Madhyamik Education, Government of U.P., Lucknow and others - - - - Opposite parties/ Respondents

Affidavit of Surendra Prasad Agnihotri aged about 62 years S/o Sri Babu Ram Agnihotri , Officiating Principal, Shri Gandhi Adarsh Inter College, Labedi, Etawah.

(Deponent)

I, the deponent above named, do hereby solemnly affirm and state on oath as under: -

1. That the deponent is the Appellant in the present Appeal and as such the deponent is well acquainted with the facts of case deposed to below.

2. That the contends of application for interim relief mention has been read over and explained to the deponent.

3. That apart from this, the following documents and the annexure in support of have also being filed in support of the stay application.

4. That the Copy of order passed in Writ Petition No. 65692 of 2009 on 5.12.2009 is marked as Annexure No. 1 in support of the present Special Appeal.

5. That the Copy of the Order passed in writ petition No. 63808 of 2009( required to be heard along with Writ petition No. 12133 of 1997) passed on 5.12.2009 is annexed as ANNEXURE NO. 2 in support of the present Application.

6. That the Photo Copy of Writ Petition No. 65694 of 2009 filed on24.11.2009 is marked as Annexure No. 3 in support of the present Special Appeal.

7. That apart from this Copy of the Writ petition No. 65692 of 2009 filed on dated 24. 11. 2009 and writ petition No. 63808 of 2009 along with Writ petition No. 12133 of 1997 are annexed as ANNEXURE NO. 4 and 5 in support of the present Application.

8. That apart from this Copy of the Writ petition No. 12133 of 1997 along with Counter affidavit and rejoinder affidavit is marked as Annexure No. 7 in support of the present Special Appeal.

9. That apart from this Copy of Interim order passed in Writ petition No. 12133 of 1997 is marked as Annexure No. 7 in support of the present Special Appeal.

10. That copy of the orders passed in writ petition no. 65694 of 2009 passed on 4.8.2009 and 16.11.2009 by the respondent No. 2 and 5 are filed here with along with the photo copy of the writ petition no. 65694 of 2009.

11. That the institution of the committee of Management namely Sri Gandhi Adarsh Intermediate College, Labedi, Etawah of respondent no. 6 is an intermediate College having grant in aid of the government and the provisions of U.P. Intermediate Act, 1921, Act No. 5 of 1982 and U.P. High School and Intermediate college (payment of Salary) Act, 1971 are applicable to the petitioner‘s No. 1 Institution.

12. That the petitioner was initially appointed on 30.06.1971 as untrained Assistant Teacher. Thereafter the vacancy on the post of the lecturer in Hindi was created on account of the retirement of Sri Krishna Pratap Shukla after due advertisement in the news paper and on the said post the petitioner was given appointment as the Lecturer in Hindi on 19.08.1973. The petitioner was kept under probation for a period of one year.

13. That the approval to the aforesaid appointment of the Lecturer in Hindi of the petitioner was given by the District Inspector of School, Etawah vide letter no.T.E.-Lay-1/979/73-74 dated 19.08.1973.

14. That the District Inspector of School, Etawah changed the aforesaid order of his approval on the post of the Lecturer in Hindi in the substantive capacity of the appointment to the ad hoc appointment. The petitioner as Lecturer and nine other L.T. grade teachers filed the writ petition no.7387 of 1973, which was allowed by this Hon’ble Court by the Judgment dated 28.11.1974 and as such the approval granted by the District Inspector of School, Etawah remained the approval as the Lecturer in Hindi in substantive capacity.

15. That the Special Appeal was filed against the aforesaid Judgment dated 28.11.1974 passed in writ petition no.7387 of 1973 which was dismissed by this Hon’ble Court with cost.

16. That the petitioner continued to discharge his duties as the Lecturer in Hindi and thereafter he became the senior most lecturers in the seniority list published on 01.07.1996, 01.07.1997, 01.07.1998 and 01.07.1999 respectively.

17. That on account of the retirement of Sri Chandra Shekhar Tripathi from the post of the Principal, the petitioner being the senior most Lecturer furnished all such documents to the District Inspector of School, Etawah for seeking approval from U.P. Madhyamik Shiksha Sewa Chayan Board, Allahabad (respondent no.2). The Service Book of the petitioner was also forwarded for taking approval to the aforesaid promotion on the post of the Principal of the institution.

18. That the appreciation certificate was given to the petitioner in due discharge of his duties and nothing has been found adverse against the conduct of the petitioner by anyone of the higher authority in the institution till date.

19. That the date of birth of the petitioner is 22.09.1947, which is shown in his service book. The petitioner has been duly approved on the post of the Principal by the District Inspector of School, Etawah vide his letter dated 03.01.2001. The petitioner is drawing the salary of Principal form the date of the aforesaid approval and he has been given the revise pay scale on the basis of the prescribed proforma filled up by the Principal.

20. That the petitioner has already applied before the respondent no.2 for giving appointment of the post of the Principal for which the entire service book of the petitioner and other relevant documents were forwarded to U.P. Madhyamik Shiksha Sewa Chayan Board, Allahabad the interview were conducted on 07.11.2001 in which the petitioner and other senior most lecturer namely Sri Krishna Yadav S/o Sri Maharaj Singh Yadav participated in the said selection process. It is submitted that Sri Krishna Yadav has already attended the age of the superannuation in 2007 and such the petitioner is the only eligible candidate required to be given substantive appointment on the post of the Principal in the institution.

21. That the dispute in the present writ petition is pertaining to the controversy in respect of regulation 21 in Chapter III of the Intermediate Education Act which is reproduced as under:-

^^21- vkpk;Z] iz/kkuk/;kid] v/;kid rFkk vU; deZpkfj;ksa dk vf/ko’kZ 60 o; gksxkA ;fn fdlh vkpk;Z] iz/kkuk/;kid] v/;kid dk mi;qZDr vf/ko’kZ o; 2 tqykbZ vkSj 30 twu ds e/; esa fdlh frfFk dks iM+rk gS rks mls] ml n”kk dks NksM+dj tcfd og Lo;a lsok foLrj.k u ysus gsrq fyf[kr lwpuk vius vf/ko’kZ o; dh frfFk ls 2 ekg iwoZ ns nsa] 30 twu rd lsok foLrj.k Lo;aeso iznku fd;k ;k le>k tk;sxk rkfd xzh’edk”k ds mijkUr tqykbZ esa izfrLFkkuksa dh O;oLFkk gks lds blds vfrfjDr lsok foLrj.k dsoy mUgha fof”k’V n”kkvksa esa iznku fd;k tk ldsxk tks jkT; ljdkj }kjk fu/kkZfjr dh tk;A

;fn fdlh fyfid vFkok prqFkZ oxhZ; deZpkfj;ksa ds v/ko’kZ o; dh frfFk fdlh ekg ds e/; fdlh frfFk dks iM+rh gS rks mldk lsok foLrj.k ml ekl dh vfUre frfFk rd iznku fd;k x;k le>k tk;sxkA fdUrq ;fn fdlh deZpkjh dh lsok&fu;qfDr dh frfFk fdlh ekg dh igyh rkjh[k dks iM+s rks mls iwoZorhZ ekg dh vfUre frfFk dks lsok&fuo`Rr dj fn;k tk;sxkA ^^

22. That there is no difference in the aforesaid regulation pertaining to the services of the teacher appointed in permanent capacity and the teacher appointed in officiating capacity under regulation 21 of Chapter III of the Intermediate Education Act. It is submitted that once the salary is amenable on the post of the Principal and the incumbent is getting the revise pay scale and also the increments admissible on the said post of the Principal, the benefit accrued by regulation 21 of Chapter III of the Intermediate Education Act shall be amenable to the petitioner for completion of the entire academic session, in which the petitioner is completing his age of retirement.

23. That in the present case the petitioner’s date of birth is 22^nd September 1947 and as such the petitioner has completed 62 years of services on 21^st September 2009 however on account of the benefit amenable to the teacher, having the benefit of the entire tenure in a particular academic session as per the safe guard provided under Regulation 21 of the Chapter III of the Intermediate Education Act, the petitioner shall be deem to continue as the Principal up to 30^th June 2010 and shall be entitled to get his salary on the said post of Principal up to the end of the academic session.

24. That in this regard it is submitted that the Hon’ble Supreme Court has taken into consideration that if the incumbent has got the teaching experience in the officiating capacity, their will be no difference with another teacher having the teaching experience in a permanent capacity and as per the decision of the Supreme Court in A.K. Bose Vs Union of India A.I.R. SC 509 and the State of M.P. Vs. Laxmi Shankar Mishra AIR 1979 SC page 979 (Para 10).

25. That similarly this Hon’ble Court in case of Raja Ram Chaudhary Vs. Satya Narayan Gupta reported in 2003 Vol. 2 ESC 956 has taken the similar analogy in respect of the entitlement to the officiating Principal for having the benefit of the entire academic session available to the officiating Principal.

26. That the Division Bench of this Hon’ble Court in case of committee of Management (Jagdish Saran Rajvansi, Kanya Inter College Vs. Joint Director of Education)reported in 2000 Vol. 1 ESC page 645 has laid down that when a teacher gets the benefit of the academic session after attaining age of superannuation, the said benefit may not be denied to the Principal as per the harmonious interpretation and the rational classification as per regulation 21 of Chapter III of the Intermediate Education Act.

27. That on the other hand under section 18 of the U.P. Act no.5 of 1982, it has been considered that the appointment on the post of the Principal is the appointment on the higher post in the different grade and as such the ad hoc Principal is not entitled to get the benefit of the academic session after attaining the age of superannuation. A different preposition of law has been advanced in case of R.C. Gupta (Dr.) Vs. State of U.P. and others 2002 Vol-1 UPLBEC 767.

28. That it has been held that there is a basic different between the Permanent Principal and officiating Principal as ad hoc Principal has not rights to the post and he remained to continue as the Lecturer in the institution and as such after attaining his age of the superannuation, he cannot remained as the Principal of the institution. This preposition of law has been taken import from the judgment of the Supreme Court in S.K. Rathi Vs. Prem Hari Sharma 2000 Vol. 4 ESC Page 2278 (SC) wherein it has been held that a person cannot continue as acting Principal after he crosses the age of 60 years. It has also been laid down by giving the reference to the Government Order dated 05.07.2001, wherein it has been written that an ad hoc Principal cannot perform the function of the Principal after he crosses the age of superannuation.

29. That by the order of the Director of Education passed on 15.10.2008, it was provided that as per the provision of section 18(4)(5) of Chapter IV of the Act no.5 of 1982, it is provided that the senior most lecturer is entitled for promotion on the post of the principal in the vacancy cost in the institution. The similar prepositions have been laid down in Regulation 2(3) of Chapter II under the Intermediate Education Act, wherein the senior most teachers may be given appointment on the post of the Principal if the vacancy remained in existence for more than 30 days in the institution. It has been stated that in case of the said promotion, the incumbent shall only be entitled to draw his salary on the post of his working in the institution and he shall not be entitled to draw the salary of the higher post of the principal in the said institution.

30. That there is the difference between the appointment given purely on the temporary basis, as stop gap arrangement in order fill up the exigency to run the institution in temporary vacancy, while in other condition of given ad hoc/ officiating basis in the substantive vacancy created on account retirement on permanent post of principal after due selection amongst senior most lecturers , who was found competent to draw cooperation of other teachers, till the duly selected principal from the U.P. Secondary education services commission may not be available. An ad hoc person can not be replaced by another ad hoc teacher in the institution.

31. That even in such cases of the promotion of the petitioner as principal w.e.f. 1.7.1999, he continued to serve the institution with unblemished character high integrity in the institution having the co education and after completion of more 10 years as officiating principal and continued to remain Lecturer continuously in the institution from 22. 8.1973 is now being directed to remain under the subordination of the Lecturer, who has been given appointment 11. 8. 2003, after completion of two years probation period on account his involvement in institution having love affairs with his Girl Student namely Deepa D/O Sardev Resident Of Har Narain Pura , Dhobyai, Labedi, Atawah , after joining on probation on 11.8.2001.

32. That the case of the petitioner is pertaining to his selection on the post of the Principal of the institution in the officiating capacity and he continued to draw his salary on the said post and thereafter the revise pay scale has also been given to the petitioner on the post of the Principal in the institution. The petitioner is no more the Lecturer in Hindi, nor can be reverted back to the said post even after completion of the age of superannuation on 21^st September 2009. His service book has been shown in order to substantiate the right of the petitioner on the post of the Principal and all the post retirement benefit including gratuity, provident fund shall be amenable to the petitioner on the post of the Principal and not on the post of the Lecturer in Hindi in the institution. Thus the principal laid down in R.C. Gupta (Dr.) Supra is not applicable in the present circumstances of the case and the petitioner is entitled to continue up to the completion of the present academic session and he is also entitled for his regular salary as he is discharging his duties on the said post of the Principal of the institution.

33. That the result of the interview conducted on 07.11.2001 is awaited as the Hon’ble Supreme Court has already directed the Service Selection Board to declare the result. The petitioner on account of his entitlement and unblemished record with a spotless career remained the only candidate to be appointed on the post of the Principal. If his date of superannuation is considered as that of his completion of the tenure on the post of the Principal and the petitioner is relegated back to the post of the lecturer in the institution then the said situation will again create the problem pertaining to the appointment of the Assistant Teacher on the post of the Lecturer as there is a quota prescribed for such promotion 50-50 for direct recruitment and by way of the promotion. In any circumstances if the petitioner is directed to teach on the post of the Lecturer after being continuing in service for more than 10 years as the principal in the institution, this will create in subordination and resulting in the abrupt discontinuation in the smooth functioning of the institution and career of the students will be adversely affected and as such there is no possibility of having any irrational qualification within a class which is violative of Article 14 and 16 of the Constitution of India.

34. That Article 14 has got a pervasive potency and versatile quality equalitarian in its soul in allergic to the discriminatory dictates. The arbitrary distinction between the same class and the cadre is antithesis to the equality which is resulting in hostile discrimination with the anticipated rights accrued on account of completion of a period of more than 10 years in service on the post of the Principal in the institution by the Principal.

35. That the Government Order dated 15.10.2008 has been relied pertaining to the provision of 16(g) in respect of the regulation 21 of Chapter III of the Intermediate Education Act wherein the benefit of the academic session was provided even to such ad hoc Principal who continued to draw their salary continuing on the post of the Lecturer but have been continuing on the post of officiating Principal in the institution.

36. That by another order dated 04.08.2009 the Director of Education Madhyamik Uttar Pradesh has withdrawn the aforesaid Government order in furtherance of the Judgment passed in Special Appeal No.1454 of 2006 decided on 27.11.2006 by the Division Bench of this Hon’ble Court.

37. That the case of the Hari om Tat sath Braham Shukla Vs. State of U.P. is the case of the Lecturer in Adarsh Bajrang Intermediate College, Banda and therein the claim of entitlement on the part of the officiating Principal was the contrary to the statutory appointment and as such the different question was involved in the said case. The order passed by the District Inspector of School having handing over the charge to one Sri Pratap Narayan Mishra by an order dated 28.06.2003 and the direction for giving when the appellant on 24.05.2006 was attaining the age of 64 years on 05.07.2006. It was not found appropriate in the said case.

38. That the papers for regularizations of the petitioner have already being forwarded to the District Inspector of Schools, Etawah in furtherance of his order dated 28.9.2007 and the management has forwarded the papers to the District Inspector of Schools, Etawah on 17.12.2007 and there is the protection granted for such regularization even to the officiating principals working from more than 10years as per the protection given to lecturers and other teachers under section 33A to 33F of Act No. 5 of 1982 in the order dated 28.9.2007 and forwarding of the papers to the District Inspector of Schools, Etawah on 17.12.2007. Thus petitioner can not be reverted back on the post of Lecturer, where he worked from 1973 up to 1999, from the post of officiating principal .

39. That the respondent no. 6 has taken the decision on the representation of the petitioner filed on 20.6.2009 to provide the extension of his services up to 30.6. 2010 , as the petitioner has already faced the interview before Uttar Pradesh Madhymik Shiksha Sewa Chayan Board, 23, Alen Ganj, Allahabad in the year of 2001 and his selection as regular principal is awaited on account of the fact that the other senior most lecturer after the seniority of petitioner namely Shri Kishan Yadav has retired from service in 2007.

40. That the District Inspector of School, Etawah has given the salary of the month of October, 2009 to the petitioner duly sanctioned by his account officer and as such , it was anticipated that the petitioner will be allowed to continue in the extension period up to the end of the session.

41. That the matter pertaining to the seniority has been decided by the joint director without being having any power to decide the appeal in regulation 3 of chapter III of the Intermediate education act, 1921, earlier in favour of sri Virendra Kumar Tiwari lecturer in geography in view of the pendency of writ petition no. 10408 of 2000, connected with writ petition no. 12133 of 1997 filed by the respondent no.7. The impleadment application has been filed by the respondent no. 8 in the said writ petition. However totally contradictory orders have been passed by the respondent no. 4 in respect of inter se seniority, while there is no approved seniority list of the lecturers on account of pendency of these writ petitions.

42. That the matter pertaining to the seniority has been declined by the joint director without being having any power to decide the appeal in regulation 3 of chapter III of the Intermediate Education Act, 1921 and in view of the pendency of writ petition no. 10408 of 2000, connected with writ petition no. 12133 of 1997 filed by the respondent no.7 & order dated 24. 10. 2007 by the Joint Directors of Educations, where in respondent no.7 is claiming his seniority w.e. f. 1. 7. 1996 on account of the promotion of respondent no.7 as lecturer in Sanskrit in the institution.

43. That the respondent no. 4 has passed an order in contradiction to the order passed by the same authority on 24.10.2007 by then Joint Directors of Educations on 22.1.2008 stating therein that the respondent no. 8 is senior and the seniority determine on the length of services of lecturers in the institution on 03. 09. 2007 having the seniority assigned in favour of the respondent no.7 working as lecturer in Sanskrit w.e.f. 1. 7. 1996 after retirement of the incumbent posted on the said post as Mr. Suresh Chandra Tiwari (now Retired) on account of his conviction u/s 302 I.P.C. was found unsuitable for the above promotion as per interim order passed in writ petition no. 12133 of 1997 filed by the respondent no.7, has been set aside by the order dated 22.1.2008 passed by the respondent no. 4.

44. That the order passed by District Inspector of School, Etawah given the salary of the month of October, 2009 to the petitioner duly sanctioned by his account officer even after taken the request forwarded seeking approval of the extension of period of the petitioner and also for giving the charge on the post of officiating principal to the senior most lecturer namely the respondent no.7, who is having his right of senior most lecturer w.e.f.1.7.1996 itself , duly protected by this Hon’ble Court after retirement of the incumbent posted on the said post as Mr. Suresh Chandra Tiwari (now Retired) on account of his conviction u/s 302 I.P.C. was found unsuitable for the above promotion as per interim order passed in writ petition no. 12133 of 1997 filed by the respondent no.7.

45. That in case of Mahant pratap Singh Versus D.I.O.S. UPLBEC 2002 (2) 1316 , it has been laid down that if the management on account of the allegation of moral turpitude, embezzlement and misappropriation of funds did not consider fit to appoint some one as the principal in the institution as he may lack of the other teachers cooperation and his appointment on such post of principal is detrimental to the institution, it may appoint appropriate lecturer awaiting the joining of the candidate selected by the Uttar Pradesh Madhymaki Shiksha Sewa Chayan Board, 23, Alen Ganj, Allahabad.

46. That surprisingly without even considering the proprietary, competency of District Inspector of School, Etawah in directing the respondent no. 6 to appoint respondent no. 8 and got his signature attested as officiating principal without any jurisdiction, simply on account of the order passed on 22.1.2008 by the respondent no. 4 in contravention of the earlier orders passed by the same authority on 24.10.2007 and the pending proceeding of this Hon’ble Court in pendency of writ petition no. 10408 of 2000, connected with writ petition no. 12133 of 1997 filed by the respondent no.7, the impugned order has been passed on 16.11.2009.

47. That in this manner, the institution of the education are the cradle for children for enshrined their inherent competence to abide with the norms of discipline and these charitable services rendered by the teachers is not the play ground of the political affiliation and caste prejudices, but for the development of the personalities of the children. Thus if the individual without even being taken into his consideration, as to the factor of his being a teacher and student relationship and allure the IX class student running at a deplorable age of dilemma with him during the first probation period of such teacher by himself and later on started embezzlement of the funds and misappropriate the property of the institution, how does the management and the principal and the other senior lecturers may allow such individual to serve as officiating principal. Thus the present writ petition is filed collectively by all the Petitioner as they are adversely and individually affected by the impugned order passed on 16.11,2009. The writ petition may kindly be accepted and the impugned order passed by the respondent no. 4 and 5 on 16.11.2009 may kindly be set aside.

48. The present Writ petition is filed to challenge the order dated 16.11.2009 on the ground of jurisdiction, proprietary, competency of such order appointing officiating principal and attesting the signature of respondent no. 8 without any order or resolution of appointing authority. There is no authority vested with the District Inspector of School, Etawah to attest the signature of the respondent no. 8 as officiating principal. The order of 4.8.2009 passed by the respondent no. 2 is in contravention of statutory protection granted to the officiating principals working at par with regular principal in the institution. The same is having irrational classification within a class and such order being based upon the irrational classification is violative to the rights of the officiating principal fully competent to function as the principal. The case of the decision in Special Appeal No.1454 of 2006 (Hariom Tatsath Braham Shukla Vs. State of U.P.) is not applicable to the circumstances of present case the petitioner. The analogy advance in the said case is not the ratio, on which the earlier order Government Order dated 15.10.2008 has been withdrawn by the respondent no. 2 on 4.9.2009. The order passed on 4.9.2009 is baseless, misconceived and contrary to its object and beyond legislative competence.

49. That the Hon’ble Apex Court In M.S. Mudhol (Dr.) Versus S.D. Helegkar(1993) 3 SCC 591hasheld that after having worked for more than a decade , it will not be seen that the incumbent was qualification at the time of appointment, as the individual has competed his entire tenure without any complaint. Thus the order passed the respondent no. 2 on 4.9.2009 is not based upon the correct proposition as the order passed on 16.11.2009 shall be deemed to be the reversion from the post of principal to lecturer without following the procedure prescribed for imposing punishment as per the requirement of section 16-G (3) (a) of Intermediate Act and passed in violation of Regulation 31 up to 46 of Chapter III of Intermediate Act.

50. That even otherwise, the respondent no.7 on account of the senior most eligible lecturer in Sanskrit w. e. f. 1.7.1996, in comparison to the initial appointment of respondent no. 8 on 11. 8 2003 as lecturer in psychology, may be declare as eligible as senior most Lecturer, as the record of respondent no.7 is unblemished, spotless and excellent in comparison of respondent no. 8, who has committed moral turpitude by indulging in allurement to his own student during probation in 2002 and indulged in embezzlement and misappropriation of the scout fund of the institution.

51. That under these circumstances, it is expedient in the interest of justice that the impugned order passed on 4.9.2009 by the respondent No.2 and the order dated 16.11.2009 may be set aside. The petitioner may be permitted to complete this academic year as the officiating principal and the respondent No. 2,4, and 5 may provide him regularization and the extension sought for by the management up to 30. 6. 2010 and further Uttar Pradesh Madhymaki Shiksha Sewa Chayan Board, 23, Alen Ganj, Allahabad through its Secretary., respondent No.3 may declare the result of interview faced vide interview letter dated 16.10.2001 on 07.11.2001.

52. That under these circumstances, it is expedient in the interest of justice that present affidavit of service may kindly be accepted on record as the deponent has served all the respondents.

I, the deponent above named, do hereby verify that the contents of para nos. 1 to 6 of this affidavit and the contends of para no. 1, 2, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20 , 23, 31, 32, 33, 34,36 37, 40, 41, 42, 43, 47, 50, 51 are true to my personal knowledge and those the contents therein of para nos. 3, 4, 5, 6, 7, 8, 9, 10, 29. 30. 32, 33, 34, 35. 37, 39, 44,

of this affidavit are based on perusal of records and those the contents of para no. , 21, 22, 24, 25, 26, 27, 28,29, 30, 38, 45, 46, 47, 48, 49 , 52---------------------------------------------------

of this affidavit are based on legal advise, which all I believe to be true that no part of it is false and nothing material has been concealed in it. So help me God.

(Deponent)

(Advocate)

Solemnly affirmed before me on this 7th day of Dec. , 2009 at about a.m./p.m. by the deponent, who has been identified by the aforesaid person.

I have satisfied myself by examining deponent that he understands the contents of this affidavit, which have been readover and explained to him.

OATH COMMISSIONER.

IN THE HON’BLE HIGH COURT OF JUDICATURE AT ALLAHABAD

AFFIDAVIT OF SERVICE

CIVIL MISC. STAY APPLICATION NO. OF 2009

SPECIAL APPEAL NO. OF 2009

(Under Chapter VIII Rule 5 of High Court Rules, 1952)

(DISTRICT – ETAWAH)

Surendra Prasad Agnihotri S/o Sri Babu Ram Agnihotri , Officiating Principal, Shri Gandhi Adarsh Inter College, Labedi, Etawah. - Appellant /Petitioner.

Versus

The State of U.P. through Secretary Madhyamik Education, Government of U.P., Lucknow and others - - - - Opposite parties/ Respondents

Affidavit of Surendra Prasad Agnihotri aged about 62 years S/o Sri Babu Ram Agnihotri , Officiating Principal, Shri Gandhi Adarsh Inter College, Labedi, Etawah

(Deponent)

I, the deponent above named, do hereby solemnly affirm and state on oath as under: -

1. That the deponent is the Appellant in the present Appeal and as such the deponent is well acquainted with the facts of case deposed to below.

2.That the copy of stay application, affidavit filed in support of stay application as well as its annexure has been served to the counsel representing respondent no.1 and the same has also been served in the office of Chief Standing Counsel on behalf respondent no1 to 5 and endorsement to this effect has been obtained from them.The respondent no.6 is already represented in the writ petition no. 65694of 2009 through counsel for the appellant and the respondent No. 7 and are represented by the counsel of the Appellant in other two writ petition no. 65692 of 2009 and 63808 of 2009 and as such the notice need not be send.

3. That under these circumstances, it is expedient in the interest of justice that present affidavit of service may kindly be accepted on record as the deponent has served all the respondents.

I, the deponent above named, do hereby verify that the

contents of para nos. 1 and 2 of this affidavit are

true to my personal knowledge and those the contents of para nos.

(Deponent)

(Advocate)

Solemnly affirmed before me on this 7th day of Dec, 2009 at about a.m./p.m. by the deponent, who has been identified by the aforesaid person.

I have satisfied myself by examining deponent that he understands the contents of this affidavit, which have been read over and explained to him.

OATH COMMISSIONER.

IN THE HON’BLE HIGH COURT OF JUDICATURE AT ALLAHABAD

Annexure No.

Civil Misc. Application No. of 2009

SPECIAL APPEAL NO. OF 2009

(Under Chapter VIII Rule 5 of High Court Rules, 1952)

(DISTRICT – ETAWAH)

Surendra Prasad Agnihotri S/o Sri Babu Ram Agnihotri , Officiating Principal, Shri Gandhi Adarsh Inter College, Labadi, Etawah. - Appellant /Petitioner.

Versus

The State of U.P. through Secretary Madhyamik Education, Government of U.P., Lucknow and others - - - - Opposite parties/ Respondents

notification dated 5.1.2000 shall not effect the notification dated 26.2.2006 which is based on its own fact that neither possession was take nor compensation was paid.

2012-05-25T03:45:00.000-07:00

HIGH COURT OF JUDICATURE AT ALLAHABAD

WRIT - C No. - 5618 of 2003 at Allahabad : Smt. Sushila Devi & Others Vs. State Of U.P. Thru' Secy. Awas & Others

Heard learned counsel for the petitioners and learned counsel for the respondents.
By means of this writ petition, the petitioners have prayed for a writ of certiorari to quash the notification dated 5.1.2000 issued by the State Government. The Challenge raised is on the ground that in the grab of correction of notification issued on 19.1.1998, the land of the petitioners has been declared under Section 6 of the Land Acquisition Act to have been required which did not find place in the notification dated 19.1.1998. Since the notification dated 5.1.2000 has been issued after one year, as prescribed, after expiry from the date of publication of Notification under Section 4 of the Land Acquisition Act, therefore, Notification under Section 4 of the Land Acquisition Act is void, as proviso 2 Sub section 2 (1) provides that no declaration in respect of any particular Land covered by Notification under Section 4 of the Land Acquisition Act shall be published commencement 1984 shall be made after expiry of one year from the date of publication of notification.
We find no force in the contention of learned counsel for the petitioners and undisputedly from perusal of the notification dated 5.1.2000 reveals that previously the plot of the petitioners has been acquired, situated in estern side of Khasra No. 115 Minzumla have been declared for order of acquisition under Section 7 of the Land Acquisition Act. Therefore, we declare the notification dated 5.1.2000 deserves to be quashed.
Therefore, accordingly the notification dated 5.1.2000 is hereby quashed. In so far as the notification dated 26.2.2002 is concerned it is self speaking. The extract of which is quoted below:-
'Whereas the land measuring 68 Bigha,11 Biswa, 9 Biswansi was needed for a public purpose, namely for the construction of Housing colony under planned development scheme in village Kishanpur, pargana Koll, Tehsil Koll, district Aligarh by the Aligarh development Authority, Aligarh and for the acquisition whereof notification no. 4679/9-A-3-96-491. A/96, dated January 22, 1997 and no 110/9-A-3-98/491-A/96, dated January 19, 1998 were issued respectively by the State Government under sub section(1) of Section 4 and Section 6 of the Land Acquisition Act, 1894 ( Act No.1 of 1894):
And whereas , out of the aforesaid acquired land, the land described and detailed in schedule below, of which neither the possession has been taken in accordance with procedure prescribed by law, nor the compensation has been given, is in the possession of the owner who is running brick kriln thereon, and

whereas after considering the application made by the owner of the land described and detailed in the schedule it has been decided to withdraw the said land from the acquisition thereof;
NOW, THEREFORE, in exercise of the powers under sub section (1) of section 48 of the aforesaid Act, the Governor is pleased to withdraw from the acquisition of the land described and detailed in the Schedule below.
Schedule
----------------------------------------------------------------------------------------------
District Tehsil Pargana Mauja Plot No. Approximate Area to be acquired
1             2         3               4                 5                                       6

Aligarh Koll Koll               Kishanpur                         Bigha Biswa Biswansi
                                                                302                01         05      00
                                                                 303/2             01          15      00
                                                                                 Total 03 00 00
Thus the question of notification dated 5.1.2000 shall not effect the notification dated 26.2.2006 which is based on its own fact that neither possession was take nor compensation was paid. Therefore, it has rightly been reserved.'
The petition is disposed of accordingly.
Order Date:- 20.7.2010

HAVING DOUBLE STANDARD IN ONE MATTER BY SAME JUDGE GIVING JUDGMENT IN CONTRADISTINCTIONS TO EACH OTHER

2012-05-25T03:40:00.001-07:00

Court No. - 39

Case :- WRIT - C No. - 9177 of 2010

Petitioner :- C/M, Kisan Inter College & Anr.

