WRIC/20901/2022 Judgment/Order Date: 10-08-2022 (2023) 5 ILRA 1664
HEADNOTE hearing
Civil Law- The Land Acquisition Act, 1894- Section 28A(1)- The proviso to Section 28A(1) aforesaid mandates exclusion from the period of three months limitation, for the purpose of making an application to the Collector, the day on which the Reference Court makes the award and the time spent in obtaining a certified copy thereof- The petitioner is entitled to the exclusion of 36 days spent in obtaining a certified copy of the award on the basis of which he had moved the Special Land Acquisition Officer under Section 28A of the Act-The order of the Special Land Acquisition Officer, holding the proceedings under Section 28A of the Act to be barred by time, is manifestly illegal. (Para 5) Writ petition allowed. (E-15)
Title: Kunwar Pal @ Kumar Pal Vs. State of U.P. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Rajesh Bindal,J.J. Munir
English hearing
WRIC/1000408/2001 Judgment/Order Date: 03-05-2023 (2023) 5 ILRA 1660
HEADNOTE hearing
Civil Law-The Uttar Pradesh Zamindari Abolition and Land Reforms Act-1950- Sections 122-C (3) & (6)- No proposal of the Gram Sabha / Land Management Committee to allot the land to the petitioner as no such document is available on record. As per the material available on record no list has been filed to convince the Court that a preferential list in terms of section 122C-(3) of U.P.Z.A. & L.R. Act has been prepared- The power to pass any order u/s 122-C(6) vests with the Collector- The impugned order has been passed by the Additional District Magistrate / Additional Collector having power u/s 122-C(6) after hearing all the parties including petitioner. (E-15)
Title: Mohd. Naim Vs. Additional Commissioner, Admin., Gonda & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Rajesh Singh Chauhan
English hearing
FAFOD/945/2004 Judgment/Order Date: 15-03-2023 (2023) 5 ILRA 1657
HEADNOTE hearing
Civil Law- The Limitation Act,1963-Section 5- There is huge delay of 2 years and 93 days-The matter has remained pending before this Court for 19 years without steps being taken-the kind of explanation rendered does not satisfy the observations of Apex Court that if delay has occurred for reasons which does not smack of mala fide, the Court should be reluctant to refuse condonation-On the contrary a complete careless and reckless long delay on the part of applicant which has remain virtually unexplained at all-No reason to exercise judicial discretion so as to justify condonation of delay in the present case. (Para 13) (E-15)
Title: Sujan Singh Bundela & Anr. Vs. Kripal Singh Yadav & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Kaushal Jayendra Thaker
English hearing
WRIA/11593/2021 Judgment/Order Date: 27-03-2023 (2023) 5 ILRA 1629
HEADNOTE hearing
Service Law-The formula and procedure for computation of pension as given in the Government Orders dated 18.07.2017 modifying the earlier decision for Government employees who retired before 01.01.2006 shall be applicable to the petitioners as well as the Concordance Tables issued from time to time for determination of their pension/ family pension including the ones appended to the Government Order dated 04.09.2017. The Government Order dated 01.05.2018 also shall apply to the petitioners- Retrospective operation of revised pension with effect from 01.01.2016 and arrears to be paid, nothing on record to show that question of payment of arrears with effect from 01.01.2016 to 24.02.2021 was deliberated upon seriously-It is evident from the fact that information in prepared formats continued to be collected by the Administrative Department even after issuance of the impugned office memo. It is therefore directed that the Respondent No.1 shall collect all necessary information and also determine the availability of finances and issue appropriate orders within a period of three months from the date a copy of this order is produced before it, taking into account also the observations made by this Court hereinabove-(Para 79) Petition partly allowed. (E-15)
Title: Ved Prakash Mittal & Ors. Vs. State of U.P. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Sangeeta Chandra
English hearing
WRIA/59655/2011 Judgment/Order Date: 12-04-2023 (2023) 5 ILRA 1617
HEADNOTE hearing
Civil Law-The Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972-Rule 18(2) - Provisions of Rule 18 are directory and not mandatory. (Para 23-26) The Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 -Sec 21(1) (a)-No perversity about the findings on the question of bona fide need-The various shops that have been referred to by the tenant as ones available to the landlord, either do not belong to the landlord or are not available-In a case where the tenant does not search for alternative accommodation after landlord initiates proceedings for release, the answer to the issue of comparative hardship invariably ought to be against the tenant-A tenant holding for rented premises a long period of time on an absurdly low rent, ought certainly to be held disentitled, vis-Ã -vis the landlord, when determining the issue of comparative hardship. (Para 41, 43 & 44) Petition dismissed. (E-15)
Title: MOHD. ISHAQ Vs. A.D.J. / Spl. Judge (S.C./S.T. Act), Jhansi & Anr.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: J.J. Munir
English hearing
WRIC/7730/2016 Judgment/Order Date: 19-04-2023 (2023) 5 ILRA 1612
HEADNOTE hearing
(A) Civil Law - Constitution of India, 1950 - Article - 226 - Payment of Gratuity Act, 1972 - Sections 1(3)(c) & 2(e) - Writ Petition - for quashing impugned orders by which authorities are denying Gratuity - petitioner was appointed as lecturer in an aided educational institution - thereafter, he applied and appointed as Principal - when he reached age of 50 years in 2009, he opted for voluntary retirement after completing 27 years, 9 months of service - all the voluntary retirement dues was accepted by the authorities and paid accept Gratuity - Petitioner filed PG Case before the Controlling Authority under PG Act, 1972 - allowed - St. Govt. challenged in appeal - appeal allowed - petitioner challenged the appellate court order including denied order of authorities - court finds that, in view of Amending Act, No. 47 of 2009 it cannot be said that the petitioner would fall under the exceptional or exclusion clause of the definition of 'employee' - and government order or regulation - 11 would not restrain a teacher from seeking voluntary retirement at the age of 58 year or prior thereto - held, petitioner is fully covered by the definition of employee so as to entitle him to get gratuity - writ petition allowed - directions issued for payment of gratuity with @ 9% interest per annum. Writ Petition Allowed. (E-11)
Title: DR. ASHOK KUMAR TOMAR Vs. State of U.P. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Kshitij Shailendra
English hearing
A482/12717/2023 Judgment/Order Date: 20-04-2023 (2023) 5 ILRA 1608
HEADNOTE hearing
(A) Criminal Law - The Code of Criminal Procedure, 1973 - Section 482 - Inherent power - Indian Penal Code, 1860 - Sections 363, 366 and 120-B , The Protection of Children from Sexual Offences Act, 2012 - Section 2(d), 16/17 - proceedings under Section 376 I.P.C. and POCSO Act, cannot be quashed on the basis of a compromise between the accused and the victim. (Para - 10) (B) Criminal Law - adjudication of cases involving gender related crimes - courts should not suggest or entertain any notions (or encourage any steps) towards compromises between the prosecutrix and the accused to get married, suggest or mandate mediation between the accused and the survivor, or any form of compromise as it is beyond their powers and jurisdiction. (Para - 8) Compromise application filed - signed by applicant, prosecutrix, first informant, and prosecutrix's mother and father - case against applicant - conspired with - to cause prosecutrix to elope with a Class X student - application states - prosecutrix, informant, and husband do not want to pursue prosecution further - prosecutrix and her parents moved an application seeking to compromise. (Para - 2,3) HELD:- No good grounds to quash ongoing trial proceedings based on the provided facts. (Para - 11) Application u/s 482 Cr.P.C. rejected. (E-7)
Title: NEELAM Vs. State of U.P. & Anr.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: J.J. Munir
English hearing
WRIA/29840/2010 Judgment/Order Date: 24-04-2023 (2023) 5 ILRA 1603
HEADNOTE hearing
Service Law -Tubewell Mechanic - Tubewell Mechanic Service Rules, 1951 - Under Rule 9(B) of the 1951 Rules, the minimum experience required for an ITI holder is only 2 years. In the instant case, as per the advertisement notification, the minimum qualification prescribed for seeking appointment to the post of Tubewell Mechanic was ITI with 5 years of experience. Petitioner, an ITI certificate holder, submitted an experience certificate of 7 years and 4 months, but it was later discovered that only 3 years and 4 months of this experience were after obtaining the ITI certificate. Petitioner's selection was cancelled. The petitioner challenged the cancellation, on the ground that under the Tubewell Mechanic Service Rules, 1951, only 2 years of experience after ITI is required and not 5 years, and that a government circular cannot change the rules. Court held that the petitioner had accepted the terms and conditions as mentioned in the advertisement notification and could not now challenge them after being found ineligible. (Para 19, 20, 21, 22)Dismissed. (E-5)
