To issue order or direction thereby directing the opposite parties to continue the police protection to the petitioner for the security of his life and property

Chief Justice s Court Daily Cause List Serial No. 3 IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD MISC. SINGLE No. 45319 Reserved on November 08 2021 Delivered on November 26 2021 Krishna Dutt Sharma ...Petitioner Through: Mr. Anurag Srivastava Advocate State of U.P. and others ...Respondents Through: Mr. Manjeev Shukla Additional Chief Standing Counsel Coram: Hon ble Mr. Justice Rajesh Bindal Chief Justice Hon ble Mr. Justice Devendra Kumar Upadhyaya Judge Hon ble Mrs. Justice Saroj Yadav Judge RAJESH BINDAL C.J the following reliefs The petitioner has filed the present writ petition seeking “i) To issue order or direction thereby directing the opposite parties no. 3 to 5 to continue the police protection to the petitioner for the security of his life and property as has been provided earlier to the petitioner by the Principal Secretary Home U.P. Government 2 9 Misc. Single No. 45319 Lucknow till the disposal of the appeal filed by the petitioner before the opposite party no. 2 ii) To issue order or direction thereby directing the opposite party no. 2 to dispose of the petitioner’s appeal which is contained in Annexure 21 to the petition.” When the petition was taken up for hearing on February 15 2019 the learned counsel for the petitioner had referred to judgment of this Court in Zulfiqar Ahmad Bhuttoo Vs. State of U.P and othersdecided on 04.11.2016 in support of his argument that his appeal filed against order passed by the District Level Committee to the Divisional Level Committee be directed to be decided. The learned Single Judge while referring to number of judgments of Hon’ble Supreme Court was of the opinion that the judgment in Zulfiqar Ahmad Bhuttoo Vs. State of U.P and others’ case requires re consideration. The following questions were framed “(i) Whether in terms of the Government order dated 09.05.2014 a person aggrieved by the decision of the District Level Committee has an efficacious and alternative remedy to approach the Division Level Committee as constituted in terms of the Government order dated 09.05.2014 ii) Whether judgment of the Division Bench in Zulfiqar Ahmad Bhuttoodecided on 04.11.2016 can be recorded as laying down the correct principle of law as regards the Government order dated 09.05.2014 ” That is how the matter is listed before us. The learned counsel for the petitioner submitted that when the prayer for grant of security on account of threat to his life 3 9 Misc. Single No. 45319 was rejected by the District Level Security Committee on December 14 2018 against the aforesaid rejection of his prayer he filed appeal before Divisional Level Security Committee. However the same is not being decided It is claimed that petitioner is a social worker assisting weaker sections of the society and is also carrying on business in the name and style of M s M.K. Enterprises. He also contested the assembly election in the year 2012 as an independent candidate from Lucknow West constituency. On account of continuous threats received by him he moved application for grant of security. As the request was not being considered the petitioner filed Writ Petition M B) No. 16850 of 2016 wherein direction was issued for consideration of his claim. However the same having been rejected by District Level Security Committee he preferred appeal before the Divisional Level Security Committee. However the same is not being considered. In support of the argument that a direction deserves to be issued to the Divisional Level Security Committee for deciding the appeal pending before it reliance was placed upon the order passed by this Court in Zulfiqar Ahmad Bhuttoo s casedoes not require reconsideration and a direction be issued to the Divisional Level Security Committee to hear and decide the appeal filed by him. 4 9 Misc. Single No. 45319 On the other hand learned counsel appearing for the State submitted that the order passed by this Court in Zulfiqar Ahmad Bhuttoo s casedoes not lay down good law. The policy has been framed by Government for examining threat perception to the person seeking security at the state expense. It provides authorities at different levels for consideration of request for providing the security for different periods namely if the security cover is to be provided for one month the request is to be considered at District Level. Considering the need security cover can be extended twice for a period of one month each. In case in the opinion of District Level Security Committee the need of security still