Respondent :- State Of U.P. Thru. Secr. Madhyamik Education &

Ors.

Petitioner Counsel :- Yogesh Kr. Saxena

Respondent Counsel :- C.S.C.

Hon'ble Dilip Gupta,J.

The petitioners have sought the quashing of the decision taken by

the Regional Level Committee on 27th January, 2010 by which

though the election of the Committee of Management of the

Institution held on 14th May, 2006 in which petitioner No.2

Shailendra Gupta was elected as the Manager has been recognised,

but a direction has also been issued to the District Inspector of

Schools to get fresh the elections held by an Observer since the

term of the Committee of Management elected on 14th May, 2006

has come to an end.

Learned counsel for the petitioners submitted that the petitioner-

Committee of Management had infact held the election on 10th

May, 2009 before the expiry of three years and, therefore, there

was no necessity of issuing the direction. There is nothing on the

record to indicate that this fact had been brought to the notice of

the Regional Level Committee by the petitioners.

There is, therefore, no infirmity in the decision taken by the

Regional Level Committee.

The writ petition is, accordingly, dismissed.

Order Date :- 19.2.2010

Hon’ble Dilip Gupta, J

The petitioners have sought the quashing of the decision taken by the Regional Level Committee on 25^th January, 2010 by which the elections of the respondent Committee of Management held on 14^th May, 2006 have been approved and a direction for holding of fresh elections has been given.

It is the contention of Sri Yogish Kumar Saxena, learned counsel appearing for the petitioners that the terms of the Committee of Management elected in the year 2006 had come to an end in 2009 and subsequently the claims filed by the rival Committee of Management before the District Inspector of Schools were submitted to the Regional Level Committee at Allahabad but without taking any decision on the elections held in year 2009 the Regional Level Committee has directed for holding fresh elections.

The matter requires examination.

Learned Standing Counsel appears for respondent Nos. 1,2, and 3. Issue notice to respondent No.4 by Registered Post. Steps may be taken within a week. The respondents may file a counter affidavit within four weeks. Rejoinder affidavit, if any, may be filed within two weeks’ thereafter.

List this petition for admission/hearing immediately after the expiry of the aforesaid period.

Till the next date of listing, the elections directed by the Regional Level Committee by the order dated 25^th January, 2010 shall not be held.

Order Date: 16.2.2010

IN THE HON’BLE HIGH COURT OF JUDICATURE AT ALLAHABAD

I N D E X

COUNTER AFFIDAVIT

(On behalf of Respondent no.4)

(Alongwith)

CIVIL MISC. STAY VACATION APPLICATION NO. OF 2010

CIVIL MISC. WRIT PETITION NO. 8166 OF 2010

(DISTRICT – AURAIYA)

Committee of Management, Kisan Inter College, Bhagya Nagar, Auraiya through its Manager Sri Ashok Yadav and others

-------------------------------------Petitioners

Versus

State of U.P. and others-----------------------------------Respondents

Sl.no.	Particulars.	Dates.	Annx.	Pages.
1.	Stay Vacation Application	--	--
2.	Counter Affidavit.	--	--
3.	Copy of the order passed in writ petition no. 8166 of 2010.	16.2.2010	CA-1
4.	Copy of the order passed in writ petition no. 9177 of 2010.	19.2.2010	CA-2
5.	Copy of the judgement passed in writ petition no. 44489 of 2003 and writ petition no. 41453 of 2006.	10.8.2006	CA-3
6.	Copy of the judgement passed in writ petition no. 47402 of 2006.	6.9.2006	CA-4
7.	Copy of the Index in Special Appeal no. 1241 of 2006.	--	CA-5
8.	Vakalatnama	--	--

Dt/- Mar, 2010 ( YOGESH KUMAR SAXENA )

Advocate.

Counsel for the Respondent no.4

Chamber no. 139, High Court,

Allahabad.

IN THE HON’BLE HIGH COURT OF JUDICATURE AT ALLAHABAD

CIVIL MISC. STAY VACATION APPLICATION NO. OF 2010

(Under Section 151 of the C.P.C.)

On behalf of

Committee of Management, Kisan Inter College, Bhagya Nagar, Auraiya through its Manager Sri Shailendra Gupta.

--------------------Applicant/ Respondent no.4.

CIVIL MISC. WRIT PETITION NO. 8166 OF 2010

(DISTRICT – AURAIYA)

1. Committee of Management, Kisan Inter College, Bhagya Nagar, Auraiya through its Manager Sri Ashok Yadav.

2. Sri Ashok Yadav, Manager, Committee of Management, Kisan Inter College, Bhagya Nagar, Auraiya.

3. Sri Raj Narayan Saxena, President, Committee of Management, Kisan Inter College, Bhagya Nagar, Auraiya.

--------------------------------Petitioners

Versus

State of U.P. through Principal Secretary, Secondary Education, U.P. Lucknow.
District Inspector of Schools, Auraiya, District Auraiya.
Regional Joint Director of Secondary Education, Allahabad Region, Allahabad.
Committee of Management, Kisan Inter College, Bhagya Nagar, Auraiya through its alleged Manager Sri Shailendra Gupta.

-------------------------------Respondents.

To,

The Hon’ble the Chief Justice and his other companion Judges of the aforesaid Court.

The humble application of the abovenamed applicant/ Respondent no.4 most respectfully showeth as under :-

1. That this application will be filed on _____________ and it is to be listed on_________________.

2. That the full facts and circumstances of the case have been stated in the accompanying counter affidavit, it is expedient in the interest of justice that this Hon’ble Court may graciously be pleased to allow this application and to vacate interim order dated 16.2.2010 passed by this Hon’ble Court in the abovenoted writ petition.

P R A Y E R

It is, therefore, most respectfully prayed that this Hon’ble Court may graciously be pleased to allow this application and to vacate interim order dated 16.2.2010 passed by this Hon’ble Court in the abovenoted writ petition.

Dt/- Mar, 2010 ( YOGESH KUMAR SAXENA )

Advocate.

Counsel for the Respondent no.4

Chamber no. 139, High Court,

Allahabad.

IN THE HON’BLE HIGH COURT OF JUDICATURE AT ALLAHABAD

COUNTER AFFIDAVIT

On behalf of

Committee of Management, Kisan Inter College, Bhagya Nagar, Auraiya through its Manager Sri Shailendra Gupta.

--------------------Applicant/ Respondent no.4.

CIVIL MISC. WRIT PETITION NO. 8166 OF 2010

(DISTRICT – AURAIYA)

Committee of Management, Kisan Inter College, Bhagya Nagar, Auraiya through its Manager Sri Ashok Yadav and others

-------------------------------------Petitioners

Versus

State of U.P. and others-----------------------------------Respondents

( Deponent )

I, the deponent above-named, do hereby solemnly affirm and state on oath as under: -

1. That the deponent is the Manager, Committee of Management, Kisan Inter College, Bhagya Nagar, Auraiya, who has been impleaded as respondent no.4 in the abovenoted writ petition and as such the deponent is well acquainted with the facts of case deposed to below.

2. That the contents of the writ petition as well as its annexure filed by petitioners have been read-over and explained to the deponent and the deponent has fully understood the contents thereof to reply them parawise in the present counter affidavit.

3. That following order has been passed in the abovenoted writ petition no. 16.2.2010, which is reproduced as under :-

Hon’ble Dilip Gupta, J

The matter requires examination.

List this petition for admission/hearing immediately after the expiry of the aforesaid period.

Till the next date of listing, the elections directed by the Regional Level Committee by the order dated 25^th January, 2010 shall not be held.

Order Date: 16.2.2010

4. That the aforesaid order has been obtained by the petitioner Ashok Yadav, nor only by misleading to the majesty of this Hon’ble Court having an anticipation for maintaining the scrupulous regard to the truthfulment of the statement, but also by committing fraud upon this Hon’ble Court. There has been false statements made in the writ petition, which has been sworn and affirmed on oath by one Ved Prakash Gupta without disclosing the fact that in what manner he is associated with the petitioner’s identity. The filing of present writ petition is also an abuse of process in a calculated manner just to hamper the due administration of justice by exercising pernicious influence between parties, which may tantamount as criminal contempt committed by petitioners. The reasons for the aforesaid averments are started in the subsequent paragraphs dealing with the averments made in the present writ petition and as such it may take note of the subsequent paragraph in arriving out to definite conclusion regarding aforesaid abuse of process of this Hon’ble Court.

5. That on account of these facts the Hon’ble Court has not been apprised with the correct position and granted interim order which is reproduced in the earlier paragraph. It is submitted that deponent/ respondent no.4 filed writ petition no. 9177 of 2010 by stating the correct facts brought on the record in the said writ petition and on the basis of the aforesaid facts submitted in the writ petition no. 9177 of 2010 filed by the duly elected committee of management managed by the deponent Shailendra Gupta, the order which is challenged in the present writ petition and has been stayed till the next date of listing, has been finally affirmed in the writ petition no. 9177 of 2010 filed by deponent of this counter affidavit. The order and judgement passed in writ petition no. 9177 of 2010 is reproduced as under:-

Hon’ble Dilip Gupta, J

The petitioners have sought the quashing of the decision taken by the Regional Level Committee on 27^th January, 2010 by which though the election of the Committee of Management of the Institution held on 14^th May, 2006 in which petitioner No.2 Shailendra Gupta was elected as the Manager has been recognized, but a direction has also been issued to the District Inspector of Schools to get fresh the elections held by an Observer since the term of the Committee of Management elected on 14^th May, 2006 has come to an end.

Learned counsel for the petitioners submitted that the petitioner- Committee of Management had infact held the election on 10^th May, 2009 before the expiry of three years and, therefore, there was no necessity of issuing the direction. There is nothing on the record to indicate that this fact had been brought to the notice of the Regional Level Committee by the petitioners.

There is, therefore, no infirmity in the decision taken by the Regional Level Committee.

The writ petition is, accordingly, dismissed.

Order Date: 19.2.2010

The true copy of the order dated 16.2.2010 passed in writ petition no. 8166 of 2010 and order and judgement dated 19.2.2010 passed in writ petition no. 9177 of 2010 are being filed herewith and marked as Annexure-C.A.1 & 2 to this affidavit.

6. That it is pertinent to mention here that in compliance of the aforesaid judgement dated 19.2.2010, the Supervisor was appointed from the office of District Inspector of Schools Auraiya and since the election of the deponent Committee of Management conducted in the year 2006 on 14.5.2006 were recognized by the order dated 25/27.1.2010 and thereafter the deponent committee of management held the election on 10.5.2009, but since the order having the recognition given to the deponent’s committee of management was passed on 25/27.1.2010 and as such the directions contained for having the appointment of supervisor by the District Inspector of Schools and for conducting the election in compliance of the order dated 25/27.1.2010 have again been conducted having the affirmation to earlier election conducted on 14.5.2006, 10.2.2009 and on 14.3.2010 duly elected the deponent’s committee of management in the institution. Thus the interim order obtained in the present writ petition on 16.2.2010 is liable to be vacated as it is in direct conflict to the judgement dated 19.2.2010 passed in writ petition no. 9177 of 2010.

7. That at the vary out set, it is submitted that on the admitted fact and the pleading made, it is crystal clear that the order dated 10.8.2006 filed as Annexure no.1 to the writ petition has already lost its existence as the aforesaid order was recalled by Joint Director of Education himself in the light of judgement passed in writ petition no. 44489 of 2003 and 41453 of 2006 filed by petitioner and deponent respectively in view of the fact that judgement dated 6.9.2006 passed in writ petition no. 47402 of 2006 attended the finality after dismissal of Special Appeal no. 1241 of 2006 filed against judgement dated 6.9.2006 passed in writ petition no. 47402 of 2006, the stress and the significant has been provided to order dated 10.8.2006, which is a clear cut case of misleading to the majesty of this Hon’ble Court and the deponent of writ petition Ved Prakash Gupta may be prosecuted for committing criminal contempt in exercise of the power conferred upon this Hon’ble Court under Article 215 of the Constitution of India. The true copy of the judgment passed on 10.8.2006 in writ petition no. 44489 of 2003 and 41453 of 2006, judgement passed on 6.9.2006 in writ petition no. 47402 of 2006 and Index of Special Appeal no. 1241 of 2006 filed by Ashok Yadav challenging the judgement dated 6.9.2006 directing Ashok Yadav to deposit Rs. 20,000/- in the Bank Account of the institution are filed herewith and marked as Annexure C.A.3,4 and 5 to this affidavit.

8. That Ashok Yadav was not even eligible to take participation in the election conducted in 2003 as per the own averments made by a rank usurper and out sider namely Ashok Saxena filing writ petition no. 36236 of 2008 by stating that Ashok Yadav tendered his resignation, but this fact has not brought to the notice of this Hon’ble Court that writ petition no. 36236 of 2008 was not filed by the present petitioner, but by one Ashok Saxena alleging himself to be the Manager/ Secretary of committee of management of Kisan Educational Society Bhagya Nagar, Auraiya. Thus a fraud has been committed by filing the present writ petition alleging Ashok Yadav as Manager/ Secretary of committee of management of the institution and the society in the election conducted in 2006, while on their own showing of the election proceedings there was cutting over the name of Ashok Yadav shown having the name of Ashok Kumar Saxena. It is submitted that prescribed authority after taking the note that there is no such person ever elected has passed the order on 25.6.2009 against which a writ petition no. 38614 of 2009 has filed, in which the deponent has already filed his counter affidavit alongwith application filed under section 340 Cr.P.C. for prosecuting deponent of writ petition no. 36236 of 2008.

9. That in this manner there was no occasion of submitting the application dated 19.5.2009 before District Inspector of Schools, Auraiya by Ashok Yadav, nor any particular of person filing such application before District Inspector of Schools, Auraiya has been brought on the record while filing Annexure-5 to the writ petition.

10. That in this manner there cannot be any election ever conducted by the committee of management, which never remained in existence and once it was admitted that Ashok Yadav ceased to remain as the Manager, the filing of the present writ petition by Ashok Yadav is in itself an abuse of process as neither any submission were placed by Ashok Yadav or by Ved Prakash Gupta before Joint Director of Education Allahabad Region Allahabad and as such Ashok Yadav has no right /power to filed present writ petition on behalf of committee of management and the present writ petition is liable to be dismissed with exemplary cost leveled against the petitioners.

PARAWISE REPLY

11. That in reply to the contents of paragraph no. 1 of the writ petition, it is submitted that Ashok Yadav representing himself to be the Manager of committee of management has no right to challenge the order passed on 25/27.1.2010 passed by Regional level Committee presided over by Joint Director of Education, Allahabad Region, Allahabad. The aforesaid order has been passed in compliance of the judgement dated 10.8.2006 passed in writ petition no. 41453 of 2006 connected with writ petition no. 44489 of 2003. Despite the fact that order dated 10.8.2006 was in itself set aside by passing an order dated 31.8.2006 in compliance of the aforesaid judgement dated 10.8.2006 passed by this Hon’ble Court and the matter was relegated to the Regional Level Committee, Allahabad Region, Allahabad by order of Joint Director of Education Kanpur Region, Kanpur, on an obsolete, redundant and non-existent order has been filed as Annexure no.1 to the writ petition in order to mislead the Hon’ble Court by exercising pernicious influence through the reprehensible conduct of the petitioner in filing the present writ petition. Thus the petitioner has no right to challenge the order dated 25/27.1.2010 as he himself never appear before Regional Level Committee despite number of opportunity and the subsequent reminders were given to him to place his submissions. It is submitted that on the other hand Ashok Yadav was replaced by Ashok Kumar Saxena alleging himself to be Secretary/ Manager of the society by cutting the name of Ashok Yadav and writing Ashok Saxena in place of Ashok Yadav. Thus which of these two individual is claiming to be the manager in pursuance of earlier alleged election said to have been conducted by rival claimants of Raj Narayan Saxena committee of management and as such the writ petition may be dismissed with exemplary cost against petitioner.

12. That the contents of the paragraph nos. 2 and 3 of the writ petition call for no reply.

13. That in reply to the contents of the paragraph no.4 of the writ petition, it is submitted that Ashok Yadav, filing the present writ petition was inherently incapable to contest said election alleged to have been conducted on 25.5.2003 as he became member of society only on 26.3.2006. Thus no right could have been set up by Ashok Yadav, filing the writ petition on the election conducted on 25.5.2003.

14. That in reply to the contents of the paragraph no.5 of the writ petition, it is submitted that it has not been disclosed by Ashok Yadav, filing the present writ petition, that Joint Director of Education by the order dated 11.9.2003 recognised the committee of management belonging to respondent no.4 as Assistant Manager as the signature of Ram Sewak Gupta were attested by the District Inspector of Schools. The writ petition no. 44489 of 2003 filed against said order was dismissed as withdrawn by Ved Prakash Gupta. However, subsequently thereafter on account of ailments of Ram Sewak Gupta, the deponent Shailendra Gupta was recognised as Manager by an order dated 18.4.2006 and thereafter election was conducted by the out going committee of management on 14.5.2006, which has been duly recognised by Regional Level Committee as the only valid election conducted pertaining to the committee of management of institution. Thus averments made in paragraph no.5 of the writ petition alleging any other election said to have been conducted on 23.5.2003 is totally uncalled for and has no relevance in the matter. However, the election dated 23.5.2006 has also been denounced by Regional Level Committee as well as by the President of rival claimants namely Raj Narayan Saxena setting up the case in favour of Ashok Saxena as Ashok Yadav by their own admission became member only on 26.3.2006 as indicated by alleged Ashok Saxena before this Hon’ble Court (Page 30 last portion of order of Prescribed authority). Thus the contents of paragraph no.5 of the writ petition are emphatically denied as baseless, misconceived, ill-advised and uncalled for.

15. That in reply to the contents of the paragraph no. 6 of the writ petition, it is submitted that 12 members are elected for the committee of management, while 3 members in addition to aforesaid elected members are Paden Members having total strength of 15 members and these Paden Members are elected every year from amongst the staff of institution. Thus the contents of the paragraph no.6 of the writ petition are emphatically denied.

16. That in reply to the contents of the paragraph no. 7 of the writ petition, it is submitted that order dated 10.8.2006 passed by Joint Director of Education, Kanpur Region, Kanpur is an obsolete, redundant and non-existent order by the bare perusal of order of Regional Level Committee passed on 25/27.1.2010 as the said order was declared null and void by Joint Director of Education, Kanpur Region, Kanpur by passing another order dated 31.8.2006 itself and relegating the matter to Regional Level Committee Allahabad Region, Allahabad wherein on the date fixed on 26.3.2006, 13.10.2006, 2.8.2008, 2.12.3009 and 23.12.2009 no one on behalf of alleged rival committee of management had ever appeared before Regional Level Committee Allahabad Region Allahabad. Thus the contents of the paragraph no. 7 of the writ petition are based on falsehood and a fraud has been committed by petitioner in relying order dated 10.8.2006 and also filing the same in the present writ petition, which is non-existent and redundant. The contents of the paragraph no.7 of the writ petition are denied.

17. That in reply to the contents of the paragraph nos. 8,9, and 10 of the writ petition, it is submitted that again a false statement has been given by stating therein that Regional Level Committee presided over by Joint Director of Education, Kanpur Region Kanpur recognised the petitioners election by an order dated 10.8.2006, which is non-existent. Similarly it has been submitted that Ashok Yadav was not even the member of society and as such the name of Ashok Yadav was score down from the proceedings of the alleged election said to have been conducted on 23.5.2006. It is submitted in the order itself that Ashok Yadav was replaced by Ashok Saxena as Ashok Yadav being District President of Samajwadi Party Auraiya and on account of his criminal antecedents was detained under National Security Act. It has been stated on Page No. 29 of the Paper-book that name of Ashok Yadav was cut-down and name of Ashok Saxena was shown to be inserted and as such the averments made in paragraph no.8 of the writ petition are glaring example of mis-representation and falsehood committed upon majesty of this Hon’ble Court by alleging therein that Ashok Yadav was recognised as Secretary/Manager of society.

It is also the false statement that Ashok Yadav filed writ petition no. 36236 of 2008, but on the other hand the said writ petition was filed not by Ashok Yadav, but by one Ashok Kumar Saxena alleging himself to by Manager/ Secretary of alleged society (relevant portion is on the opening paragraph of judgement passed in writ petition no. 36236 of 2008 on Page 33 of the Paper-book). As already submitted in earlier paragraph (in reply to paragraph no.6 of the writ petition) that 12 members are elected in general election while 3 members are Paden Members taken from the teaching staff including Principal of institution. Thus the question of having been elected all 15 members in the general election of the committee of management is again an incorrect statement. Thus in view of the fact, neither the recognition can be adhered in favour of Ashok Yadav by the obsolete order dated 10.8.2006, nor Ashok Yadav can get any benefit from judgement passed in writ petition no. 36236 of 2008, having denouncing of claim of Ashok Yadav even as ordinary member of society in the said writ petition. Thus the contents of the paragraph no. 8, 9 and 10 of the writ petition meant for mis-representation regarding identity of Secretary/ Manager of institution in the alleged earlier election, hence the same are emphatically denied.

18. That in reply to the contents of paragraph no. 11 of the writ petition, it is submitted that the writ petition no. 38614 of 2009 has again been filed by Ashok Kumar Saxena alleging himself to be the member of Kisan Education Society, wherein a detailed counter affidavit has been filed on behalf of Shailendra Gupta, validly elected Manager of the institution in the election conducted on 14.5.2006 and subsequently present election of committee of management conducted in compliance of judgement dated 19.2.2010 passed in writ petition no. 9177 of 2010 having affirmation to the order passed on 25/27.1.2010. Thus the contents of paragraph no. 11 of the writ petition are emphatically denied as false, misconceived statement stated on oath by the petitioner.

19. That in reply to the contents of paragraph no. 12 of the writ petition, it is submitted that Ashok Yadav, the petitioner in the present writ petition had unauthorisedly withdrawn an amount of Rs. 20,000/- from the Account of Management, despite the fact that on 31.8.2006 he himself denounced to continue as Manager of institution. Thus the directions were issued on 6.9.2006 in writ petition no. 47402 of 2006 to deposit the aforesaid amount of Rs. 20,000/- by Ashok Yadav, filing the present writ petition. It is submitted that a Special Appeal No. 1241of 2006 was also dismissed filed against judgement and order dated 6.9.2006. Thus no right could have been accrued in favour of Ashok Yadav, filing the present writ petition on the basis of alleged election, nor any further election was ever conducted as alleged on 17.5.2009. It is also falsehood to state that any such paper as alleged to have been submitted on 19.5.2009 to the District Inspector of Schools, there was no right vested with Ashok Yadav at any point of time according to their own Office-bearer including his President of society namely Raj Narayan Saxena in participating in the election said to have been conducted in 2003, 2006 and also in 2009. Thus the filing of the papers pertaining to the alleged election dated 17.5.2009 to the District Inspector of Schools on 19.5.2009 are emphatically denied as baseless and misconceived. The petitioner may be directed to produce entire election proceedings of alleged election said to have been conducted on 17.5.2009 regarding which he alleges to send his papers on 19.5.2009 to the District Inspector of Schools, Auraiya.

20. That in reply to the contents of paragraph nos. 13 and 14 of the writ petition, it is again falsehood that Regional Joint Director of Education Kanpur Regional Kanpur issued notice on 13.8.2009 with regard to alleged election, nor it was ever been directed by Joint Director of Education Kanpur Region to approach Regional Joint Director of Education Allahabad Region. Thus filing of writ petition no. 52529 of 2009 was totally uncalled for and the deponent has not been apprised by the alleged order dated 9.10.2009 passed in the alleged writ petition no. 52529 of 2009. Thus the contents of paragraph nos. 13 and 14 of the writ petition are emphatically denied as baseless and misconceived.

21. That in reply to the contents of paragraph no. 15 of the writ petition, it is submitted that election of deponent’s committee of management was conducted on 10.5.2009 and the papers of said election were forwarded to Regional Joint Director of Education Kanpur Region Kanpur, but it was never directed by the Joint Director of Education Kanpur Region Kanpur that election papers pertaining to the election conducted in 2009 has been relegated to Regional Joint Director of Education Allahabad Region Allahabad. However, on the other hand by perusal of order dated 3.11.2009 the opportunity was given to Ashok Yadav, Ved Prakash Gupta to appear on 2.12.2009, but none of two persons appeared before Regional Level Committee of Joint Director of Education Allahabad Region Allahabad on 2.12.2009 and 23.12.2009, nor any paper pertaining to the alleged election said to have been conducted in 2009 was ever furnished before Regional Level Committee as alleged in paragraph no.15 of the writ petition. Thus petitioner may be prosecuted for making the false statement, which is contrary to the record filed as Annexure no.6 to the writ petition, otherwise the sanctity of the proceedings conducted under Article 226 of the Constitution of India may not be protected by this Hon’ble Court. Thus the contents of paragraph no. 15 of the writ petition are emphatically denied.

22. That in reply to the contents of paragraph no. 16 of the writ petition, it is submitted that falsehood is again alleged by the petitioner in saying that on 15.12.2009 the letter was written, but on the other hand even in letter dated 14.12.2009 nothing has been shown to have been submitted before Regional Level Committee presided over Joint Director of Education, Allahabad in respect of any claim set up by petitioner regarding election conducted in the year 2006, but on the other hand the vary existence of election alleged to have been conducted on 23.5.2006 have been denounced of having been elected Ashok Yadav as Secretary/ Manager by his own man namely Raj Narayan Saxena. Thus the contents of paragraph no. 16 and existence of Annexure no.7 to the writ petition are emphatically denied as totally misconceived and baseless.

23. That in reply to the contents of paragraph no. 17 of the writ petition, it is submitted that order passed on 25/27.1.2010 has already affirmed by this Hon’ble Court in writ petition no. 9177 of 2010 filed by deponent’s committee of management. However since there was no such election ever conducted in 2006 in which Ashok Yadav could have been elected as Manager. The only election which remained in existence was conducted on 14.5.2006 in which deponent Shailendra Gupta was elected as Manager and the same has been duty been recognised by the judgement dated 25/27.1.2010 passed by Regional Level Committee presided over by Joint Director of Education Allahabad Region Allahabad in compliance of the judgement dated 10.8.2006 passed in writ petition no. 44489 of 2003 and 41453 of 2006 and there is no illegality in the order dated 25/27.1.2010. Thus the contents of paragraph no.17 of the writ petition are emphatically denied.

24. That in reply to the contents of paragraph no. 18 of the writ petition, it is submitted that again a false and frivolous statement of fact having self contradiction by perusal of record filed by petitioner himself has been raised in the present writ petition. By the bare perusal of Annexure no.6 to the writ petition it is clearly stated that 2.12.2009 was fixed by letter dated 24.11.2009 and thereafter 23.12.2009 was fixed by Regional Level Committee of Joint Director of Education, Allahabad Region Allahabad, but nothing was produced by petitioner as there was no election ever conducted in 2006 in which Ashok Yadav could have been elected as Manager. It is submitted that petitioner may be directed to produce any such election in his rejoinder affidavit as he is adopting the policy of “Hide & Seek” by filing frivolous writ petition having false averments with self contradiction in writ petition no. 36236 of 2008 filed by Ashok Saxena as Secretary/ Manager, writ petition no. 38614 of 2009 filed by Ashok Saxena as Secretary / Manager of the society and in writ petition no. 32529 of 2009 filed by Ashok Yadav alleging himself to be Manager, but all such writ petitions have been said to be filed by Ashok Yadav himself, which is a false statement. It is submitted that Regional Level Committee fixed 26.9.2006, 23.10.2006, 2.8.2008, 2.12.2009, 23.12.2009 but since there was nothing to say by the petitioner that he never appeared, nor put any claim of conducting election in 2006. Thus the contents of paragraph no.18 of the writ petition are denied as baseless, false and misconceived, which are totally frivolous.

