A227/4747/2024 Judgment/Order Date: 03-10-2024 (2024) 10 ILRA 345  

HEADNOTE hearing

Civil Law - Code of Civil Procedure,1908 - Order VII, Rule 11 C.P.C. - Rejection of plaint - A plaint can be rejected under Order VII, Rule 11 (a) C.P.C. where it does not disclose any cause of action. Under Order VII, Rule 11 (d) C.P.C., a plaint can be rejected where the suit appears "from the statement in the plaint" to be barred by any law. For rejecting a plaint under the aforesaid provisions, only the statements made in the plaint have to be examined. Statement in defence cannot be considered for deciding an application under Order VII, Rule 11 C.P.C. Plea regarding concealment of fact, discrepancy in the description of boundaries of the property, or necessary or proper party is not to be decided while deciding an application under Order VII, Rule 11 C.P.C. If any fact has been concealed, it can be brought to the court's notice by the defendants by filing a written statement and presenting evidence in support thereof, and the same can be adjudicated at the appropriate stage. It will not give rise to rejection of the plaint under Order VII, Rule 11 C.P.C. A mere discrepancy in the description of boundaries of the property in dispute, as given in the plaint and in the site plan, does not attract any of the clauses of Order VII, Rule 11 C.P.C. for rejection of the plaint. Plea that the Gaon Sabha is a necessary or proper party can be raised before the learned Trial court at the appropriate stage and need not be examined while deciding an application under Order VII, Rule 11 C.P.C. In the instant case, plaintiffs stated that they have purchased the suit property through a registered sale deed and that the defendant is creating hindrance in the enjoyment of the property. Court held that the plaint discloses a cause of action and cannot be rejected under Order VII, Rule 11 C.P.C. (Para 13, 14, 15) Dismissed. (E-5)

Title: Santram Vs. State of U.P. & Ors.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Subhash Vidyarthi

English hearing

WRIC/15271/2009 Judgment/Order Date: 22-10-2024 (2024) 10 ILRA 340  

HEADNOTE hearing

Estoppel-The land i.e. arazi no. 297 been released from being surplus land-therefore all subsequent proceedings would be non est- the St. itself has taken an alternate land of original tenure holder as surplus land -the respondent authorities itself by order dated 27th April 1979 and 5th November 1981 has accepted that land of petitioner cannot be a surplus land- therefore, the respondent authorities are estopped from raising question on validity of sale of land at this stage- the lease granted in pursuance to the aforesaid declaration of surplus-no right would accrue in favour of respondent no. 8. W.P. allowed. (E-9)

Title: Smt. Maya Devi Vs. State of U.P. & Ors.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Vikram D Chauhan

English hearing

WRIA/12611/2024 Judgment/Order Date: 01-10-2024 (2024) 10 ILRA 332  

HEADNOTE hearing

A. Service Law - UP Education Service Section Commission Act, 2023 - Establishment of an unified Commission - Object - Idea for setting up a unified commission was due to the difference in the level of efficiency related to selection by the above named Commission/Institution, as the quality of selection of teachers was affected, there was no uniformity in the process of selection, timely selection of teachers was not being done, and there were several vacant posts of teachers in various institutions, which adversely affected the education/training of the students/trainees in the St.. (Para 6) B. Service Law - UP Education Service Section Commission Act, 2023 - Section 31 - Repeal and Saving clause - UP Secondary Education Service Selection Board Act, 1982 - C/M had already sent the requisition to the Board in the year 2019 - Sub-section (2) of Section 31, which is a non obstante clause, saves all those action taken and proceedings initiated under Act of 1982, and it shall be deemed to have been done or taken under the Act of 2023. The saving clause of Section 31 clearly saves all the action which were done pursuant to the Act of 1982 - Additional Director did not have the power to proceed with the single transfer taking benefit of the proviso to sub-rule (5) of Rule 28. (Para 18, 19 and 23) Writ allowed. (E-1)

Title: Rajiv Kumar Vs. State of U.P. & Ors.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Rohit Ranjan Agarwal