continues even after expiry of the aforesaid period of three months the matter shall be referred to the Divisional Level Security Committee which can extend the period of security cover for a further period of three months. In case the security cover has to be provided beyond the aforesaid period of six months the issue has to be considered by State Level Committee. Entire policy no where provides for an appeal from an order passed by District Level Security Committee to the Divisional Level Committee or to State Level Security Committee Right to appeal is not inherent. It is a creation of the statute. Unless it is provided in the statute no appeal would lie Heard learned counsel for the parties and perused the The matter has been referred to Larger Bench for considering the following questions “(i) Whether in terms of the Government order dated 09.05.2014 a person aggrieved by the decision of the District Level Committee has an efficacious and alternative remedy to approach the Division Level paper book. 5 9 Misc. Single No. 45319 Committee as constituted in terms of the Government order dated 09.05.2014 ii) Whether judgment of the Division Bench in Zulfiqar Ahmad Bhuttoodecided on 04.11.2016 can be recorded as laying down the correct principle of law as regards the Government order dated 09.05.2014 ” Whether the order passed by this Court in Zulfiqar Ahmad Bhuttoo s caserequires reconsideration is one of the prime issue. A perusal of the aforesaid order shows that the petitioner in that case approached this Court seeking quashing of an order letter dated May 12 2016 passed by District Level Security Committee rejecting his representation for providing security cover. One of the argument raised by learned counsel for the State was that the petitioner therein has two other forums for redressal of his grievance i.e. Divisional Level Committee and State Level Committee. In turn while recording the aforesaid argument this Court directed that the petitioner having efficacious and alternative remedy to approach Divisional Level Committee should avail the said remedy. The relevant part of the order is extracted below “The State Government has issued a Government order dated 9th May 2014 for providing security which provides that actual threat perception should exist and that on a mere apprehension security could not be provided. Further the background antecedent criminal history and misuse of security are also relevant considerations to be examined objectively while considering the application for grant of security cover and 3 tier system i.e. District level Regional level and State level is provided for redressal of such dispute. 6 9 Misc. Single No. 45319 In view of above we find that the petitioner has got efficacious and alternative remedy to approach Divisional Level Committee but instead of availing the said remedy the petitioner has again approached this Court by way of present writ petition. We accordingly dismiss the writ petition on the ground of alternative remedy to approach the Divisional Level Committee. ” The question which arises and has been referred to be considered by Larger Bench is whether the petitioner has a right of appeal in terms of the policy framed for providing security cover to any person on account of threat perception. The relevant clauses of the policy dated May 9 2014 are reproduced hereinbelow: वि(cid:2)षयः वि(cid:2)शि(cid:8)ष्ट महानुभा(cid:2)ों की सुरक्षा हेतु गनर हुआ है विक रिरट यातिचका संख्या 6509 2013 डा० नूतन ठाकु र बनाम उ०प्र० राज्यअन्य में मा० न्यायालय द्वारा पारिरत अन्तरिरम आर्दे(cid:8) विर्दनांक 02.12.2013 में मा० उच्च न्यायालय द्वारा व्यविक्तयों को सुरक्षा प्रर्दान विकये जाने के सम्बन्ध में कतितपय सं(cid:2)ीक्षण करते हुए सुरक्षा सम्बन्धी नीतित प्रतितपाविर्दत करने के आर्दे(cid:8) पारिरत विकये हैं। मा० उच्च न्यायालय द्वारा पारिरत आर्दे(cid:8)ों के परिरप्रेक्ष्य में सम्यक वि(cid:2)चारोपरान्त प्रर्दे(cid:8) के महानुभा(cid:2)ों को सुरक्षा प्रर्दान विकये जाने हेतुअपनी स्पष्ट संस्तुतित सविहत मण्डलीय सुरक्षा सविमतित के समक्ष प्रस्तुत विकया जायेगा। मण्डल स्तरीय सुरक्षा सविमतित का गठन विनम्नवि(cid:2)त होगा “मण्डल स्तरीय सुरक्षा सविमतित” पुलिलस उपमहाविनरीक्षक परिरक्षेत्र पुलिलस अधीक्षक क्षेत्रीय मण्डलातिधकारी वि(cid:2)(cid:8)ेषमें विनम्नलिललिHत विबन्र्दुओं का उल्लेH अ(cid:2)श्य विकया जायेगाः ● सुरक्षा कर्मिमयों की संख्या 8 9 Misc. Single No. 45319 ● सुरक्षा प्रर्दत्त कराये जाने की अ(cid:2)तिध ● सुरक्षा का व्ययभार जनपर्दीय सुरक्षा सविमतित द्वारा जिजस जी(cid:2)नभय के आधार पर प्रथम तीन माह हेतु सुरक्षा प्रर्दान की गयी है उस जी(cid:2)नभय को कम करने अपास्त करने के लिलए स्थानीय प्र(cid:8)ासन द्वारा प्रयास विकया जायेगा। जनपर्द ए(cid:2)ं मण्डल स्तर पर कु ल छः माह की सुरक्षा अ(cid:2)तिध