25. That in reply to the contents of paragraph nos.19,20,21,22, 23 and 24 of the writ petition, it is submitted that order dated 18.6.2008 passed by prescribed authority recognizing the election conducted on 14.5.2006, in which Ashok Yadav keep on alleging himself to have been elected as the Manager was not challenged by Ashok Yadav, but by one Ashok Kumar Saxena and the papers submitted were having cutting of name of Ashok Yadav and inserting Saxena in place of Yadav. Thus the order of prescribed authority does not provide any right to Ashok Yadav for alleging himself to be Manager at any point of time. The order dated 10.8.2006 passed by Joint Director of Education Kanpur become redundant, obsolete and no more in existent after the order dated 31.8.2006 passed by the same authority of Joint Director of Education Kanpur Region Kanpur. It is very strange that Ashok Yadav filed Special Appeal no. 1241 of 2006 in the month of October, 2006, but it is alleged that he submitted his resignation in August, 2006 itself and as such the name of Ashok Yadav was deleted in alleged manufactured election proceeding and Saxena was inserted in the alleged election said to have been conducted in 2006. Thus the entire averments made in the present writ petition are totally divide of any basis and there is no other election in existence except the election conducted on 14.5.2006, which has duly recognised by order dated 25/27.1.2010 by Regional Level Committee Allahabad passed in compliance of order and judgement dated 10.8.2006 in writ petition no. 44489 of 2003 and 41453 of 2006. Thus the contents of paragraph nos. 19, 20,21,22,23 and 24 of the writ petition are emphatically denied.

26. That in reply to the contents of paragraph nos. 25,26 and 27 of the writ petition, it is submitted that validity of election conducted on 14.5.2006 has been upheld by passing an order on 25/27.1.2010 and despite the fact that deponent’s committee of management conducted the election on 10.5.2009 again, but it was directed in the said order to conduct fresh election under the supervision of observer sent by District Inspector of Schools himself. The fresh election has been conducted on 14.3.2010 in compliance of the judgement dated 19.2.2010 passed in the writ petition no. 9177 of 2010 filed by deponent as Manager of committee of management and thus the contents of paragraph nos. 25 and 26 and the grounds taken in paragraph no.27 of the writ petition are totally misconceived and divide of any basis. The writ petition may be dismissed with exemplary cost as the proceedings of this Hon’ble Court may not be circumvented, prejudice and nullify by filing the frivolous writ petition and justice may be done with the rights of the deponent.

I, the deponent above named, do hereby verify that the contents of para nos.

of this affidavit are true to my personal knowledge and those the contents of para nos.

of this affidavit are based on perusal of records and those the contents of para nos.

of this affidavit are based on legal advise, which all I believe to be true that no part of it is false and nothing material has been concealed in it.

So help me God.

(Deponent)

(Advocate)

Solemnly affirmed before me on this th day of

March, 2010 at about a.m./p.m. by the deponent, who has been identified by the aforesaid person.

I have satisfied myself by examining deponent that he understands the contents of this affidavit, which have been readover and explained to him.

OATH COMMISSIONER.

‘ebi jus et remedium’ is applicable as fairness in action must be perceptible if not transparent. In the present case, the petitioner being a handicapped lady has been subjected to not only by the officials of Development authority, but also by the out sider, who were occupying her flat

2012-05-25T03:35:00.000-07:00

Before The Hon’ble State Consumer Redressal Forum ( Appellate Authority)

Tehri Kothi, LUCKNOW

Appeal No. 2439 of 2007

Smt. Archana Saxena Versus Allahabad Development Authority and Other

WRITTEN SUBMISSIONS

The Hon’ble The Chairman and His Lordship other companion Justices of this Hon’ble Court.

The humble Applicant Most Respectfully Begs As Under:-

1. That the Allahabad Development Authority issued and advertisement in the month of January, 1991 inviting prospective applicants to apply for obtaining the residential accommodation at Neem Sarai and Kasari Masari Housing Scheme, Allahabad. The accommodation was said to have been Constructed on the spot , but actually the caricature of such structure was found on the spot on 12. 4. 1991. Amongst the different category of groups, it was stipulated that registration amount of Rs. 30,000/- is required for H.I.G. flats at Neem Sarai Housing Scheme and Rs. 1,35,000/- was required to be deposited at the time of issuance of possession letter as first installment, while remaining amount of Rs. 1,35,000/- shall be taken in 120 installments comprising of Rs. 2265/- (along with interest of 16% per annum) each every month.

2. That the petitioner got herself registered by depositing an amount of Rs. 30,000/- on 23.1.1991 as per terms and condition of the aforesaid advertisement. She being a handicapped lady on account of her road accident due to turning over the vehicle at Tehri Garhwal, invested entire compensation amount awarded to her in M.A.C.T. Case decided at Pauri Garhwal, as she got the permanent disability of M.T. Temporo- mandicular joints with deficiency on opening of mouth with impairment of left upper arm and loss of anterior part of Tongue in the said accident. She was M.A. Psychology, M.A. (Previous) Sitar student when the accident took place, but subsequently completed social psychretic diploma from Ranchi and thus needed a residential accommodation due to apathetical approach by her husband after matrimonial alliance.

3. That to the utter surprise the petitioner got a notice dated 19.3.1991 stating therein that (just after 47 days of her registration) now she is required to deposit Rs. 1,57,500/- instead of Rs. 1,35,000/- otherwise her registration amount shall be forfeited.

4. That, the submissions before Hon’ble court were that since the advertisement issued in news papers with the attractive allurement that it is the golden opportunity is purchase the flats of different category the allotment letter was issued to the applicant on 19.3.1991, just after 45 days of depositing the registration amount and it was stated that in case the applicant fails to pay the announce the amount Rs. 1,57,500/-, the registration charges amounting to Rs. 30,000/- shall be forfeited. It is submitted that when the applicant went to the office of the secretary and it was disclosed by her that she required to deposit Rs. 1,35,000/- only and the total cost is tentatively Rs. 3,00,000/- and as such there may be realization of cost at final costing and not within 45 days when the house was not even constructed on 19.3.1991 in the first installment, for which there was nothing in Browser or in the advertisement published in the Newspaper. How does the cost could have been escalated by enhancing an amount of Rs. 1,57,500/- from 1,35,000/- within a period of 45 days?. At the time said allotment letter, even the road was not accessible for reaching upto the location of the flats, nor the door have been fixed upon the caricature of the house constructed of the brick work (As per their own report based upon the Joint inspection of Engineers of A.D.A. on 11. 4.1991). There was no ventilator pan affixed upon any windows: nor there was any amenity amenable for the human dwelling of the applicant. Thus in such situation, there could have not been any enhancement of the first Installment. The aforesaid condition of the flat remained as it was on 11.04.1991 upto the year of June, 1992 and thereafter the petitioner moved number of the application for giving him the possession, as she had already deposited Rs. 1,57,500/- on 29.10.1991 in compliance of interim order passed on 16.05.1991, 09.08.1991, 22.10.1991 directing the to deposit such amount and to Allahabad Development Authority to handover the possession to the petitioner. The petitioner deposited Rs. 1,57,500/- on 29.10.1991 in compliance of interim order, but the delivery of possession letter was not given in view of the fact that neither the construction was started upto the time of demand of the notice in pursuance of the allotment order 19.03.1991 nor subsequently thereafter upto June, 1992. The flat allotted to the applicant remain occupied for the purposes of accumulation of the article. used in construction of other flats by A.D.A. authorities, required for construction of other flat; namely the iron rods, cement and other item of sanitary work, and as such, the inability was shown to the applicant for handing over the possession. Subsequently on 29.10.1991 upto 12.10.1993 when the applications were given for handing over the possession, the possession letter was not given to the applicant; the flat was in the occupation of unauthorized occupation. Thus there is no fault attributable on the part of applicant, while the Development Authority are guilty of misfeasance in public office and the loss in injury suffered by the applicant at the hands of said authority due to their malafide and capriciousness/ oppressions acts, the applicant is entitled to compensation for the loss and injury suffered by A.D.A. to her harassment, mental agony, frustration ,discomposure and disappointment to the handicapped applicant

5. That the wrong committed by the respondents in delay in delivery of possession from the date of deposit of the amount of Rs. 1,57,500/- (Plus Rs. 30,000/-) after issuance of allotment letter on 29.10.1991 is solely attributed on the part of respondents. The respondents have not given the possession, but kept on letting out the same to same un-authorised person and the officials of respondents were indulged in restriction unfair trace practice by providing harassment to the applicant, who herself is a handicapped lady due to Road accident in the year 1977. There is another aspect of the matter that stamp duty chargeable at the time of having the entire deposit made by the applicant in pursuance of the demand of notice dated 24.03.2002 has also been enhance to the disproportionate extent. In 2002 when the entire deposit was made by the petitioner towards the cost of the flat No. H.I.G. 27, Neem Sarai, Allahabad, there was the further demand made from the applicant regarding realisation of the interest amounting to the Rs. 13000/- made with affect from 19.03.1991 upto 11.11.1991 @ the rate of 18% towards the interest as the amount of Rs. 1,57,500/- deposited on 29.10.1991 was actually endorse with the account of the A.D.A. on 11.11.1991 and as such from the date of the notice having the intimation of the possession (Possession Letter) since the protection was granted by the Hon’ble Court, Allahabad in writ petition no. 15455of 1991, the A.D.A. has demanded the interest on the late payment, which was not deposited by the applicant on 1.04.2003, thus the registration of the flat could not be done and registration fees should have been charged on price of the land and whatever has been increased in the stamp duty chargeable of the valuation of the flat, the same may be re-imbrued and the difference amount may be realized as the damages/compensation provided to the applicant on account of the delay in execution of the sale deed. The relevant provision applicable in this regard are reproduce as under:-

6. The respondents may be directed to make payment of interest at the rate of 18-percentage w.e.f. 29.10.1991 upto 30.6.1999 on the amount of Rs. 1,87,500/- in pursuance of Hon’ble High Court order in anticipation that she will get the Possession of flat No. H.I.G. 27 at Neem Sarai in compliance of Hon’ble High Court order passed in Writ Petition No. 15455 of 1991, Archana Saxena Versus A.D.A. Allahabad and others, as it remain applicable in banks and other financial institution at the relevant time, and also the damages for mental agony, frustrations, disappointments, discomfitures, being chafed again and again before it may heel to the handicapped woman, compensation for late Registration of Sale deed as the Entire amount was deposited as per the demand upto 1^st April, 2002, except the Interest amount of Rs. 13,787/- and the Kist Rent of Rs. 13,145/-being demanded from 19.3.1991 or 12.4.1991 at the rate of 18 –percentage upto 11.11.1991 upon late payment of Rs.1,57,500/- and also direct them not to take interest of 66- percentage in installment payment i.e. at Rs. 2265/- interest realized is approximately Rs. 1886.67/-, while principal amount is only rs.450/-, even if the applicant was ready for the entire deposit of the cost . When the house was not even constructed. The applicant had earned this amount as the compensation amount from the accident on 13.8.1977 at Tehri Garhwal and by taking loan from relatives.

7. That at that juncture the petitioner filed the writ petition No. 15455 of 1991 stating therein that although tentative cost of flat was notified in the public advertisement as Rs. 3,00,000/-, but within a short period of about 47 days, the demand of enhanced amount from Rs. 1,35,000/ to Rs. 1,57,500/- by the impugned notice Dt. 19.3.91 is arbitrary, as neither the road accessible to the flat, nor the flat is amenable for human dwelling as amenities of road, water electricity, drainage and door, plaster of Cement has yet not completed and as such the aforesaid demand is not only arbitrary, but unreasonable as even if there may be declaration of tentative price, the final cost of flat could have been assessed at the time of depositing the entire money after giving the possession of the flat by incurring only stipulated amount of Rupees 1,35,000/-, which was lying with the petitioner as the award of compensation claim given in the year 1985.

8. That Hon’ble Allahabad High Court by the interim order passed on 16.5.1991, 9.8.1991, extended on 22.10.1991 directed the petitioner to deposit Rupees 1,57,500/- till 14.11.1991, which was complied upon by the petitioner by depositing a Bank Draft of Rs. 1,57,500/- dated 29.10.1991 and duly acknowledge in Account of Allahabad Development Authority on 11.11.1991.

9. That the contesting respondents did not file and Counter Affidavit upto May, 1997, nor the possession of Plat No. H.I.G. 27 Neem Sarai was given to the petitioner inspite the request made in this regard with the officials of A.D.A. coupled with representations given to them for compliance of interim orders regarding delivery of possession on 29.10.1991 upto 12.10.1993 by regularly knocking the doors of respondents.

10. That when in spite the amount deposited amounting to Rs. 1,57,500/- within stipulated period in compliance of Hon’ble Court orders and the possession was not delivered to the petitioner, then a legal notice dated 7.5.1999 for initiating proceedings under Article 215 of the Constitution of India were passed by this Hon’ble Court on 20.5.1999 coupled with legal notice received on 11.5.1999 (as Admitted in the counter affidavit filed by official of respondents/Development Authority before Hon’ble High Court).

11. That Pursuant to the notice of Contempt of the Interim order issued by the Allahabad high Court directing the Vice chairman and the Secretary, Allahabad Developing Authority and tendering their apologies for the willful defiance’s of the Interim orders passed in Writ Petition No. 15455 of 1991 by the Division bench Presided by then Hon’ble Justice B. K. Rao and after giving assurance that Possession shall be given to the petitioner after completing certain formalities as that of entering in the agreement and for giving possession of the Flat after getting the unauthorized occupant evicted from her flat No. H.I.G. 27 at Neem Sarai , the contempt notices issued for prosecution of the opposite parties were discharged by Hon’ble High court.

12. That ultimately the possession letter was given to the petitioner on 30.6.1999. However, the physical possession was not given in view of fact that flat allotted to the petitioner was previously let out to one Munna Tailor and subsequently to one Ramayan Tripathi Contractor, who continued to remain in possession even after issuance of Possession letter.

13. That the physical possession was given only with the help of the police on 25.8.1999 to the petitioner. That the petitioner sought for supplying the necessary items as the flat may become fit for human dwelling. It was requested that the Development Authority may provide Sink, Mirror, Water Tank, Shower tabs on water point, main switch, light points and ceiling fill up with rainy water having the moisture in the entire flat, without having even the plaster, may be cured within due course of time, but nothing was done in this regard.

14. That the petitioner before taking the possession also deposited Rs. 1520/- through receipt no. 38 on 29.5.1999, and thereafter she deposited the aforesaid amount

a. Rs. 2265/- through receipt no. 28 on 25.8.1999,

b. Rs. 2265/- through receipt no. 43 on 31.8.1999,

c. Rs. 4460/- through receipt no. 19on 5.11. 1999,

d. Rs. 4460/- through receipt no. 29 on 28.1.2000,

e. Rs. 2230/- through receipt no. 12 on 19.2.2000,

f. Rs. 2230/- through receipt no. 11 on 25.3.2000,

g. Rs. 2230/- through receipt no. 6 on 20.4.2000,

h. Rs. 2230/- through receipt no. 24 on 25.5.2000,

i. Rs. 4460/- through receipt no. 34 on 14.8.2000,

j. Rs. 2230/- through receipt no. 13 on 16.10.2000,

15. That in spite the petitioner had already deposited Rs. 1,92,480/- upto that period and without taking into consideration the deposit of the aforesaid amounts of Rs. 1,92,480/- in addition to the deposit made of Rs. 1,87,500/- upto 11.11.1991, a demand of Rs. 1,46,533/- was issued on 11.7.2001 stating there in that said amount be deposited on 31.7.2001. The petitioner deposited Rs. 60,000/- through receipt no. 46 on 24.4.2001, Rs. 44,500/- through receipt no. 32 on 27.7.2001 and Rs. 50,000/- through receipt no. 13 on 10.12.2001.

16. That without taking into consideration the deposit of the aforesaid amounts in addition to the deposit made of Rs. 1,87,500/- upto 11.11.1991, the arbitrary demand was made by the Development Authority by issuance of another notice on 26.12.2001 stating therein that an amount of Rs. 1,43,533/- is lying against her, in which only Rs. 50,000/- has been taken to be deposited so far. The aforesaid notice was given without the said notice dated 26.12.2001 was received, the petitioner had already deposited Rs. 1,92,480/- in addition to the deposit made of Rs. 1,87,500/- upto 11.11.1991 upto that period. The aforesaid notice was further stipulating with malafide intention that in case the amount directed to be deposited as per demand of Development Authority made of Rs. 1,46,533/- on 11.7.2001, while Rs. 1,43,533/- on 26.12.2001. The same shall be recovered as arrear of land revenue through District Magistrate.

17. . Thus the respondents are liable to make the payment of the interest from 29.10.1991 to 28.7.1999 to the applicant at the rate of 18% per annum over the amount already deposited in the tune of Rs. 187500/- by the applicant in pursuance of the advertisement and after the issuance of the allotment letter to the applicant.

18. That it is submitted that although the petitioner made the demand for making a payment of the interest at the rate of 18% from 29.10.1991 to 30.6.1999 amounting to Rs. 2,17,350/- as despite the interim order passed by this Hon’ble Court on 9.8.1991, the possession letter was given only on 30.6.1999, while physical possession without having any item for making aforesaid flat fit for human dwelling was not provided upto 25.8.1999, when unauthorized occupant occupying flat vacated, the same by delivery of possession without any amenity available inside the flat No. H.I.G. 27 Neem Sarai, Allahabad.

19. That subsequently thereafter another letter was given to the petitioner along with the alleged deposit shown to have made by the petitioner without even taking into account the actual deposit made by the petitioner amounting to Rs. 1,92,480/- However, it was stipulated that upto July 2001 only a balance amount of Rs. 80,076/= &.69 Paise was shown, as the due lying against petitioner according to their own showing. Since from July, 2001 onward the petitioner deposited Rs. 44,500/- and Rs. 50,000/- and as such even according to deposit made subsequent to the estimate given by the respondents amounting to Rs. 80,076.69 Paise, the petitioner deposited much more of the money in comparison to remaining amount of Rs. 1,35,000/- due as on 30.6.1999, in which the petitioner had deposited Rs. 1,92,480/- under threat and coercion of the respondents for making recovery of Rs. 1,43,533/- as arrears of land revenue, which was given on 26.12.2001.

20. That thereafter the petitioner was informed that final assessment of amount payable by the petitioner has been assessed as Rs. 3900/- towards the additional land, Rs. 23,656/- as main Road charge Rs. 13,145/- as Kist rent, while an interest of amount deposited instead of 19.4.1991 upto 11.11.1991 was assessed as Rs. 13,787/-, while the aforesaid calculation was based on incomplete amount of deposit shown in the aforesaid letter dated 13.3.2002 and as such the petitioner in furtherance of said demand of Rs. 54,913/- deposited Rs. 41,000/- through receipt no. 28 on 1.4.2002 after receive of aforesaid letter.

21. That in this manner the grievances of the petitioner are now confined only in respect of issuance of directions to the Development Authority to return an amount of Rs. 2,17,350/- as in spite the directions contained in the interim order passed on 9.8.1991, the possession letter was given on 30.6.1999 and as such the petitioner is also entitled to claim the interest at the rate of simple 18%, while the Development Authority on the other hand is charging the compoundable interest from the allot tees of flat much higher than the demand made by the petitioner. The petitioner has also sought for execution of sale deed.

22. That the maxim – ‘ebi jus et remedium’ is applicable as fairness in action must be perceptible if not transparent. In the present case, the petitioner being a handicapped lady has been subjected to not only by the officials of Development authority, but also by the out sider, who were occupying her flat even after an amount of Rs. 1,87,500/- was deposited by the petitioner upto 29.10.1991 through Bank Draft, which was taken note by the official of Development Authority on 11.11.1991. Thus the interest of 18% in consonance with the interest chargeable by them may kindly be directed to be realized by the petitioner.

23. That the petitioner is relying upon the decision reported in case of Sri N.D. Ojha case reported in 2003 (2) UPLBEC 1325, Ghaziabad Development Authority case reported in 2004 (5) SCC 65, Lucknow Development Authority case reported in 1994 (1) SCC 243 and Haryana Urban Development Authority case reported in 2005 (1) UPLBEC 43, apart from other decisions referred to above, for Justifying her right for realisation of the amount amounting to Rs. 2,17,350/- in case the possession was not given even after directions of this Hon’ble Court

24. The subsequent events and development may be considered to be taken into consideration, as justice may not be prejudiced, circumvented, nullified by the respondents in respect of right of petitioner, which has been accrued in her favour by the interim order passed on 9.8.1991 further extended upto 14.11.1999 when the petitioner made deposit of Rs. 1,57,500/- for obtaining possession of Flat through Bank Draft Dt. 29.10.1991 in favour of Secretary, Allahabad Development Authority, Allahabad.

25. That although all the documents referred to above in the Synopsis has been placed on record, but in order to provide more authenticity the submissions made by the petitioner, the photo stat copy of the documents already annexed starting from Public advertisement issued in the newspaper in January, 1991 till the payments made by the petitioner under protest, threat of eviction and coercive measurement, threatening her for realization of amount as arrears of land revenue, just to wreck the vengeance without even any hypothetical justification, are filed along with present Synopsis. Some of the judgment referred to above are also supplied along with present synopsis as admittedly the action of the respondents in depriving the petitioner from her right of property and amount paid, which was given to her due to road accident, is not only contemptuous and has been done with malafide intention, but she in spite being handicapped lady and having constraint to perform her activities like healthy human being, she had suffered the mental agony, disappointment, discomfiture and frustration by the Development Authority simply on account of fact that she has taken protection of this Hon’ble Court for redress of her grievances against the arbitrary action of the officials of Development Authority by filing the present claim petition.

“It has been contended that there is extreme harshness regarding the charges of registration fee for execution of instrument for conveying the title of the petitioners. The legal aspect , which is sought to be enforceable upon after decision of this Hon’ble Tribunal may be taken in consideration:-

“Uttar Pradesh with regards to payment of Stamp Duty.”

2(6) Chargeable- Chargeable means, as applied to an instrument executed, or first executed after the commencement of this act, chargeable under this act, and as applied to any other instrument, chargeable under the law in force in India, when such instrument was executed, or where several persons executed the instrument, at different times first executed.

2(10) “Conveyance”- Conveyance includes a conveyance on sale and every instrument by which property, whether movable or immovable is transferred inter vivos, and which is not otherwise specifically provided for by schedule 1, Schedule 1-A or schedule 1B as the case may be………..

2(14) “Instrument” – Instrument includes every document and record created or maintained in or by an electronic storage and retrieval device or media by which any right or liability is, or purports to be creat.. transferred, limited, extended, extinguished or recorded.

3. Instrument chargeable with duty-subject to provisions of this act and the exemptions contained in schedule I the following instrument shall be chargeable with duty of the amount indicated in that schedule as the proper duty.”

23-A Certain instruments connected with mortgages of marketable securities to be chargeable as agreements-(1) Where an instrument (not being a promissory note) or bill of exchange-

(a) is given upon the occasion of the deposit of any marketable security by way of security for money advanced or to be advanced by way of loan, or for an existing or future debt, or

(b) makes redeemable or qualified a duly stamped transfer, intended as a security, of any marketable security, it shall be chargeable with duty as if it were an agreement or memorandum of an agreement chargeable with duty under Article No. 5(c) of Schedule I-B”

Since the scheme is of self-financing nature and the petitioners contribute the entire money for the construction of the house in all reasonableness and fairness, the registration fee should be charged on the price of land and not on the price of the house and to this extent we issue order that the registration fee is only payable and chargeable on the price of the land as the entire construction cost is contributed by the petitioners.”

PRAYER

That it is, therefore most respectfully Prayed that:-

1). That the petitioner/ applicant most respectfully demands for making a payment of the interest at the rate of 18% from 29.10.1991 to 30.6.1999 amounting to Rs. 2,17,350/- payable to the applicant to be realised from the opposite parties: as despite the interim order passed in Writ Petition No. 15455 of 1991 (decided on 28.2.2006 by Hon’ble High Court with the observation in favour of applicant to realise Interest for delay caused in handing over the possession), the possession letter was given only on 30.6.1999, while physical possession was not provided upto 25.8.1999, when unauthorized occupant occupying flat vacated;

2). That since the flat, given at the time of issuance of possession letter was given to the applicant without any amenity available inside the flat No. H.I.G. 27, Neem Sarai, Allahabad, the Allahabad Development Authority may provide the cost of Sink, Mirror, Water Tank, Shower tabs on water point, main switch, light points, which have not been provided till date and pay damages of Rs. 50,000/- for using inferior quality of material in the flat, as written by the applicant at the time of issuance of the possession letter that ceiling fill up with rainy water having the moisture in the entire flat, without having even the plaster, may be cured within due course of time, but nothing was done in this regard.

3). That since the respondents have demanded by the letter dated 13.3.2002 in furtherance of Final demand of Rs. 54,913/- which include the demand of Rs. 13,145/- as Kist rent, while an interest of amount deposited instead of 19.4.1991 upto 11.11.1991 was assessed as Rs. 13,787/-in the final assessment, by stating the same to be the interest realised by them on late deposit of Rs. 1,57,500/- deposited on 29.10.1991 instead of 12.4.1991, which includes 16% interest and 15% penal interest, the applicant has deposited Rs. 41,000/- through receipt no. 28 on 1.4.2002 after receive of aforesaid letter and as such nothing is due against the petitioner/applicant towards the Flat No. H.I.G.27 Neem Sarai, allotted to her, the sale deed may be directed to be executed.

4). That the opposite parties may be directed the excess money realised by them including included the excess money charged under the garb of realisation of interest on installments @ 66% may be reimbursed from the amount paid as Rs. 1,92,480/- after issuance of possession latter on 30.6.1999 and Rs. 1,87,500/- upto 29.10.1991 in furtherance of allotment letter dated 19.3.1991. They realised exorbitant Interest from Consumer under the garb of realisation of amount in installments and thus they may be directed to them not to take interest of 66- percentage in installment payment i.e. at Rs. 2265/- interest realized is approximately Rs. 1886.67/-, while principal amount is only Rs.450/-,and if the same is realised when applicant was ready to pay the entire amount . The damages of Rs.50, 000/- may be given to the petitioner towards non- pecuniary loss for mental agony , discomfiture, frustration and disappointment, which was chafed again and again ;before it may heal. The same may be reimburse to applicant.

5). “It has been submitted that the amount payable towards STAMP DUTY as was chargeable on 21.3.2002, the money included the excess money may be charged from opposite parties as there is exorbitant increase in the stamp Duty and extreme harshness regarding the charges of registration fee for execution of instrument for conveying the title of the petitioners. The legal aspect , which is sought to be enforceable upon after decision of this Hon’ble Tribunal may be taken in consideration.

Dt./- 13^th August, 2008

(YOGESH KUMAR SAXENA)

Advocate

Enrolment No. 946 of 1974

Counsel for the Appellant/ Petitioner Chamber No. 139, High Court, Allahabad.