Title: MADAN KUMAR SINGH Vs. State of U.P. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Saurabh Srivastava
English hearing
WRIA/21096/2018 Judgment/Order Date: 16-05-2023 (2023) 5 ILRA 1595
HEADNOTE hearing
Civil Law - Service Matter - Appointment - Rejection of Appointment - On the basis of expert opinion, the candidature of the petitioners was rejected with the remarks 'handwriting/thumb impression mismatch.' The decision of the Railways was based on the expert opinion alone, without affording an opportunity to the petitioners or confronting them with the material/opinion, i.e., the opinion of the Government Examiner for Questionable Documents (GEQD). Held - Had the petitioners been afforded an opportunity, they could, in their defense, have obtained an opinion of another expert to confront the Railways. The impugned order of cancellation of the candidature of the petitioners could not have been sustained solely on the opinion of the handwriting expert, which was obtained behind the back of the petitioners, without confronting them with the incriminating material and without being supported by any other evidence. The respondents' action was not in conformity with the principles of natural justice. The respondents were directed to appoint the petitioners to Group-D posts forthwith. (Para 25, 33, 34, 36) Allowed. (E-5)
Title: Vijay Pal & Ors. Vs. U.O.I. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Suneet Kumar,Rajendra Kumar-IV
English hearing
CRLA/1703 /1989 Judgment/Order Date: 30-05-2022 (2022)06ILR A545
HEADNOTE hearing
A) Criminal Law - Appeal against conviction - Indian Penal Code, 1860 - Section 302 read with Section 34 - The Code of criminal procedure, 1973 - Section 161 - circumstantial evidence - no eye- witness account - duty of the prosecution to prove all the circumstances to form a complete chain unerringly pointing towards the guilt of the accused- appellants - leaving all reasonable hypothesis of a third person entering into the scene of the crime - circumstances from which conclusion of guilt is to be drawn should be fully established, "must" and "should" and not "may be" established - each and every circumstance brought in the chain of circumstance by the prosecution should be fully established beyond all reasonable doubt. (Para -23) Appellant no. 1 died - appeal abated - Sole surviving appellant is appellant no. 2 - information given by village Chaukidar (P.W.3) about deceased - stated that village Pradhan (P.W.4 , witness of inquest, chance witness) had suspicion about the reason of the death - statement in the inquest - deceased was a patient of Tuberculosis (T.B.) - body found inside the room in the house of deceased - no visible injury seen on dead body - No recovery memo of blood stained and plain earth brought on record - presence of child witness (PW-5, son of deceased) at the time of incident - doubtful . (Para - 3,4,5,16,44) (B) Criminal Law - appreciation of the testimony of a child witness - Indian Evidence Act, 1872 - Section 118 - competence of the persons to testify which also includes a child witness - while assessing evidence of child witness - Court must carefully observe his/her demeanor to eliminate likelihood of tutoring - rule of prudence - desirable to see corroboration of evidence of a child witness from other reliable witness on record - Court can rely upon the testimony of a child witness, if the same is credible, truthful and is corroborated by other evidence brought on record - child witness (PW-5, son of deceased) could not be found to be trustworthy and his testimony cannot be read in favour of the prosecution. (Para - 18,20) (C) Criminal Law - Indian Evidence Act, 1872 - Section 106 - last seen theory â?? last seen alive - not prudent to base the conviction solely on "last seen theory" - duty of the prosecution to prove the evidence of last seen beyond all reasonable doubt by the testimony of a witness who is truthful, consistent and free from embellishments - held - prosecution failed to establish beyond reasonable doubt and the presence of PW-1 near the place of the incident on the fateful night so as to establish that PW-1 was the witness of last seen of the accused coming out of the house of the deceased while he was standing outside the house of P.W. 2 (witness of last seen).(Para -23,24,40 ) (D) Criminal Law - motive of commission of crime â?? civil dispute - Mere pendency of a civil suit between the deceased and the accused persons cannot be said to be a strong motive so as to treat it as a circumstance fully established for commission of the crime - Mere narration of motive in a case of circumstantial evidence without bringing anything further to prove the same cannot be taken as a circumstance to establish the case of the prosecution. (Para - 36,) (E) Criminal Law - suspicion cannot take the place of proof and even if the circumstances on record is a pointer to a strong suspicion, it in itself is not sufficient to lead to the conclusion that the guilt of the accused stands established beyond reasonable doubt - mode of appreciation of evidence - presumption of innocence - criminal trial is not like a fairy tale wherein one in free to give flight to one's imagination and phantasy - if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favorable to the accused should be adopted - finding with regard to testimony of PW-1 and PW-4 - based on conjectures and surmises - trial court did not evaluate statement of PW-1 independently - not based on proper appreciation of the evidence on record - rather more out of the own imagination or belief of the trial court . (Para-48,52) HELD:- Prosecution failed to establish the guilt of the accused-appellant (Brij Kishor) , beyond all reasonable doubt. Benefit of doubt goes to accused-appellant. (Para - 53) Criminal Appeal allowed. (E-7)
Title: Jiut & Anr . Vs. State of U.P.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Sunita Agarwal,Vikas Kunvar Srivastav
English hearing
WRIA/6089/2023 Judgment/Order Date: 07-04-2023 (2023) 5 ILRA 1592
HEADNOTE hearing
Civil Law - Service Matter - Railway Servants (Discipline & Appeal) Rules, 1968 - Rule 14(1) - Where any penalty is imposed on a Railway servant on the ground of conduct which has led to his conviction on a criminal charge, the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit . Issue: Whether the disciplinary authority is required to pass a reasoned and speaking order under Rule 14(1) of the Rules, 1968? Held: The requirement of the Rule mandates the disciplinary authority to 'consider the circumstances' of the case, i.e., the trial court judgment leading to the conviction of the officer. The conduct/role which led to the conviction of the officer on a criminal charge has to be considered. The disciplinary authority is not required to enter into the merits/evidence of the trial proceedings. The Rule does not mandate the authority to pass a reasoned and speaking order. The disciplinary authority is not required to sit in appeal on the findings returned by the trial court convicting the government servant. In the instant case, the order of punishment imposed by the disciplinary authority categorically records that the explanation of the petitioner was considered and that the charge against the petitioner in the trial was duly proved. The Court held that it was sufficient compliance with Rule 14(1) of the Rules, 1968. (Para 16, 17) Dismissed. (E-5)
Title: SATYA NARAIN DUBEY Vs. U.O.I. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Suneet Kumar,Rajendra Kumar-IV
English hearing
CRLA/1407 /2007 Judgment/Order Date: 27-05-2022 (2022)06ILR A515
HEADNOTE hearing
