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Lakshman Singh v. State Of U.P. Thru' Secry. Lko. & Others - WRIT - C No. 391 of 2004 [2004] RD-AH 12 (8 January 2004)


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Civil Misc. Writ Petition No. 391 of 2004

Lakshman Singh  ......... Petitioner


State of U.P. & Ors. ......... Respondents

Hon. Dr. B.S. Chauhan, J.

Hon. Arun Tandon, J.

This writ petition has been filed for quashing the recovery proceedings on the basis of citation dated 19.12.2003.

Learned Standing Counsel has raised preliminary objection regarding maintainability of the writ petition. Firstly, it has been contended that the citation dated 19.12.2003 is not a part of the record. Secondly, it is submitted that even citation cannot be quashed because the basic order of demand has not been challenged.

Challenging the consequential order without challenging the basic order is also not permissible.

In C.P. Chitranjan Menon & ors. Vs. A. Balakrishnan & ors., AIR  1977  SC  1720,  the Hon'ble Supreme  Court  held that in  absence  of challenge  to  the basic order, subsequent  consequential order cannot be challenged.

Similar view has been reiterated in Roshan Lal & ors. Vs. International Airport Authority of India & ors., AIR  1981  SC  597, wherein the  petitions were primarily confined to the seniority list and the Apex Court held that challenge to appointment orders could not be entertained  because of inordinate delay and in absence of the same, validity of consequential seniority cannot be examined.  In such a case, a party is under a legal obligation to challenge the basic order and if and only if the same is found to be wrong, consequential orders may be examined.

Similar view  has been reiterated in Govt. of Maharashtra Vs. Deohor's Distillery, (2003) 5 SCC 669.

It is settled proposition of law that unless the order under challenge is filed and placed on record, the Court has no power to quash the same.

In Surinder Singh Vs. Central Government & ors., AIR 1986 SC 2166, the Hon'ble Supreme Court has held that the High Court cannot pass an order in such a case in absence of the impugned order being on record.  The Apex Court observed as under:-

"In absence of order under challenge, the High Court could not quash the same. Normally whenever an order of the Government or some authority is impugned before the High Court under Article 226 of the Constitution, copy of the order must be produced before it.  In absence of impugned order it would not   be possible to assign the reason which have impelled the authority to pass the order. It is therefore, improper to quash an order which is not produced before the High Court in a proceeding under Article 226 of the Constitution."

Thus, in view of above, the writ petition is not maintainable and is accordingly dismissed.




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