Appointment of High Court Judges and the Transparency in Such Appointments A short cut rich phenomenon is the culture of Indians

2012-05-25T03:32:00.003-07:00

Appointment of High Court Judges and the Transparency in Such Appointments

A short cut rich phenomenon is the culture of Indians. The immemorial Chapter of the slavery to rest of the people on the cost of the comfort of one individual leading to betrayal with society has lead to us for the dreaded slavery. We have been carve out in an atmosphere of upbringing our youth on the slogan of nepotism, favoritism and corruption to the extend that if by hook and crook, one may start committing the day light robbery of the people for accumulation of wealth, the other associated citizen in the society will salute him for his money power and corruption. We have no respect for honest person. Only the opportunists, with few exceptions, are holding the constitutional post in our nation. It is a hierarchical truth of many dynasties, which ruled our Nation with ruthless abrogation of means and subjugation to the privilege of common citizen. Why the son of the shoe maker is known as Chamar, even if adores the highest position in the District. The son of the priest is the Brahmin, although he is manufacturing the shoe at his shop. This is a privilege oriented society. At our time, when the son of the judge, or the close relative thereof, or rather the son of the associated senior collogue with the individual empowers to recommend the name get an opportunity for elevation as the judge, he remain silent spectator by naming it as divine virtues in the process of elevation, but when he feels isolated in the process of evaluation of the law, than he started posing himself more authentic amongst his surroundings. As in the public life, only those who have the experience adhere with them in the process of advancement of research, they take the leap in the process of shining amongst others. Than he lost his potential and starts displaying the cynical disrespect in dealing with cases by passing the cryptic orders. This is the worst impact seen by the members of the public living in the society. It became an irrational classification within the class of the Advocates practicing at high court and Supreme Court. I know the names of some of the Judges, so elevated, who were having no potentials to stand on their own legs, but remained dependents upon the support of the crutches of their father, designated as Senior Counsel, that after their elevation as the judge of high Court, they preferred to have their chair different from the traditional chair or reposed a super authority with themselves while dealing with the contempt matter posted before them. These judges avoids public meeting and inside the court room, seldom deals with arguments. This is the transgression of the discretionary power vested with the superior authority in the matter of selection on the constitutional posts.All the members of the court are considered as wounded, where justice is found wounded with inequity, and judges do not extract the dart of inequity from justice or remove its blot and destroy inequity, in other words where the innocent are not respected and the criminal are not punished. A virtuous and just person should never enter a court and when he does so, he should speak the truth; he who holds his tongue on seeing injustice done, or speaks contrary to truth and justice, is the greatest sinner. Justice destroyed destroys its destroyer; and justice preserved, preserves its preserver. Hence, never destroy justice, lest being destroyed, it should destroy thee. In this world justice or righteousness alone is man’s friend that goes with him after death. All other things or companions part on the destruction of the body and he is detached from all company. But the company of justice is never cut off. When injustice is done in the government court out of partiality, it is divided into four parts of which one is shared by the criminal or doer of injustice, the second by the witness, the third by the judges, and the fourth by the president king of an unjust court. In my childhood, my teacher taught it to me in the classroom that “What ever you do; Do with your might; that is the way to be healthy, wealthy, and wise”. Subsequently, there after my father told me just few months before his death when I completed my 18 years of age that “Thou thy path be dark as sky; There is a star, thy path to guide, So trust in god and do the right “. THE ALLAHABAD High Court has directed the counsel for the High Court to produce the report of a committee, comprising three judges of this court, which made a recommendation to the Collegiums to appoint Dr. Justice Satish Chandra as a judge of the court . A division bench of the court issued this directive while hearing a writ petition challenging the appointment of Dr. Justice Chandra as a judge of the High Court.The bench passed this order, when the counsel for the High Court informed it that the High Court had declined to produce the committee’s report for perusal of the bench even in a sealed cover, despite the understanding that the report would not be made public. The division bench , comprising Justice Sushil Harkauli and Justice Vikram Nath, while taking a serious note of this refusal, observed,” We are unable to comprehend any plausible reasons for this unusual stand taken by the High Court. Therefore , having regard to the need to maintain public confidence in this institution, particularly in the present times, we have little option except to pass this order, directing that the report be produced before this court on September 25, 2008.The court made it clear that if the High Court proposes to claim privilege or raise any other objection to the production of the report, it will be open to the High Court to do so, but in writing by way of an application. If such an application is moved on or before September 25, it will not be necessary for the High Court to produce the committee’s report unless those objections are heard and disposed of , the court further said. Earlier, during the course of the hearing, the court had on September 10, directed that the record of the collegium proceedings relating to the recommendation regarding Justice Dr. Chandra’s elevation as a judge of this court be produced before the court in a sealed cover for the court’s perusal. The collegium , consists of the Chief Justice and two senior most judges, who recommend the names of persons to be appointed as judges of the High Court.On September 12, the collegium proceedings were produced before the court. A perusal of the recommendation made by the collegium indicated that the recommendation of the persons proposed to be elevated from ‘service’, including Dr. Justice Satish Chandra, was made by the collegium on the recommendation of a committee of three judges. On this, the court directed that the report of the three judge committee be produced before the court in a sealed cover. However, when on September 17, the counsel for the High Court said the High Court had declined to produce the committee’s report, the court passed the present order. High Lawyer M.C. Gupta, through Senior Advocate Ravi Kiran Jain, has challenged the appointment of Dr. Justice Satish Chandra as judge of this High Court on the ground that he lacked essential qualifications for the appointment, as well as lack of effective consultation between the constitutional functionaries whose consultation is mandatory under Article 217 of the Constitution of India. According to the petitioner, Dr. Justice Chandra does not have ten years’ of legal practice, nor is he a member of judicial services, which are essential for being appointed as a judge of the High Court.

three writ petitions bearing writ petition no. 34447 of 1994 (Dr. Harish Kumar Vs. C/M, K.G.K. (PG) College, Moradabad & others), writ petition no. 26167 of 2000 (Dr. Harish Kumar Vs. U.P. Higher Education Service Commission & others) and writ petition no. 901 (S/B) of 2002 (Dr. Harish Kumar Vs. State of U.P. and others). It is submitted that even after dismissal of writ petition 34447 of 1994

2012-05-25T03:27:00.000-07:00

IN THE HON’BLE HIGH COURT OF JUDICATURE AT ALLAHABAD

CIVIL MISC. APPLICATION NO. OF 2009

(Under Chapter V Rule 6 of the High Court Rules,1952)

On behalf of

Dr. D.P.S. Rawat, son of Late R.D.S. Rawat, Reader, K.G.K. Post Graduate College, Moradabad, resident of 1-B/425 Buddhi Vihar Avas Vikas Majhola, Moradabad, District Moradabad.

--------------------Intervener/Applicant.

CIVIL MISC. WRIT PETITION NO. 46045 OF 2005

(DISTRICT – MORADABAD)

(Writ Petition No. 26167 of 2000 and Writ Petition No. 901 (S/B) of 2002)

Dr. Harish Kumar, s/o Shri Prem Singh, resident of C-103, Harpal Nagar, Moradabad, presently working as Lecturer (Geography) K.G.K. College, Moradabad-------------------------------Petitioner

Versus

Director of Education (Higher) Sarojini Naidu Marg, Allahabad.
Committee of Management, K.G.K. (PG) College, Moradabad through its Manager.
State of Uttar Pradesh, through its Secretary, Higher Education, Civil Secretariat, Lucknow.

---------------------------------Respondents.

To,

The Hon’ble the Chief Justice and his other companion Judges of the aforesaid court.

The humble application of the above named applicant most respectfully showeth as under: -

That this application will be filed on ______________and it is to be listed on _________________.
That the full facts and circumstances of the case have been disclosed in the accompanying affidavit, which is the part of this application.
That for the facts and circumstances as stated in the affidavit, it is expedient in the interest of justice that the controversy involved in all three writ petitions (writ petition no. 26167 of 2000, writ petition no. 901 (S/B) of 2002 and the present writ petition) has been finally denounced by dismissal of writ petition no. 34447 of 1994 and as such after summoning the record of writ petition no. 901 (S/B) of 2002 pending before Lucknow Bench of this Hon’ble Court, a Division Bench may be nominated to decide the matter and suitable order may be passed in the interest of justice.

PRAYER

It is, therefore, most respectfully prayed that the controversy involved in all three writ petitions (writ petition no. 26167 of 2000, writ petition no. 901 (S/B) of 2002 and the present writ petition) has been finally denounced by dismissal of writ petition no. 34447 of 1994 and as such after summoning the record of writ petition no. 901 (S/B) of 2002 pending before Lucknow Bench of this Hon’ble Court, a Division Bench may be nominated to decide the matter and suitable order may be passed in the interest of justice.

Dt/- 2009 ( YOGESH KUMAR SAXENA )

Advocate.

Counsel for the Applicant.

Chamber no. 139, High Court,

Allahabad.

IN THE HON’BLE HIGH COURT OF JUDICATURE AT ALLAHABAD

AFFIDAVIT

CIVIL MISC. APPLICATION NO. OF 2009

CIVIL MISC. WRIT PETITION NO. 46045 OF 2005

(DISTRICT – MORADABAD)

Dr. Harish Kumar ----------------------------------------Petitioner

Versus

Director of Education (Higher) & others --------------Respondents.

*********

Affidavit of Dr. D.P.S. Rawat, son of Late R.D.S. Rawat, Reader, K.G.K. Post Graduate College, Moradabad, resident of 1-B/425 Buddhi Vihar Avas Vikas Majhola, Moradabad, District Moradabad.

(Deponent)

I, the deponent abovenamed, do hereby solemnly affirm and state on oath as under: -

1. That the deponent is the intervener/respondent in the abovenoted writ petition and as such the deponent is well acquainted with the facts deposed to below.

2. That the petitioner apart from the present writ petition bearing writ petition no. 46045 of 2005 has filed in as much as three writ petitions bearing writ petition no. 34447 of 1994 (Dr. Harish Kumar Vs. C/M, K.G.K. (PG) College, Moradabad & others), writ petition no. 26167 of 2000 (Dr. Harish Kumar Vs. U.P. Higher Education Service Commission & others) and writ petition no. 901 (S/B) of 2002 (Dr. Harish Kumar Vs. State of U.P. and others). It is submitted that even after dismissal of writ petition 34447 of 1994 by judgement and order dated 18.1.1999, the other writ petitions have been filed referred to above in the controversy pertaining to the right of petitioner for continuing on the post of lecturer in K.G.K. Post Graduate College, Moradabad and to get the salary on the post of Lecturer in the said institution.

3. That the petitioner had earlier taken stand that on account of vacancy on the post of Head of Department in the institution due to retirement of R.M. Mathur had fallen on 30.6.1987 and in pursuance of advertisement dated 28.5.1988 the applicant and the petitioner were appointed as per recommendation made by selection committee, but since the petitioner was never appointed in the said vacancy and as such the aforesaid writ petition was dismissed by the Division Bench on 18.1.1999.

4. That the other writ petition no. 26167 of 2000 was again filed by the petitioner, in which the challenge was made on the order passed by Director of Higher Education dated 30.1.1999 forwarding the name of one Sanjay Kumar in the vacancy occurred on account of vacancy retirement of one Dr. P.K. Gupta from the post of Head of Department on 30.6.1997. This Hon’ble Court directed the petitioner to continue his functioning as Adhoc Lecturer in the institution without taken into account that earlier writ petition filed by petitioner bearing writ petition no. 34447 of 1994 pertaining to same relief has been dismissed on 18.1.1999. The true copy of the order dated 25.5.2000 passed in writ petition no. 26167 of 2000 is being filed herewith and marked as Annexure no.1 to this affidavit.

5. That under the garb of interim order passed in writ petition no. 26167 of 2000 when the petitioner was not allowed to join the institution, then he filed another writ petition before Lucknow bench of this Hon’ble Court bearing writ petition no. 901 (S/B) of 2002, wherein on the Misc. Application no. 15007 of 2002 an order was passed directing the decision on the representation filed by the petitioner. The true copy of the order dated 13.6.2002 passed in writ petition no. 901 (S/B) of 2002 is being filed herewith and marked as Annexure no.2 to this affidavit.

6. That thereafter the present writ petition has been filed during the summer vacation, in which without disclosing the fact pertaining to pendency of two writ petitions referred to above and dismissal of earlier writ petition no. 34447 of 1994, an interim order has been obtained under the garb of earlier interim order wherein a direction has been issued to the Director of Education (Higher) to examine the facts and to pass an appropriate order with regard to the claim of petitioner and to grant the relief with all consequential benefit, which the petitioner is entitled and also to regularize his services on the post of Lecturer in the aforesaid Post Graduate College.

7. That while moving the intervening application by the present applicant, who has been appointed as Lecturer in the institution w.e.f. 30.10.1988 and the services of applicant has also been regualised by an order of Director of Higher Education on 26.6.1992 followed by order of management dated 30.9.1993, the applicant has moved the present application that even without having any appointment being done of the petitioner till date, the Director of Higher Education has regulaised the services of petitioner w.e.f. 21.10.1986 and thereby the petitioner has now claiming himself to be the senior than that of applicant and other lecturers namely Dr. Brijbala Arora, Dr. Yogendra Singh and Dr. P.M. Kala working in the department of Geography and as such all the writ petitions may kindly be directed to be listed by the order of Hon’ble the Chief Justice as all the writ petitions may be decided and justice may be done with the rights of the present applicant.

8. That it is further prayed that since the conduct of petitioner in filing the different writ petitions without having even his appointment till date, is getting salary of lecturer in the institution in connivance with authorities including Director of Higher Education under the guise of interim order dated 21.6.2005 fraudulently obtained by the petitioner by the concealment of material facts and as such an abuse of process in a calculated manner by exercising the pernicious influence through reprehensible conduct has been done by the petitioner in order to scandalize the judicial proceedings, which may tantamount to criminal contempt of court, the notice may also be issued to the petitioner by exercising the power conferred under Article 215 of the Constitution of India as the suitable order may be passed in the present writ petition after the due nomination of Division Bench by the order of Hon’ble the Chief Justice, as justice may not be prejudice, nullify and interfered with by the conduct of the petitioner.

9. That considering the facts and circumstances stated above, it is expedient in the interest of justice that this Hon’ble Court may graciously be pleased to

I, the deponent above named, do hereby verify that the contents of para nos.

of this affidavit are true to my personal knowledge and those the contents of para nos.

of this affidavit are based on perusal of records and those the contents of para nos.

of this affidavit are based on legal advise, which all I believe to be true that no part of it is false and nothing material has been concealed in it.

So help me God.

(Deponent)

(Advocate)

Solemnly affirmed before me on this th day of _________, 2009 at about a.m./p.m. by the deponent, who has been identified by the aforesaid person.

I have satisfied myself by examining deponent that he understands the contents of this affidavit, which have been readover and explained to him.

OATH COMMISSIONER.

Ghaziabad district jail in Dasna is having almost four times the number of prisoners it is designed to house. As a result, inmates do not have enough room to stretch even.

2012-05-25T03:20:00.002-07:00

Dr Arun Agrawal

B 85, Sector 31

Noida 201303

District Gautam Budh Nagar

M: 09810081287

5 November , 2009

Shri Rizwan Ahmed

Addl. Director General Police (Human Rights)

Type V/31

Police Enclave Colony

Vibhuthikhand, Gomtinagar,

Lucknow.

Sir:

Sub: BRAZEN VIOLATION OF HUMAN RIGHTS IN

DASNA JAIL, GHAZIABAD, U.P.

Attached please find a note on deplorable and pathetic conditions prevailing in Dasna Jail, Ghaziabad which is in the news currently .

The note is based on personal experiences as a result of my illegal arrest and assault on me by one Rakesh Kumar Singh, S.S.I. posted at Noida Phase II Police Station on 24.9.2009 in respect of which a representation has been made to the D G, UP Police and is being looked into .

It would be observed from the enclosed note that there is a blatant violation of human rights in respect of the inmates , apart from disobedience of judicial directions , lack of requisite basic facilities and denial of free legal aid , which the poor and the needy are entitled to .

Copies of this note have been sent to the following :

1. Hon.Chief Justice of Allahabad High Court

2. Hon.Chairperson of UP Human Rights Commission

3. Shri Rajnath Singh, M.P. representing Ghaziabad constituency

4. Smt Maneka Gandhi, M.P. strong votary of human rights

5. Smt Kiran Bedi, IPS

6. Shri Rajendra Agrawal, M.P. representing Ghaziabad-Hapur

constituency in Lok Sabha

7. Principal Secretary (Home and Jails) , State Govt of U.P.

8. Commisioner, Meerut Division

9. District Magistrate, Ghaziabad

10. District Magistrate, Gautam Budh Nagar

11. District and Sessions Judge, Gautam Budh Nagar

as well as to the following

POLICE OFFICIALS IN U.P.

3. Director General

4. Addl.Director General (Law and Order), Western Region

5. IG (Prisons)

6. Addl.Director General (Prisons and Corrective Measures)

7. IG , Meerut Range

8. DIG (Prisons), Meerut Range

9. Senior Superintendent of Police, District Ghaziabad

10.Senior Superintendent of Police, District Gautam Budh Nagar

I urge that you may kindly be pleased to direct an independent enquiry on the continuing mal-administration in Dasna Jail before another Asthana or Ravinder Pal breathes his last in the very dangerous place this Jail is . The findings would be an eye-opener,

I can assure your goodself .

Submitted .

Dr Arun Agrawal

B 85 Sector 31

Noida 201303

District Gautam Budh Nagar (U.P.)

M: 9810081287

WHAT DO I WANT FROM THE PIL ?

Convicts falling sick in overcrowded Dasna jail
It has four times the number of prisoners it is designed to house

Parmindar Singh
The Tribune
Ghaziabad, December 3 2008

Ghaziabad district jail in Dasna is having almost four times the number of prisoners it is designed to house. As a result, inmates do not have enough room to stretch even. Most inmates are sick due to lack of space and unhygienic conditions.
To meet the acute shortage of bedding, prisoners have been allowed to bring their own bedrolls. According to the jail superintendent, V.K. Singh, Dasna jail is housing prisoners many times more than its capacity. The beddings are so unhygienic that most of the criminals are suffering from skin ailments of one type of the other.
In past one year, the jail administration has organised 22 medical camps for the prisoners. Dasna jail, constructed on 34 acres in 1996, has a capacity for 720 prisoners. Besides Ghaziabad, prisoners from Gautam Budh Nagar are also lodged there. Four new barracks have since been added to accommodate the increased number of inmates. The capacity of jail had gone up to 1060 inmates which was later increased to 1660 prisoners.
A barrack meant for 60 inmates is now accommodating more than 200 prisoners. Inmates are suffering from a number of ailments as they cannot get sufficient sleep because the place is badly crammed. In addition to other ailments skin allergies have assumed an alarming proportion due to lack of space, which has created unhygienic conditions.
V.K. Singh admits that prisoners are facing lot many problems because of excessive number of inmates, lack of proper beddings and some prisoners are having skin allergies, etc.
According to VK Singh proposal for a new jail has been sent to the authorities to ease the overcrowding in Dasna jail.
One hundred acres of land has been demanded for setting up a new jail taking in view the projected need for increased number of convicts over next 20 years. For a separate jail for Gautam Budh Nagar district, 34- acre piece of land has been identified in Murastpur village, Singh added.

4 November 2009 Part II

Inhumane and pathetic conditions in Dasna Jail, Ghaziabad based on personal experiences

It has been said that " If there is heavens on earth, it is here, it is here, it is here " ( referring to Kashmir )

For Dasna Jail and the conditions prevailing there, it can be safely stated " If there is hell on earth, it is here, it is here, it is here ." If you want a taste of horror, get charged in U.P. ( Western Region) on a petty offence and "experience" it in Dasna Jail by yourself . No need to go and watch an Alfred Hitchcock or a Ramsey brothers horror movie . it is even worse .

Some of the ghastly experiences :

- mentally insane and depraved persons are spending time in prison - not conversing with anyone, seldom eating food and having no orientation of date and time ( housed in Baring 24B ) – 3 persons

- at least 22 persons ( as informed by Doctor Pande ) are on death bed , yet the State Administration is dilly dallying on releasing them

- a cancer patient (Thakur Yudhveer Singh - lifer) in respect of whom recommendations for release on bail on humanitarian grounds have been forwarded by the Collector, Ghaziabad to the State Government awaits his release since last 6 months, with the papers gathering dust somewhere in the State Secretariat ( Baring 24B)

- Diet worth Rs 120 per day or so is to be provided to the inmates, but on calculations, it does not work out to be more than Rs 50

- Milk pouches are reported to be sold surreptiously to shops outside the Jail premises

- Life saving drugs that are sent by relatives are delivered to the inmates more than 24- 26 hrs after their delivery at the main gate .

- There is no ventilation in the medical ward, because of high walls on either sides (ostensibly to keep the mosquitoes out ) making living there extremely uneasy and and unsafe , more particularly due to the hot and humid conditions and considering that electricity is off for the major part of the day . Only 2 tubelights are functional .

- Things available in abundance are clean drinking water drawn from the hand pumps, usage of filthy language by all and sundry and mosquitoes due to unhygienic conditions.

- A Pepsi bottle that costs Rs 50 in the market is sold at Rs 90 , a small tea cup is sold for Rs 5 and similarly for soaps and other utility items, whereas the notice board on the small canteen states that the products are being sold with 10% profit margin only .

- Rs 10 is to be paid compulsorily at Gate No 4 , Rs 20 at Gate No.3 and Rs 60-70 to the ward /barrack incharge, upon return to the Jail after meeting the relatives/visitors .

- Nears and dears of several inmates in 7A were not aware that they were languishing in Dasna Jail - arrest effected without information to the relatives.

- In certain instances in 498A and domestic violence cases, entire

families whose members are living in distant places far apart such as

Noida and Bilaspur (Chattisgarh) have been rounded up (incl: a 72

year old Pujari Lakhan Goswami Baring 24A who had no role to play in

the boy living in Noida running off with a girl) . As a result, no member

of the family is available to seek legal aid .

- " Free legal aid service" exists only on paper . In fact, one of the most

difficult things to find in the Jail is a paper and pen . You cannot ask the person concerned for a piece of paper more than once, otherwise you will be rebuked .

- The rotis are cooked so badly that at least half part of them are thrown

away being uneatable, resulting in huge wastage of atta (wheat flour) .

- The toilets located behind the so called “hospital” do not have running water

and the taps appear not to have been used for several years .

- The bed sheets in the medical unit are not replaced when one inmate is

discharged or released on bail . They were reported be replaced only after 15

days . The Ward 9 in the “Hospital” is never fumigated although there are

several patients suffering from different kinds of diseases, incl: TB .

- There are no stretchers with wheels to be found anywhere in the Jail for

patients facing Cardiac related problems or emergency situations .

- There are no dustbins anywhere in the grounds/open spaces outside various

Barracks. As a result , litter can be found thrown all over the place .

- There is a library in the medical unit but no. of books do not exceed 100-150

Nos. which are very old, and it remains closed most of the time with no place to sit inside .

- It was reported that there are no beds at all in the female barrack housing

some 800 inmates .

- With great fanfare, a Computer Centre was inaugurated a few years ago by Ms Kiran Bedi,IPS , now it is reported to be non functional and has been locked.

- The Jail holds some 4500 inmates ( 3700 males, 800 males) against the

capacity of 1500 , each barrack that can hold some 80-100 persons actually "accommodates" 275-280 persons with just 2 toilets without running water .

At night, you have to be careful not to trip over sleeping people if you wish to attend to the call of the nature as even the walking spaces are all occupied .

- The only linen provided is a moth infected thin blanket which is never sanitized.

Some utensils such as “ glass” and “ katora” are shown as issued to the inmates,

whereas they have to actually buy it for themselves from the small canteen .

- The inmates are made to sweep and wash the floor without mops fitted with handles and to pick up the dust and garbage with hands without being given any gloves or such other protective materials .

- It takes anywhere from 4-6 hours for visitors to meet the inmates, filling up forms

at 8.00 AM and getting to meet the inmates thereafter. Surely this period can be

reduced to a max of 2- 2-1/2 hrs through quick processing or use of computers .

- The prison van that can barely accommodate 20 prisoners actually takes 40-42

persons incl: police personnel making the long distance commuting to the District

Courts and back an extremely painful process, especially for the old and the infirm .

Further suggestions :

(a) a psychological /counselling unit to assist inmates in a state of distress and shock without access to legal aid needs to be set up urgently ;

(b) inmates be stopped from smoking bidis in the barracks and throwing the butts

on the floor . The entire complex needs to be declared as “no smoking zone”

(c) Video conferencing facility to be set up so that inmates are not required to be transported 30-40 kms to the Courts in overpacked prison vans ( this facility is reported to be under implementation, thank God for small mercies ! )

(d) improving the quality of diet and stopping wastage by cooking the food properly

(e) setting up a proper legal aid centre with the assistance of a retired lawyer and

Postal facilities

(f) setting up a Business Centre

(g ) A vocational training centre: learn and earn incl: a printing press/laundry unit

needs to be set up

(h) Augmentation of electricity supply and repairs of generators idling for want of

spares/diesel

(i) proper uniforms to be provided to Ward Incharges “Writers” and “Lambardars”

and they (incl: policemen on duty ) be trained on how to conduct themselves with

different types of prisoners of different levels of education and knowledge . Abuse

and extortion of money is the order of the day .

(j) concrete/wooden benches to be provided at all locations, including the “ Hospital” where inmates are required to sit crouched on the floor for 45-60 minutes . Additional doctors and pharmacists need to be provided.

ADDITIONAL RECOMMENDATION ( 1 November 2009)

That Jail Administration staff comprising of Deputy Jailors/Superintendent etc be sent to Tihar Jail , Delhi for training

on how huge jails should be administered and managed for the

betterment of mankind .

Corrupt and antiquated practices prevailing in Dasna Jail, Ghaziabad based on personal experiences

a)Seizure of money and non accounting of it ( either partly or wholly) at the time of entry of undertrials for the first time

b)Violation of human dignity ( touching of rectum and private parts in public gaze

c) A good part of various items brought by relatives of inmates such as bidis ( in great demand) , lemons, bananas , onions, green chillies etc.are forcibly seized by the frisking staff

d) 3-4 hrs waiting time for meeting the visitors after being

informed of their coming, simplified procedures can easily be introduced through the process of computerization or faster manual processing without compromising on security

e) Various items, such as soft drinks being sold well at prices well above their MRP ( A recent Bombay High Court Judgement directing Jail Canteens to not to sell above the MRP could be cited ) . It would seem that the purchasing officials are in league with the

soft drinks distributors AS ONLY 2 LITRE bottles of a particular brand

are being sold .

f) While leaving the Jail on bail, you have to pay bribes at

every gate you pass through , incl: the constables guarding the

barrack you are lodged in . For getting to see the inmates

at a shorter time, their relatives have to palm the grease of the

persons concerned .

g) It was reported that indoor games like carrom/ludo/ playing cards etc are available and, in fact, a day prior to the visit of a team of Judicial. Police and administrative officials from District Gautam Budh Nagar, a list was prepared of inmates interested in playing a particular game. However, no such games were ever provided despite follow up with the Jail warden ( “ Chief Saheb” ) or the baring incharge (called “writer “ ) . On complaining about anything, you are rebuked in filthy words .

h) When the undertrials come to the Jail for the first time, they are asked to sweep the floor/ground or else pay “ ginti” ( Rs 120 ) .

This is a strange practice as no first timer will ever have money on him . So he has to borrow from inmates ( if he can find someone )

or else from the “collectors” and return the money to them next day or the following day with usurious rates of interest ( usually against Rs 120 borrowed, Rs 200 is required to be paid the next day)

once the relatives of the inmate/s come on visit and give some money.

i) Measures for treating inmates in an emergency like situation, such as loss of breath , vomitting and feeling of acute pain in the chest or dizziness etc . are non-existent .

DISTRICT OFFICIALS VISIT DASNA JAIL FOLLOWING ASTHANA’ DEATH
Ghaziabad, Oct 22 (IANS) Senior judicial, police and civil officers inspected Dasna Jail here following the death of Ashutosh Asthana, prime accused as well as witness in a corruption case involving judges of the higher judiciary, and found the medical and other facilites lacking. The statement of Asthana’s wife was also recorded Thursday.
The district judge recorded the statement of Sushma Asthana and others. The judge procured copies of documents related to the treatment and death of Asthana. He was accompanied by the district magistrate and the police chief in his inspection of the jail, said Ravinder Kumar Vashishtha, public relation officer of Ghaziabad police.
‘We found deficiencies in the kitchen. The staff was found deficient in preparing food. We have ordered that the staff be increased and hygienic conditions in kitchen and barracks be improved,’ said District Magistrate R. Ramesh Kumar.
‘We inspected the in and out note book, the pad locks and certain civil works being carried out in the jail. SSP Akhil Kumar and the district judge were also on the inspection visit. Regarding the jail hospital, we have written to the Uttar Pradesh administration to increase the staff and a doctor, but no posting has been ordered so far,’ added the district magistrate.
Earlier, the additional district magistrate City Sunil Kumar Srivastava visited the jail and found shortcomings in the jail administration.
‘To handle over 4,700 inmates and undertrials, there is just one senior doctor and a single pharmacist. How can they handle such a large rush? They have just basic life saving medicines. For serious complications or diseases, they neither have any doctor nor medicines to cure them,’ Srivastava had said.
Terming Dasna Jail hospital as just a ‘medical clinic’, Srivastava had said the hospital had no emergency measures to look after a patient inmate.

That the Court examine as to how a learned person holding a Ph.D.

has been illegally arrested in violation of standing apex court and Allahabad High Court orders charged on a very petty offence , assaulted and brutally hit on the nose and thereafter paraded on the road in handcuffs to the District Court for production before ACJM before being remanded to judicial custody for 15 days .

Regards

Dr Arun Agrawal

M: 09810081287

frivolous and vexatious charges brought out against me by my opponents who have substantial financial and manpower resources at their command

2012-05-25T03:18:00.000-07:00

Shri Y K Saxena

Advocate

Allahabad

Court No. – 41

Case :- CRIMINAL MISC. WRIT PETITION No. - 19959 of 2009

Petitioner :- Dr. Arun Kumar Agrawal

Respondent :- State Of U.P. & Others

Petitioner Counsel :- P.C. Joshi

Respondent Counsel :- Govt. Advocate

Hon'ble Ravindra Singh,J.

Hon'ble Yogesh Chandra Gupta,J.

Heard the learned counsel for the petitioner and the learned

A.G.A.

This petition has been filed by the petitioner Dr.

Arun Kumar Agrawal, with a prayer to quash the F.I.R. in case crime no.498 of

2009, under sections 385, 389, 417, 419, 420, 465, 468, 471

I.P.C., P.S. Kotwali Phase2, Noida, District Gautam Buddh Nagar.

From the perusal of the F.I.R. it appears that on the basis of the

allegations made therein a prima facie offence is made out. There

is no ground for interference in the F.I.R. Therefore, the prayer for

quashing the impugned F.I.R. is refused.

However, considering the nature of the allegations made in the

FIR, the provisions of section 157 Cr.P.C. and the view taken by

the Apex Court in the case of Joginder Kumar Versus State of

U.P. 1994 Cr.L.J., 1981, it is directed that the petitioner shall not

be arrested in above mentioned case, till the credible evidence is

not collected by the I.O. during the investigation.

With the above direction this petition is finally disposed of.

Order Date: 18.9.2009

1 November 2009

Shri Y K Saxena

Advocate

Allahabad

Dear Shri Saxenaji

As per our conversation this morning, I am sending you a copy of the petition I have addressed to Hon CJ/Allahabad High Court together with

a note on the pathetic and inhumane conditions prevailing in Dasna Jail, Ghaziabad .

I shall be grateful if you could kindly work on a PIL to be filed with the

Hon Allahabad High Court making Principal Secretary (Home and Jails) ,

Inspector General (Prisons), UP Police and UP State Human Rights

Commission as respondents in the proposed P.I.L .

However, as I am financially very hard up, defending 5 criminal FIRs

registered at Police Station Sector 20, Noida by a gang of chartered accountants on same set of allegations every time during May 2007 –

August 2009 .and prosecuting some 20 civil//criminal cases against

them for extortion, 420, NI 138 , criminal defamation, professional

misconduct, recovery cases etc , I am simply unable to find the funds to pay for your professional fees . As a result of involvement in litigations and stoppage of income from assignments/lectures in India and overseas , I am under huge debts exceeding Rs 30 lakhs . Moreover, it will be appreciated that this is for a just social cause, with no direct benefit to me . I just want the Hon High Court to record appreciation for me and yourself in the directions that it may issue and that some thing good would come out of it as a result of this matter being highlighted in the press .

However, I am still willing to pay for the expenses in typing /photocopying /filing etc. Also I would like to be present when the Petition comes for hearing .

