Allahabad High Court
Dinesh Upadhyay And Another vs State Of U.P. And 7 Others on 3 February, 2021
Bench: Munishwar Nath Bhandari, Rohit Ranjan Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 40
Case :- SPECIAL APPEAL DEFECTIVE No. - 44 of 2021
Appellant :- Dinesh Upadhyay And Another
Respondent :- State Of U.P. And 7 Others
Counsel for Appellant :- Shri Krishna Mishra,Sharad Chand Rai
Counsel for Respondent :- C.S.C.,Krishna Mohan Asthana,Tripathi B.G. Bhai
Hon'ble Munishwar Nath Bhandari,J.
Hon'ble Rohit Ranjan Agarwal,J.
Order on Civil Misc.Exemption Application No.1 of 2021
The application, seeking exemption from filing certified copy of the order of the High Court, is allowed.
The defect stands cured.
Order on Special Appeal
By this appeal, a challenge is made to the judgment dated 07.12.2020, whereby the writ petition preferred by the petitioners was dismissed.
It is a case where respondent (non-appellant) passed an order on 17.07.2019, whereby the admission of petitioner No.2 in the respondent-School under the Right of Children to Free & Compulsory Education Act, 2009 (herein after to be referred as 'Act, 2009'), was cancelled. It was on the ground that the petitioner-appellant was having income more than one lakh per year. He was, thus, not entitled to get the benefit of the Act, 2009. The order was assailed on the ground that no opportunity of hearing was given before passing the order and otherwise petitioner-appellant belongs to Below Poverty Line (BPL), therefore, there was no reason to cancel the admission. The learned Single Judge considered the issue raised by the petitioner and found that material brought on record shows that petitioner-appellant is running a shop. The monthly payment of rent was Rs.2,200/- and as per his statement before the authorities, the payment of Rs.50-60 thousand towards GST was paid in the financial year 2018-19. The statement of the petitioner before the authorities reads as under:
"fn0 30-10-2019
C;ku Jh fnus'k mik/;k; mez djhc 32 o"kZ is'kk diMs dh nqdku fuoklh ekS0 dje&/kje ujkSjk us cgyQ C;ku fd;k fd ifjokj esa esjs firk Jh ujsUnz mik/;k; mez yxHkx 65 o"kZ] ukuh izHkk mik/;k; mez 30 o"kZ is'kk House wife ] rhu cPps oSHko mez 8 o"kZ] fuf[ky mez 7 lky] dq0 dkO;k mez ,d o"kZ gSA firk isa'kuj gS rFkk flapkbZ foHkkx irjkSy ds in ls lsok fuo`Rr gS rFkk og izkFkhZ ij fuHkZj ugh gSA iRuh x`g.kh gSA vU; dksbZ flykbZ dq s feys gSA edku ekrk th ds uke ij gS rFkk firk th ds LokfeRo esa gSA"
Learned counsel for the petitioner-appellant submits that the finding of learned Single Judge to hold that the petitioner was not entitled to get the admission of his boy by taking the benefit of the Act, 2009, is not legally sustainable. The appellant did not pay any amount towards GST and for that document was shown to the Court during the course of argument. It was also stated that petitioner is a BPL candidate thus was otherwise also entitled to the benefit.
The arguments have been seriously contested by the side opposite. It is stated that petitioner-appellant is not a member of BPL and as per his own statement and document produced, Rs.50 to 60 thousand towards GST was paid in the financial year 2018-19.
The appellant has not disputed about his business though qualified it to be in last three to four years. The business was shown to have closed on the date of recording the statement though with a qualification that the appellant is still opening the shop.
In view of the above, the payer is made to dismiss the appeal as otherwise the appellant has not approached this Court with clean hands.
We have considered the rival submissions of parties and perused the record.
The learned counsel for the appellant has made reference of the GST statement to indicate that no amount was deposited in the relevant year. The petitioner has submitted that no GST towards interstate transaction was made ignoring that GST was paid by him for business within the State.
In view of the above, what we find is nothing but an effort of appellant to mislead the Court. The fact aforesaid is fortified when the appellant was asked to refer to BPL card. The appellant has made reference of a document, which is not a BPL card, but about the eligibility without description of BPL card or any other thing. The statement regarding BPL card is false and goes on the conduct of the petitioner-appellant. The statement quoted above shows admission of the appellant for payment of GST in a sum of Rs.50-60 thousand and even admission of running of shop with the payment of monthly rent at the rate of Rs.2,200/- p.m.
In view of the above, we find no reason to cause interference in the judgment of learned Single Judge. The conduct of appellant is such, which goes in the root. He has not approached this Court with clean hands. He has made false statement of fact on oath thus while dismissing the appeal, a cost of Rs.10,000/- is imposed, which has to be deposited with the High Court Legal Service Committee, Allahabad High Court, within a month. The Registrar (Listing) to see the compliance and in case it is not made, he shall bring it in the knowledge of the Court for taking appropriate action against the petitioner-appellant, which may even for contempt.
Order Date :- 3.2.2021
LN Tripathi
