Allahabad High Court
C/M The Public Educational ... vs State Of U.P. Thru. Secy. Finance, ... on 11 March, 2022
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 8
Case :- WRIT - C No. - 1304 of 2022
Petitioner :- C/M The Public Educational Association,Belhari,Sultanpur Thru.Manager Mahendra Pratap Singh And Ors
Respondent :- State Of U.P. Thru. Secy. Finance, Chits And Funds,Lko. And Others
Counsel for Petitioner :- Girish Chandra Verma
Counsel for Respondent :- C.S.C.,Anu Pratap Singh
Hon'ble Abdul Moin,J.
Objection/Counter Affidavit filed on behalf of petitioners to the application filed by respondent no. 4 under section 340 Cr.P.C. is taken on record.
Sri Girish Chandra Verma, learned counsel for the petitioners submits that in the objection/Counter Affidavit filed today, inadvertently, one page of the documents that have been annexed with the objection/Counter Affidavit, has been left out. He prays that by the the next date of listing, he would bring the same on record by means of another affidavit.
Heard Sri Girish Chandra Verma, learned counsel for the petitioners, learned Standing Counsel for respondent nos. 1 to 3 as well as Sri Anu Pratap Singh, learned counsel for respondent no. 4.
An application under section 340 Cr.P.C. has been filed on behalf of respondent no. 4 alleging that this writ petition has been filed with patent false averments. In para nos. 36 & 40 of the writ petition, it has been contended that affidavit of Shri Shiv Bhushan Mishra was not on record before the Prescribed Authority and hence, certified copy of the same could not be provided to learned counsel for the petitioners. On the basis of the same, allegations have been levelled against the Prescribed Authority.
Learned counsel for respondent no. 4 argues that the affidavit of Shri Shiv Bhushan Mishra was filed alongwith list of documents (Fard) on 08-10-2021 and by order of the Prescribed Authority, it was kept on the file and certified copy of said affidavit has been applied by the applicant-opposite party no. 4 and the same was also issued on 28-02-2022. Though it has been falsely stated in the petition that the affidavit of Shri Shiv Bhushan Mishra does not bear any date, the actual date is 28-09-2021. It is contended that this writ petition has been filed levelling bald allegations against the Prescribed Authority.
In reply to the same, Sri G.C. Verma, learned counsel for the petitioners contends that on 11-02-2022, the petitioners had applied for being supplied list of documents. It is contended that amongst the documents that had been applied, was the affidavit of Shri Shiv Bhushan Mishra dated 28-09-2021. Copy of the said application is annexed as Annexure No. C.A.-1 to the Objection filed by the petitioners.
It is contended that the other documents, which were applied, have been supplied by the office of the Prescribed Authority, which is apparent from the perusal of the Nakal Register, copy of which has been filed as Annexure No. C-A-4 to the aforesaid objection, but, the affidavit of Shri Shiv Bhushan Mishra was never supplied. Sri G.C.Verma, thus, contends that non supply of the aforesaid affidavit of Shri Shiv Bhushan Mishra, despite the petitioners having applied for certified copy of the same through the application, is indicative of the fact that the said affidavit is not part of the record rather it has been inserted subsequent to the Judgment. In this regard, attention of this court has also been invited to the ordersheet of the case, copy of which has been filed as Annexure No. 29 of the writ petition, which indicates that the case was heard on 16-12-2019 and thereafter, it was listed for orders on 30-12-2021. Sri G.C.Verma states that the date of 16-12-2019 has wrongly been indicated and the date should be read as 16-12-2021.
Placing reliance on the ordersheet dated 16-12-2021, Sri G.C.Verma, learned counsel for the petitioners elaborates his arguments by contending that in para no. 40 of the writ petition, it has specifically been indicated that as the affidavit of Shri Shiv Bhushan Mishra has not been recorded in the ordersheet of the court, certified copy of the same has not been supplied to the petitioners at the time when they applied for the same. Sri Verma also submits that in the ordersheet of the case dated 08-10-2021 i.e. the date on which the aforesaid affidavit of Shri Shiv Bhushan Mishra is alleged to have been filed by respondent no. 4, a copy of which has been filed as Annexure No.C.A.-5 to the objections filed today, would indicate that no such document was ever filed on the said date, rather a date of 11-10-2021 had been given.
Having heard learned counsel for the parties and having perused the record, what prima-facie comes out is that specific averments have been made in para 36 of the writ petition of the impugned order dated 12-01-2022 having placed reliance on the affidavit of Shri Shiv Bhushan Mishra, which according to learned counsel for the petitioners, is not part of record inasmuch as the same was never filed on the date when the case was fixed and the Judgment date had been given and for the said purpose, certified copy of the same was also not given to the petitioners when they applied for the same.
The aforesaid submissions have been opposed by learned counsel for the respondent no. 4 by filing an application under section 340 Cr.P.C. by contending that the affidavit of Shri Shiv Bhushan Mishra is very well part of the record and the same has been filed alongwith list of documents on 08-10-2021.
Considering the aforesaid discussions, more particularly, when affidavit of Shri Shiv Bhushan Mishra has been relied upon in the impugned order, it would be essential that respondent no. 3, Prescribed Authority, U.P. Zila Adhikari, Jaisinghpur, district-Sultanapur files his affidavit within two weeks from today indicating therein(a) as to how the affidavit of Shri Shiv Bhushan Mishra dated 28-09-2021 came to form part of file of the concerned case (b) as to how the said affidavit has been taken on record (c) as to why despite the petitioners having applied for the certified copy of the same through the application dated 11-02-2022, the same was not supplied by the office of the Prescribed Authority as comes out form the perusal of the register,copy of which has been filed as Annexure No. C.A.-4 to the Objections filed on behalf of the petitioners and (d) Whether the petitioners were ever confronted with the affidavit of Shri Shiv Bhushan Mishra & if so the date.
List this case in the week commencing 28-03-2022, as fresh.
Order Date :- 11.3.2022
AKS