As I have complained to several judicial and administrative authorities in the Dasna Jail, Ghaziabad, I worry a lot about the treatment that might be meted out to me by the Jailor , Ramji Singh or his deputy Jailors should I

happen to land there again as a result of frivolous and vexatious charges

brought out against me by my opponents who have substantial financial and manpower resources at their command as opposed to me . In fact, when I made a complaint to one of the Deputy Jailors on several issues that I noticed, he spoke in a very rude and abusive tone suggesting that a FIR would be registered there and then against me for obstructing a public servant from doing his duties . They are also capable of getting me beaten severely and putting me in a solitary cell after making a “murga” of me .

Already I was told by my wife when she came to visit me in Dasna Jail that my turn to see her came after a long time as the Visitors slip was deliberately withheld by the concerned Dy Jailor . So there are several

Ways by which they can harass an inmate and the agony is much more if you are a highly educated and informed person, as I am .

Would this not shock the Hon Judges” conscience that a highly read and travelled professional belonging to a well to do family should face such a inhumane treatment bordering on barbarism during the medieval ages ?

Are we living in a civilized society /advanced society or are we in primitive times . The Jailors seem to be still having the mentality of the pre-independence British era .

I was arrested in fictitious charges and left to face mental stress and anxieties for the safety and security of my family members incl: my bed ridden octogenarian parents . What has the law gained by imprisoning me for 15 days ?? In fact, in the Bail order itself the Addl.CJM has noted that no benefit has been caused to me through the alleged offence nor has any loss occurred to the complainaint (one of my Advocates) . There are several undertrials languishing in Dasna Jail who will pass time incarcerated in horrifying conditions without ever being able to get out as they have no resources for filing petitions and getting bailed out . There were several cases where bail had been granted but the undertrials were not able to find the money and/or the sureties .

All these issues need to be highlted in a prominent manner , and if necessary, we can issue a joint press statement after the initial or the second hearing after the respondents have submitted their affidavits in order to highlight this matter in the media

Wailing behind the iron bars of Dasna Jail in Ghaziabad

With the help of the leaders of Hind Mazdoor Sabha, the central union with which the workers are associated, arrested labourers lodged in Dasna Jail in Ghaziabad have handed over a memorandum to the Prime Minister requesting his intervention in the immediate release and the reinstatement of the workers of Grazionne Transmissions , an Italian company located in Greater Noida , alleged to be responsible for the death of its CEO .
“How long could we wait ? The only solution is to consume poison and end my life and that of my children. It is not fair to my children. But how can I leave them to become victims alone?” laments 26-year-old Madhuri, wife of Umesh Chandra Sahoo, a jailed worker. Madhuri is sapped of courage after struggling to make both ends meet for five months since Umesh was sacked by the company. Madhuri was candid whereas many young wives of arrested Graziano workers wore stony faces, holding the agony and trauma within themselves.
The conditions of the workers in jail are deplorable. “Every time we go to meet them, we bribe the jail authorities,” says Asha, the wife of a worker. Those who have got bail agree. “Half the fruits brought for us are given to the police says Vijay Kumar, who was out on bail, adding, “This is besides the money we have to pay.”
The workers have to do all sorts of menial jobs, including cleaning toilets and drains. “The jail has a system of bribes. Pay this much for not sweeping and mopping and a higher amount for not working at all,” another worker on bail added.
“Seeing them in jail and the suffering we face has made us lose our faith in the government,” says Anuradha, wife of Pankesh, who is in jail. “Landlords want us to be thrown out for not paying rent. The children are in school. We have to meet their needs.” The woes are endless.
Convicts falling sick in overcrowded Dasna jail
It has four times the number of prisoners it is designed to house
Parmindar Singh
The Tribune
Ghaziabad, December 3 2008

Ghaziabad district jail in Dasna is having almost four times the number of prisoners it is designed to house. As a result, inmates do not have enough room to stretch even. Most inmates are sick due to lack of space and unhygienic conditions.
To meet the acute shortage of bedding, prisoners have been allowed to bring their own bedrolls. According to the jail superintendent, V.K. Singh, Dasna jail is housing prisoners many times more than its capacity. The beddings are so unhygienic that most of the criminals are suffering from skin ailments of one type of the other.
In past one year, the jail administration has organised 22 medical camps for the prisoners. Dasna jail, constructed on 34 acres in 1996, has a capacity for 720 prisoners. Besides Ghaziabad, prisoners from Gautam Budh Nagar are also lodged there. Four new barracks have since been added to accommodate the increased number of inmates. The capacity of jail had gone up to 1060 inmates which was later increased to 1660 prisoners.
A barrack meant for 60 inmates is now accommodating more than 200 prisoners. Inmates are suffering from a number of ailments as they cannot get sufficient sleep because the place is badly crammed. In addition to other ailments skin allergies have assumed an alarming proportion due to lack of space, which has created unhygienic conditions.
V.K. Singh admits that prisoners are facing lot many problems because of excessive number of inmates, lack of proper beddings and some prisoners are having skin allergies, etc.
According to VK Singh proposal for a new jail has been sent to the authorities to ease the overcrowding in Dasna jail.
One hundred acres of land has been demanded for setting up a new jail taking in view the projected need for increased number of convicts over next 20 years. For a separate jail for Gautam Budh Nagar district, 34- acre piece of land has been identified in Murastpur village, Singh added.

Asian Centre for Human Rights reports as follows :

In 2007, Uttar Pradesh was the worst violator of human rights in India. Home Minister Shivraj Patil informed the Lok Sabha on 27 November 2007 that a total of 31,096 human rights violations were reported in India during 2006-2007 and Uttar Pradesh accounted for 21,899 or nearly 66% of all cases in India. On 1 December 2007, then Chairperson of National Human Rights Commission (NHRC), Shivaraj Patil stated that the majority of the 82,000 complaints received by NHRC in 2007 were from Uttar Pradesh, followed by Bihar and Delhi.

The Centre recorded a number of custodial deaths. The NHRC registered seven cases of deaths in police custody in Uttar Pradesh during the period from 1 April 2006 – 31 March 2007.

The PIL is ripe for filing following the death of Asutosh Asthana, the person behind the multi crore PF scam in Ghaziabad in mid October 2009 while in Dasna Jail .

According to newspaper reports :

Dasna Jail has seen nine such deaths in the first 10 months of 2009, including Frontier Mail blast accused Shakeel who committed suicide by hanging himself from a window by his shirt. A magisterial enquiry ruled out any security lapses.

The jail recorded 4 deaths in 2008, 9 in 2007 and 8 in 2006.

Ravinder Pradhan, the main accused in the Prof Kavita Chaudhary murder case died due to consumption of glass pieces in the jail.

However, the jail superintendent V. K. Singh said Pradhan might have consumed the glass pieces during childhood and it could have resulted in the fatality when he was in the jail.

Similarly, several other inmates - wanted in some high profile cases - like Qamaruddin, Iqbal Singh, Jiji Hasan, Guru Jan Singh, Noor Hasan and Thakur Singh also died in mysterious circumstances while in the jail.

However, magisterial enquiries conducted into their deaths exonerated the jail administration and found no loopholes in the prison's security.(IANS) .

Serious lapses found in Dasna jail

Ghaziabad, Oct 20 (IANS) Following the death of Ashutosh Asthana, the prime accused-cum-witness in a corruption case involving judges of the higher judiciary, in Ghaziabad's Dasna jail, the district administration conducted an inspection and found serious lapses in the medical facilities available there, officials said Tuesday .

'The Dasna jail has is over-filled with about 4,700 inmates while its capacity is to accommodate 1,700 inmates. As per norms, there must be two male doctors and one female doctor where about more than 300 women inmates are being lodged. But Dasna jail hospital comprises only one doctor,' Additional District Magistrate (City) Sunil Kumar Srivastava said Tuesday.
A four-member team visited the high security zone, hospital, kitchen, women's barracks and other general barracks. The team also inspected barrack No. 5 - in which Asthana was lodged - and reportedly spoke to around 150 of nearly 200 inmates present .
After the last inspection, the district administration wrote to the state government but the required facility was not provided, ADM Srivastava said, adding that had there been proper medical facilities inside the jail, Asthana could have been saved.

Finding serious deficiencies in the medical facilities available inside the jail, Srivastava said they were 'way below the mark'.

'To handle over 4,700 inmates and under-trials, there is just one senior doctor and a single pharmacist. How can they handle such a large rush? They have just the basic life saving medicines. For serious complications or diseases, they neither have any doctor nor medicines to cure them,' the ADM said.
Terming the Dasna jail hospital as just a 'medical clinic', Srivastava said the hospital had no emergency measures to look after a patient.

I would be happy to provide any further information that you may require . I am also ready to come down to Allahabad at a short notice once the first draft of the P.I.L is ready .

Dr Arun Agrawal

Noida

M: 9810081287 cc: Shri Surinder Pal,Advocate

PS: I am also attaching Allahabad High Court order dated 28.10.2009 relating to my illegal arrest on 24.9.2009 and resultant contempt of court by the Senior Sub Inspector R K Singh .

cc: Shri Surinder Pal, Advocate, Ludhiana .

Further to this mail. I do have a personal agenda, although this is a

P.I.L.

a) My illegal arrest by an arrogant police officer wanting to teach me a lesson for troubling Noida Police by filing RTI applications at regular intervals - how that insensitive and inhuman person in uniformc an be taken to task

b) My subsequent handcuffing, inspite of protests, by two police sonstables and my being paraded to the District Courts from the P.S. some 500m . I have never felt more miserable in life and humilated as on that day of 24 September which will remain etched in my life for ever like a bad /omenous dream . How can I claim damages from the State Police for their illegal, inhuman and shameless actions .

I take the liberty for forwarding following documents in this regard :

a) My communication to District and Sessions Judge, GB Nagar

b) - do - to Hon CJ, Allahabad

c) SC directions on handcuffing

d) - do -

4 November 2009

Shri Karamveer Singh, IPS

Director General of Police

UP Police Headquarters

1, B N Lahiri Marg

Lucknow 226 001

Dear Sir :

ILLEGAL ARREST AND ASSAULT BY AN ARROGANT POLICE OFFICER POSTED AT NOIDA PHASE II POLICE STATION. DISTRICT GAUTAM BUDH NAGAR , U.P. ON 24.9.2009

I thank you sincerely for directing that a detailed report be provided on the representation made by me to your goodself on 19.10.2009 .

It would, at this point of time, be appropriate to state my experience with Noida Police for well over 30 months now .

In order to gain absolute control over a world body founded by my respected father in 1980, a group of Chartered Accountants led by one Gyan Prakash Agarwal – allegedly involved in a Rs 500 crore cooperative housing scam in Ghaziabad - have implicated me falsely

in series of FIRs in order to keep me at bay . The details are as under :

FIR 521/07 : PS Sector 20, Noida

The concerned I.O.Satpal Yadav visited me at my house thrice . I provided him with all the information and clarifications that he required .

He dealt with me in a courteous manner .

Charge Sheet filed and is expected to come up for hearing mid Dec.

FIR 721/08: P. S.Sector 20, Noida

I met the concerned I.O. Vinay Kumar twice . He was provided all the information and clarifications that he needed . Allegations contained in this FIR also included all the allegations made in the previous FIR .

FR was filed on 18.7.2008

FIR 1695/08 P.S.Sector 20, Noida

I have met C.O. (I) Shri R N Mishra as well as the I.O. B R Zaidi several times . Both of them have treated me with respect . I have

also met the S. S. P. on 14 August 2009 . All the allegations made in the earlier FIRs were included in this FIR also with few baseless allegations added to give it a colour of being different .

Investigations in the case are pending .

FIR 860/09 P.S.Sector 20, Noida

Unlike previous FIRs which were registered via 156(3) route, this one

was registered hurriedly and named my son as well as my brother in law

( a resident of Chennai) , simply to harass other members of my family

who had nothing to do whatsoever with on going disputes over control of

a world body having its headquarters in Sector 16A, Noida . Again, new

allegations were added to make this FIR look different from earlier ones.

However, unlike other Police officers , the I.O. in this case, one N C

Sharma , S.S.I. , chose to employ high handed tactics and humiliated us

by dragging my 30 year old son, educated in Scotland ,U.K. and holding

a MBA degree, in front of our neighbours from our house and taking

him to the Court from the lock up in handcuffs on 25.8.2009 . As a

result, he was mentally shattered and had to be treated by a psychiatrist

for several days subsequent to his release on bail . This has had a

terrible impact on his wife now in an advanced stage of pregnancy .

Charge Sheet has been filed in this case recently .

FIR 498/09 P.S. Phase II, Noida

As already submitted, this time I was a victim of a power drunk and

arrogant Police Senior Sub Inspector , Rakesh Kumar Singh, posted at

Noida Phase II Police Station, who effected arrest while I was driving

on a street outside my home on 24.9.2009 , who abused and

assaulted me when informed that the Hon Allahabad High Court had

passed orders on 18.9.2009 staying my arrest until the I.O. had not

been able to collect credible evidence, and who paraded me in handcuffs on the road leading to the District Courts, 500 metres from the P.S

All this goes to show that clear cut uniform procedures on the actions to be taken after registration of F.I.R. need to be prescribed and followed by all concerned scrupulously which must not differ from person to person in case of similar /matching circumstances as enumerated above.

I am confident that an honest attempt will be made by the Police officials concerned to get at the truth and that Rakesh Kumar Singh, S.S.I. posted at Noida Phase II Police Station will be duly punished for violating standing Apex Court and Allahabad High Court orders by effecting arrest of a learned person charged with a frivolous and petty offence and his brutal assault on him in utter disregard of human rights and dignity.

While on the subject, I may add that the Honourable High Court of

Allahabad has taken prima- facie cognizance of my Petition for

Contempt of Court against the arrogant and insensitive Senior Sub

Inspector, Rakesh Kumar Singh and directed him to submit a counter

Affidavit by 29.11.2009 prior to summoning and subsequent appearance.

In closing, I urge that the UP Police seriously consider conducting sensitization and awareness training programmes for the benefit of all Inspectors and Sub Inspectors so that they treat the citizens with due

courtesies and not indulge in “ sub ko ek hi lathi se hankna “ .

In fact, a major overhaul of the rusty, antiquated and creaking policing system and practices that prevail in the State of U.P. is long overdue .

In a phone call to me last year, your distinguished predecessor Shri Vikram Singh had assured me that he would meet me to discuss how the State Police could take advantage of my varied experience, but for some reason or the other, the proposed meeting could not take place .

Submitted .

Rule 3 the strength of the ministerial establishment shall form a unit under the “judgeship”, but stenographer shall form a separate cadre vide notification no. 1696/VII-612-A-40 dated March 27, 1953 POWER MAKES MAN CORRUPT< BUT LOSS OF POWER MAKES THEM ?? TOTALLY DISHONEST?

2012-05-25T03:12:00.002-07:00

IN THE HON’BLE HIGH COURT OF JUDICATURE AT ALLAHABAD

I N D E X

CIVIL MISC. WRIT PETITION NO. OF 2011

(Under Article 226 of the Constitution of India)

(DISTRICT – BANDA)

Allahabad Adhivakta Sangthan, Allahabad and another

-------------------------------------Petitioners

Versus

High Court of Judicature at Allahabad through its Registrar General

and others -------------------------------------Respondents

Sl.no.	Particulars.	Dates.	Ann.	Pages.
1	List of dates and Events.	--	-
2	Stay Application (Under Chapter XXII Rule 1 of High Court Rules, 1952)	--	-
3	Writ Petition (Under Article 226 of the Constitution of India)	--	-
4	Copy of advertisement published in the newspaper.	27.2.2010	1
5	Photostat copy of the exemplar advertisement of District Judgeship Bareilly having Form-A Appendix-I.	13/16.3.2011	2
6	Copy of the question paper having the questions set up of two marks each compulsorily attended.	27.2.2011	3
7	Photostat copy of the minutes of selection committee.	16.3.2011 29.3.2011	4
8	Copy of the list of selected candidates.	30.3.2011	5
9	Copy of representation to the Hon’ble Inspecting Judge.	01.04.2011	6
10	Affidavit.	--	-
11	Vakalatnama.	--	-

Dt/- 4^th April, 2011

(YOGESH KUMAR SAXENA)

Advocate

Counsels for the Petitioners

Chamber no. 139, High Court, Allahabad

IN THE HON’BLE HIGH COURT OF JUDICATURE AT ALLAHABAD

LIST OF DATES AND EVENTS

CIVIL MISC. WRIT PETITION NO. OF 2011

(Under Article 226 of the Constitution of India)

(DISTRICT – BANDA)

Allahabad Adhivakta Sangthan, Allahabad and another

-------------------------------------Petitioners

Versus

High Court of Judicature at Allahabad through its Registrar General

and others -------------------------------------Respondents

Sl.no.	Dates.	Events.
1	27.2.2010	The matter pertaining to the recruitment on the post of Clerk/grade apprentices and stenographer was published in the corrigendum under the signature of District Judge, Banda wherein 11 posts of Clerk, 3 posts of paid apprentices and 2 posts of stenographer were published.
2	27.2.2011	Examination on the post of Clerk/grade apprentices and stenographer was published in the corrigendum under the signature of District Judge, Banda wherein 11 posts of Clerk, 3 posts of paid apprentices and 2 posts of stenographer were held.
3	14.3.2011	Meeting of the selection committee was convened in the office/residence of District Judge, Banda at about 6.00 P.M. and thereafter the District Judge/ Chairman of committee proceed on medical leave.
4	13/16.3.2011	The advertisement/ corrigendum so published in the judgeship of Bareilly on 13.3.2011 and on 16.3.2011, wherein Form-A in Appendix-I was published as the applicants seeking appointment may get the Proforma application as per the requirement of Rule 10 of such advertisement and fundamental rights guaranteed to the applicants under Article 14 and 16 of the Constitution of India read with Article 309 may be protected.
5	16.3.2011	It was decided by the Hon’ble inspecting judge that the answer-books should be evaluated in the supervision of Registry of High Court at the Guest House Drumond Road, Allahabad of judgeship Banda.
6	16.3.2011	The District Judge deputed 4 officers namely Sri Avanish Saxena, Special (DAAA) Banda, Sri S.K. Vishwakarma Special Judge (E.C. Act) Banda, Sri Devendra Singh Addl. District Judge, Banda and Sri Sudeep Jaiswal, Add. Chief Judicial Magistrate, Banda.
7	17.3.2011	At about 6.00 A.M. these Four Officers alongwith class-III employee Mahendra Kumar and two class-IV employees (for security reason) handed over the seal box to Sri P.K. Srivastava and Sri Ajeet Singh O.S.D’s of Allahabad High Court containing the answer-sheets. On the said date the committee members expressed their desire to codify the copies before handing over them to the O.S.D. of Allahabad High Court, but the Hon’ble inspecting judge was of view that coding and decoding shall vested the time of Allahabad judgeship and monitoring of the process was done under the O.S.D. of the Registry of Allahabad High Court.
8	17.3.2011	Five officers of Allahabad judgeship were engaged in the evaluation of the answer-books alongwith four members of the committee constituted by the District Judge Banda.
9	18.3.2011	None of the officers of the judgeship Banda remained for the evaluation of the answer sheet as coding and decoding of the answer sheet was not been done and new officers namely Sri Alok Kumar Mukarjee, Sri Sitaram Nigam, Sri A.K. Singh, Sri Subedar Yadav and Sri Faridul Haq all A.D.J. at Allahabad judgeship were deputed for evaluation of the answer sheet.
10	23/28.3.2011	Other officers of Allahabad Judgeship were deputed for evaluation process of the answer sheet under the vigilance of Hon’ble Inspecting judge and two other officers namely Sri B.D. Naqvi and Sri R.P. Singh of District Banda, who were not the member of the committee and were under transfer to other District have been deputed for evaluation of the answer sheet and thereafter the merit list of the examination of Clerk, paid apprentices and stenographer were prepared by Hon’ble inspecting judge.
11	29.3.2011	The final list of the selected candidates from amongst the general category, in which six candidate belonging to O.B.C. category were inserted amongst which one Sri A.K. Verma O.B.C. was beyond the prescribed age of the cut of date, but he has been selected as a general candidate by misrepresentation of the judgement reported in 2002 (3) U.P.L.B. & E.C. page 2304. Thus the entire selection process was done without jurisdiction in a prejudicial manner by an authority who is no within the judgeship of District Banda and thereby contrary to Rules of 1947 applicable for the said selection.
12	30.3.2011	The result has been declared of the said selection process on the basis of final list prepared by the Hon’ble inspecting judge of judgeship Banda.
13	01.04.2011	The representation has been prepared for submitting the same with a request not to give effect to the selection process to the present Hon’ble inspecting judge taken over the charge from his predecessor.

Dt/- 4^th April, 2011

(YOGESH KUMAR SAXENA)

Advocate

Counsels for the Petitioners

Chamber no. 139, High Court, Allahabad

IN THE HON’BLE HIGH COURT OF JUDICATURE AT ALLAHABAD

CIVIL MISC. STAY APPLICATION NO. OF 2011

(Under Section 151 of the C.P.C.)

On behalf of

Allahabad Adhivakta Sangthan, Allahabad and another

-----------------------Applicants/Petitioners

CIVIL MISC. WRIT PETITION NO. OF 2011

(Under Article 226 of the Constitution of India)

(DISTRICT – BANDA)

1. Allahabad Adhivakta Sangthan, Allahabad (Registered Under Society Registration Act bearing No. 479 of 1998) through its Secretary Radhey Shyam Pandey Advocate.

2. Radhey Shyam Pandey (Advocate) Registration No.3919/1983, s/o Shri D.P. Pandey r/o 396-C/9 Chandpur Salori, Allahabad

--------------------------Petitioners

Versus

1. High Court of Judicature at Allahabad through its Registrar General, High Court, Allahabad.

2. Selection Committee Ministerial Staff Establishment (Class III Post) Judgeship, District Banda through its Chaiman, District Judge, Banda.

3. State of Uttar Pradesh through Secretary Law and Justice, Secretariat, Lucknow.

-------------------------Respondents

To,

The Hon’ble the Chief Justice and his other companion Judges of the aforesaid court.

The humble application of the above named applicant/ petitioners most respectfully showeth as under: -

1. That the full facts and circumstances of the case have been given in the accompanying writ petition, it is expedient in the interest of justice that this Hon’ble Court may graciously be pleased to stay the effect and operation of the minutes of the selection committee (Annexure no.4 to the writ petition) and implementation of the result so declared on 30.3.2011 (Annexure no.5 to the writ petition) during the pendency of the present writ petition. And/or pass such other suitable order or direction, which this Hon’ble Court may deem fit and proper in the present circumstances of the case.

P R A Y E R

It is, therefore, most respectfully prayed that this Hon’ble Court may graciously be pleased to stay the effect and operation of the minutes of the selection committee (Annexure no.4 to the writ petition) and implementation of the result so declared on 30.3.2011 (Annexure no.5 to the writ petition) during the pendency of the present writ petition. And/or pass such other suitable order or direction, which this Hon’ble Court may deem fit and proper in the present circumstances of the case.

Dt/- 4^th April, 2011 (YOGESH KUMAR SAXENA)

Advocate

Counsels for the Petitioners

Chamber no. 139, High Court, Allahabad

IN THE HON’BLE HIGH COURT OF JUDICATURE AT ALLAHABAD

CIVIL MISC. WRIT PETITION NO. OF 2011

(Under Article 226 of the Constitution of India)

(DISTRICT – BANDA)

1. Allahabad Adhivakta Sangthan, Allahabad, (Registered Under Society Registration Act bearing No. 479 of 1998) through its Secretary Radhey Shyam Pandey Advocate.

2. Radhey Shyam Pandey (Advocate) Registration No.3919/1983, s/o Shri D.P. Pandey r/o 396-C/9 Chandpur Salori, Allahabad

--------------------------Petitioners

Versus

1. High Court of Judicature at Allahabad through its Registrar General, High Court, Allahabad.

2. Selection Committee Ministerial Staff Establishment (Class III Post) Judgeship, District Banda through its Chaiman, District Judge, Banda.

3. State of Uttar Pradesh through Secretary Law and Justice, Secretariat, Lucknow -------------------------Respondents

To,

The Hon’ble the Chief Justice and his other companion Judges of the aforesaid court.

The humble writ petition of the above named petitioners most respectfully showeth as under: -

1. That this is the first Public Interest Litigation /Social Action Litigation pertaining to the wider objective in relations to the process of recruitment of Ministerial Staff to the subordinate offices in furtherance of its recruitment rules promulgated in exercise of power conferred under Article 309 of the Constitution of India and no other writ petition against same cause of action has been filed or pending before this Hon’ble Court. The petitioners have not received any notice of caveat application on behalf of respondents till today in the present writ petition.

2. That the petitioners are the Association of Advocates registered under the Society Registration Act with the objective to fight against the prevailing maladies prevalent in the day to day functioning of the Hon’ble Courts and to dealt with the problem of the litigants in relations to the procedural requirement by helping them in the different judgeship of the State of Uttar Pradesh by representing their grievances before the Hon’ble High Court as the members Advocate assigned with such a responsibility are not only the Advocates for earning their livelihood, but to create an atmosphere of creditability, as advocacy is not a craft, trade or a business, but certainly a calling of the conscience of the transparency to enshrine noble profession.

3. That the petitioner no.1 and 2 are the same person and they have been impleaded in the representative capacity on behalf of members of registered association as well as in the individual capacity as the matter may be represented before the majesty of the Hon’ble Court regarding the selection process of District Banda. The endeavor to have the uniform policy in the matter of the recruitment of the ministerial establishment in the entire Uttar Pradesh under the uniformity of the judgeship is made.

4. That there is no personal interest of the members of the association, but certainly if the agencies out side the purview of the legislative competence are deployed for the recruitment of the Clerk, paid apprentices and stenographer by the selection process conducted by Hon’ble inspecting judge, the command of the respect required to be conveyed to the particular judgeship under whose subordination these Class-III posts employees may start posing themselves for above to their status as is being felt by the members of petitioner’s association and there is also the possibility of insubordination with the members of the Advocate, which is seen in the present atmosphere and as such without having any aspersion, derogation to the authority of the Hon’ble Court by having full respect towards the Hon’ble Judges, the present Public Interest Litigation has been in the larger interest of the society.

5. That at the vary out set it is submitted that the functioning of the “Government” as enshrined under Article 309 of the Constitution of India are executive functions of the State Government. The rules so formulated in exercise of such power conferred the jurisdiction to different authorities, holding their obligation and duties towards the recruitment and condition of service of persons serving in Union or a State Government.

6. That it has been laid down that subject to the provisions of constitution, acts of the appropriate legislation may regulate the recruitment and service of the persons appointed to public services and posts in connection with affairs of Union or of any State. The power to make rules regulating the recruitment and conditions of service of persons appointed to such services and posts until provisions in that behalf is made by or under in act or the appropriate legislation under this Article.

7. That under preamble of the Constitution the basic structure of our constitution, which can not be amended in exercise of power conferred therein in the separation of powers impliedly if not explicit and thus the power conferred for executive functionary under the State has an overriding effect to act independently without any interference or intervention by the external authority to whom the power has not been vested under our constitution.

8. That in case of the infractions taken by one authority shall be dealt with excessive transgression of discretionary power vested with the supervisory functioning under the scheme of administration.

9. That Chapter-VI dealt with the subject of subordinate courts out constitution. The appointment of District Judge is conferred under Article 233 of the Constitution of India, wherein the recruitment of the persons other than District Judge to judicial services is conferred under the scheme of constitution after consultation with State Public Service Commission and with the High Court exercising jurisdiction in relations to such scheme under Article 234 of the Constitution of India.

10. That the control of over the subordinate courts to the persons belonging to judicial services of the State inferior to the post of District Judge shall be within the purview of the High Court, but the same shall not be construed as taken away for any such person may right of appeal, which he may have under the law regulating the conditions of services or as authority of High Court to deem with him, otherwise then in accordance with condition of service prescribed under such law.

11. That the Subordinate Civil Courts Ministerial Establishment Rules, 1947 published vide notification No. 2494/VII-G-12-40 dated August 1, 1947 were promulgated and thereafter the rules in exercise of the power conferred under Article 309 of the Constitution of India came into existence in U.P. Gazette Part-1A dated 15^th July, 1950. It has been further amended vide notification published in U.P. Gazette on 26.11.1966.

12. That under the definition clause the definition of “Ministerial Establishment” means the staff of Subordinate Civil Court constituting of ministerial servants as defined in fundamental rule 9 (17) of Financial Hand Book- II Part- II.

13. That under Rule 3 the strength of the ministerial establishment shall form a unit under the “judgeship”, but stenographer shall form a separate cadre vide notification no. 1696/VII-612-A-40 dated March 27, 1953 the recruitment of stenographer is subject to the previous approval of High Court.

14. That it is provided that District Judge may from time to time with concurrence of High Court or the Chief Court of our Oudh as the case may be, leave unfilled vacancy or the Governor may hold in abeyance or abolish any vacant post.

15. That the application for recruitment shall be invited by District Judge in the Form-A in Appendix-I by advertising in the newspapers having circulation in the locality wherein number of the candidates to be recruited and date of examination is prescribed.

16. That according to Rule-11 of the aforesaid Rules, 1947, which were amended in the year 1969, the recruitment shall be based on result of the competitive examination and interview by District Judge at Headquarter of judgeship in the manner prescribed in Appendix-II. However, the District Judge may delegate by or more function other than function of interviewing the candidate to a Senior Judge.

17. That under Rule 15 all the appointments to the ministerial establishment shall be made by District Judge except in the case of stenographer subject to the provisions of Rule 12.