(A) Criminal Law - appeal against conviction - No direct evidence of crime - Circumstantial evidence - Indian Penal Code, 1860 - Sections 364, 302 / 34, 201 and 420 - The Code of criminal procedure, 1973 - Section 313,161,437-A - a case based on circumstantial evidence has to face strict scrutiny - Every circumstance from which conclusion of guilt is to be drawn must be fully established - the circumstances should be conclusive in nature and tendency - they must form a chain of evidence so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused - and such chain of circumstances must be consistent only with the hypothesis of the guilt of the accused and must exclude every possible hypothesis except the one sought to be proved by the prosecution. (Para -26,) Deceased was son of informant (PW-4) - deceased and accused were friends - were on visiting terms with each other - appellant had a widow cousin - deceased resided with his father and other family members in village - falls in territorial jurisdiction - deceased left his home on 03.04.2003 - went missing thereafter - FIR lodged by PW-4( father of deceased) - allegations - deceased has been abducted and secreted by accused - FIR suggests twin motive for crime (a) ransom (b) annoyance on account of relationship of deceased with cousin of appellant - no independent witness of recovery examined by prosecution - body recovered not photographed - extremely doubtful - recovery discarded by court. (Para - 28,36 ) (B) Criminal Law- case based on direct ocular account of the crime - existence of motive is not of much importance - case based on circumstantial evidence - motive assumes importance - at times serves as a vital link to the chain of circumstances because, absence of a motive may serve as a catalyst to strengthen the alternative hypothesis - if there is a room for any, consistent with the innocence of the accused. (Para - 30 ) (C) Criminal Law - matters relating to kidnapping or abduction for ransom - victim party awaits return of the kidnapee or abductee for fear or danger to his or her life therefore, in such matters, mere delay in setting the law into motion may not prove fatal to the prosecution story - where hope of return of the abductee disappears, delay in lodging the report would, in absence of plausible explanation, raise suspicion as regards the credibility of the prosecution story - held - inordinate delay in lodging the FIR shrouds the prosecution story with suspicion as regards demand and payment of ransom.(Para - 32) (D) Criminal Law - prosecution story developed on strong suspicion and guess- work - howsoever strong suspicion might be it cannot take the place of proof - when a reasonable doubt arises with regard to the prosecution story /the prosecution evidence, the benefit doubt would have to be extended to the accused.(Para -36) HELD:-The prosecution story and the prosecution evidence do not inspire confidence of court . No option but to extend the benefit of doubt to the appellant (Sanjay Singh @ Bhooray). As regards other appellants, there is no worthwhile evidence against them. The evidence of the deceased being last seen with the accused appellants on a Tonga by PW-5 discarded. All the appellants are entitled to be acquitted. (Para - 36,37) Criminal Appeals allowed. (E-7)
Title: Sanjay Singh @ Bhooray Vs. State of U.P.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Manoj Misra,Sameer Jain
English hearing
WRIA/6062/2023 Judgment/Order Date: 07-04-2023 (2023) 5 ILRA 1587
HEADNOTE hearing
Civil Law - Service Matter - Uttar Pradesh Sub-Inspector and Inspector (Civil Police) Service (Second Amendment) Rules, 2016 - Rule 10 provides 'Age-10. A candidate for direct recruitment must have attained the age of 21 years and must not have attained the age of 28 years on the first day of July of a calendar year in which vacancies for direct recruitment are advertised'. Petitioner challenged the validity of Rule 10. Petitioner, was born on 01 July, consequently attained the age of 28 years and one day on the cutoff date; hence, he was hit by Rule 10. Held: Petitioner was unable to show how the amendment in the Rules of 2016 makes Rule 10 manifestly arbitrary, merely because the rule- making authority does not want a candidate for the post of Sub-Inspector who has attained the age of 28 years on the cutoff date to be considered eligible for the post. (Para 24) Dismissed. (E-5)
Title: PRABHAT KUMAR TIWARI Vs. State of U.P. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Suneet Kumar,Rajendra Kumar-IV
English hearing
CRLA/1212 /1983 Judgment/Order Date: 31-05-2022 (2022)06ILR A499
HEADNOTE hearing
A) Criminal Law - Indian Penal Code, 1860 - Section 114 - Appeal against conviction - Abettor present when offence is committed, Section 302 - murder , The Code of criminal procedure, 1973 - Section 313 . Appeal of appellant no.2 - abated - consequent to his death - appeal of appellant no.1 survives - accused were dismantling the water channel of deceased - deceased intervened - On his intervention , non surviving appellant no.2 - elder brother of deceased - exhorted his son (surviving appellant) to beat the deceased by uttering "Maar Saale Ko" - FIR lodged by son (P.W. 1) of deceased - surviving appellant no.1 administered multiple Fawra (spade) blows on vital part of the body of the deceased - property dispute. (Para - 17,34) (B) Criminal Law - Indian Penal Code, 1860 - Section 299 - Culpable homicide -Whoever causes death by doing an act with the intention of causing death - or with the intention of causing such bodily injury as is likely to cause death - or with the knowledge that he is likely by such act to cause death - commits the offence of culpable homicide - held - at the time of causing injury, the inflictor of that wound had inflicted that injury with the knowledge that he is likely by such act would cause death - No case of the defence that the injury no.1 was inflicted accidentally - appellant no.1 is liable for the offence of culpable homicide. (Para -24,25 ) (C) Criminal Law - Indian Penal Code, 1860 - Section 300 - murder - when culpable homicide is murder - clause ''Secondly' - If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused - clause ''Thirdly' - If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death - multiple blows on head of deceased - three incised wounds found on head region - injuries no.2 and 3 not fatal - accused targeted a vital part - accused had the intention of causing such bodily injury which he knew that it is likely to cause death of the person to whom the harm is caused - injury no.1 reflects that the underlying tissues, vertebrae etc were all cut through and through - deceased had died on the spot - appellant's act traveled from the genus of culpable homicide to the species of murder. (Para -26,31 ) HELD:-Prosecution successfully proved that injuries were caused by accused appellant. Injuries were such that would fall in clause ''Secondly' and ''Thirdly' of Section 300 IPC . Appellant would be liable to be convicted for an offence of murder, as has been held by the trial court. Judgment and order of the trial court affirmed. (Para - 48) Criminal Appeal dismissed. (E-7)
Title: Jangaliya & Anr. Vs. State of U.P.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Manoj Misra,Shamim Ahmed
English hearing
CRLA/998 /2008 Judgment/Order Date: 29-06-2022 (2022)06ILR A490
HEADNOTE hearing
Criminal Law- Indian Evidence Act 1872- Section 3 - Corroboration of Oral evidence by Medical Evidence- Perusal of the evidence of this medical witness shows that the injuries found on the body of the deceased are in consonance with the ocular account given by the complainant P.W.1 Where the medical evidence corroborates the oral testimony of the eye witnesses then the said oral testimony cannot be doubted. Indian Evidence Act 1872- Section 3- Related Witnesses- Well settled law that the evidence of a witness cannot be doubted only for the reason that he is a related witness. The testimony of natural witnesses , which is also corroborated by other evidence, cannot be discarded or doubted merely on the ground that the said witnesses are related to the deceased. Indian Evidence Act 1872- Section 3- The Investigating Officer has stated that he did not find any blood on the spot, but for this reason only the direct ocular evidence cannot be doubted. Where the oral testimony is corroborated by the medical evidence, then the defence cannot gain any advantage from the mere fact that the investigating officer did not find blood stains at the place of the occurrence as the same is only a lapse of the investigating officer. (Para 9, 12, 15) Criminal Appeal rejected. (E-3)
Title: Anil Yadav Vs. State of U.P.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Ramesh Sinha,Saroj Yadav
English hearing
WRIA/1078/2023 Judgment/Order Date: 12-04-2023 (2023) 5 ILRA 1581
HEADNOTE hearing
Civil Law - Service Matter - Compassionate Appointment - Married brother - Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 - Rule 2 clause (c) sub-clause (iv), 'Unmarried brothers, unmarried sisters and widowed mother dependent on the deceased Government servant, if the deceased Government servant was unmarried' - Writ petition filed seeking to declare the expression 'unmarried' in the said Rule ultra vires. Held: Rule-making authority included brothers/sisters of the deceased Government servant in the definition of family provided they were unmarried, and at the same time, the Government servant was also unmarried. If the Government servant is married, then he has a dependent wife/children who are primarily his responsibility. The Court cannot sit in appeal over the judgment and wisdom of the employer in not including unmarried brothers and sisters within the definition of family of a married Government servant. Neither would the Court under Article 226 of the Constitution have any role in determining as to which family member should be included/excluded from the definition of family for the purpose of compassionate appointment. Court cannot suggest the manner in which the rule-making authority should structure or restructure the definition of family. Nothing to show as to how the exclusion of unmarried brothers/sisters from the definition of family of a married Government servant is manifestly arbitrary. Impugned Rule would not fall within the embargo of Article 14 of the Constitution of India. (Para 18, 19) Dismissed. (E-5)
Title: IMRAN KHAN Vs. State of U.P. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Suneet Kumar,Rajendra Kumar-IV