English hearing

WRIA/3827/2023 Judgment/Order Date: 17-10-2024 (2024) 10 ILRA 327  

HEADNOTE hearing

A. Service Law - UP Government Servants (Discipline & Appeal) Rules, 1999 - Rule 7 - GO dated 19.07.2022 & 16.08.2022 - Enquiry proceeding was kept pending for five years - Chargesheet issuing authority and punishing authority is the same person - Effect - Principle of Natural justice and Principle of Bias - 'One cannot be judge in his own case - Applicability - Held, failure to observe the principle that no person should adjudicate a dispute which he/she has dealt with in any capacity, creates an apprehension of bias - Entire disciplinary proceedings as well as the appeal has been decided contrary to the settled cannons of settled principles of natural justice and was clearly hit by the principles of bias . (Para 11 and 13) B. Maxim ' nemo debet esse judex in propria causa' - Meaning - No one can be a Judge in his own cause. (Para 10) Writ petition allowed. (E-1)

Title: Wasi Ahmad Vs. State of U.P. & Ors.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Alok Mathur

English hearing

WRIA/3561/2023 Judgment/Order Date: 01-10-2024 (2024) 10 ILRA 315  

HEADNOTE hearing

A. Civil Law - Constitution of India,1950- Article 226-The petitioner's candidature for the position of Police Constable in Uttar Pradesh was rejected by the Deputy Commissioner of Police, Varanasi citing a criminal case against him despite his subsequent acquittal-The case pertains to allegations u/s 498A,323,504,506 &  ¾ D.P. Act-this rejection was challenged - Held, the court criticized the mechanical approach of rejecting candidates based solely on pending or resolved criminal cases, especially in light of societal issues such as false implications in section 498A- the court emphasized that trivial incidents or social disputes should not permanently disqualify a person from public employment if they demonstrate otherwise clean antecedents-the court quashed the order of rejection and issued a mandamus directing the Deputy Commissioner of Police to reconsider the case within three weeks.(Para 1 to 21) The writ petition is allowed. (E-6)

Title: Siddharth Singh Vs. State of U.P. & Ors.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: J.J. Munir

English hearing

CRLR/4411/2023 Judgment/Order Date: 16-10-2024 (2024) 10 ILRA 308  

HEADNOTE hearing

Criminal Law - Code of Criminal Procedure,1973 - Section 156(3)- Applicant/victim moved application u/s 156(3) Cr.P.C. -dismissed-impugned-case of outraging modestly of a woman and criminal intimidation etc.- dismissed the application on the basis of preliminary inquiry report submitted by the police, in which no Statementof witnesses was recorded-placing reliance on police report submitted in favour of the proposed accused is neither desirable nor lawful-impugned order set aside. Revision allowed. (E-9)

Title: Sarita Sharma Vs. State of U.P. & Anr.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Ram Manohar Narayan Mishra

English hearing

CRLR/2998/2023 Judgment/Order Date: 18-10-2024 (2024) 10 ILRA 299  

HEADNOTE hearing

Criminal Law - Code of Criminal Procedure,1973 - Section 397/401- Revisionist moved an application under Section 145 Cr.P.C. -claim as owner in possession in disputed land-opposite parties were trying to grab the disputed land and prepared to engage in violent acts- initiated action under Section 107, 116 Cr.P.C. - the same is liable to be attached in proceedings under Section 145 Cr.P.C- finding of fact recorded by learned trial court cannot be disturbed or replaced by new finding of fact by revisional court unless the same appears to be perverse. - the finding is based on a due appreciation of material on record-Civil Suit is pending between the parties -but no ad-interim order or temporary injunction has been passed therein-The learned Executive Magistrate has released the property in dispute in favour of opposite party, until a contrary order or an order with regard to title and possession of disputed property is passed by a competent court-no infirmity in the impugned order. Revision dismissed. (E-9)

Title: Vinod Kumar Shukla & Anr. Vs. State of U.P. & Ors.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Ram Manohar Narayan Mishra