18. That under the same Rule 15 the aggrieved person by any order or the appointment made, otherwise then in accordance with the Rules shall has a right of appeal of the High Court or to the Chief Court of Oudh as the case may be.

19. That Article 225 of the Constitution of India deals with the jurisdiction of existing High Court and respective power of judges thereof in relations to the administration of justice in the court, including any power to make rules of court and to regulate the sitting of the court.

20. That in exercise of the power conferred by Article 225 of the Constitution of India, Allahabad High Court Rules, 1952 has been promulgated.

21. That the power of the executive and administrative business of the court are conferred under Chapter-III of aforesaid High Court Rules, 1952, wherein the inspecting judge as nominated by Hon’ble Chief Justice and assigned to a particular session Division to each Hon’ble Judges as inspecting judge of that division for a period of one year. However, in the given situation the Hon’ble Chief Justice may assign more than one session division to one inspecting judge, who shall proceed in inspection in consultation with District Judge.

22. That it is provided that inspecting judge will not ordinarily devote more than 5 working days for annual inspection.

23. That the allocation of executive and administrative work between Hon’ble Chief Justice, inspecting judge, the administrative committee and full court has been prescribed under Chapter-III Rule 4 of High Court Rules, wherein the inspecting judge is only empowered to review of judicial working of subordinate courts and to record entries in character-roll of the officers posted in the division assigned to the inspecting judge.

24. That there has not been any power to the inspecting judge to play any role in the recruitment of subordinate ministerial staff by having the establishment of a judgeship under the Subordinate Civil Court Ministerial Establishment Rules as the District Judge alone has got the jurisdiction in the matter of recruitment of ministerial staff of the subordinate offices in Uttar Pradesh.

25. That the power in respect of the matter conferred upon the administrative committee and the matter for the full court may not be exercise by the inspecting judges in absence of any such power conferred upon them under the Allahabad High Court Rules, 1952.

26. That the functioning of the High Court regarding the sitting of the judges for allocation of their works allotted to them by order of Hon’ble Chief Justice in accordance with his lordship’s direction under Chapter V of aforesaid Rules.

27. That in this manner the inspecting judge has been excluded under the scheme of legislation in the matter of recruitment of ministerial staff of the subordinate offices in the State of Uttar Pradesh, wherein the power is conferred only to the District Judge of the particular judgeship in accordance with the Service Rules.

28. That the matter pertaining to the recruitment on the post of Clerk/grade apprentices and stenographer was published in the corrigendum under the signature of District Judge, Banda wherein 11 posts of Clerk, 3 posts of paid apprentices and 2 posts of stenographer were published. The true copy of the advertisement dated 27.2.2010 published in the newspaper is being filed herewith and marked as Annexure no.1 to this writ petition.

29. That according to the advertisement so published as per the requirement of Rule 10, there has been requirement to publish shall have the Proforma-A under Rule 10 in Appendix-I in more many newspapers (more than one) circulating in the locality, but the Proforma-A as prescribed under Rule 10 of Rules, 1947 has not been done, nor it was published in the different newspapers of the locality and the same was published in Dainik Jagran, Kanpur Edition and in Times of India in Lucknow Edition on 27/28.2.2010.

30. That the petitioner is filing the Photostat copy of the extract of newspaper in relations to the advertisement/ corrigendum so published in the judgeship of Bareilly on 13.3.2011 and on 16.3.2011, wherein Form-A in Appendix-I was published as the applicants seeking appointment may get the Proforma application as per the requirement of Rule 10 of such advertisement and fundamental rights guaranteed to the applicants under Article 14 and 16 of the Constitution of India read with Article 309 may be protected. The true Photostat copy of the exemplar advertisement of District Judgeship Bareilly having Form-A Appendix-I dated 13/16.3.2011 is being filed herewith and marked as Annexure no.2 to this writ petition.

31. That it is relevant to point out here that the setting of the question paper was done in such a manner having the two marks for each questions were quite predictable and it has been found that after the completion of the examination, there were the information conveyed to the prospective applicants appearing in the examination regarding the preconceived answers known to the candidates appearing with an assurance of getting them successful in the examination. The true copy of the question paper having the questions set up of two marks each compulsorily attended is being filed herewith and marked as Annexure no.3 to this writ petition.

32. That in the recruitment process conducted in the judgeship of Banda, the norms prescribed in relations to the Proforma application for the recruitment of the candidates seeking appointment on the post of ministerial staff has not been furnished to such candidates as per requirement of law. The same has been done in casual manner by District Judge, Banda apparently on the basis of instructions given by him by the Hon’ble inspecting judge, which has been recorded in writing in minutes of selection committee.

33. That the individual candidates were required to deposit Rs. 25/- for obtaining the copy of Proforma Appendix-I under Rule 10, for which there is no such procedure prescribed under Subordinate Civil Courts Ministerial Establishment Rules, 1947.

34. That number of applicants seeking employment could not pay participation thereof on account of fact that they were required to travel from different part of State of Uttar Pradesh upto the judgeship of District Banda and as per the norms prescribed by subordinate staff under domain of judgeship Banda the Form-A could not be published for seeking employment to the prospective applicants by judgeship Banda. Some of the applicants could have not been able to deposit their form due to rigmarole of technicality enunciated in this regard up to time prescribed on 30.3.2010.

35. That in the minutes of selection committee every detail has been prescribed, it has been laid down that there is no provision of interview in the Rules regulating recruitment of Class-II employee in the judgeship wherein Subordinate Civil Courts Ministerial Establishment Rules, 1947, the rules in relations to the recruitment of ministerial staff of subordinate offices in Uttar Pradesh, 1950 and circular dated January 2, 1987 issued by High Court in this regard is prescribed. The true Photostat copy of the minutes of selection committee is being filed herewith and marked as Annexure no.4 to this writ petition.

36. That the Examination on the post of Clerk/grade apprentices and stenographer was published in the corrigendum under the signature of District Judge, Banda wherein 11 posts of Clerk, 3 posts of paid apprentices and 2 posts of stenographer were held. Meeting of the selection committee was convened in the office/residence of District Judge, Banda at about 6.00 P.M. and thereafter the District Judge/ Chairman of committee proceed on medical leave.

37. That the advertisement/ corrigendum so published in the judgeship of Bareilly on 13.3.2011 and on 16.3.2011, wherein Form-A in Appendix-I was published as the applicants seeking appointment may get the Proforma application as per the requirement of Rule 10 of such advertisement and fundamental rights guaranteed to the applicants under Article 14 and 16 of the Constitution of India read with Article 309 may be protected. It was decided by the Hon’ble inspecting judge that the answer-books should be evaluated in the supervision of Registry of High Court at the Guest House Drummond Road, Allahabad of judgeship Banda.

38. That It was decided by the Hon’ble inspecting judge that the answer-books should be evaluated in the supervision of Registry of High Court at the Guest House Drumond Road, Allahabad of judgeship Banda. The District Judge deputed 4 officers namely Sri Avanish Saxena, Special (DAAA) Banda, Sri S.K. Vishwakarma Special Judge (E.C. Act) Banda, Sri Devendra Singh Addl. District Judge, Banda and Sri Sudeep Jaiswal, Add. Chief Judicial Magistrate, Banda. At about 6.00 A.M. these Four Officers alongwith class-III employee Mahendra Kumar and two class-IV employees (for security reason) handed over the seal box to Sri P.K. Srivastava and Sri Ajeet Singh O.S.D’s of Allahabad High Court containing the answer-sheets. On the said date the committee members expressed their desire to codify the copies before handing over them to the O.S.D. of Allahabad High Court, but the Hon’ble inspecting judge was of view that coding and decoding shall vested the time of Allahabad judgeship and monitoring of the process was done under the O.S.D. of the Registry of Allahabad High Court.

39. That Five officers of Allahabad judgeship were engaged in the evaluation of the answer-books alongwith four members of the committee constituted by the District Judge Banda. None of the officers of the judgeship Banda remained for the evaluation of the answer sheet as coding and decoding of the answer sheet was not been done and new officers namely Sri Alok Kumar Mukarjee, Sri Sitaram Nigam, Sri A.K. Singh, Sri Subedar Yadav and Sri Faridul Haq all A.D.J. at Allahabad judgeship were deputed for evaluation of the answer sheet.

40. That Other officers of Allahabad Judgeship were deputed for evaluation process of the answer sheet under the vigilance of Hon’ble Inspecting judge and two other officers namely Sri B.D. Naqvi and Sri R.P. Singh of District Banda, who were not the member of the committee and were under transfer to other District have been deputed for evaluation of the answer sheet and thereafter the merit list of the examination of Clerk, paid apprentices and stenographer were prepared by Hon’ble inspecting judge.

41. That the final list of the selected candidates from amongst the general category, in which six candidate belonging to O.B.C. category were inserted amongst which one Sri A.K. Verma O.B.C. was beyond the prescribed age of the cut of date, but he has been selected as a general candidate by misinterpretation of the judgement reported in 2002 (3) U.P.L.B. & E.C. page 2304. Thus the entire selection process was done without jurisdiction in a prejudicial manner by an authority who is no within the judgeship of District Banda and thereby contrary to Rules of 1947 applicable for the said selection.

42. That the petitioner has been advised to submit that there is a particular procedure has been prescribed to be accomplished for given effect to the process of recruitment, the same cannot be modified simply on account of fact that the Hon’ble Inspecting Judge of aforesaid judgeship of District Banda may regulate the entire process for which only District Judge of said judgeship is prescribed to accomplish.

43. That it is very surprising that even the Roll numbers have been allotted to the different candidates appearing in the said written examination were the number prescribed on Form-A meant for submitting the application as per Appendix-I under Rule 10 of the aforesaid Rules and in this manner if the individuals purchasing the Proforma on its prescribed Form-A under Rule 10 are purchasing the aforesaid Forms in bulk amongst the particular group of individual applying in recruitment process, their sitting arrangement shall have the possibility of getting mal-practices being conducted in copying the answer, which were codified in such a manner that answer-sheet can be seen by other candidate sitting in the same room.

44. That the answer-sheets were also being procured from market as any one can purchase the same and put the seal there under as to get manipulation in the said examination and as such the Roll numbers should have been allotted afresh according to the requirement of the statutory provisions and the existing system followed in the other competitive examinations.

45. That even the coding and decoding of the answer-books as per the instruction of Chairman of judgeship of District Banda, who was chairman of selection committee has not been done on instruction of Hon’ble Inspecting Judge.

46. That the petitioner’s association is failed to understand that when a particular recruitment process confined to a particular judgeship of District Banda is prescribed to have been performed by its District Judge, what was the occasion of having such an interest being taken by the Hon’ble Inspecting Judge in monitoring the answer-sheets from the examiners out side the aforesaid District. It is submitted that it has been written so many times that the strict vigilance was maintained by the O.S.D. at Drumond Road, Allahabad wherein the Hon’ble Inspecting Judge always shown his gratitude by having his all time presence during the course of scrutiny from the officers posted in District Allahabad on the post of Additional District Judges, who were not assigned any such responsibility by the District Judge, Banda. Thus the conclusion drawn in the process of the recruitment of the aforesaid selection is that the analogy applicable by the maxim “Show me the man, and I will make the rule to accommodate him”. The same has been adopted by the Hon’ble Inspecting Judge out side the purview of his jurisdiction vested in accordance with his functioning under the Allahabad High Court Rules, 1952.

47. That the officers Sri B.D. Naqvi and Sri R.P. Singh posted as A.D.J. in the judgeship of District Banda were not even the members assigned with the said responsibility by the District Judge, but for all the time to proceed in the matter of the process of evaluation, their presence has been shown on behalf of the District Judge of judgeship Banda without them not being the member of the selection process even under the delegated power of the District Judge Banda. Thus the entire selection process was loosing the full credencibility in respect of its procedure. Both these officers were not given any such responsibility to become the member of the selection committee by the Chairman of Examination Committee/ District Judge, Banda as both these officers were already undergoing to transfer to some other District.

48. That the examination result has been displayed on the Notice Board wherein ineligible candidate having not even the prescribed age of 35 years amenable for the general candidate has been followed, but in the general category of the selected list of the candidates, 6 candidates from O.B.C. reserved category have been inserted and thereby in the entire process of the aforesaid selection the representation to the O.B.C. candidate has become disproportionate in its number defeating the vary objective of providing the reservation in accordance with the requirement of U.P. Act No.4 of 1994. The waiting list for the anticipated vacancy has also been published which clearly demonstrate that some of the employee posted in Class-III post have been sought to be transferred to the other judgeship and in anticipation of such vacancy the candidate alleged to have been selected have become disproportionate to the post advertised. The true copy of the result of the selection as displayed on 30.3.2011 is being filed herewith and marked as Annexure no.5 to this writ petition.

49. That the entire process of evaluation was done in such a haste manner as the appointment may be given to the chosen one before completion of the tenure of one year by the Hon’ble Inspecting Judge. It is submitted that in this process not only the vacancies notified have been filled up, but also the vacancy anticipated after transfer of some of the employee from judgeship Banda to other District, the same has also been taken into consideration by the erstwhile Hon’ble Inspecting Judge who remain no more the Hon’ble Inspecting Judge of judgeship Banda, but Hon’ble Justice Sri R.D. Khare has resumed the responsibility on the said post after 31.3.2011. The representation submitted by the petitioner association to the present Hon’ble Inspecting Judge dated 1.4.2011 with the request not to given effect the posting to the selected candidate is being filed herewith and marked as Annexure no.6 to this writ petition.

50. That the posting of the individual so selected has not been done as the copy of the representation submitted by the petitioner’s association has been addressed to the judgeship Banda. It has come to the notice of petitioner’s association that some clarification has been sought in respect of the selection to the candidates who have exceeded to the upper age limit and there is only the 13 posts

51. That there has been the instances of pointing out the finger regarding the integrity of the Hon’ble Judges of the High Courts and in such a situation when everything has been done by flouting the statutory provisions, the charge of malafide exercise of the power by exercising the pernicious influence without transparency in the process of the selection may be leveled against the Hon’ble Inspecting Judge as every one in the judgeship Banda has become conversant that a huge amount of the money has been taken for given appointment on the post of the Clerk, paid apprentices and stenographer, who will subsequently get themselves transferred to the other District judgeship and the anticipated vacancies shall be filled up from amongst the candidates qualifying in the said examination whose names are shown in the waiting list of the successful candidate in the said examination.

52. That the fraud avoids all the judicial acts and power exercised by committing the fraud upon the statutory authority having the competence of legislative sanction under Article 309 are not subjected to be circumvented, nullified, prejudiced and interfered with by the power conferred to the Hon’ble Inspecting Judges of that particular judgeship as these Hon’ble Inspecting Judges cannot function as a repository to the High Court functioning for which only the Hon’ble the Chief Justice of the State of Uttar Pradesh is empowered to have its administrative control through the administrative committee or by the full court as per the power conferred under the Allahabad High Court Rules promulgated in exercise of power conferred under Article 225 of the Constitution of India.

53. That who ever he may be holding the highest position in the hierarchy for administration of the justice, but the law done not empower any such authority to act beyond the prescribed limit of the jurisdiction conferred to the said authority, as it has rightly been said that who ever he may be, but the law is above such authority. Thus the entire recruitment process of the selection of class- III employees in the judgeship of District Banda are bias with legal malafide and the fraud on power has been committed in the aforesaid selection in such a manner that even the relaxation of age has been granted beyond the permissible limit to the candidate so selected as that of the employee of the general category, while the eligible candidates have been deprived of their bonafide rights of the employment, which is conferred to them in the fair selection process under the judgeship of District Banda.

54. That the Hon’ble Inspecting Judge at the most may look into the matter when the complaint in respect of the recruitment process and the manner of the selection are made by the affected parties having their grievances, who may have their locus standi to file their Appeal, but if the appellate authority himself may assume the jurisdiction conferred with the statutory authority, the same shall be violated of the settled principle of law. Thus the entire process of selection is vitiated by the colourable exercise of the jurisdiction which was not vested with the Hon’ble Inspecting Judge appointed for looking after the functioning of the judicial work assigned to the judicial officers in the judgeship of District Banda only for his tenure of one year, which has now come to an end.

55. That the two phrase contemplated under Article 14 namely equality before law and equal protection before law may convey the similar gesture, but the objective hidden behind these Articles is to get the equal treatment not only in accordance with the substantive law without discrimination, but the processual manner prescribed in the procedural law are strictly to be followed in the matter of recruitment, otherwise the entire process of selection conducted by Hon’ble Inspecting Judge without having any consultation with the District Judge of judgeship of Banda will become automatically vitiated on account of virus of vices resulting in the failure of justice and transgression of the discretionary authority vested to the authority empowered to act under the statutory provisions.

56. That in this manner, if any, attribution regarding the functioning of Hon’ble Inspecting Judge is not assigned with any attribution regarding aspersions, the conclusion is inescapable that a bizarre exercise of acquiring the power contrary to the requirement of statutory provisions contemplated under the aforesaid rules in the matter of recruitment has been done, which is recorded in the minutes of selection committee and if the transgression of discretionary power resulting in infraction of statutory rules prescribed in this regard has been done, the same may tantamount to be malafide exercise of power.

57. That in the recent pronouncements of the Hon'ble Supreme Court, fairness and transparency have been held to be the essential requirements of the selection process in all the employments. It is reliably learnt (as is available on internet) that the Chairman of the Selection Committee had specifically directed at the initial stage of the selection process for the codification of the answer books. This was all the more important for the reason that the distribution of the forms was made on the basis of the serialization of its numbers of the forms and interestingly the same number as provided on the serial of the forms was allocated as the Roll number. This left no scope for doubt that the roll number of the candidates were all to well known and even during the examination process the serialized clubbing of convenient group of the candidates for mutual benefit was also possible in cluster in the examination room by merely choosing the option of purchasing the forms in bulk on the same day by few candidates. This situation was extremely dangerous and was totally obliterating the possibilities of any transparent or fair process of examination. In this backdrop it was all the more necessary that the codification of the answer books must have been done. It is also learnt that for some strange reasons this direction of the Chairman was bypassed/ overlooked rendering the entire process of selection not only motivated, but, also full of vice of extraneous consideration and ulterior motivations.

58. That it has also been learnt that the instructions regarding codification were withdrawn under the instructions of the Hon'ble Administrative Judge as explained by the Members of the Selection Committee in their minutes submitted by them. This fact deserves to be examined by this Hon'ble Court by summoning the original records of the process of selection and if it is found correct, it would be sufficient to nullify very basis of the piety and validity of the selection process.

59. That the secrecy of the identity of the candidate is a golden principle to ensure the transparency and fair play in the examination process. A somersault on this aspect of codification and two divergent instructions issued by the Chairman and the Hon'ble Administrative Judge on the same subject speak volumes of exterior interference in the process of selection, which makes it clear that the process was neither independent, nor was it above influence. Since these divergent instructions are the part of the report submitted by the selection committee, as is being reliably learnt, it is all the more desirable that this Hon'ble Court may kindly be pleased to summon the original records of the process of selection to examine that as to what were those compelling circumstances which necessitated the possibility of undoing of an instruction issued by the Chairman at the initial stage regarding codification, which could be a key to the fair marking of the candidates.

60. That this is established law that the lit of the selected candidates has to be prepared on the basis of the vacancies available on the date of the notification. No list can be prepared including the waiting list with regard to hypothetical possibilities of the vacancies in future. In the present case waiting list has also been prepared and published to cater to the requirements of the future vacancies, which are likely to happen, which admittedly did not exist on the date of the notification of the advertisement for selection and are totally hypothetical in nature. This is evident on the record , which is sufficient to render the entire process of selection totally unconstitutional, illegal, bad in law and vitiates the bonafide of the process of selection and renders the same a clear case of selection, suffering from the vice of ulterior motivations.

61. That the fairness in action must at least be perceptible, if not transparent. The selection process are contemplated under recruitment rules according to Ministerial Establishment of a judgeship, but the Hon’ble administrative judge has taken the entire process after given up the process of decoding in the District Allahabad itself.

62. That it is contemplated under the rules that recruitment process shall be based on result of competitive examination conducted by the District Judge at headquarter of judgeship and registration of the selected candidate shall be entered in the order of merit in bound register in Form-B prescribed in Appendix-I and each entry shall be initialed and dated by District Judge after he has inspected original copies of certificate, but in the present case even if according to minutes of selection committee details, if it is accepted that four others were deputed on 16.3.2011 and one Class-III and two Class IV employees were so assigned to get the scrutiny of answer-books, there has been the necessity of sending the entire answer-sheet to another judgeship of District Allahabad and to get induction of five officers suo motto for judgeship of Allahabad for evaluation of copies/ answer-books on 17.3.2011 alongwith four delegated officers assigned in this regard from 12.00 noon to 5.00 P.M.

63. That the O.S.D’s of registry of High Court Allahabad were monitoring the process and were keeping tied vigil on the examiners who were officers of the rank of Additional District Judge and the said reason has been given for avoiding the process of decoding. It is submitted that O.S.D. of registry of Allahabad High Court were not empowered for keeping tied vigil upon the Additional District Judges, who were engaged on evaluation of copies on 17.3.2011 and thereafter at Drummond Road Guest House of Allahabad High Court.

64. That on the subsequent date none of the deputed Additional District Judge namely Sri Avanish Saxena, Sri S.K. Vishwakarma, Sri Devendra Singh and Sri Sudeep Jaiswal were present, but one Sri R.P. Singh Additional District Judge, Banda was invited to break the seal of main suit and seal of the room, which was contrary to the requirement.

65. That the jurisdiction of judgeship Allahabad is assigned to Hon’ble Justice Sri Prakash Krishna J, but under the instruction of the administrative judge of judgeship Banda, who remain in said office only up to 31.3.2011, the entire process of evaluation of the copies of answer-sheets of about 2700 candidates were done in such a haste manner by contemplating the transparency therein by administrative judge himself, which is contrary to objective sought to be achieved and in such a situation the conclusion is inescapable that the entire process of evaluation of answer-sheets has been done to get the evaluation of the copies from 18.3.2011 up to 28.3.2011.

66. That the merit list so prepared is having the name of the candidate namely Mr. Ajay Kumar Verma in the list of general candidate, who was belonging to the Other Backward Class category and has taken the benefit of age relaxation from being 35 years as on dated 1.7.2009, but he was admittedly 38 years 9 months 15 days on such date. There has 6 Other Backward Class candidates belonging to the candidate applying for reserved category, but they have been illegally included as a candidate of general cadre. Thus the entire selection process is per se illegal, void and without jurisdiction.

67. That in the case of Narendra Prasad Singh Versus D.G.P. 2002 (3) U.P.L.B. & E.C. Page 2304 the aforesaid case in respect of the provisions of section 3 (6) of the U.P. Act No. 4 of 1994, wherein no such benefit of the relaxation of age has been given in the open competition against unreserved vacancy, but the same has been done under the instruction of Hon’ble Inspecting Judge.

68. That in this regard the qualification for certain post is rational differentia under Article 14 and 16 of the Constitution of India, wherein age relaxation to some of the selected candidate in the general category resulting in reverse discrimination to the rights of the prospective candidates may not be given effect against the settled principles of law and the statutory safeguard enunciated in this regard.

69. That where the power is conferred to any authority to act in exercise of such power with the statutory provisions, the power so given under the law should have been exercised by the authority competent to exercise such power and in case the Hon’ble inspecting judge has not been conferred with any such power as to invade the authority of the District Judge in the matter of selection of ministerial establishment of a particular judgeship, the power so exercised under the guise of the transparency in the selection process by scrutinizing the answer-sheet in other District judgeship officers posted in the said District, the power shall be deemed to be a colourable exercise of power.

70. That in this manner it is therefore most respectfully prayed that this Hon’ble Court may graciously be pleased to declare the entire minutes of selection committee (Annexure no.4 to the writ petition) as null and void. It is further prayed that the examination of the answer-sheets may be done within the judgeship of District Banda by the competent selection/ examination committee of the ministerial establishment under its Chairman/ District Judge, Banda as per the requirement of U.P. Subordinate Civil Court Ministerial Establishment Rules, 1947, U.P. Rules for Recruitment of Ministerial Staff of subordinate offices in Uttar Pradesh, 1950 and Circular dated 2^nd January, 1987 issued by Allahabad High Court readwith U.P. Act No. 4 of 1994.

71. That it is further prayed that as an alternative prayer this Hon’ble Court administrative committee/ full court may recommend uniform policy for the recruitment of the ministerial establishment to the State Government for implementation as the supervisory jurisdiction conferred under Article 225 of the Constitution of India may be exercised for maintaining transparency in the selection process in the entire State of Uttar Pradesh in accordance with the scheme and basic structure of our constitution.

72. That the petitioners have got no other equally effective and speedy alternative remedy except to approach this Hon’ble Court by invoking its extra-ordinary writ jurisdiction under Article 226 of the Constitution of India, inter-alia on the following amongst other grounds:

G R O U N D S

a. Because, the functioning of the “Government” as enshrined under Article 309 of the Constitution of India are executive functions of the State Government. The rules so formulated in exercise of such power conferred the jurisdiction to different authorities, holding their obligation and duties towards the recruitment and condition of service of persons serving in Union or a State Government.

b. Because, subject to the provisions of constitution, acts of the appropriate legislation may regulate the recruitment and service of the persons appointed to public services and posts in connection with affairs of Union or of any State. The power to make rules regulating the recruitment and conditions of service of persons appointed to such services and posts until provisions in that behalf is made by or under in act or the appropriate legislation under this Article.

c. Because, under preamble of the Constitution the basic structure of our constitution, which can not be amended in exercise of power conferred therein in the separation of powers impliedly if not explicit and thus the power conferred for executive functionary under the State has an overriding effect to act independently without any interference or intervention by the external authority to whom the power has not been vested under our constitution.

d. Because, the Subordinate Civil Courts Ministerial Establishment Rules, 1947 published vide notification No. 2494/VII-G-12-40 dated August 1, 1947 were promulgated and thereafter the rules in exercise of the power conferred under Article 309 of the Constitution of India came into existence in U.P. Gazette Part-1A dated 15^th July, 1950, which were further amended vide notification published in U.P. Gazette on 26.11.1966.

e. Because, under Rule 3 the strength of the ministerial establishment shall form a unit under the “judgeship”, but stenographer shall form a separate cadre vide notification no. 1696/VII-612-A-40 dated March 27, 1953 the recruitment of stenographer is subject to the previous approval of High Court.

f. Because, the District Judge may from time to time with concurrence of High Court or the Chief Court of our audh as the case may be, leave unfilled vacancy or the Governor may hold in abeyance or abolish any vacant post.

g. Because, the application for recruitment shall be invited by District Judge in the Form-A in Appendix-I by advertising in the newspapers having circulation in the locality wherein number of the candidates to be recruited and date of examination is prescribed.

h. Because, according to Rule-11 of the aforesaid Rules, 1947, which were amended in the year 1969, the recruitment shall be based on result of the competitive examination and interview by District Judge at Headquarter of judgeship in the manner prescribed in Appendix-II. However, the District Judge may delegate by or more function other than function of interviewing the candidate to a Senior Judge.

i. Because, Article 225 of the Constitution of India deals with the jurisdiction of existing High Court and respective power of judges thereof in relations to the administration of justice in the court, including any power to make rules of court and to regulate the sitting of the court.

j. Because, the power of the executive and administrative business of the court are conferred under Chapter-III of aforesaid High Court Rules, 1952, wherein the Hon’ble Inspecting Judge as nominated by Hon’ble Chief Justice and assigned to a particular session Division to each Hon’ble Judges as Hon’ble Inspecting Judge of that division for a period of one year. However, in the given situation the Hon’ble Chief Justice may assign more than one session division to one Hon’ble Inspecting Judge, who shall proceed in inspection in consultation with District Judge.

k. Because, there is a particular procedure has been prescribed to be accomplished for given effect to the process of recruitment, the same cannot be modified simply on account of fact that the Hon’ble Inspecting Judge of aforesaid judgeship of District Banda may regulate the entire process for which only District Judge of said judgeship is prescribed to accomplish.

l. Because, even the Roll numbers have been allotted to the different candidates appearing in the said written examination were the number prescribed on Form-A meant for submitting the application as per Appendix-I under Rule 10 of the aforesaid Rules and in this manner if the individuals purchasing the Proforma on its prescribed Form-A under Rule 10 are purchasing the aforesaid Forms in bulk amongst the particular group of individual applying in recruitment process, their sitting arrangement shall have the possibility of getting mal-practices being conducted in copying the answer, which were codified in such a manner that answer-sheet can be seen by other candidate sitting in the same room.

m. Because, the answer-sheets were also being procured from market as any one can purchase the same and put the seal there under as to get manipulation in the said examination and as such the Roll numbers should have been allotted afresh according to the requirement of the statutory provisions and the existing system followed in the other competitive examinations.

n. Because, even the coding and decoding of the answer-books as per the instruction of Chairman of judgeship of District Banda, who was chairman of selection committee has not been done on instruction of Hon’ble Inspecting Judge.

o. Because, the setting of the question paper was done in such a manner having the two marks for each questions were quite predictable and it has been found that after the completion of the examination, there were the information conveyed to the prospective applicants appearing in the examination regarding the preconceived answers known to the candidates appearing with an assurance of getting them successful in the examination.

p. Because, the entire process of evaluation was done in such a haste manner as the appointment may be given to the chosen one before completion of the tenure of one year by the Hon’ble Inspecting Judge. It is submitted that in this process not only the vacancies notified have been filled up, but also the vacancy anticipated after transfer of some of the employee from judgeship Banda to other District, the same has also been taken into consideration by the erstwhile Hon’ble Inspecting Judge who remain no more the Hon’ble Inspecting Judge of judgeship Banda, but Hon’ble Justice Sri R.D. Khare has resumed the responsibility on the said post after 31.3.2011.