English hearing
CRLA/917 /2006 Judgment/Order Date: 24-05-2022 (2022)06ILR A476
HEADNOTE hearing
Criminal Law- Indian Penal Code, 1860- Section 304B- Unnatural death within Seven years of marriage- All the four witnesses of fact are consistent in proving the marriage of the deceased Islawati with accused Sanjay Kumar approximately 5 years ago from the date of the incident. The prosecution, thus, became successful in proving the incident of bride burning as informed by the first informant, PW-1, occurring within a period of five years' of matrimonial life of the deceased Islawati with accused Sanjay Kumar. By oral evidence, the witnesses PW-1, PW-2, PW- 3 and PW-4 had proved the demand of motorcycle in dowry and also torture and beating of the deceased in connection with the said demand. In a case under Section 304 B of the IPC, the prosecution has to prove that the death of the woman was under unnatural circumstances within seven years of her marriage and she was subjected to cruelty and harassment by her husband or any of his relatives for demand of dowry. Indian Evidence Act, 1872- Section 8 - Subsequent Conduct- Neither the accused informed the unnatural death of the deceased nor they took her to the hospital to get her all possible treatment. This conduct is also a relevant fact which lead to an inference that the unnatural death was caused due to burn injuries caused by her in-laws and the motive was unfulfilled demand of motorcycle in dowry. The subsequent conduct of the accused persons in neither giving any information about the unnatural death and nor providing the deceased with any medical help will lead the court to take an adverse inference against the accused. Indian Evidence Act, 1872- Section 106- Burden of Proof- What happened in the matrimonial house with the deceased and how the wounds and injuries were sustained on the person of the deceased as ante-mortem injuries are the facts, particularly within the knowledge of the accused-Sanjay as there is absolutely no evidence on record nor it was alleged that he was not present in the house on the fateful day when the deceased was alive just prior to the incident, no explanation at all had been offered by the accused despite opportunity given to him. The presence of accused with the deceased when she was alive is proved beyond doubt. Resultantly, under Section 106 of Evidence Act, 1872, there is a orresponding burden on the accused- husband to give cogent explanation as to how the crime was committed. The appellant cannot get away by keeping mum. Where the wife has died an unnatural death inside the home, the presence of the husband stands established by the prosecution during the relevant period then the burden of proof of explaining the circumstances under which the deceased met her death, will lie upon the accused husband. Proportionate Punishment- Quantum of Punishment- The judgment can not be interfered on the argument as to the disproportionate quantum of punishment. The dowry death being a long standing social event and the dowry death of the deceased in the instant case being pestiferous committed in a scheme of the most brutal manner and cruelty by the covetous husband, the punishment of life imprisonment, in our considered opinion, is the proportionate punishment. Where the deceased has been done to death in a brutal manner by a greedy husband, no interference is required in the quantum of punishment awarded by the trial court. ( Para 28, 34, 46, 47, 51) Criminal Appeal rejected. (E-3)
Title: Sanjay Kumar Vs. State of U.P.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Sunita Agarwal,Vikas Kunvar Srivastav
English hearing
CRLA/888 /2016 Judgment/Order Date: 26-05-2022 (2022)06ILR A459
HEADNOTE hearing
Criminal Law- Indian Evidence Act, 1872- Section 3- It is established that P.W.-1 is changing his stand with respect to place of incident - These are material contradiction in the statement of P.W.-1 and has not been explained by prosecution, as such, evidence of P.W.-1 cannot be relied upon- Statement of P.W.2 is not consistent with respect to place of incident as well as evidence of P.W.2 is not corroborated by evidence of P.W.1, thus, evidence of P.W.2 is also not reliable and trustworthy-P.W.-3 is not eye-witness of the incident and his evidence is also not reliable and trustworthy. Settled law that material contradictions in the testimonies of the prosecution witnesses, that go to the root of the matter and are uncorroborated, render the case of the prosecution doubtful. Indian Evidence Act, 1872- Section 3- Ocular evidence has greater evidentiary value vis-a-vis medical evidence. In the present matter, we also find that there is inconsistency of the prosecution witnesses of fact and after close scrutiny of the medical evidence, we find that ocular evidence may be discarded-These three witnesses claim themselves to be the eye witness of the occurrence but their description seven steps and considering the statement of PW-4- Dr. R.S. Rabidas that the gun shot fired from very close range (few inches) are such circumstances which remain unexplained. Although the ocular evidence will prevail over the medical evidence in case of contradiction between the two, but where the contradiction between the ocular version and medical evidence is too much then the ocular version may not be believed by the court. Code of Criminal Procedure, 1973- Section 154- First Information Report- Section 157- Special Report-U.P Police Regulations- Section 101- Non- Compliance- Ante- Timed F.I.R- Constable Clerk Tarachand Special Report Messenger has not been produced by prosecution which also makes the prosecution case doubtful and strengthen the argument of learned counsel for the appellants on defective investigation-Special report of the case has not been sent according to rule and regulation which is proved from the statement of P.W.10 Mahak Singh Head Constable. The statement of P.W.1, PW.5 and P.W.11 further reveals that FIR in this case is ante-timed. Where the prosecution has failed to comply with the mandate of Section 157 of the Cr.Pc and has deliberately withheld the police officer responsible for sending the same, the investigation is apparently defective and it is demonstrated from the evidence of the prosecution witnesses that the first information report is ante-timed, then the same makes the story of the prosecution doubtful. (Para 26, 28, 30, 31, 32, 36, 37, 40, 44) Criminal Appeal allowed. (E-3)
Title: Alam Vs. State of U.P.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Mahesh Chandra Tripathi,Chandra Kumar Rai
English hearing
CRLA/388 /1984 Judgment/Order Date: 27-05-2022 (2022)06ILR A442
HEADNOTE hearing
Criminal Law- Indian Evidence Act, 1872- Section 9- Test Identification Parade- Acquittal of two co-accused while conviction of the appellant - Before relying upon the evidence of identification of suspects in the test identification parade, the Court is required to determine as to whether prosecution had taken all necessary precautions to ensure that the identity of the suspect be kept concealed before the parade- If the prosecution has led evidence to show that from the time of arrest of an accused to the time of his admission into the jail, precautions were taken to ensure that he was not seen by any outsider, and if the identifying witnesses depose that they never saw him at any time between the crime and the identification parade, the burden lying on the prosecution has been discharged. It is then for the accused to establish that he was shown. The law does not require him to do so affirmatively; it is sufficient in creating a reasonable doubt in the mind of the Court. But if he fails to raise a reasonable doubt the law enjoins that the prosecution evidence on the matter be accepted. One of the requirements for establishing a test identification parade as valid and legal is that the prosecution must discharge its burden that the accused was not seen by any outsider from the time of his admission in jail till his test identification parade. Indian Evidence Act, 1872- Section 9- Test Identification Parade- Unnecessary delay in the holding of the test- While answering the question as to whether the witness did have opportunity of seeing the offenders, the requirement of holding test identification parade at the earliest opportunity without avoidable and unreasonable delay after the arrest of the accused has been insisted by the Courts from time to time. The idea behind such insistence is that the witness concerned would get fair opportunity of identifying the suspect leaving the possibility of his memory being faded and rule out all chances of suspect having been seen during the period, i.e from the date of arrest till the date of identification- No explanation could be offered by the Investigating Officer nor any question was put to him by the trial court as to why one month was taken by the Investigating Officer to conduct test identification parade of the appellant Rakesh, leaving behind the acquitted accused persons for whom test identification parade was conducted after two months - It is proved that the prosecution has failed to explain the unnecessary delay in holding the identification test though the