English hearing

CRLP/11077/2024 Judgment/Order Date: 03-10-2024 (2024) 10 ILRA 291  

HEADNOTE hearing

Criminal Law - U.P. Gangster and Anti Social Activities (Prevention) Act, 1986 - Section 3(1) - U.P. Gangster and Anti- Social Activities (Prevention) Rules, 2021 - Rule 4(2) - Quashing of FIR - Impugned FIR was registered u/s 3(1) of Gangster Act without mentioning corresponding provision of Section 2(b) of Gangster Act - Base case was registered u/s 60,63 of Excise Act and Sections 419, 420, 307, 467, 468, 471 IPC in which charge-sheet was filed on 14.02.2020 and there was no material to show that base case comes within purview of Gangster Act, though the same was punishable under Excise Act and IPC and charge sheet was filed more than three years back, therefore, bar of proviso of Rule 4(2) was applicable and petitioner couldn't be named as a member of gang on basis of base case mentioned in gang chart. (Para 20) Court observed that if Gangster Act was imposed against a person and charge- sheet was filed then any subsequent illegal activities falling within Sub-section (i) to (xxv) of Section 2(b) of Gangster Act would come within purview of Gangster Act, if there was supporting material regarding his involvement in activities of a gang and in that case the Gangster Act could be imposed, even after three years. (Para 21) Writ Petition allowed. (E-13)

Title: Sukarmpal @ Amit Jat Vs. State of U.P. & Ors.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Vivek Kumar Birla,Arun Kumar Singh Deshwal

English hearing

CRLP/8151/2024 Judgment/Order Date: 25-10-2024 (2024) 10 ILRA 282  

HEADNOTE hearing

Criminal Law - Indian Penal Code,1860- Two FIR lodged against the Petitioner-alleged that both are on same cause of action-Initial FIR was lodged on 15.10.2024 by the Police official for general information regarding incident which happened during the immersion procession of Devi Durga idols where one person was shot - as a result the crowd got angry and destroyed the shops of other community-whereas the second FIR was lodged on 18.10.2024 at 05:11 pm by the sitting MLA of Mahasi Constituency for the incident where the named accused along with others were holding Dharna Pradarshan with the body of the deceased victim and not letting the Authorities carrying out their public duties regarding autopsy of the deceased. "Consequence test" -if an offense forming part of the second FIR arises as a consequence of the offence alleged in the first FIR-then the offences covered by both the FIRs are the same and second FIR is impermissible. Prima facie second FIR is not part of the same transaction. W.P. dismissed. (E-9)

Title: Pundrik Kumar Pandey @ Pundrik Pandey Vs. State of U.P. & Ors.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Sangeeta Chandra,Mohd Faiz Alam Khan

English hearing

WRIC/1001034/2015 Judgment/Order Date: 15-10-2024 (2024) 10 ILRA 273  

HEADNOTE hearing

(A) Societies and Associations Law - Membership of Apartment Owners Association - Societies Registration Act, 1860 - Section 24, Uttar Pradesh Apartment (Promotion of Construction, Ownership, and Maintenance) Act, 2010 - Section 3(e), Section 14(1) & (2) - All apartment owners have a statutory right to become members of the apartment owners' association under Section 14 of the U.P. Apartment Act - Deputy Registrar has jurisdiction to direct compliance with statutory provisions regarding membership - Ownership of flats for the purpose of membership of the society is to be determined only on the basis of proof of execution of sale deed of the flat, which can easily be done by the Deputy Registrar. (Para - 20 to 24) Petitioners challenged order passed by Deputy Registrar - directing that all flat owners be inducted as members of Garden View Owners Welfare Association - deposit maintenance amount in the society's account - dispute arose after complaints from flat owners - alleging - mismanagement and exclusion from membership. (Para 3-8) HELD: - Petition lacks merit. All apartment owners in the building have a statutory right to become members of the welfare association. Deputy Registrar acted within his jurisdiction. No illegality in the impugned order. (Para 22,28-29) Petition dismissed. (E-7)