q. Because, the fraud avoids all the judicial acts and power exercised by committing the fraud upon the statutory authority having the competence of legislative sanction under Article 309 are not subjected to be circumvented, nullified, prejudiced and interfered with by the power conferred to the Hon’ble Inspecting Judges of that particular judgeship as these Hon’ble Inspecting Judges cannot function as a repositiory to the High Court functioning for which only the Hon’ble the Chief Justice of the State of Uttar Pradesh is empowered to have its administrative control through the administrative committee or by the full court as per the power conferred under the Allahabad High Court Rules promulgated in exercise of power conferred under Article 225 of the Constitution of India.

r. Because, who ever he may be holding the highest position in the hierarchy for administration of the justice, but the law done not empower any such authority to act beyond the prescribed limit of the jurisdiction conferred to the said authority, as it has rightly been said that who ever he may be, but the law is above such authority. Thus the entire recruitment process of the selection of class- III employees in the judgeship of District Banda are bias with legal malafide and the fraud on power has been committed in the aforesaid selection in such a manner that even the relaxation of age has been granted beyond the permissible limit to the candidate so selected as that of the employee of the general category, while the eligible candidates have been deprived of their bonafide rights of the employment, which is conferred to them in the fair selection process under the judgeship of District Banda.

s. Because, the Hon’ble Inspecting Judge at the most may look into the matter when the complaint in respect of the recruitment process and the manner of the selection are made by the affected parties having their grievances, who may have their locus standi to file their Appeal, but if the appellate authority himself may assume the jurisdiction conferred with the statutory authority, the same shall be violated of the settled principle of law. Thus the entire process of selection is vitiated by the colourable exercise of the jurisdiction which was not vested with the Hon’ble Inspecting Judge appointed for looking after the functioning of the judicial work assigned to the judicial officers in the judgeship of District Banda only for his tenure of one year, which has now come to an end.

t. Because, the two phrase contemplated under Article 14 namely equality before law and equal protection before law may convey the similar gesture, but the objective hidden behind these Articles is to get the equal treatment not only in accordance with the substantive law without discrimination, but the processual manner prescribed in the procedural law are strictly to be followed in the matter of recruitment, otherwise the entire process of selection conducted by Hon’ble Inspecting Judge without having any consultation with the District Judge of judgeship of Banda will become automatically vitiated on account of virus of vices resulting in the failure of justice and transgression of the discretionary authority vested to the authority empowered to act under the statutory provisions.

u. Because, the secrecy of the identity of the candidate is a golden principle to ensure the transparency and fair play in the examination process. A somersault on this aspect of codification and two divergent instructions issued by the Chairman and the Hon'ble Administrative Judge on the same subject speak volumes of exterior interference in the process of selection, which makes it clear that the process was neither independent, nor was it above influence. Since these divergent instructions are the part of the report submitted by the selection committee, as is being reliably learnt, it is all the more desirable that this Hon'ble Court may kindly be pleased to summon the original records of the process of selection to examine that as to what were those compelling circumstances which necessitated the possibility of undoing of an instruction issued by the Chairman at the initial stage regarding codification, which could be a key to the fair marking of the candidates.

v. Because, the merit list so prepared is having the name of the candidate namely Mr. Ajay Kumar Verma in the list of general candidate, who was belonging to the Other Backward Class category and has taken the benefit of age relaxation from being 35 years as on dated 1.7.2009, but he was admittedly 38 years 9 months 15 days on such date. There has 6 Other Backward Class candidates belonging to the candidate applying for reserved category, but they have been illegally included as a candidate of general cadre. Thus the entire selection process is per se illegal, void and without jurisdiction.

w. Because, in the case of Narendra Prasad Singh Versus D.G.P. 2002 (3) U.P.L.B. & E.C. Page 2304 the aforesaid case in respect of the provisions of section 3 (6) of the U.P. Act No. 4 of 1994, wherein no such benefit of the relaxation of age has been given in the open competition against unreserved vacancy, but the same has been done under the instruction of Hon’ble Inspecting Judge.

x. Because, the qualification for certain post is rational differentia under Article 14 and 16 of the Constitution of India, wherein age relaxation to some of the selected candidate in the general category resulting in reverse discrimination to the rights of the prospective candidates may not be given effect against the settled principles of law and the statutory safeguard enunciated in this regard.

y. Because, where the power is conferred to any authority to act in exercise of such power with the statutory provisions, the power so given under the law should have been exercised by the authority competent to exercise such power and in case the Hon’ble Hon’ble Inspecting Judge has not been conferred with any such power as to invade the authority of the District Judge in the matter of selection of ministerial establishment of a particular judgeship, the power so exercised under the guise of the transparency in the selection process by scrutinizing the answer-sheet in other District judgeship officers posted in the said District, the power shall be deemed to be a colourable exercise of power.

z. Because, in the case of Narendra Prasad Singh Versus D.G.P. 2002 (3) U.P.L.B. & E.C. Page 2304 the aforesaid case in respect of the provisions of section 3 (6) of the U.P. Act No. 4 of 1994, wherein no such benefit of the relaxation of age has been given in the open competition against unreserved vacancy, but the same has been done under the instruction of Hon’ble Inspecting Judge.

P R A Y E R

It is, therefore, most respectfully prayed that this Hon’ble Court may graciously be pleased to: -

(i) Issue a writ, order or direction in the nature of certiorari quashing the minutes of the selection committee (Annexure no.4 to the writ petition) and also the result so declared on 30.3.2011 (Annexure no.5 to the writ petition).

(ii) Issue a writ, order or direction in the nature of mandamus directing the respondent no.3 / the State Government for maintaining transparency in the selection process in the entire State of Uttar Pradesh in accordance with the scheme framed under Article 225 and also in accordance with basic structure of our constitution.

(iii) Issue any other suitable order or direction, which this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.

(iv) To award the cost of the writ petition in favour of the petitioners.

Dt/- 4th April, 2011 (YOGESH KUMAR SAXENA)

Advocate

Counsels for the Petitioners

Chamber no. 139, High Court, Allahabad

IN THE HON’BLE HIGH COURT OF JUDICATURE AT ALLAHABAD

ANNEXURE NO.

CIVIL MISC. WRIT PETITION NO. OF 2011

(Under Article 226 of the Constitution of India)

(DISTRICT – BANDA)

Allahabad Adhivakta Sangthan, Allahabad and another

-------------------------------------Petitioners

Versus

High Court of Judicature at Allahabad through its Registrar General

and others -------------------------------------Respondents

“Birth Day Celebrations of Bahan Sushri Mayawati” and ‘Red Light Scandal’ and further directing to the respondent No. 1 commanding him that the unaccounted for money lying in the accounts of accused persons involved in ‘Red Light Scandal’ in the tune of Rs. 55.3 Lacks incurred by the petitioners on the instigation of respondent No. 3 and his agents for conducting “Birth Day Celebrations of Bahan Sushri Mayawati”

2012-05-25T03:07:00.002-07:00

IN THE HON’BLE HIGH COURT OF JUDICATURE AT ALLAHABAD

I N D E X

CIVIL MISC. WRIT PETITION NO. OF 2011

(Under Article 226 of the Constitution of India)

(DISTRICT – GHAZIABAD)

Sachin Tyagi and another-------------------------------Petitioners

Versus

State of Uttar Pradesh and others----------------------Respondents

Sl.no.	Particulars.	Dates.	Ann.	Pages.
1.	List of dates and Events.	--	-
2.	Misc. Application (Under Chapter XXII Rule 1 of High Court Rules, 1952)	--	-
3.	Writ Petition (Under Article 226 of the Constitution of India)	--	-
4.	Copy of the bye-laws and registration certificate of cooperative society.	1.12011	1
5.	Copy of the project identity of Uttar Pradesh Industrial and Residential Corporation Ltd.	14.1.2011	2
6.	Copy of the letter-pad of society namely Uttar Pradesh Sachivalaya Seva Sidhi Bharti Sangh.	20.1.2011	3
7.	Copy of the certificate issued to the petitioner no.1.	14.01.2011	4
8.	Photographs pertaining to the meeting having participation of high profile ranking in the State of Uttar Pradesh conducted at Vibhuti Khand, Gomti Nagar, Lucknow.	15.1.2011	5
9.	Photographs having distribution of blanket to the poor persons in the meeting so conducted at Vibhuti Khand, Gomti Nagar, Lucknow.	15.1.2011	6
10.	Photo copy of the news item published pertaining to ‘Red Light Scandal’ in Dainik Jagran.	15.1.2011	7
11.	Photo copy of the news item published pertaining to ‘Red Light Scandal’ in Hindustan.	10.05.2011	8
12.	Affidavit.	--	-
13.	Vakalatnama.	--	-

Dt/- 27.6. 2011 ( YOGESH KUMAR SAXENA )

Advocate

Counsel for the Petitioners

Chamber no. 139, High Court,

Allahabad

IN THE HON’BLE HIGH COURT OF JUDICATURE AT ALLAHABAD

LIST OF DATES AND EVENTS

CIVIL MISC. WRIT PETITION NO. OF 2011

(Under Article 226 of the Constitution of India)

(DISTRICT – GHAZIABAD)

Sachin Tyagi and another-------------------------------Petitioners

Versus

State of Uttar Pradesh and others----------------------Respondents

Sl. No.	Dates.	Events.
1.	1.1.2011	The respondent no. 3 namely Mr. Rajveer Singh, according to the information given by his associates having now being escorted on the basis of police power and from the information gathered by the petitioners, is admittedly the Vice President of Uttar Pradesh Sahkari Gramodyogik Vastu Utpadan Avam Vipdan Sangh, Lucknow. Similarly his associates Mr. Pramod Kumar is the president of Uttar Pradesh Motor Transport Cooperative Federation Ltd having his registered Head-Office at 82, Vibhuti Khand, Gomti Nagar, Lucknow, while his regional office is situated at Mahabir Chowk, at Muzaffarnagar. One Rajiv Mishra is main conspirator of respondent No. 3 and is associates in some federation, which is a registered society under the provisions of U.P. Cooperative Societies Act, 1965 and a certificate to this effect has also bee issued under section 8 (1) of the aforesaid Act No. 11 of 1966.
2	14.1.2011	There is another unit namely Uttar Pradesh Industrial and Residential Corporation Ltd, which has got the different schemes of Small Unit Industrial setup being organized having nomenclature of manufacturing and cooperative marketing and joint marketing schemes. The Chief Minister in the State of Uttar Pradesh Sushri Mayawati was proposed to award the prize under “Kanshiram Small Unit Industrial Award Scheme”, which were attended by respondent no.3 along with his other associates and number of the innocent farmers in order to demonstrate the proximity of their closeness with Hon’ble Chief Minister in the State of Uttar Pradesh.
3.	14.1.2011	Before the said meeting a certificate was issued by the President of aforesaid Uttar Pradesh Motor Transport Cooperative Federation Ltd by Mr. Pramod Kumar, by appointing the petitioner no.1 as Vice President unanimously. An assurance was given that all the facilities available to the Deputy Minister in the State Government shall also be available on account this assignment given to the petitioner. The certificate to this effect was issued to the petitioner no.1 on 14.01.2011.
4.	15.1.2011	It has become a fashion to facilitate Bahan Km. Mayayati, Chief Minister of Uttar Pradesh with garlands having the Currency Notes of Rs. 1000/- on her birth day celebrations as the person aspirants to become constitutional functionaries and political millage as they may get an opportune to please their political master by cutting the celebrations Birth Day cake and distributions of the blankets and swing machines by giving the assurance to the soft corner to get some favorable assignment in the lucrative offices of the state Government. The petitioners are seeking protection against the high handedness and atrocities committed upon them by extracting an exorbitant amount of Rs. 55.3 Lacks, out of which the expenditure Rs. 2 Lacks is being incurred in getting the ceremonial functioning’s expenditure being procured from them in cash money by demonstrating the position by the respondent no. 3 for getting the celebration of birth Ceremony festival Of Bahan Km. Mayayati on 15^th January 2011 and other expenditure in distribution of 150 blankets costing Rs. 120 each and 28 swing Machines costing about Rs.4000/- from them, costing another expenditure of money of Rs. 1,30,000/- as compensation amount was lying in the accounts of petitioner no. 2 of land acquired by acquisition authorities by trapping through allurement of providing them a high position of the Deputy Minister rank in the Government and other accessories in a preplanned conspiracy hatched by respondent No. 3 and his other associates.
5.	15.1.2011	The petitioner No. 1 is only having the academic qualification up to VIII class while the father of the petitioner No. 1 namely the respondent No. 2 is an illiterate person. Since the petitioner no. 1 is the only son and as such on the insistent to become rich and powerful identity in the public, they have been made fool by the agents of Respondent No. 3. Both these person are neither involved in realizing any money from other innocent farmers. There are other farmers identical to their dreaded destitute and miseries suffered in the incidence of “Birth Day Celebrations of Bahan Sushri Mayawati” and consequential ‘Red Light Scandal’. There has not been any report against the petitioners in any police Station regarding their involvement in any criminal and civil matter, nor they have any criminal antecedents till date, as they are respected rich person in the social circle always ready to believe and trust other person due to their innocence in ambitious atmosphere ruining the future prospective of our Nation. However the agents of respondent No. 3 and 4 are threatening to the petitioners , if the matter shall be brought to the notice of any state authority on account of the matter pertaining to the procurement of money in the “Birth Day Celebrations of Bahan Sushri Mayawati”, which may affect the reputation of State Government.
6.	15.1.2011	Before the said meeting a certificate was issued by the President of aforesaid Uttar Pradesh Motor Transport Cooperative Federation Ltd by Mr. Pramod Kumar, by appointing the petitioner no.1 as Vice President unanimously. An assurance was given that all the facilities available to the Deputy Minister in the State Government shall also be available on account this assignment given to the petitioner. The certificate to this effect was issued to the petitioner no.1 on 14.01.2011. the aforesaid money was realized in a preplanned conspiracy hatched by respondent no.3 and his associates posing themselves to be closely associated with the political nexus of the present political setup and numbers of the persons of high profile ranking were also invited on the occasion of meeting conducted of Uttar Pradesh Motor Transport Cooperative Federation Ltd. the birth day of Bahan Sushri Mayawati, on 15.1.2011 , the cake of 55 K.G. was brought in anticipation of attending the function by Hon’ble the Chief Minister as per the commitment given by the respondent no. 3 and assured that the prize distribution ceremony be held by Hon’ble the Chief Minister on her Birth Day. Thus the blankets were distributed to the poor persons in the aforesaid meeting by the petitioner No. 1 along with respondent No.3 on being instigated to do so to create the good will in political Circle on instigations of the agent of respondent No. 3 namely Mr. Pramod Kumar And Mr. Anil Mishra alleging him to be General Secretary of Uttar Pradesh Motor Transport Cooperative Federation Ltd.
7.	10.5.2011	At the sudden all the dreams, which were shown to the petitioner no.1 have been blown to the ashes as the information to the effect of lodging a complaint by respondent no.3 against his close associates named above, on account of the reason that the money procured in such a fraudulent representations, the adequate share had not been given by his associates. The incident were published in the newspapers, in which it has been disclosed that respondent No. 3 got his other associates being arrested by respondent no.4, one from District Kushi Nagar and another from District Lucknow. the respondent No. 3 has been remained the main culprit of giving the incentives to the innocent farmers including the petitioners. Now on the basis of the affidavit given by the main conspirator of conducting the Birth Day Celebration of Bahan Sushri Mayawati on 15^th January 2011, the respondent no. 1 only on account of respondent No. 3, who had cheated the petitioners and other farmers are adopting the coercive method against the associates of Respondent No. 3, by relying upon his statement that his Blank letter pads have been issued by his associates, The raid was provided at the residence of other farmers and the agents of respondent No. 3 and 4 are having a search being made at the residence to arrest the petitioners and destroy the evidence having involvement of respondent no. 3 along with his associates. apart from the respondent No. 3, Mr. Rajeev Mishra and Mr. Anoop Srivastava, the names of Mr. M.U. Khan, Mr. Anil Chaudhary, Mr. Pramod Kumar, Mr. Vikas Sharma and other individual operating in the aforesaid “ Birth Day Celebration of Bahan Mayawati” having creation of another Scam of ‘Red Light Scandal’, Which have come to the notice of innocent farmers, who have been cheated by the respondent No. 3. The petitioners have only become conversant after looking in the report published in the newspapers, which is the only source of information gathered by the citizens in consonance with their fundamental rights guaranteed under Article 19 (1) (a) of the Constitution of India. Thus the report published in the newspapers are the vital peace of evidence to the citizen in absence of autoerotic publication by State Government, which may be taken note for making out a prima facie case against the conspiracy hatched by the private respondent No. 3 against the petitioners.
8.	10.5.2011	According to the report published in the newspapers the accounts of all the six accused persons said to have been arrested or likely to be arrested, whose names have been shown in the news item, it has been disclosed that disproportionate amount to their known source of income in the said bank account of accused persons. The petitioners may be permitted to place convincing evidence in order to demonstrate the truthfulment of their statement as they have been deceived by respondent No. 3 and his associates. The money incurred was obtained after the withdrawing the amount from the accounts of the petitioners bearing account no.92815 lying in Punjab National Bank, Ghaziabad and Cooperative Citizen Bank . Ghaziabad
9.	15.6.2011	The petitioners approached the respondent no.2 and they have been directed to make a contact with respondent no.4. However, instead of providing any assistance for restitution of the rights for providing the money cheated by the respondent No. 3 and his associates which is amenable to the petitioners, the officials of respondent no.4 have started interrogation of petitioners as the petitioners are themselves accounted for as the associates of these accused persons. They were directed to produce all such clinching evidence as to become accomplish to the crime committed by respondent no. 3. That threatening were started by the agents of these six persons by sending the miscreants posing themselves as the sharp shooter, who were accompanied with weapons and appears to be closely associated with the respondent No. 3, in case of any retaliation shown by the exposure of the truth before any subordinate authority under the State Government. This is being done as the publicity regarding the involvement of ruling party may not be exposed to other citizens in the “Birth Day Ceremony Celebrations Of Bahan Sushri Mayawati Money Scandal” and assurance given in the alleged ‘Red Light Scandal’.
10.	27.6.2011	That there was no occasion for initiating the criminal proceedings on the instruction issued by respondent No. 3 alledging the use of letter pad and his signature and on the basis of the instruction issued by Sri kunwar Fateh Bahadur Principal Secretary Homes, Secretariat of U.P., thje STF of Muzaffarnagar range working under the respondent No 4 has been directed to get the matter investigated and to arrest the individual by giving a clear cut escape to the organizer “Birth Day Celebrations of Bahan Sushri Mayawati” namely to the respondent No. 3 . Thus no other remedy is available except to seek protection of fundamental rights guaranteed to the petitioner and to get the matter investigated by the respondent No. 5.

Dt/-27.6. 2011 ( YOGESH KUMAR SAXENA )

Advocate

Counsel for the Petitioners

Chamber no. 139, High Court,

Allahabad

IN THE HON’BLE HIGH COURT OF JUDICATURE AT ALLAHABAD

CIVIL MISC. APPLICATION NO. OF 2011

(Under Section 151 of the C.P.C.)

On behalf of

Sachin Tyagi and another-----------------------------Petitioners

CIVIL MISC. WRIT PETITION NO. OF 2011

(Under Article 226 of the Constitution of India)

(DISTRICT – GHAZIABAD)

1. Sachin Tyagi, son of Sri Budh Prakash Tyagi

2. Budh Prakash Tyagi, son of Jandoo Singh Tyagi

Both residents of Village and Post Makhanpur,

District Ghaziabad. ---------------------------- Petitioners

Versus

1. State of U.P. through Secretary, Home Department, Govt. of U.P. Lucknow.

2. Inspector General of Police, Meerut Region, Meerut.

3. Rajveer Singh, Vice President, Uttar Pradesh Sahkari Gramodyogik Vastu Utpadan Avam Vipdan Sangh, Lucknow.

4. State Task Force, Field Unit, Civil Lines, Muzaffarnagar Range, Dy. Inspector General Of Police, Regional Police office Meerut Zone, Meerut.

5. Central Bureau of Investigation, Lucknow Range, Lucknow.

-----------------------Respondents

To,

The Hon’ble the Chief Justice and his other companion Judges of the aforesaid court.

The humble application of the above named applicant/ petitioner most respectfully showeth as under: -

(i) That the full facts and circumstances of the case have been given in the accompanying writ petition, it is expedient in the interest of justice that this Hon’ble Court may graciously be pleased to direct and the restrain the respondent No. 4 from using any coercive measurement by making the arrest of petitioners on the basis of the application/affidavit given by the respondent No. 3 to the respondent No. 1 without having any cogent material regarding involvement of petitioners procuring money in the aforesaid “Birth Day Celebrations of Bahan Sushri Mayawati” and ‘Red Light Scandal’ and directing further to the respondent No. 1 commanding him that the unaccounted for money lying in the accounts of accused persons involved in ‘Red Light Scandal’ in the tune of Rs. 55.3 Lacks incurred by the petitioners on the instigation of respondent No. 3 and his agents for conducting “Birth Day Celebrations of Bahan Sushri Mayawati” may also be divested to the accounts of petitioners.

(ii) That it is prayed during the pendency of writ petition the Respondent No.5,Central Bureau of Investigation agency may be directed to conduct the independent enquiry in the matter the aforesaid “Birth Day Celebrations of Bahan Sushri Mayawati” and ‘Red Light Scandal’ and furnish the report of said enquiry to this Hon’ble Court or to issue some other direction in the interest of justice.

P R A Y E R

It is, therefore, most respectfully prayed that this Hon’ble Court may graciously be pleased to restrain the respondent No. 4 from using any coercive measurement by making the arrest of petitioners on the basis of the application/affidavit given by the respondent No. 3 to the respondent No. 1 without having any cogent material regarding involvement of petitioners procuring money in the aforesaid “Birth Day Celebrations of Bahan Sushri Mayawati” and ‘Red Light Scandal’ and further directing to the respondent No. 1 commanding him that the unaccounted for money lying in the accounts of accused persons involved in ‘Red Light Scandal’ in the tune of Rs. 55.3 Lacks incurred by the petitioners on the instigation of respondent No. 3 and his agents for conducting “Birth Day Celebrations of Bahan Sushri Mayawati” may also be divested to the accounts of petitioners.

It is prayed during the pendency of writ petition the Respondent No.5, Central Bureau of Investigation agency may be directed to conduct the independent enquiry in the matter the aforesaid “Birth Day Celebrations of Bahan Sushri Mayawati” and ‘Red Light Scandal’ and furnish the report of said enquiry to this Hon’ble Court And/or pass such other suitable order or direction, which this Hon’ble Court may deem fit and proper in the present circumstances of the case.

Dt/- 27.6. 2011 ( YOGESH KUMAR SAXENA )

Advocate

Counsel for the Petitioners

Chamber no. 139, High Court,

Allahabad

IN THE HON’BLE HIGH COURT OF JUDICATURE AT ALLAHABAD

CIVIL MISC. WRIT PETITION NO. OF 2011

(Under Article 226 of the Constitution of India)

(DISTRICT – GHAZIABAD)

1. Sachin Tyagi, son of Sri Budh Prakash Tyagi

2. Budh Prakash Tyagi, son of Jandoo Singh Tyagi

Both residents of Village and Post Makhanpur,

District Ghaziabad.

---------------------------- Petitioners

Versus

1. State of U.P. through Secretary, Home Department, Govt. of U.P. Lucknow.

2. Inspector General of Police, Meerut Region, Meerut.

3. Rajveer Singh, Vice President, Uttar Pradesh Sahkari Gramodyogik Vastu Utpadan Avam Vipdan Sangh, Lucknow.

4. State Task Force, Field Unit, Civil Lines, Muzaffarnagar Range, Dy. Director General Of Police, Regional Police office Meerut Zone, Meerut.

5. Central Bureau of Investigation, Lucknow Range, Lucknow.

-----------------------Respondents

To,

The Hon’ble the Chief Justice and his other companion Judges of the aforesaid court.

The humble writ petition of the above named petitioners most respectfully showeth as under: -

1. That this is the first writ petition filed by the petitioner for protection of fundamental rights guaranteed to the petitioners under Article 21, 22 and protection of property right guaranteed under Article 300-A of the Constitution of India against the atrocities and oppression committed by the Police Force due to the political pressure of ruling political party on the behest of authorities of State Government in the matter pertaining to the incidence of “Birth Day Celebrations of Bahan Sushri Mayawati” and consequential ‘Red Light Scandal’ and no other writ petition for the same cause of action has been filed or pending before this Hon’ble Court by the petitioners. The petitioners have not received any notice of caveat application on behalf of respondents till today in the present writ petition.

2. That it has become a fashion to facilitate Bahan Km. Mayayati, Chief Minister of Uttar Pradesh with garlands having the Currency Notes of Rs. 1000/- on her birth day celebrations as the person aspirants to become constitutional functionaries and political millage as they may get an opportune to please their political master by cutting the celebrations Birth Day cake and distributions of the blankets and swing machines by giving the assurance to the soft corner to get some favorable assignment in the lucrative offices of the state Government.

3. That the petitioners are seeking protection against the high handedness and atrocities committed upon them by extracting an exorbitant amount of Rs. 55.3 Lacks, out of which the expenditure Rs. 2 Lacks is being incurred in getting the ceremonial functioning’s expenditure being procured from them in cash money by demonstrating the position by the respondent no. 3 for getting the celebration of birth Ceremony festival Of Bahan Km. Mayayati on 15^th January 2011 and other expenditure in distribution of 150 blankets costing Rs. 120 each and 28 swing Machines costing about Rs.4000/- from them, costing another expenditure of money of Rs. 1,30,000/- as compensation amount was lying in the accounts of petitioner no. 2 of land acquired by acquisition authorities by trapping through allurement of providing them a high position of the Deputy Minister rank in the Government and other accessories in a preplanned conspiracy hatched by respondent No. 3 and his other associates.

4. That the petitioner No. 1 is only having the academic qualification up to VIII class while the father of the petitioner No. 1 namely the respondent No. 2 is an illiterate person. Since the petitioner no. 1 is the only son and as such on the insistent to become rich and powerful identity in the public, they have been made fool by the agents of Respondent No. 3. Both these person are neither involved in realizing any money from other innocent farmers. There are other farmers identical to their dreaded destitute and miseries suffered in the incidence of “Birth Day Celebrations of Bahan Sushri Mayawati” and consequential ‘Red Light Scandal’. There has not been any report against the petitioners in any police Station regarding their involvement in any criminal and civil matter, nor they have any criminal antecedents till date, as they are respected rich person in the social circle always ready to believe and trust other person due to their innocence in ambitious atmosphere ruining the future prospective of our Nation. However the agents of respondent No. 3 and 4 are threatening to the petitioners , if the matter shall be brought to the notice of any state authority on account of the matter pertaining to the procurement of money in the “Birth Day Celebrations of Bahan Sushri Mayawati”, which may affect the reputation of State Government.

5. That there have been number of the farmers having affluent background with the cash lying in their hands, who were subjected to be trapped by respondent No. 3 and by his agents namely Mr. Param Hansh, Mr. Gyanendra Sharma, One C.E.O Karan Chaukar,elder brother of Pramod kumar and many others . These person assured that the Hon’ble Chief Minister will grace the occasion of her 55 birth day celebration at A-82 , Vibhuti Nagar at Gomati Nagar, Lucknow and as such under their assurance that lucrative posts shall be given to them, they assembled at the office of U.P. Cooperative Motor Federation Office at Lucknow. The petitioners were also trapped by the agents of respondent No. 3. It was not known to them that these people are playing fraud with the petitioners to usurp the cash amount of Rs. 52 Lacks in Cash and rest of the amount procured from petitioners for purchase of the cake at 55 birth day ceremony of Bahan Mayawati, arrangement of the meeting, Distribution of the Blankets and Swing Machine invested by the petitioner no. 1 alone due to being conferred as vice President of Federation , said to be of Dy. Minister Rank. The red Light was Affixed by Rajveer, The respondent No. 3 on the Car of the petitioner No. 1. Now all these farmers are now being proposed to be grilled by STF on the Behest of the respondent No. 3 and an enquiry is set up by the respondent No. 1 itself as the matter pertaining to the incidence of “Birth Day Celebrations of Bahan Sushri Mayawati” and consequential ‘Red Light Scandal’ may not be highlighted by the petitioners, which has necessitated for filing the present Writ petition for protection of fundamental rights guaranteed to the petitioners under Article 21, 22 and protection of property right guaranteed under Article 300-A of the Constitution of India against the atrocities and oppression committed by the Police Force due to the political pressure of ruling political party on the behest of authorities of State Government

6. That since the oppression of the Police Force deployed by respondent no.1 and 2 through its State Task Force under respondent no.4, instead of reimbursement of money procured in the deceitful manner by the private respondent No. 3, is sought to have been avoided till no reliable evidence in the matter pertaining to the incidence of “Birth Day Celebrations of Bahan Sushri Mayawati” and consequential ‘Red Light Scandal’ may not be highlighted against the petitioners by the respondents No. 4 and 5 , the protection for unlawful arrest has also been sought from this Hon’ble Court.

7. That the petitioners are innocent farmers cultivating their agricultural land from time of their ancestors. It is submitted that about 68 Bighas of land belonging to petitioner no.2. Out of the said land, the land has been acquired by the State Government and since an exorbitant amount of compensation was given on the basis of valuation of said land, the petitioners have been trapped in a preplanned conspiracy hatched by private respondent No 3 and his associates in connivance of politicians of ruling party of the State Government.