समाप्त होने के 15 विर्दन पू(cid:2) मण्डलीय सुरक्षा सविमतित द्वारा सम्बन्धिन्धत महानुभा(cid:2) के जी(cid:2)नभय का पुनमू ल्यांकन विकया जायेगा ए(cid:2)ं जी(cid:2)नभय वि(cid:2)द्यमान होने की र्द(cid:8)ा में अपनी स्पष्ट संस्तुतित सविहत सुवि(cid:2)चारिरत प्रस्ता(cid:2) जी(cid:2)नभय आख्यागृह पुलिलस महाविनर्दे(cid:8)क उ०प्र० अपर पुलिलस महाविनर्दे(cid:8)कगृह की अध्यक्षता में गविठत उच्च स्तरीय सविमतित द्वारा मण्डल स्तरीय सुरक्षा सविमतित की आख्याओं का परीक्षण कर सुरक्षा विर्दये जाने के सम्बन्ध में विनण य लिलया जायेगा। उच्च स्तरीय सविमतित द्वारा मण्डलीय सुरक्षा सविमतित के प्रस्ता(cid:2) जी(cid:2)नभय आख्या पर वि(cid:2)चार करते हुए अतिधकतम एक बार में 6 माह की अ(cid:2)तिध तक सुरक्षा विर्दये जाने पर वि(cid:2)चार विकया जायेगा।2 SCC 393 the Court in para 15 held: “15. It is thus clear that the appeal filed by defendants 2 and 3 in the High Court was directed originally not against any part of the preliminary decree but against mere finding recorded by the trial court that the partition was not genuine. The main controversy before us centers round the question whether that appeal was maintainable on this question the position seems to us well established. There is a basic distinction between the right of suit and the right of appeal. There is an inherent right in every person to bring suit of a civil nature and unless the suit is barred by statute one may at one s peril bring a suit of one s choice. ... A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit. But the position in regard to appeals is quite the opposite. The right of appeal inheres in no one and therefore an appeal for its maintainability must have the clear authority of law. That explains why the right of appeal is described as a creature of statute.” in para 28 observed as “28. In Ganga Bai v. Vijay Kumar 3 SCR 883:Chandrachud J.held that "there is a basic distinction between the right of suit and the right of appeal. There is an inherent right in every person to bring a suit of a civil nature but the right of appeal inheres in no one and therefore an appeal for its maintainability must have the clear authority of law.” In BGS SGS Soma JV Vs. NHPC Limited 4 SCC 234 in para 15 it was observed as under: “15. … an appeal is a creature of statute and must either be found within the four corners of the statute or not be there be at all.” In Manish Kumar Vs. Union of India and others 2021) 5 SCC 1 referring to its earlier decision in the Court said “386. In Mardia Chemicals Ltd. and others Vs. Union of India and others4 SCC 311 the validity of certain provisions of the SARFAESI Act 2002 was questioned. ... this court also noted the distinction between a civil suit and an appeal ... it is apposite that we notice the following: We may refer to a decision of this Court in Ganga Bai v. Vijay Kumar2 SCC 393 where in respect of original and appellate proceedings a distinction has been drawn as “15. ...There is a basic distinction between the right of suit and the right of appeal. There is an inherent right in every person to bring a suit of civil nature and unless the suit is barred by statute one may 12 9 Misc. Single No. 45319 at one s peril bring a suit of one s choice. It is no answer to a suit howsoever frivolous to claim that the law confers no such right to sue. A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit. But the position in regard to appeals is quite the opposite. The right of appeal inheres in no one and therefore an appeal for its maintainability must have the clear authority of law. That explains why the right of appeal is described as a creature of statute.” In view of the aforesaid authoritative enunciation of law by Hon’ble the Supreme Court that the appeal is not an inherent right rather it is a creature of statute in our opinion there being no provision in the policy for appeal against the order passed by District Level Security Committee to any higher level committee no appeal will be maintainable and no direction can be issued for decision of any such appeal filed by the petitioner The questions referred for decision to Larger Bench thus Questionis answered in negative holding that there is no right of appeal to any person to approach the Divisional Level Committee from any order passed by the District Level Security Committee rejecting his request for grant of security cover. Questionis also answered in negative holding that the order passed by this Court in Zulfiqar Ahmad Bhuttoo s does not lay down correct law and cannot be referred to as a precedent for seeking a 13 9 Misc. Single No. 45319 direction for decision of appeal with reference to the Government Order dated May 9 2014 So far as the merits of the controversy is concerned the