Title: Garden View Owners Welfare Assc. Thru Secy. & Anr. Vs. The Dy. Registrar Firms Societies & Chits Lko. & Ors.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Subhash Vidyarthi

English hearing

WRIC/24737/2023 Judgment/Order Date: 03-10-2024 (2024) 10 ILRA 266  

HEADNOTE hearing

Civil Law - Land Revenue Act, 1996 - Sections 48 & 49 - The Uttar Pradesh Land Revenue (Survey and Record Operations) Rules, 1978 - Area under record or survey operation - An order passed by the Assistant Record Officer in an appeal under Rule 27(3) of the Survey Rules, 1978, against the order of the Survey Naib Tahsildar under Rule 26(1), can be challenged by filing a statutory revision under Section 219 of the Land Revenue Act before the Record Officer. Such an order of the Assistant Record Officer in an appeal under Rule 27(3) cannot be challenged in a revision before the Commissioner. In matters related to survey and record operations, the Commissioner has no role. The scheme of the Act with regard to revision of maps and records as contained under Chapter IV of the Land Revenue Act does not contemplate any control over the record operations by the Divisional Commissioner. Under Section 49, it is the Record Officer appointed by the State Government who is in charge of the record operations so long as the area is under the record or the survey operations upon notification having been issued under Section 48. (Para 28) Disposed off. (E-5)

Title: Mahatam Sharma Vs. State of U.P. & Ors.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Yogendra Kumar Srivastava

English hearing

WRIC/8666/2024 Judgment/Order Date: 04-10-2024 (2024) 10 ILRA 260  

HEADNOTE hearing

A. Civil Law - Contents of the show-cause notice - Purpose of serving of show-cause notice is to make the noticee understand the precise case set up against him, which he has to meet. Show-cause notice must contain the statement of imputations detailing out the alleged breaches and defaults he has committed, so that he gets an opportunity to rebut the same. It is equally important to mention as to what would be the consequence if the noticee does not satisfactorily meet the grounds on which an action is proposed. A show- cause notice should meet the following two requirements, viz.: (i) The material/grounds to be stated which, according to the department, necessitates an action; (ii) Particular penalty/action which is proposed to be taken. (Para 13) B. Indian Stamp Act, 1899- Section 47-A - Show-cause notice - In the instant case, two cases under Section 47-A of the Indian Stamp Act, 1899, were instituted on the basis of two similarly worded notices dated 07.10.2022, stating that sale deeds were executed in favour of the petitioner and it had come to light that there was a deficiency in payment of the sale. Nothing further was stated in the notices regarding the basis of satisfaction that there was a deficiency in the payment of stamp duty. The notices do not even mention the amount of deficiency in the payment of stamp duty or any other particulars. Held - The show-cause notice does not serve any purpose, as, in the absence of the particulars in the notice, the noticee cannot submit a proper reply to the notice. (Para 14) C. Stamp Duty - Recovery of deficient stamp duty - Uttar Pradesh Stamp (Valuation of Property) Rules, 1997, Rule 7(3)(c) - Collector may inspect the property after due notice to parties to the instrument. Report of any inspection which has not been conducted in accordance with the provisions of Rule 7(3)(c) of the 1997 Rules cannot form the basis of an order for recovery of deficient stamp duty. (Para 16) D. Indian Stamp Act, 1899 - Recovery of deficiency in payment of registration fee - There is no provision in the Indian Stamp Act, 1899 empowering the authorities to order recovery of any deficiency in payment of registration fee, and in absence of any statutory provision, the authorities cannot pass any order for recovery of deficiency of registration fee in proceedings instituted under the Indian Stamp Act. (Para 17) Allowed. (E-5)

Title: Bindu Singh Vs. State of U.P. & Ors.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Subhash Vidyarthi