8. That it is well known to the citizens in the State of Uttar Pradesh that there has always been the demand of exorbitant money by the ruling political set up in the State of Uttar Pradesh. It is also undisputed fact that ordinary person with the help of the money power can procure the high position of rank of Deputy Minister through the deceit of the persons, having affiliations to the political persons in the present political set up in the State of Uttar Pradesh.

9. That has been incident in District Auraiya in which on account of providing resentment to the demand made by sitting Member of Legislative Assembly namely Mr. Shekhar Tiwari M.L.A. of Bahujan Samaj Party the Executive Engineer Mr. Manoj Gupta was murdered in gruesome manner as a preplanned conspiracy, in which there has been active participation of police force for eliminating the evidence of the murder of Executive Engineer. However, on account of publicity of the matter in the newspapers by the rival group of political power the prosecution was started and conviction has been done to the sitting Member of Legislative Assembly of ruling political party and also of his wife for wiping out the existing evidence from the scene of murder in connivance of police personal of the said District.

10. That there has been number of the incidents like day light murder of Dr. V. P. Singh, Chief Medical Officer family welfare at Lucknow and Dr. Vinod Arya another Chief Medical Officer and thereafter the story concocted of committing suicide by Dr. Y. S. Sachan, Deputy Chief Medical Officer, an accuse of misappropriation of Government Money, who remained the main accused and conspirator of engaging the sharp shooter Anand Tiwari and Vinod Sharma in the aforesaid murders and thus a terror is prevalent in the mind of the citizens to conceive with the threat given by the individual holding the high profile posts in the ruling party of the Government.

11. That the incidence of the involvement of the sitting M.L.A. of Ruling BSP namely Mr. Sahnawaj Rana and his associates in out razing the modesty of the two girls and attempt to rape them in the broad day incident happened in public gaze, who were travelling in the car coming from Missouri to New Delhi with their Cousin at Muzaffarnagar at National High way -58 putting another type of terror stricken atmosphere to the innocent citizen. Subsequent event of suspension of the sitting MLA from his membership of BSP is only the eye wash to the Public Sentiments in criminal state sponsor atmosphere in the State of Uttar Pradesh.

12. That trapping of such individuals is being done from whom the money can be extracted from them in the power politics nexus and as such the petitioners have become the soft corner to the agents of private respondent no.3, who were posing to have been posted at a very high ranking in the offices of the State Government.

13. That the respondent no. 3 namely Mr. Rajveer Singh, according to the information given by his associates having now being escorted on the basis of police power and from the information gathered by the petitioners, is admittedly the Vice President of Uttar Pradesh Sahkari Gramodyogik Vastu Utpadan Avam Vipdan Sangh, Lucknow. Similarly his associates Mr. Pramod Kumar is the president of Uttar Pradesh Motor Transport Cooperative Federation Ltd having his registered Head-Office at 82, Vibhuti Khand, Gomti Nagar, Lucknow, while his regional office is situated at Mahabir Chowk, at Muzaffarnagar. One Rajiv Mishra is main conspirator of respondent No. 3 and is associates in some federation, which is a registered society under the provisions of U.P. Cooperative Societies Act, 1965 and a certificate to this effect has also bee issued under section 8 (1) of the aforesaid Act No. 11 of 1966. The true copy of the bye-laws and registration certificate of aforesaid cooperative society is being filed herewith and marked as Annexure no.1 to this writ petition.

14. That the assurance was given for public employment through the employees namely Mr. Anoop Srivastava And One Mr. M. U. Khan, having close affiliations with respondent No. 3 , who were the king pin for giving appointments in the Civil Secretariat of Uttar Pradesh under the Ministry of Homes and is therefore having his hold to get the passes issued to the vehicles fro ingress and out egress inside Civil Secretariat on account of influence exercised upon Respondent no.1 and 2.

15. That there is another unit namely Uttar Pradesh Industrial and Residential Corporation Ltd, which has got the different schemes of Small Unit Industrial setup being organized having nomenclature of manufacturing and cooperative marketing and joint marketing schemes. The Chief Minister in the State of Uttar Pradesh Sushri Mayawati was proposed to award the prize under “Kanshiram Small Unit Industrial Award Scheme”, which were attended by respondent no.3 along with his other associates and number of the innocent farmers in order to demonstrate the proximity of their closeness with Hon’ble Chief Minister in the State of Uttar Pradesh. The true copy of the project identity of Uttar Pradesh Industrial and Residential Corporation Ltd is being filed here with and marked as Annexure no.2 to this writ petition.

16. That there has been also a registered society namely Uttar Pradesh Sachivalaya Seva Sidhi Bharti Sangh, which is a representative body and is a powerful authority to exert the pressure upon the Principal Secretary of administration of secretariat in the State of Uttar Pradesh. The true photo copy of letter-pad of society namely Uttar Pradesh Sachivalaya Seva Sidhi Bharti Sangh is being filed herewith and marked as Annexure no.3 to this writ petition.

17. That in order to procure the money from the innocent farmers, all these documents were shown to the farmers of Northern Uttar Pradesh including District Ghaziabad, Meerut, Muzaffarnagar, Bijnor, Moradabad, Amroha and Kushinagar, who were having the money power on account of the facts, that land of these farmers are acquired by the Government and compensation amount has been given to them in proceeding to the said land acquisitions by the State Government.

18. That some of the farmers have also sold their land by looking into the fact that they will be getting the high status in the society, which they are not getting at present moment due to draught and other natural calamities prevalent due to soil erosion, global warming, ecological misbalance , cutting of the farming animals and plantation to maintain an equilibrium for creating an atmosphere of three main seasons.

19. That the petitioners are the victim of the said conspiracy as their land was acquired and about 12000 square meters of land was sold to the builder VXL Sri Paramjeet Singh in the tune of Rs. 98,10,000/-, out of which 70 lacks were recorded as unpaid money as dues lying against the aforesaid builder, which is the money procured by the petitioners and the same has been misappropriated by the agents of the respondent No. 3.

20. That on account of the political nexus of respondent no. 3, the money lying with builder was procured and thereafter an incentive was given to the petitioner no.1 by giving an assurance of an certificate by his Associate Namely Mr. Pramod Kumar appointing him as Vice President of Uttar Pradesh Motor Transport Cooperative Federation Ltd. It is alleged by respondent no.3 that post of Vice President is equivalent to the post of Deputy Minister in the State Government and as such the petitioner shall be entitled to use ‘Red Light’ upon his vehicle and a gunner will be provided for his security, which was given to him in intervening period of organizing the Birth Day Ceremony Of Hon’ble Chief Minister.

21. That before the said meeting a certificate was issued by the President of aforesaid Uttar Pradesh Motor Transport Cooperative Federation Ltd by Mr. Pramod Kumar, by appointing the petitioner no.1 as Vice President unanimously. An assurance was given that all the facilities available to the Deputy Minister in the State Government shall also be available on account this assignment given to the petitioner. The certificate to this effect was issued to the petitioner no.1 on 14.01.2011. The true copy of the certificate issued to the petitioner no.1 on 14.01.2011 is being filed herewith and marked as Annexure no.4 to this writ petition.

22. That the aforesaid money was realized in a preplanned conspiracy hatched by respondent no.3 and his associates posing themselves to be closely associated with the political nexus of the present political setup and numbers of the persons of high profile ranking were also invited on the occasion of meeting conducted of Uttar Pradesh Motor Transport Cooperative Federation Ltd. The Photographs pertaining to the meeting having participation of high profile ranking in the State of Uttar Pradesh conducted at Vibhuti Khand, Gomti Nagar, Lucknow is being filed herewith and marked as Annexure no.5 to this writ petition.

23. That on the birth day of Bahan Sushri Mayawati, on 15.1.2011 , the cake of 55 K.G. was brought in anticipation of attending the function by Hon’ble the Chief Minister as per the commitment given by the respondent no. 3 and assured that the prize distribution ceremony be held by Hon’ble the Chief Minister on her Birth Day. Thus the blankets were distributed to the poor persons in the aforesaid meeting by the petitioner No. 1 along with respondent No.3 on being instigated to do so to create the good will in political Circle on instigations of the agent of respondent No. 3 namely Mr. Pramod Kumar And Mr. Anil Mishra alleging him to be General Secretary of Uttar Pradesh Motor Transport Cooperative Federation Ltd. The Photographs having distribution of blanket to the poor persons in the meeting so conducted at Vibhuti Khand, Gomti Nagar, Lucknow is being filed herewith and marked as Annexure no.6 to this writ petition.

24. That at the sudden all the dreams, which were shown to the petitioner no.1 have been blown to the ashes as the information to the effect of lodging a complaint by respondent no.3 against his close associates named above, on account of the reason that the money procured in such a fraudulent representations, the adequate share had not been given by his associates. The incident were published in the newspapers, in which it has been disclosed that respondent No. 3 got his other associates being arrested by respondent no.4, one from District Kushi Nagar and another from District Lucknow. The photo copy of the news item published pertaining to ‘Red Light Scandal’ in Dainik Jagran and Hindustan dated 10.05.2011 are filed herewith and marked as Annexure no.7 and 8 to this writ petition.

25. That the respondent No. 3 has been remained the main culprit of giving the incentives to the innocent farmers including the petitioners. Now on the basis of the affidavit given by the main conspirator of conducting the Birth Day Celebration of Bahan Sushri Mayawati on 15^th January 2011, the respondent no. 1 only on account of respondent No. 3, who had cheated the petitioners and other farmers are adopting the coercive method against the associates of Respondent No. 3, by relying upon his statement that his Blank letter pads have been issued by his associates, The raid was provided at the residence of other farmers and the agents of respondent No. 3 and 4 are having a search being made at the residence to arrest the petitioners and destroy the evidence having involvement of respondent no. 3 along with his associates.

26. That apart from the respondent No. 3, Mr. Rajeev Mishra and Mr. Anoop Srivastava, the names of Mr. M.U. Khan, Mr. Anil Chaudhary, Mr. Pramod Kumar, Mr. Vikas Sharma and other individual operating in the aforesaid “ Birth Day Celebration of Bahan Mayawati” having creation of another Scam of ‘Red Light Scandal’, Which have come to the notice of innocent farmers, who have been cheated by the respondent No. 3. The petitioners have only become conversant after looking in the report published in the newspapers, which is the only source of information gathered by the citizens in consonance with their fundamental rights guaranteed under Article 19 (1) (a) of the Constitution of India. Thus the report published in the newspapers are the vital peace of evidence to the citizen in absence of autoerotic publication by State Government, which may be taken note for making out a prima facie case against the conspiracy hatched by the private respondent No. 3 against the petitioners.

27. That even the web site has been created in order to befool the peoples having web side wwwupmps.org. as the citizens may be beloved of its being created of State of Uttar Pradesh for providing the big assignment to the people whom the trust may be reposed by their agents befooling the public under the garb of providing a rank of Deputy Minister in the State Government.

28. That the petitioners were given assurance that the names of petitioners will be in the preference to the other citizens on account of their status when the petitioner no.1 may be invited to contest the election of Member of Legislative Assembly in the forthcoming election with the ticket of Bahujan Samaj Party in the State of Uttar Pradesh.

29. That it is also assured, that the land acquired by the Government shall also be handed over after getting the assignment to the high profile ranking equivalent to the Deputy Minister rank. The atmosphere was also created by organizing seminar and distribution of blankets at the cost of the petitioners in order to mould the sympathy of the ruling party running the State Government and as such an huge amount of Rs. 55. 3 Lacks was procured from the petitioners.

30. That according to the report published in the newspapers the accounts of all the six accused persons said to have been arrested or likely to be arrested, whose names have been shown in the news item, it has been disclosed that disproportionate amount to their known source of income in the said bank account of accused persons. The petitioners may be permitted to place convincing evidence in order to demonstrate the truthfulment of their statement as they have been deceived by respondent No. 3 and his associates. The money incurred was obtained after the withdrawing the amount from the accounts of the petitioners bearing account no.92815 lying in Punjab National Bank, Ghaziabad and Cooperative Citizen Bank . Ghaziabad

31. That the petitioners approached the respondent no.2 and they have been directed to make a contact with respondent no.4. However, instead of providing any assistance for restitution of the rights for providing the money cheated by the respondent No. 3 and his associates which is amenable to the petitioners, the officials of respondent no.4 have started interrogation of petitioners as the petitioners are themselves accounted for as the associates of these accused persons. They were directed to produce all such clinching evidence as to become accomplish to the crime committed by respondent no. 3.

32. That threatening were started by the agents of these six persons by sending the miscreants posing themselves as the sharp shooter, who were accompanied with weapons and appears to be closely associated with the respondent No. 3, in case of any retaliation shown by the exposure of the truth before any subordinate authority under the State Government. This is being done as the publicity regarding the involvement of ruling party may not be exposed to other citizens in the “Birth Day Ceremony Celebrations of Bahan Sushri Mayawati Money Scandal” and assurance given in the alleged ‘Red Light Scandal’.

33. That there was no occasion for initiating the criminal proceedings on the instruction issued by respondent No. 3 alleging the use of letter pad and his signature and on the basis of the instruction issued by Sri Kunwar Fateh Bahadur Principal Secretary Homes, Secretariat of U.P., the STF of Muzaffarnagar range working under the respondent No 4 has been directed to get the matter investigated and to arrest the individual by giving a clear cut escape to the organizer “Birth Day Celebrations of Bahan Sushri Mayawati” namely to the respondent No. 3 . Thus no other remedy is available except to seek protection of fundamental rights guaranteed to the petitioner and to get the matter investigated by the respondent No. 5.

34. That under these circumstances the petitioners is seeking protection firstly from the police power and secondly from the politically affiliated strong power hold individuals threatening to the petitioners to suffer the dire consequences, in case of exposure of the truth shall be exposed to the public. The same may further complicate the issue of unlawful procurement of the money by the officials in ruling party of the Government including the President and Secretary of private cooperative societies running under political patronage of the State Government.

35. That it is prayed that respondent no. 1, 2 and 4 may be restrained from using any coercive measurement by making the arrest of petitioners on the basis of the application/affidavit given by the respondent No. 3 to the respondent No. 1 and even otherwise without having any cogent material regarding involvement of petitioners procuring money in the aforesaid ‘Red Light Scandal’. The money lying in the accounts of accused persons amounting to Rs. 55.3 Lacks in the “Birth Day Celebrations of Bahan Sushri Mayawati” may also be divested to the accounts of petitioners as the same has been obtained under duress, deceitful manner and compulsion of the circumstances.

That it is further prayed that matter may be directed to be investigated by the independent agencies in respect of involvement of persons occupying the high position in the State Government and having their close affinity with the ruling political setup in the State Government. The respondent No. 5 , Central Bureau of Investigation agency may be directed to conduct the independent enquiry in the matter and furnish the report of said enquiry to this Hon’ble Court otherwise the petitioners shall suffer irreparable loss and injury.

37. That there is the urgency in the matter on account of the apprehension of arrest of the petitioners by respondent. No.4 without being their involvement in alleged crime. Thus the matter be taken during the summer vacation before this Hon’ble Court.

38. That the petitioner has got no other equally effective and speedy alternative remedy except to approach this Hon’ble Court by invoking its extra-ordinary writ jurisdiction under Article 226 of the Constitution of India, inter-alia on the following amongst other grounds:

G R O U N D S

i. Because, the writ petition filed by the petitioner for protection of fundamental rights guaranteed to the petitioners under Article 21, 22 and protection of property right guaranteed under Article 300-A of the Constitution of India against the atrocities and oppression committed by the Police Force due to the political pressure of ruling political party on the behest of authorities of State Government in the matter pertaining to the incidence of “Birth Day Celebrations of Bahan Sushri Mayawati” and consequential ‘Red Light Scandal’.

ii. Because, there was no occasion for initiating the criminal proceedings on the instruction issued by respondent No. 3 alleging the use of letter pad and his signature and on the basis of the instruction issued by Sri kunwar Fateh Bahadur Principal Secretary Homes, Secretariat of U.P., the STF of Muzaffarnagar range working under the respondent No 4 has been directed to get the matter investigated and to arrest the individual by giving a clear cut escape to the organizer “Birth Day Celebrations of Bahan Sushri Mayawati” namely to the respondent No. 3 . Thus no other remedy is available except to seek protection of fundamental rights guaranteed to the petitioner and to get the matter investigated by the respondent No. 5.

iii. Because, it has become a fashion to facilitate Bahan Km. Mayayati Hon’ble Chief Minister of Uttar Pradesh with garlands having the currency notes of Rs. 1000/- on her birth day celebrations as the person aspirants to become constitutional

functionaries may get an opportune to please their political master by cutting the celebrations Birth Day cake and distributions of the blankets and swing machines by giving the assurance to the soft corner to get some favorable assignment in the lucrative offices of the state Government.

iv. Because, the petitioners are seeking protection against the high handedness and atrocities committed upon them by extracting an exorbitant amount of Rs. 55.3 Lacks, out of which the expenditure Rs. 2 Lacks is being incurred in getting the ceremonial functioning’s expenditure being procured from them in cash money by demonstrating the position by the respondent no. 3 for getting the celebration of birth Ceremony festival Of Bahan Km. Mayayati on 15^th January 2011 and other expenditure in distribution of 150 blankets costing Rs. 120 each and 28 swing Machines costing about Rs.4000/- from them, costing another expenditure of money of Rs. 1,30,000/- as compensation amount was lying in the accounts of petitioner no. 2 of land acquired by Acquisition Authorities by trapping through allurement of providing them a high position of the Deputy Minister rank in the Government and other accessories in a preplanned conspiracy hatched by respondent No. 3 and his other associates.

v. Because, the oppression of the Police Force deployed by respondent no.1 and 2 through its State Task Force under respondent no.4, instead of reimbursement of money procured in the deceitful manner by the private respondent No. 3, is sought to have been avoided till no reliable evidence in the matter pertaining to the incidence of “Birth Day Celebrations of Bahan Sushri Mayawati” and consequential ‘Red Light Scandal’ may not be highlighted against the petitioners by the respondents No. 4 and 5 , the protection for unlawful arrest has also been sought from this Hon’ble Court.

vi. Because, the citizens in the State of Uttar Pradesh that there has always been the demand of exorbitant money by the ruling political set up in the State of Uttar Pradesh. It is also undisputed fact that ordinary person with the help of the money power can procure the high position of rank of Deputy Minister through the deceive of the persons, having affiliations to the political persons in the present political set up in the State of Uttar Pradesh.

vii. Because, in District Auraiya in which on account of providing resentment to the demand made by sitting Member of Legislative Assembly namely Mr. Shekhar Tiwari M.L.A. of Bahujan Samaj Party the Executive Engineer Mr. Manoj Gupta was murdered in gruesome manner as a preplanned conspiracy, in which there has been active participation of police force for eliminating the evidence of the murder of Executive Engineer. However, on account of publicity of the matter in the newspapers by the rival group of political power the prosecution was started and conviction has been done to the sitting Member of Legislative Assembly of ruling political party and also of his wife for wiping out the existing evidence from the scene of murder in connivance of police personal of the said District.

viii. Because, there has been number of the incidents like day light murder of Dr. V. P. Singh, Chief Medical Officer family welfare at Lucknow and Dr. Vinod Arya another Chief Medical Officer and thereafter the story concocted of committing suicide by Dr. Y. S. Sachan, Deputy Chief Medical Officer, an accuse of misappropriation of Government Money, who remained the main accused and conspirator of engaging the sharp shooter Anand Tiwari and Vinod Sharma in the aforesaid murders and thus a terror is prevalent in the mind of the citizens to conceive with the threat given by the individual holding the high profile posts in the ruling party of the Government.

ix. Because, the incidence of the involvement of the sitting M.L.A. of Ruling BSP namely Mr. Sahnawaj Rana and his associates in out razing the modesty of the two girls and attempt to rape them in the broad day incident happened in public gaze, who were travelling in the car coming from Missouri to New Delhi with their Cousin at Muzaffarnagar at National High way 58 putting another type of terror stricken atmosphere to the innocent citizen. Subsequent event of suspension of the sitting MLA from his membership of BSP is only the eye wash to the Public Sentiments in criminal state sponsor atmosphere in the State of Uttar Pradesh.

x. Because, the respondent no. 3 namely Mr. Rajveer Singh, according to the information given by his associates having now being escorted on the basis of police power and from the information gathered by the petitioners, is admittedly the Vice President of Uttar Pradesh Sahkari Gramodyogik Vastu Utpadan Avam Vipdan Sangh, Lucknow. Similarly his associates pramod kumar is the president of Uttar Pradesh Motor Transport Cooperative Federation Ltd having his registered Head-Office at 82, Vibhuti Khand, Gomti Nagar, Lucknow, while his regional office is situated at Mahabir Chowk, at Muzaffarnagar. One Rajiv Mishra is main conspirator of respondent No. 3 and is associates in some federation, which is a registered society under the provisions of U.P. Cooperative Societies Act, 1965 and a certificate to this effect has also bee issued under section 8 (1) of the aforesaid Act No. 11 of 1966.

xi. Because, there is another unit namely Uttar Pradesh Industrial and Residential Corporation Ltd, which has got the different schemes of Small Unit Industrial setup being organized having nomenclature of manufacturing and cooperative marketing and joint marketing schemes. The Chief Minister in the State of Uttar Pradesh Sushri Mayawati was proposed to award the prize under “Kanshiram Small Unit Industrial Award Scheme”, which were attended by respondent no.3 along with his other associates and number of the innocent farmers in order to demonstrate the proximity of their closeness with Hon’ble Chief Minister in the State of Uttar Pradesh.

xii. Because, in order to procure the money from the innocent farmers, all these documents were shown to the farmers of Northern Uttar Pradesh including District Ghaziabad, Meerut, Muzaffarnagar, Bijnor, Moradabad, Amroha and Kushinagar, who were having the money power on account of the facts, that land of these farmers are acquired by the Government and compensation amount has been given to them in proceeding to the said land acquisitions by the State Government.

xiii. Because, the farmers have also sold their land by looking into the fact that they will be getting the high status in the society, which they are not getting at present moment due to draught and other natural calamities prevalent due to soil erosion, global warming, ecological misbalance , cutting of the farming animals and plantation to maintain an equilibrium for creating an atmosphere of three main seasons.

xiv. Because, the petitioners are the victim of the said conspiracy as their land was acquired and about 12000 square meters of land was sold to the builder VXL Sri Paramjeet Singh in the tune of Rs. 98,10,000/-, out of which 70 lacks were recorded as unpaid money as dues lying against the aforesaid builder, which is the money procured by the petitioners and the same has been misappropriated by the agents of the respondent No. 3.

xv. Because, on account of the political nexus of respondent no. 3, the money lying with builder was procured and thereafter an incentive was given to the petitioner no.1 by giving an assurance of an certificate by his Associate Namely Mr. Pramod Kumar appointing him as Vice President of Uttar Pradesh Motor Transport Cooperative Federation Ltd. It is alleged by respondent no.3 that post of Vice President is equivalent to the post of Deputy Minister in the State Government and as such the petitioner shall be entitled to use ‘Red Light’ upon his vehicle and a gunner will be provided for his security, which was given to him in intervening period of organizing the Birth Day Ceremony Of Hon’ble Chief Minister.

xvi. Because, the aforesaid money was realized in a preplanned conspiracy hatched by respondent no.3 and his associates posing themselves to be closely associated with the political nexus of the present political setup and numbers of the persons of high profile ranking were also invited on the occasion of meeting conducted of Uttar Pradesh Motor Transport Cooperative Federation Ltd.

xvii. Because, on the birth day of Bahan Sushri Mayawati, on 15.1.2011 , the cake of 55 K.G. was brought in anticipation of attending the function by Hon’ble the Chief Minister as per the commitment given by the respondent no. 3 and assured that the blankets were distributed to the poor persons in the aforesaid meeting by the petitioner No. 1 along with respondent No.3 on being instigated to do so to create the good will in political Circle on instigations of the agent of respondent No. 3 namely Mr. Pramod Kumar And Mr. Anil Mishra alleging him to be General Secretary of Uttar Pradesh Motor Transport Cooperative Federation Ltd.

xviii. Because, before the said meeting a certificate was issued by the President of aforesaid Uttar Pradesh Motor Transport Cooperative Federation Ltd by Mr. Pramod Kumar , by appointing the petitioner no.1 as Vice President unanimously. An assurance was given that all the facilities available to the Deputy Minister in the State Government shall also be available on account this assignment given to the petitioner.

xix. Because, at the sudden all the dreams, which were shown to the petitioner no.1 have been blown to the ashes as the information to the effect of lodging a complaint by respondent no.3 against his close associates named above, on account of the reason that the money procured in such a fraudulent representations, the adequate share had not been given by his associates. The incident were published in the newspapers, in which it has been disclosed that respondent No. 3 got his other associates being arrested by respondent no.4, one from District Kushi Nagar and another from District Lucknow.

xx. Because, the respondent No. 3 has been remained the main culprit of giving the incentives to the innocent farmers including the petitioners. Now on the basis of the affidavit given by the main conspirator of conducting the Birth Day Celebration of Bahan Sushri Mayawati on 15^th January 2011, the respondent no. 1 only on account of respondent No. 3, who had cheated the petitioners and other farmers are adopting the coercive method against the associates of Respondent No. 3, by relying upon his statement that his Blank letter pads have been issued by his associates, The raid was provided at the residence of other farmers and the agents of respondent No. 3 and 4 are having a search being made at the residence to arrest the petitioners and destroy the evidence having involvement of respondent no. 3 along with his associates.

xxi. Because, apart from the respondent No. 3, Mr. Rajeev Mishra and Mr. Anoop Srivastava, the names of Mr. M.U. Khan, Mr. Anil Chaudhary, Mr. Pramod Kumar, Mr. Vikas Sharma and other individual operating in the aforesaid “ Birth Day Celebration of Bahan Mayawati” having creation of another Scam of ‘Red Light Scandal’, Which have come to the notice of innocent farmers, who have been cheated by the respondent No. 3. The petitioners have only become conversant after looking in the report published in the newspapers, which is the only source of information gathered by the citizens in consonance with their fundamental rights guaranteed under Article 19 (1) (a) of the Constitution of India. Thus the report published in the newspapers are the vital peace of evidence to the citizen in absence of autoerotic publication by State Government, which may be taken note for making out a prima facie case against the conspiracy hatched by the private respondent No. 3 against the petitioners.

xxii. Because, the report published in the newspapers the accounts of all the six accused persons said to have been arrested or likely to be arrested, whose names have been shown in the news item, it has been disclosed that disproportionate amount to their known source of income in the said bank account of accused persons. The petitioners may be permitted to place convincing evidence in order to demonstrate the truthfulment of their statement as they have been deceived by respondent No. 3 and his associates. The money incurred was obtained after the withdrawing the amount from the accounts of the petitioners bearing account no.92815 lying in Punjab National Bank, Ghaziabad and Cooperative Citizen Bank . Ghaziabad.

xxiii. Because, the petitioners approached the respondent no.2 and they have been directed to make a contact with respondent no.4. However, instead of providing any assistance for restitution of the rights for providing the money cheated by the respondent No. 3 and his associates which is amenable to the petitioners, the officials of respondent no.4 have started interrogation of petitioners as the petitioners are themselves accounted for as the associates of these accused persons. They were directed to produce all such clinching evidence as to become accomplish to the crime committed by respondent no. 3.

xxiv. Because, threatening were started by the agents of these six persons by sending the miscreants posing themselves as the sharp shooter, who were accompanied with weapons and appears to be closely associated with the respondent No. 3, in case of any retaliation shown by the exposure of the truth before any subordinate authority under the State Government. This is being done as the publicity regarding the involvement of ruling party may not be exposed to other citizens in the “Birth Day Ceremony Celebrations Of Bahan Sushri Mayawati Money Scandal” and assurance given in the alleged ‘Red Light Scandal’.

P R A Y E R

It is, therefore, most respectfully prayed that this Hon’ble Court may graciously be pleased to: -

(i) Issue a writ, order or direction in the nature of mandamus directing and the restraining to the respondent No. 4 from using any coercive measurement by making the arrest of petitioners on the basis of the application/affidavit given by the respondent No. 3 to the respondent No. 1 without having any cogent material regarding involvement of petitioners procuring money in the aforesaid “Birth Day Celebrations of Bahan Sushri Mayawati” and there by the ‘Red Light Scandal’.

(ii) Issue a writ, order or direction in the nature of mandamus directing the respondent No. 1 commanding him that the unaccounted for money lying in the accounts of accused persons having association with respondent No. 3 involved in procuring the money in ‘Red Light Scandal’ in the tune of Rs. 55.3 Lacks incurred by the petitioners on the instigation of respondent No. 3 and his agents for conducting “Birth Day Celebrations of Bahan Sushri Mayawati” be divested to the accounts of petitioners as the same has been obtained under duress, deceitful manner and compulsion of the circumstances from the innocent petitioners.

(iii) Issue a writ, order or direction in the nature of mandamus directing the Respondent No.5,Central Bureau of Investigation agency to conduct the independent enquiry in the matter the aforesaid “Birth Day Celebrations of Bahan Sushri Mayawati” and ‘Red Light Scandal’ and furnish the report of said enquiry to this Hon’ble Court or to issue some other direction in the interest of justice.

(iv) issue any other suitable order or direction, which this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.

(v) To award the cost of the writ petition in favour of the petitioners.

Dt/- 27.6.2011 ( YOGESH KUMAR SAXENA )

Advocate

Counsel for the Petitioners

Chamber no. 139, High Court,

Allahabad

IN THE HON’BLE HIGH COURT OF JUDICATURE AT ALLAHABAD

ANNEXURE NO.

CIVIL MISC. WRIT PETITION NO. OF 2011

(Under Article 226 of the Constitution of India)

(DISTRICT – GHAZIABAD)

Sachin Tyagi and another-------------------------------Petitioners

Versus

State of Uttar Pradesh and others----------------------Respondents