witnesses were very much available being the police personnel posted in the same police station wherein first information report was lodged. Test Identification Parade has to be conducted without any unnecessary delay in order to not only rule out the possibility of any outsider having seen the accused between the time he was admitted in jail till his identification parade, but also to provide the witness a fair opportunity of identifying the accused before his memory fades with the passage of time. Indian Evidence Act, 1872- Section 9- Test Identification Parade - Requirement of corroboration- The test identification of the accused in test identification parade is an evidence which requires corroboration from the testimony of the witnesses in the Court and without corroboration, the result of test identification parade cannot be made sole basis of conviction - The result of the test identification parade was not corroborated with the evidence of implication of the appellant Rakesh in the Court- Only witness who allegedly had identified appellant Rakesh in the test identification parade also identified him in the Court but this identification was only by the police personnel posted in the convoy duty on the fateful night and not by any other witness. As it is settled that the test identification report do not constitute substantive evidence and its corroboration from the surrounding circumstance is required. In the instant case, the circumstances discussed above, do no corroborate the result of the test identification parade. Result of a Test Identification Parade is only corroborative evidence and where the same is not corroborated by the other evidence and circumstances, the sole witness is a police personnel, then conviction solely on the basis of such test identification may not be legal and proper. (Para 41, 42, 43, 44, 45, 47, 59, 62, 64) Criminal Appeal allowed. (E-3)
Title: Rakesh Vs. State of U.P.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Sunita Agarwal,Vikas Kunvar Srivastav
English hearing
CRLA/210 /1997 Judgment/Order Date: 31-05-2022 (2022)06ILR A426
HEADNOTE hearing
A) Criminal Law - The Code of criminal procedure, 1973 - Section 374(2) - Appeals from conviction - Indian Penal Code, 1860 - Sections 302/201, 34, 201 - circumstantial evidence - where there is no direct evidence against the accused and the prosecution rests its case on circumstantial evidence - the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused - Suspicion, however, strong cannot be allowed to take the place of proof - Court has to be watchful and ensure that conjectures and suspicions do not take place of legal proof.(Para -22, 51) Case of circumstantial evidence - (P.W.-1- informant) lodged F.I.R. for murder of his brother (deceased) - Trial Court convicted accused appellants - merely on the basis of testimonies of informant P.W.1 and P.W.5 - recoveries made on the pointing out of accused/appellant(Mahesh) - from the house of accused appellant(Suresh) - P.W.2 and P.W.6 declared hostile - prosecution completely failed to prove beyond reasonable doubt - involvement and guilt of the appellants - failed to establish any motive to the accused appellants for committing murder of deceased.(Para -21,53 ) HELD:-Various lacunae in the case of prosecution in establishing the chain of circumstantial evidence against the accused appellants. No cogent or clinching evidence on record which proves the guilt of the accused appellants beyond reasonable doubt. Impugned judgment of conviction, found unsustainable, liable to be set aside and the appellants entitled to be acquitted by giving them the benefit of doubt. (Para -54 ) Criminal Appeals allowed. (E-7)
Title: Suresh @ Chaveney Vs. State of U.P.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Sunita Agarwal,Shamim Ahmed
English hearing
A227/3265 /2022 Judgment/Order Date: 19-05-2022 (2022)06ILR A397
HEADNOTE hearing
A) Civil Law - Constitution of India, Article 227 - Civil Procedure Code, 1908 - Section - 151, Order - 17 Rule - 1, Order - 9 Rule - 6: - Application for Recall of orders without Affidavit in support of delay Condonation - Rejected - Revision Dismissed - defendants are given enough opportunity - impugned orders are proper. (Para 5, 6) (B) Civil Law - Society Registration Act, 1860: - Bar Associations are registered societies - established for positive contribution in welfare of its learned members - they cannot obstruct or interfere in the Sovereign function of the Court. (Para 7, 9) Writ Petition - dismissed. (E-11)
Title: Smt. Rajani Vs. Vipul Mittal & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: J.J. Munir
English hearing
A227/2135 /2022 Judgment/Order Date: 13-06-2022 (2022)06ILR A389
HEADNOTE hearing
(A) Civil Law - Constitution of India, Article 226, 226(2) - Securitisation And Reconstruction Of Financial Assets And Enforcement Of Security Interest Act, 2002 - Section -13(2), 14, 17 & 18 - Recovery Of Debts Due To Banks And Financial Institutions Act, Section 19 - Securitisation Application filed before DRT Tribunal bench at Lucknow - interim order vacated - Appeal filed before DRAT, Allahabad - Writ Petition at Lucknow Bench - objection - maintainability writ petition @ Lucknow bench - Power of High Courts to issue certain writs - High Court exercising jurisdiction in relation to its territory within which the cause of action wholly or in part arises - difference between 'cause of action' & 'right of action' - existence of an alternative remedy is not an absolute bar against this Court's discretionary jurisdiction under Article 226 of Constitution - objection turned down. (Para - 16, 17, 21, 22) Writ Petition partly allowed. (E-11)
Title: M/S Ramon Motion Auto Corp. Pvt. Ltd. & Ors. Vs. Debt Recovery Appellate Tribunal & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Subhash Vidyarthi
English hearing
A227/723 /2022 Judgment/Order Date: 02-03-2022 (2022)06ILR A377
HEADNOTE hearing
Civil Law - Constitution of India, Article 227 - Criminal Procedure Code, 1973 - Section 156 (3) - Parliamentary Election - non-fulfilling of Election Manifesto/ promises - does not comes under 'cognizable Offence' or under comes within ambit of any law - thus cannot enforced under any legislation - Trial court rightly rejected application. Para 21, 23) Writ Petition is dismissed. (E-11)
Title: Khurshidurehman S. Rehman Vs. State of U.P. & Anr.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Dinesh Pathak
English hearing
A482/3963 /2022 Judgment/Order Date: 27-06-2022 (2022)06ILR A370
HEADNOTE hearing
Criminal Law - Code of Criminal Procedure, 1973 -Section 173, 190, 190(1)(b), 204, 482 - Essential Commodities Act, 1955 -Section 3/7: - Application - validity of Cognizance/ summoning order and for quashing entire criminal proceeding under EC Act, - trial court materially erred in summoning the applicant on printed proforma by filling up the gaps/blanks - judicial orders cannot be allowed to be passed in a mechanical manner, without application of judicial mind and without satisfying himself as to which offence were prima-facie being made out -Magistrate failed to exercise the jurisdiction vested in him resulting miscarriage of justice - Application allowed - impugned summoning order is quashed - matter is remitted back to proceed a fresh as per law. (Para - 14, 18, 25, 26, 27) Application (U/s 482) is allowed. (E-11)
Title: Sangam Lal Vs. State of U.P. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Shamim Ahmed
English hearing
SPLA/344/2021 Judgment/Order Date: 12-04-2023 (2023) 5 ILRA 1577
HEADNOTE hearing
Civil Law - Service Matter - Back wages - When dismissal order quashed on ground of quantum of punishment and not on merit - In the instant case the employee was out of service pursuant to order of dismissal dated 04.08.2006 until his reinstatement on 24.08.2013. Aggrieved by the dismissal order, the employee filed a writ petition, which came to be allowed only on the quantum of punishment. Writ Court was of the opinion that the punishment imposed was not commensurate with the guilt. Termination of the employee was not held to be wrongful by the writ Court. Rather, the writ Court was of the opinion that a lesser punishment would suffice, having regard to the guilt of the employee. The employee nowhere pleaded that he was not gainfully employed or employed on lower wages during the period of dismissal of service. Held: It cannot be said that the guilt of the employee stood wiped off; rather, reinstatement was directed as a consequence of the imposition of a lesser punishment. The employee would not be entitled to back wages for the period he has not performed his duties nor consequential benefits, as a consequence of such reinstatement. Having regard to the fact that the employee was out of employment for eight long years, 30% of back wages was directed to be paid to the employee for the period he was out of employment. (Para 12, 13, 14) Allowed. (E-5)
Title: Chairman & Managing Director, Central Bank Of India, Mumbai Vs. VIJAY AGARWAL
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Suneet Kumar,Rajendra Kumar-IV
English hearing
WRIA/5635/2023 Judgment/Order Date: 04-04-2023 (2023) 5 ILRA 1570
HEADNOTE hearing