English hearing

WRIC/7170/2024 Judgment/Order Date: 18-10-2024 (2024) 10 ILRA 249  

HEADNOTE hearing

Civil Law - U.P.Panchayat Raj (Removal of Pradhan, Up-Pradhan and Members) Enquiry Rules, 1997 - Rule 6 & 7- Impugned order-removal of the Petitioner from the post of Pradhan-passed on the basis of an enquiry report -which is a spot inspection report-enquiry conducted against the petitioner was in utter violation to the Rules 6 and 7 of the Rules of 1947-petitioner was never issued a charge sheet and was not called upon by the Enquiry Officers to submit his reply to the charge sheet-impugned order quashed. W.P. allowed. (E-9)

Title: Smt. Sangeeta Devi Vs. State of U.P. & Ors.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Manish Kumar Nigam

English hearing

WRIC/7164/2024 Judgment/Order Date: 04-10-2024 (2024) 10 ILRA 236  

HEADNOTE hearing

A. Civil Law - Constiution of India,1950- Article 226-U.P. Intermediate Education Act,1921-Section 16(-D(4)-allegations of commercial activities on the educational institution's premises-show cause notices issued with subsequent replies submitted by the petitioner-the final order was passed by Special Secretary who conducted inspection and submitted report-report relied upon by the state government were not shared with the petitioners, denying them an opportunity to respond-Held, the High court quashed the State Government's order appointing an authorized controller to manage the affairs of the petitioner institution -the decision-making authority must provide a fair hearing to the affected party, and the order must be passed by the authority that heard the matter-In this case, the order was passed by the Special Secretary, who neither heard the arguments nor provided the petitioner access to relevant reports,creating procedural impropriety and violating natural justice-The Special Secretary acted as both investigator and adjudicator, this dual role breached the principle of nemo judex in causa sua(no person shall be a judge in their own cause), rendering the decision void due to apprehension of bias-the appointment of an authorized controller under section 16(D)(4) requires quasi-judicial decision- making, therefore adherence to procedural fairness and impartiality is mandatory-The impugned order is set aside and matter remanded to the State Government for a fresh decision in compliance with natural justice within three months.(Para 1 to 47) .(E-6)

Title: C/M Ram Bharose Maiku Lal Inter College Thru Manager Sri Shree Kant Sahu & Anr. Vs. State of U.P. & Ors.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Alok Mathur

English hearing

WRIC/6354/2022 Judgment/Order Date: 18-10-2024 (2024) 10 ILRA 226  

HEADNOTE hearing

Civil Law - Family Court Act,1984 -Section 10-Writ of prohibition restraining the respondent Family Court to proceed with Rule 13 C.P.C.- initiated by respondent no. 2- claiming that Family Court has no jurisdiction to entertain a petition under Order IX Rule 13 read with Section 151 of C.P.C;- Section 10 of the Family Court Act provides that the Civil Procedure Code are applicable in proceedings before the Family Court- the Family Court has jurisdiction to entertain an application under Order IX Rule 13 C.P.C. and therefore, no writ of prohibition can be issued to respondent no. 1. W.P. dismissed. (E-9)

Title: Nagendra Sharma & Anr. Vs. Court Of Prin. Judge Family Court Gonda & Anr.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Manish Kumar Nigam

English hearing

SPLA/937/2024 Judgment/Order Date: 15-10-2024 (2024) 10 ILRA 220  

HEADNOTE hearing

A. Education - Admission - LLB three year course - Eligibility -As per Brochure, a student in order to be eligible should possess the graduation degree relatable to the academic session 2016 or thereafter - However, the Law College took admission of 55 students, who did its graduation in the year 2008 - Admittedly no fraud was played by the students to take admission - Fault of the College found proved - Adequate compensation - Determination - Held, the Law College has acted not only in a careless and reckless manner but also exhibited a conduct other than bona fide just in order to enroll and admit students in order to charge fees playing with their future - Division Bench enhanced the monetary compensation from Rs. 30,000/- to Rs. 5,00,000/-. (Para 16 and 17) Special Appeal disposed of. (E-1)

Title: Ajay Kumar Pandey Vs. State of U.P. & Ors.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Manoj Kumar Gupta,Vikas Budhwar

