Court No. - 34
Case :- WRIT - C No. - 26772 of 2019 Petitioner :- Smt. Simirati Devi Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Kamlesh Kumar Yadav Counsel for Respondent :- C.S.C.
Hon'ble Sudhir Agarwal,J. Hon'ble Rajeev Misra,J.
1. Heard Sri Kamlesh Kumar Yadav, learned counsel for the petitioner and perused the record.
2. This is a thoroughly ill-advised and misconceived writ petition. The grievance of petitioner is that Respondent no.6, who is a private person, is raising some illegal construction in collusion with Respondent No.5, Station House Officer, Police Station-Dullahpur, District-Ghazipur. Nothing has been alleged before us to show that any complaint has been moved by Petitioner raising his grievances and if there is any allegation of malafide, no person by name has been impleaded as eo nomine. Law is well settled that in order to level plea of mala fide a person against whom mala fide is pleaded must be impleaded by name.
4. In State of Bihar Vs. P.P. Sharma, 1992 Supp (1) SCC 222 in para 55 of the judgment, Court held: -
"It is a settled law that the person against whom mala fides or bias was imputed should be impleaded eo nominee as a party respondent to the proceedings and given an opportunity to meet those allegations. In his/her absence no enquiry into those allegations would be made. Otherwise it itself is violative of the principles of natural justice as it amounts to condemning a person without an opportunity. Admittedly, both R.K. Singh and G.N. Sharma were not impleaded. On this ground alone the High Court should have stopped enquiry into the allegation of mala fides or bias alleged against them."
5. In AIR 1996 Supreme Court 326, J.N. Banavalikar Vs. Municipal Corporation of Delhi , in para 21 of the judgment, it has been held as under: -
"Further in the absence of impleadment of … the person who had allegedly passed mala fide order in order to favour such junior doctor, any contention of mala fide action in fact i.e. malice in fact should not be countenanced by the Court."
6. In JT 1996 (8) S.C. 550, A.I.S.B. Officers Federation and others Vs. Union of India and others, in para 23, Court has said where a person, who has passed the order and against whom the plea of mala fide has been taken has not been impleaded, the petitioner cannot be allowed to raise the allegations of mala fide. The relevant observation of the Apex Court relevant are reproduced as under: -
"The person against whom mala fides are alleged must be made a party to the proceeding. Board of Directors of the Bank sought to favour respondents 4 and 5 and, therefore, agreed to the proposal put before it. Neither the Chairman nor the Directors, who were present in the said meeting, have been impleaded as respondents. This being so the petitioners cannot be allowed to raise the allegations of mala fide, which allegations, in fact, are without merit."
7. In AIR 2003 Supreme Court 1344, Federation of Railway Officers Association Vs. Union of India, Court held:
"That allegations regarding mala fides cannot be vaguely made and it must be specified and clear. In this context, the concerned Minister who is stated to be involved in the formation of new Zone at Hazipur is not made a party who can meet the allegations."
8. Moreover, It is not the case of petitioner that any legal action he has taken and criminal proceeding has been initiated against the respondents and if Respondent No. 5 is interfering in peaceful possession of the petitioner, remedy available to petitioner is to move an application under Section 156 (3) Cr.P.C. before Magistrate concerned. No such action has been taken by Petitioner.
8. In the circumstances, since plea of mala fide cannot be entertained by this Court in absence of any person impleaded as eo nomine. Moreover, we find that even allegation of mala fide is not substantiated properly and there are vague assertions.
9. The writ petition is thoroughly misconceived. It is accordingly dismissed.
Order Date :- 22.8.2019 YK