Civil Law - Civil Services Regulation, Article 368 - U.P. Palika (Centralized) Services Retirement Benefit Rules, 1981 - Rule 2(10) - Uttar Pradesh Qualifying Services for Pension and Validation Act, 2021. Post-Retiral Benefits - Petitioner was appointed as a daily wager on a class III post as Clerk on 25.09.1990 in Nagar Nigam. He was regularized on 03.01.2006 and retired on 30.06.2022. Petitioner prayed for the grant of all retiral benefits, including gratuity and regular pension, by counting his past services rendered before his regularization. Matter squarely covered by the law settled in case of Prem Singh and Dr. Shyam Kumar. Court directed the Mukhya Nagar Adhikari, Nagar Nigam, to ensure regular payment of pensionary and other retiral benefits to the petitioner under the Rules of 1981, counting his entire service, including the duty performed as a daily wager employee of the Nagar Nigam, within a period of three months. (Para 9) Allowed. (E-5)
Title: JAIDEV SINGH Vs. State of U.P. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Vivek Chaudhary
English hearing
WRIA/13327/2020 Judgment/Order Date: 10-04-2023 (2023) 5 ILRA 1555
HEADNOTE hearing
Civil Law - Jal Sansthan (Rural) U.P. Nagarpalika Non-Centralized Services Retirement Benefits Regulation, 1984 (Rules of 1984) - Uttar Pradesh Qualifying Service for Pension and Validation Act, 2021 - Issue: Whether services rendered before regularization by daily wage employees who worked on Class III posts in the Jal Sansthan and were later regularized in continuation of their services is to be counted for the purpose of pension and other retiral benefits ? Held: Daily rated employees perform the same duties as regular employees and are throughout treated as regular employees. They were also regularized in continuation of their work charge services. So far as the Act of 2021 is concerned, the same is applicable only to employees of the State Government. Even otherwise, the Act of 2021 has already been read down by this Court in its judgment dated 17.02.2023 passed in Writ-A No.8968 of 2022 ( Dr. Shyam Kumar Vs. State of U.P. and others). Respondents were directed to ensure regular payment of pensionary and other retirement benefits to the petitioners, who have already retired, under the Pension Rules, treating their entire service, including services rendered by them as daily rated employees prior to their regularization, as qualifying services for pensionary benefits, within a period of three months. Allowed. (E-5)
Title: Ranveer Singh & Ors. Vs. State of U.P. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Vivek Chaudhary
English hearing
WRIA/18527/2021 Judgment/Order Date: 15-03-2023 (2023) 5 ILRA 1548
HEADNOTE hearing
A. Civil Law - Disciplinary proceedings - Uttar Pradesh Police Officers of Subordinate Rank (Punishment and Appeal) Rules, 1991 - Rule 14 - Issue: Whether the Tribunal was competent to usurp the role of an appellate authority by setting aside the punishment order when, admittedly, the factum of the charge of overstay of leave was not denied by the employee? Held: Courts/Tribunals are not to act as appellate authorities in disciplinary proceedings. Tribunal exceeded its jurisdiction in setting aside the impugned order passed by the Disciplinary Authority imposing punishment on the respondent. At most, Tribunal could have remitted the matter to the Disciplinary Authority to pass a fresh order. Tribunal was not within its jurisdiction and competence to set aside the punishment while sitting in appeal without returning a finding that the disciplinary enquiry stood vitiated for breach of statutory provisions of the Rules, 1991, or that the punishment was not commensurate with the guilt or perverse. (Para 35, 36) B. Uttar Pradesh Police Officers of Subordinate Rank (Punishment and Appeal) Rules, 1991 - Appendix-1 of Rules, 1991 - Appendix-1 of the Rules, 1991, specifically provides that the Inquiry Officer may recommend the proposed punishment after concluding the departmental proceedings. The proviso to this Appendix provides that the Inquiry Officer may also, separately from these proceedings, make his own recommendation regarding the punishment to be imposed on the charged police officer. (Para 32)
Title: State of U.P. & Ors. Vs. RAJ KUMAR SINGH
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Suneet Kumar,Rajendra Kumar-IV
English hearing
WRIA/49679/2003 Judgment/Order Date: 29-03-2023 (2023) 5 ILRA 1537
HEADNOTE hearing
A. Civil Law - Service Matter - Disciplinary Proceeding - Government Servant (Discipline and Appeal) Rules, 1999, Rule 7. Issue: If the procedure for a major penalty was initiated, is it mandatory to conduct a regular enquiry and further provide an opportunity of oral evidence to the concerned employee? Held: Once the procedure is started for a major penalty, the same has to be completed as provided in the Rules, and if the same is left midway, the enquiry proceeding shall be vitiated. Once the enquiry proceeding is vitiated, no penalty, either major or minor, can be imposed upon the employee. (Paras 24, 25) Petitioner was suspended by the disciplinary authority under the contemplation of a disciplinary proceeding invoking provisions contained under Rule 7 of the Government Servant (Discipline and Appeal) Rules, 1999, for imposing a major penalty. Enquiry Officer served charge sheet. Petitioner submitted his reply/explanation denying all the charges made in the charge sheet. Without conducting a regular enquiry and without supplying documents and papers on the basis of which the petitioner was suspended, respondent No.3 ex-parte took the allegations as proved and petitioner was awarded a minor punishment. Held: Enquiry proceeding was initiated after the suspension of the petitioner for imposing a major penalty, but ultimately, without completing the same, a minor penalty was imposed, which was in violation of the Rules as well as the law laid down by the Apex Court. Such an order cannot be sustained in the eye of law. (Para 25) Allowed. (E-5)
Title: MAHENDRA SHUKLA Vs. STATE OF U.P. & ORS.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Prakash Padia
English hearing
A482/3457 /2022 Judgment/Order Date: 03-06-2022 (2022)06ILR A366
HEADNOTE hearing
A) Criminal Law - Code of Criminal Procedure, 1973 -Section 231, 311, 313, 482:- Application for permitting the present accused to cross examine the PW- 3 whose examination-in-chief had already been recorded twenty one year back & also cross-examined in detailed on behalf of other co-accused which was further adopted by the counsel for the present applicant & other co-accused - proceeding pending before Ld. Special Judge (Ayurved Scam Matter), Lucknow since 1997 - rejection of request for recalling PW-3 being found belated & mala fide attempt to stall the trial - just and proper.(Para - 11, 12, 13, 14) (B) Criminal Law - Code of Criminal Procedure, 1973 -Section 231, 311, 313, 482:- Application for summoning the prosecution witnesses whom were mentioned as PWs in charge sheet but are not produced by the prosecution - once prosecution has choose to closed its evidence after producing the witnesses whom they wants - prosecution is not bound to call each and every witnesses - accused has no legal right to seek to recall each and every PWs - Trial Court rightly declined the request. (Para 15, 17, 18) Application (U/s 482) is dismissed. (E-11)
Title: Ashwani Kumar (Mishra) Vs. State of U.P. & Anr.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Ajai Kumar Srivastava-I
English hearing
WRIA/20823/2022 Judgment/Order Date: 16-03-2023 (2023) 5 ILRA 1534
HEADNOTE hearing
Civil Law - Service Matter - Recruitment - Assistant Teachers Recruitment Examination, 2019 - In the online form, petitioners mentioned BTC in place of BTC through distance education mode. Candidature was rejected on the ground that BTC by distance education mode had not been disclosed in the online application form. Issue: Whether the non- disclosure by the petitioners of their eligibility qualification BTC (by distance education) would dis-entitle them to the allotment of the district. Held: Candidates were required to possess BTC irrespective of where and by what mode they had obtained the training qualification. Court found no substance in the submission of the respondents that the petitioners did not disclose in their online application form that they were Shiksha Mitras having obtained the BTC qualification by distance education mode. On account of the said non-disclosure, the software did not identify them as Shiksha Mitras and, consequently, did not extend the weightage admissible to them. In the opinion of the Court, it was due to faulty programming, and since the petitioners had satisfied the eligibility criteria, they could not be denied the appointment. The respondents were directed to include the names of the petitioners in the list of successful candidates for allotment of the districts. (Paras 10, 12, 13) Allowed. (E-5)
Title: Usha Kumar & Anr. Vs. State of U.P. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Ashutosh Srivastava
English hearing
A482/2897 /2020 Judgment/Order Date: 23-05-2022 (2022)06ILR A360
HEADNOTE hearing