English hearing

SPLAD/551/2024 Judgment/Order Date: 21-10-2024 (2024) 10 ILRA 214  

HEADNOTE hearing

Civil Law - Constitution of India,1950 - Article 226 - UP Intermediate Education Act, 1921 - Section 16-G-(3)- Special Appeal - against dismissal of Writ Petition - filed by the appellant, who is a Teacher in a private School, challenging the impugned order of termination of his services - learned Single Judge dismissed the writ petition on the ground of maintainability of writ petition in view of law laid down by Apex court in St. Mary's Education Society' case - while relying upon another judgment rendered by High Court of Madhya Pradesh at Indore in Vinita's case, plea has been taken that, St. Mary's Education Society's case deals only with the non-teaching employees and the ratio laid down in that case would not apply to the appellant who was a teacher - court while relying upon the judgment of Apex court in Army Welfare Education Society's case which dealt with both teachers and members of non-teaching staff, held that, writ petition filed for challenging the termination of service contract of a teacher working in a private institution will not be maintainable. (Para - 19, 20) Appeal Dismissed. (E-11)

Title: Surya Prakash Mishra Vs. State of U.P. & Ors.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Attau Rahman Masoodi,Subhash Vidyarthi

English hearing

SPLAD/436/2024 Judgment/Order Date: 24-10-2024 (2024) 10 ILRA 205  

HEADNOTE hearing

(A) Service Law - Compassionate Appointment - Uttar Pradesh Dying-in- Harness Rules, 1974 - Indian Evidence Act, 1872 - Section 107 - Burden of proving death of person known to have been alive within thirty years, Section 108 - Burden of proving that a person is alive who has not been heard of for seven years -Presumption of Civil Death after 7 years of disappearance - A declaration of civil death by the civil court under Section 108 of the Indian Evidence Act, 1872 would not lead to a presumption with regard to date and time of death unless proven with evidence - Compassionate appointment can only be claimed if the death occurred during service .(Para - 12,19,20,24) Appellant's father, employed as a peon, went missing on 25.06.2012 - formal complaint was lodged on 27.06.2012 - Despite efforts, he could not be traced - reached age of superannuation on 30.11.2013 - Appellant filed suit for declaration of civil death under Section 108 - civil court declared his father's civil death on 22.04.2022 - but no specific date mentioned - Subsequently appellant sought compassionate appointment - which was rejected by authorities - hence present appeal. (Para 2-7,12) HELD: - Appellant's request for compassionate appointment was rightly rejected since his father, presumed dead only after a seven-year period and a civil court declaration, had already reached the age of superannuation by then. Thus, the compassionate grounds could not be invoked post-superannuation. (Para 24-26) Special Appeal dismissed. (E-7)

Title: Amardeep Kashyap Vs. State of U.P. & Ors.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Rajan Roy,Om Prakash Shukla

English hearing

WTAX/226/2024 Judgment/Order Date: 01-10-2024 (2024) 10 ILRA 201  

HEADNOTE hearing

Civil Law- Code of Civil Procedure-1908- Order XLI Rule 17- Deciding a case ex parte on merits without giving reasonable opportunity to the parties is blatant violation of rule of "Audi alterum partem". In absence of the appellant, the Commercial Tax Tribunal had the authority to dismiss the appeal in default as provided in the Order XLI Rule 17 of the Code of Civil Procedure, 1908 rather than hearing it ex parte and deciding it on merits. (Para 11) (E-15)

Title: M/S Archita Tour and Travels Vs. State of U.P. & Ors.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Alok Mathur