prayer made by the petitioner is that he may be provided security cover on account of alleged threat perception in his opinion. Once the competent authority in the Government has already examined the issue and found that there is no threat to the petitioner and no security is required to be given at State expenses we do not find any reason to take a different view for the reason that this Court does not have any expertise to assess the threat perception to any person. Hence even the relief prayed for on merits is also misconceived. The petition is accordingly disposed of November 26 2021 P. Sri (Rajesh Bindal Devendra Kumar Upadhyaya Mrs. Justice Saroj Yadav Whether the order is speaking : Whether the order is reportable : √Yes No

Summary: To issue order or direction thereby directing the opposite parties to continue the police protection to the petitioner for the security of his life and property- High Court of Allahabad. Petitioner seeks a direction to the respondent to continue the police protection to the petitioner for the security for his life and property, and the same issue was held in the judgement passed by a division bench judges Hon’ble Mr. Justice Rajesh Bindal, Chief Justice Hon’ble, Mr. Justice Devendra Kumar Upadhyaya, Judge Hon’ble Mrs. Justice Saroj Yadav, Judge, in the matter Krishna Dutt Sharma  v/s State of U.P. and others[ MISC. SINGLE No. – 4531 of 2019 ] dealt with an issue mentioned above. In this case the learned counsel for the petitioner submit that’s the When the petition was taken up for hearing on February 15, 2019, the learned counsel for the petitioner had referred to judgment of this Court in Zulfiqar Ahmad Bhutto Vs. State of U.P and others (Writ-C No. 52652 of 2016) decided on 04.11.2016 in support of his argument that his appeal filed against order passed by the District Level Committee to the Divisional Level Committee be directed to be decided. The learned Single Judge, while referring to number of judgments of Hon’ble Supreme Court, was of the opinion that the judgment in Zulfiqar Ahmad Bhutto Vs. State of U.P and others’ case (supra) requires re-consideration. It is claimed that petitioner is a social worker assisting weaker sections of the society and is also carrying on business in the name and style of M/s M.K. Enterprises. He also contested the assembly election in the year 2012 as an independent candidate from Lucknow West constituency. On account of continuous threats received by him, he moved application for grant of security. As the request was not being considered, the petitioner filed Writ Petition (M/B) No. 16850 of 2016 wherein direction was issued for consideration of his claim. However, the same having been rejected by District Level Security Committee, he preferred appeal before the Divisional Level Security Committee. However, the same is not being considered. In support of the argument that a direction deserves to be issued to the Divisional Level Security Committee for deciding the appeal pending before it, reliance was placed upon the order passed by this Court in Zulfiqar Ahmad Bhutto’s case . The primary argument raised by the learned counsel for the petitioner is that once there is a hierarchy of committees provided in the policy in terms of which threat perception to a person is to be assessed, the order passed by the authority at District Level shall certainly be appealable before the higher authorities at Divisional Level and thereafter at State Level. Hence, the order earlier passed by this Court in Zulfiqar Ahmad Bhutto’s case (supra) does not require reconsideration and a direction be issued to the Divisional Level Security Committee to hear and decide the appeal filed by him. On the other hand, learned counsel appearing for the State submitted that the order passed by this Court in Zulfiqar Ahmad Bhutto’s case (supra) does not lay down good law. The policy has been framed by Government for examining threat perception to the person seeking security at the state expense The court perused the facts and arguments presented, it was the opinion that – “So far as the merits of the controversy is concerned, the prayer made by the petitioner is that he may be provided security cover on account of alleged threat perception in his opinion”. Once the competent authority in the Government has already examined the issue and found that there is no threat to the petitioner and no security is required to be given at State expenses, we do not find any reason to take a different view for the reason that this Court does not have any expertise to assess the threat perception to any person. Hence, even the relief prayed for on merits is also misconceived.”