Criminal Law - Code of Criminal Procedure, 1973 -Section 173(2), 482 - U.P. Gangsters & Anti-Social Activities (Prevention) Act, 1986 -Section 2, 3(1) - Indian Panel Code, 1860 -Section 120(b), 302, 34, 504, 506:- Application - Validity of Charge sheet, summoning order and for quashing the proceeding of Session Trial under Gangsters Act - Gang chart has been prepared & approved by the Competent Authorities on very same day in a hasty manner and without application of mind - showing only two cases out of which one is not related with accused and in anr. case charge sheet was not forwarded by the police to the court concern as on date - in view of settled law i.e. Gangsters Act cannot be used as weapon to wreak vengeance to harass the accused - Petition allowed - impugned proceedings of session trial as well as Charge sheet & summoning orders are quashed with direction to the competent Authority to proceed against the petitioner as per law. (Para - 5, 8, 9) Application (U/s 482) is allowed. (E-11)
Title: Pradeep Kumar Mishra Vs. State of U.P. & Anr.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Karunesh Singh Pawar
English hearing
WRIB/340/2023 Judgment/Order Date: 28-04-2023 (2023) 5 ILRA 1527
HEADNOTE hearing
Civil Law - Delay Condonation - Limitation Act,1963 - Section 5 - U.P. Consolidation of Holdings Act, Section 11 (1), 48 (1) - Private opposite parties filed an application before A.C.O. seeking mutation on the basis of a Will-Deed allegedly executed by one Sri Bhagauti, the original tenure holder of the property, without impleading the wife of late Bhagauti, stating that she had died whereas she was alive. Consolidation Officer directed that the name of the private opposite parties be entered in the Chak in question. Wife of late Bhagauti was living with the opposite parties and did not know about the aforesaid order, being an illiterate lady; therefore, she could not file any appeal challenging the order dated 26.03.1981. She became aware of the aforesaid order in May 2005 when the behaviour of the private opposite parties became rude towards her. Thereafter, she filed an appeal and revision. Both were dismissed on the ground that there was an inordinate delay of 24 years in assailing the impugned order dated 26.03.1981 passed by the Consolidation Officer. Held: At least one opportunity should have been given to the wife of late Bhagauti so that she could adduce evidence apprising the authority that there was no Will-Deed of her late husband in favour of the private opposite parties. This is not a case wherein the revision should have been decided only on the ground that there was an inordinate delay in assailing the impugned order dated 26.03.1981. Allowed. (E-5)
Title: Smt. Savitri Devi & Anr. Vs. Dy. Director of Consolidation, Varanasi & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Rajesh Singh Chauhan
English hearing
A482/2235 /2022 Judgment/Order Date: 02-06-2022 (2022)06ILR A340
HEADNOTE hearing
Criminal Law - Code of Criminal Procedure, 1973 -Section 173, 482- Indian Panel Code, 1860 -Section 120(b), 201, 204, 415, 420, 463, 467, 468, 471, Information Technology Act, 2000 - Section 66:- Application - for quashing the Cognizance of Suppl. Charge sheet/ summoning order to the extent of Applicant (one of accused) - no further or new evidences were collected by the investigating officer before placing suppl. Charge-sheet in the Court concern - no any evidence either oral or documentary placed before the Trial Court by which specifically assigned any role of applicant to have committed any offence individually or in connivance with other accused persons - no 'quid pro quo' has been established - trial Court materially erred in summoning the applicant taking cognizance without application of its judicial mind - thus impugned summoning order as well as entire subsequent proceeding to the extent of applicant are quashed.(Para - 25, 32, 35, 38) Application (U/s 482) is allowed. (E-11)
Title: Bhavesh Jain Vs. State of U.P.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Vikas Kunvar Srivastav
English hearing
WRIB/1002222/1999 Judgment/Order Date: 03-05-2023 (2023) 5 ILRA 1524
HEADNOTE hearing
Civil Law - U.P. Land Revenue Act, 1901 - Section 218 - Section 218 of the Land Revenue Act h repealed by the U.P. Act No. 20 of 1997 w.e.f. 18.08.1997 - Section 10 of the 1997 Amendment Act - By the impugned order, the Board of Revenue remanded the case for a fresh decision to the Commissioner in accordance with S. 218 of the Land Revenue Act. Held: Following the law laid down in Shri Ram Vs Board of Revenue U.P., Lucknow & ors., 1999 (1) JCLR 1010 and Ravi Shanker Tripathi Vs Board of Revenue, U.P., Lucknow through its Chairman & Ors., 2007 (1) ADJ 23, the Court held that the transitory provision contained in Section 10 of the 1997 Amendment Act saved only those proceedings which were pending before the Board of Revenue. Therefore, the proceedings which were pending before the Commissioner or the Additional Commissioner on 18.08.1997 were required to be decided under the provisions of Section 219 of the amended Act. The impugned order was set aside. Allowed. (E-5)
Title: Kamlesh Kumar Vs. Board of Revenue Lucknow & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Rajesh Singh Chauhan
English hearing
A482/1312 /2022 Judgment/Order Date: 25-03-2022 (2022)06ILR A328
HEADNOTE hearing
Criminal Law - Code of Criminal Procedure, 1973 -Section 156(3), 200, 202, 482 - Indian Panel Code, 1860 - Section 419, 420 - Employee Provident Fund and Miscellaneous Provision Act, 1952 (EPF)-Section 14, 14A, 14AC - Employee St. Insurance Act, 1948 (ESI)- Section 85, 86, 86A, 94 - Insolvency and Bankruptcy Code, 2016 -Section 10, 14, 33, 33(5): - Validity of summoning order & dismissal of revision - complaint case filed by an Employee - without arrayed the company as party - against officers of company which is under liquidation proceeding - for violation of obligations to deposit shares of employee towards EPF & ESI Act, - interpretation of Doctrine of contribution - companies, corporate Houses and Corporations are not immuned from Criminal prosecution - Application allowed - impugned judgment & order set aside - Trial Court directed to proceed accordingly.(Para - 41, 44, 45) Application (U/s 482) is allowed, judgment and order of Trial court is set aside. (E-11)
Title: Uma Shankar Soni & Anr. Vs. State of U.P. & Anr.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Shree Prakash Singh
English hearing
WPIL/415/2023 Judgment/Order Date: 17-05-2023 (2023) 5 ILRA 1521
HEADNOTE hearing
Public Interest Litigation - Removal of illegal encroachment over public utility land - The Court directed the Principal Secretary, Department of Revenue, Civil Secretariat, U.P., Lucknow, to issue necessary directions/directives/circulars to ensure that the public utility land of Gaon Sabha is free from encroachment and that such public utility land is utilized only for the purpose for which it has been recorded in the revenue records. Allowed. (E-5)
Title: Sadaram Vs. State of U.P. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Rajesh Singh Chauhan
English hearing
FAPL/43/2023 Judgment/Order Date: 23-01-2023 (2023) 5 ILRA 1518
HEADNOTE hearing
Civil Law - Family Courts Act, 1984- Section 10 - Hindu Marriage Act, 1955 - Section 13 - Divorce Petition - Power of attorney - Whether wife can appoint her father to do pairvi of the Divorce Petition on her behalf, through special power of attorney? - Held - Safeguard noted in Syed Wasif Husain Rizvi Vs Hasan Raza Khan & 6 others, AIR 2016 All 5, would generally apply to power of attorney filed in court proceedings on behalf of the principal/donor or on behalf of a party to a lis. Power of attorney by which the donor authorises the donee must be brought on the record and must be filed together with the petition/application; The affidavit which is executed by the holder of a power of attorney must contain a St.ment that the donor is alive and specify the reasons for the inability of the donor to remain present before the Court to swear the affidavit; and The donee must be confined to those acts which he is authorised by the power of attorney to discharge. In the event the Court requires oral evidence, that can be ensured through video conference. (Para 11, 12, 14) Allowed. (E-5)
Title: SMT. MONICA SARAVANAN Vs. R. SARWANAN
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Suneet Kumar,Rajendra Kumar-IV
English hearing
FAFO/944/2018 Judgment/Order Date: 06-04-2023 (2023) 5 ILRA 1513
HEADNOTE hearing