English hearing

WRIC/10523/2024 Judgment/Order Date: 04-10-2024 (2024) 10 ILRA 195  

HEADNOTE hearing

(A) Revenue Law / Procedural Law - The U.P. Revenue Code, 2006 - Section 210 - Revisional Powers, Section 144 - Declaratory Suits, Section 146 - Injunction, Revision is maintainable only if the impugned order amounts to a "suit or proceeding decided" and no appeal lies against it - Jurisdictional error must exist - An order withdrawing an earlier injunction does not dispose of the interim application and hence cannot be termed as a "proceeding decided" under Section 210.(Para - 23 to28 ,35 to 37) Petitioners are tenure holders of land - recorded in revenue records - Private respondents- initiated litigations - filed an application for interim injunction- rejected - Petitioners instituted a declaratory suit - sought an injunction - Ex parte status quo was granted - later withdrawn by Sub-Divisional Magistrate - Private respondents filed a revision against the withdrawal order- allowed - Petitioners challenged revisional order - asserting not maintainable - hence petition. (Para 5 to 11) HELD: - Order against which the revision has been entertained and also allowed, cannot be said to be an order relating to 'suit' or proceeding decided. Revisional order passed by Commissioner legally unsustainable. Impugned order set aside. Interim application to be decided expeditiously, preferably within two months. (Para 37,39-44) Petition Allowed. (E-7)

Title: Mohd. Muslim & Ors. Vs. State of U.P. & Ors.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Yogendra Kumar Srivastava

English hearing

WRIC/8606/2024 Judgment/Order Date: 23-10-2024 (2024) 10 ILRA 178  

HEADNOTE hearing

(A) Contract Law - Debarment in tender process - Request for Proposal (RFP) - Clauses 10.4, 10.5 - Blacklisting and debarment - Tender evaluation - Proportionality of penalty - Debarment is recognised and often used as an effective method for disciplining deviant suppliers/contractors who may have committed acts of omission and commission - It is for the State or the appropriate authority to pass an order of blacklisting/debarment in the facts and circumstances of the case - Debarment is never permanent and the period of Debarment would invariably depend upon the nature of the offence committed by the contractor. (Para -38,39) Petitioner challenged the debarment order - Allegations - incorrect financial proposal - citing calculation errors by the Tender Evaluation Committee - bid was as submitted and denied calculation errors - Petitioner requested upward correction of its bid after being declared H1, which was denied, citing RFP rules.(Para - 2 to 30) HELD: - Respondents' actions were within the scope of RFP clauses, and the petitioner was found non-compliant. Six-month debarment was deemed reasonable. (Para - 40,44 ,45) Petition dismissed. (E-7)

Title: M/s Theme Engg. Services Pvt. Ltd. Vs. National Highway Authority of India & Anr.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Sangeeta Chandra,Brij Raj Singh

English hearing

WRIA/7743/2019 Judgment/Order Date: 16-10-2024 (2024) 10 ILRA 166  

HEADNOTE hearing

A. Service Law - UP St. Law Commission Act, 2010 - Section 4 - UP St. Law Commission (Salaries and Allowances and Conditions of Service of Chairperson) Rules, 2011 - Rules 4, 5 & 14 - Pension - Retired from the post of Chairman of UP St. Law Commission - Entitlement of interest on delayed payment - Held, payment of pension is a statutory right arising from services rendered. That right existed from before. Since there was no conduct offered by the petitioner as may have delayed the computation and payment of higher pension to which he was entitled and since there never existed any legal impediment or doubt in that payment, we find the stand of the St. Government untenable insofar as interest has not been paid on arrears of correct pension computed with delay. The St. must compensate for the loss of time in making the due payment - High Court issued direction to pay interest @ 8%. (Para 22 and 42) B. Service Law - High Court Judges (Salaries and Conditions of Service) Act, 1954 - Sections 2(g), 2(gg) & 17A - Family pension - Entitlement of the spouse of retired Chairman of Law Commission - Held, under the Judges Act and the Judges Rules 'family pension' is included in 'pension' entitlement - 'Pension' payable to a Chairperson of a St. of Law Commission necessarily includes within it the 'family pension' that may become payable to the spouse of such Chairperson, if that contingency arises - Held further, while the petitioner demitted office as a Judge of this High Court, he became entitled to receive and is receiving higher pension than payable to a retired Judge of a High Court by virtue of his having served as a Chairperson of the St. Law Commission, upon application of Section 4(5) of the Act read with Rules 4(5) of the Rules read with the Judges Act and the Judges Rules - Spouse of the petitioner may not be treated differently with respect to the payment of family pension - High Court issued direction to make necessary provision in the Pension Payment Order of the petitioner with respect to the family pension entitlement in favour of the spouse of the petitioner. (Para 33, 35, 38 and 42) C. Interpretation of Statute - Rule of purposive construction - No word of the legislature may be interpreted by Courts as may render the same meaningless or otiose. (Para 27) D. Interpretation of Statute - Literal Rule - Golden rule of construction - Each word and phrase used by the legislature must first be given its natural meaning and that natural meaning must always be given full effect, unless the context may otherwise require. (Para 29) Writ petition allowed. (E-1)