A. Motor Accident Claim - Deceased Age - Appellants asserted that the age of the deceased was 19 years at the time of the accident. Original copy of the school leaving certificate of the deceased was produced. PW-1 testified that the age of the deceased was 19 years, which could not be shaken during the cross- examination. School leaving certificate was not impeached by the respondents. Trial Court, however, relied on newspaper cuttings, the F.I.R., and the post-mortem report and recorded that the age of the deceased was 16 years. Held: Newspaper reports could not be considered admissible evidence in the facts of the case. The entry in the column of the post-mortem report is not conclusive proof of the age of the deceased. Finding of the Trial Court on the age of the deceased was perverse and liable to be set aside. Age of the deceased was held to be 19 years. (Para 9, 10, 11, 12) B. Motor Accident Claim - Deceased Income - Deceased worked as an employee in an aluminum workshop. Reliable guides to determine income in such cases are the minimum wages notified by the appropriate government from time to time. A worker in an aluminum workshop possesses various skills, often acquired on the job. Workmen in this category may not have formal qualifications, but their technical skills cannot be doubted. It is due to these skills that they render useful work and are retained in establishments.The Court held that the deceased was a skilled workman whose job was of a perennial nature, and he was drawing regular monthly wages. The monthly wages of the deceased were fixed at Rs. 5,000/-. (Para 21, 22, 23) Allowed. (E-5)
Title: Smt. Meena & Ors. Vs. U.O.I. & Anr.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Ajay Bhanot
English hearing
FAFO/719/1997 Judgment/Order Date: 21-03-2023 (2023) 5 ILRA 1510
HEADNOTE hearing
Motor accident claim - Accident occurred on 14.05.1985. Deceased was a 25-year- old labourer (rajmistri) earning Rs. 1050/- per month. He was survived by his father, widow, and two minor children - a son and a daughter. Held: The father, brother, and sister cannot be granted non- pecuniary damages when the wife, falling under Class-1 heirs, is the recipient of the benefits. Income of the deceased was considered to be Rs. 750/- per month. As the deceased was 35 years old, 40% was added towards future loss of income, 1/3rd was deducted for personal expenses, and a multiplier of 18 was applied considering the age of the deceased. Additionally, Rs. 50,000/- was granted for non-pecuniary damages. Insurance company was held liable to pay interest from the date of filing of the claim petition, irrespective of when it was joined as a party respondent. Interest was awarded at 7% per annum from the filing of the claim petition until the judgment of the tribunal, and thereafter at 6% per annum on the awarded amount. (Para 9, 10) Allowed. (E-5)
Title: Sri Hoti Lal & Ors. Vs. Lakhpat Singh & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Kaushal Jayendra Thaker
English hearing
WRIC/58632/2017 Judgment/Order Date: 09-05-2023 (2023) 5 ILRA 1504
HEADNOTE hearing
Civil Laws - Constitution of India, 1950 - Article - 226, 227 - Public Premises Eviction of Unauthorized Occupants Act, 1971 - Sections 9 & 83(9) - Application to issue appropriate direction permitting the petitioner to get the premises vacated from the respondents who have attained age of superannuation and no longer associated with petitioner - by placing reliance upon a judgment of the Apex Court in case of 'LIC vs Nandini J. Shah' respondents pleaded that writ petition under Article 226 is not maintainable - court finds that, either sitting in jurisdiction under Article 226 or under 227 court cannot ignore the fact that respondents are occupying official accommodations, which they claim to be associated with their services and therefore, admittedly, those who have attained the age of superannuation, cannot be allowed to remain in occupation in the accommodations, irrespective of the nature of their services or even on the ground that certain sums allegedly payable to them remain unpaid to them - held, the High court, in whatever jurisdiction it sits, always functions on the basic principles of equity, fairness and reasonableness, and therefore, the stand of the petitioner needs consideration and cannot be ignored merely on the ground that the writ petition finally has to be heard either under Article 226 or Article 227 - hence, writ petition allowed - directions issued to vacate the premises and hand over peacefully.(Para - 20, 21, 22) Writ Petition Dismissed. (E-11)
Title: Bharat Heavy Electricals Ltd. Vs. Deepak Kumar & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Kshitij Shailendra
English hearing
WRIC/45294/2010 Judgment/Order Date: 20-04-2023 (2023) 5 ILRA 1499
HEADNOTE hearing
Civil Laws - Constitution of India, 1950 - Article - 226 - Stamp Act, 1899 - Sections 47, 47-A, 47(a)(3), 47-A/33, 48-A, 56(1- A) & 56(2) - UP Stamp Valuation of Property Rules, 1997- Rule 7, 7(2)(c), 7(3)(C) - Sale deed of an agricultural land - notice for deficiency in Stamp duty while accepting a complaint that, agricultural plot was purchased but with two storied house, valuation of which was not included - recovery citation - Appeal - with a specific plea that no any independent inquiry or inspection was conducted before issuing impugned recovery order - appeal rejected - writ petition - undoubtedly, as recorded in order of Commissioner himself such a request was made by the petitioner in appeal preferred by him - When such a request is made then, it is mandatory upon authorities concerned to exercise powers conferred under Section 7(3)(c) of Rules and inspect property after giving due notice to parties and only then proceed with matter - in case aforesaid exercise has not been conducted valuable right vested in person who is put under notice is lost and valuable right cannot be exercised by him and procedure as prescribed is required to be followed in letter and spirit - and not inspecting property even after application made by petitioner is clearly arbitrary and illegal - hence, mater is remitted back to the Additional District Magistrate who shall proceed in the matter afresh in accordance with law - direction issued - accordingly, writ petition is allowed. (Para - 13, 15, 16) Writ Petition Dismissed. (E-11)
Title: Anil Kumar Gupta @ Rajendra Gupta & Ors. Vs. State of U.P. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Alok Mathur
English hearing
WRIC/41480/1999 Judgment/Order Date: 19-04-2023 (2023) 5 ILRA 1495
HEADNOTE hearing
Civil Laws - Constitution of India, 1950 - Article - 226 - Electricity Act, 1910 - Section 26(vi), - Arbitration Act, 1996 - Section - 34 - writ petition - assailing the impugned order by which the Special Judge EC Act, allowing the application preferred u/section 34 of the Arbitration Act, moved by the respondents department - an agreement between the parties for supply of electricity for a sanctioned load - petitioner challenged the electricity bills raised by the respondent, citing section 26(vi) of the EC Act, which required referral to an Electrical Inspector in case of defective meters - civil suit pending - Court finds that, the specific provision u/section 26(6) of the Electricity Act, 1910 prevails over the general arbitration clause in the agreement, and therefore, the matter should be referred to the Electrical Inspector for resolution - held, the dispute should be resolved by the Electrical Inspector as per Section 26(6) of the Electricity Act, 1910, and directed the petitioner to withdraw the civil suit and approach the Electrical Inspector for resolution - direction issued accordingly, writ petition is disposed of. (Para - 13, 14, 15, 16) Writ Petition Disposed of. (E-11)
Title: M/s Shalimar Paper Mills Pvt. Ltd., Muzaffarnagar Vs. Spl. Judge/E.C. Act, Muzaffarnagar & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Alok Mathur
English hearing
WRIC/34819/2022 Judgment/Order Date: 17-04-2023 (2023) 5 ILRA 1492
HEADNOTE hearing
Civil Law - Constitution of India, 1950 - Article - 226 - UP Educational Institutions (Prevention of Dissipation of Assets) Act, 1974 - Section - 5: - Writ Petition - against impugned order passed by DM, declined to transfer of the land from an intermediate college to a degree College - court finds that, for transfer of land, permission under section 5 of the Act, not been obtained - held, the provisions of the Act, 1974 are mandatory in nature and transfers of land made in transgression of said provisions are void ab initio - hence, court upheld the impugned order and remitted the matter to the Director of Education, Lucknow to decide the representation for transfer of land assets in accordance with law within a period of three months - writ petition, disposed of. (Para - 6, 12) Writ Petition Disposed of. (E-11)
Title: Committee of Management, Maharshi Dayanand Saraswati Vaidik Siksha Samiti, Meerut & Anr. Vs. State of U.P. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Ajay Bhanot
English hearing
WRIC/31340/2017 Judgment/Order Date: 10-05-2023 (2023) 5 ILRA 1490
HEADNOTE hearing
Writ Petition - for direction to the authority - to allot the Fair Price Shop in pursuance of a proposal of the Gaon Sabha which was in favour of the petitioner - complaint - said proposal was passed without confirmation and signature of the Pradhan - court finds that, there is a statutory provision for proceedings of the meetings, a proposal which has not been confirmed and signed by the Pradhan, it cannot be said to be a valid proposal and the proposal made therein would be valid - held, no direction can be issued for taking decision in pursuance of the said proposal which has not been confirmed and singed by the Pradhan, therefore it cannot be acted upon - consequently, writ petition dismissed. (Para - 10, 12) Writ Petition Dismissed. (E-11)
Title: Hari Sagar Tiwari Vs. State of U.P. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Rajnish Kumar
English hearing