Title: Justice Vinod Chandra Misra Vs. State of U.P. & Ors.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Saumitra Dayal Singh,Donadi Ramesh

English hearing

WRIA/7622/2024 Judgment/Order Date: 16-10-2024 (2024) 10 ILRA 162  

HEADNOTE hearing

A. Service Law - UP Dying in Harness Rules, 1974 - Rule 5 (1) - Compassionate appointment - Mother of deceased was already in Government Service - Effect - Held, appointment on compassionate ground is not a source of recruitment but merely an exception to the requirement regarding appointment on merits. The basic premise behind compassionate appointment is the word "compassion". It is to be provided when the family of the deceased employee is deprived of the means of livelihood and its object is to enable the family to get over the sudden financial crisis - The mother of the petitioner is also a government servant and thereby the family is not deprived of means of livelihood. (Para 12 and 13) Writ petition dismissed. (E-1)

Title: Akash Srivastava Vs. State of U.P. & Ors.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Alok Mathur

English hearing

WRIA/7076/2021 Judgment/Order Date: 04-10-2024 (2024) 10 ILRA 26  

HEADNOTE hearing

Civil Law - Service Law - Recruitment - U.P. Jal Nigam (Urban) and U.P. Jal Nigam (Rural) - Segregation of tainted and untainted candidates - Appointment of Unblemished Candidates - Rejection of Tainted Candidates - Corporation annulled the entire selection and appointment of RGC, AE, JE on the ground that entire selection process stood compromised and it was very difficult to trace out and explain as to at what stage and in what manner manipulations had taken place and it was difficult to identify as to who were the untainted candidates. Issue: Whether material discussed in the orders impugned were cogent enough to reach out to a conclusion that entire selection process in respect of vacancies of AE/JE/RGC in question was so much compromised that there left no possibility to segregate tainted from untainted candidates, and was imperative to cancel entire selections and appointments made in respect of those very posts. Held: There was sufficient material available with the respondents especially the CFSL report to hold 169 candidates to be tainted candidates and the order impugned therefore, in respect of untainted candidates set aside. Doctrine of impossibility would not attract, once 169 candidates were found to be only candidates with inflated marks during the forensic examination by the established and recognized Central Forensic Laboratory, Hyderabad, there remains nothing further to undertake any enquiry for segregation of tainted and untainted candidates. No finding either by the SIT or the other two in- house inquiry reports which can be indicative of the fact that any other candidate was indulged in any corrupt practice or tried to influence the selectors to award him/her special marks. There was no sufficiency of material collected on the basis of which satisfaction came to be recorded, nor there was any material to be indicative of fact that any candidate in order to find favour committed any kind of fraud in connivance with or in conspiracy with the selectors. SIT report do not indicate of any widespread and systemic level malpractice. Impugned order quashed and as a consequence the Court restored the appointment orders of all those petitioners, who were untainted (other than 169 candidates) and have found place in the merit list and were given appointments. It was provided that petitioners will not be entitled to any arrears of pay for the period they have remained unemployed, but their seniority shall be restored and so also pay protection shall be granted accordingly with notional increments. U.P. Jal Nigam (Urban) and U.P. Jal Nigam (Rural) each directed to adjust 50% of untainted candidates in their respective departments. The adjustment was to be roster based. (Para 375) Allowed. (E-5)

Title: Samrah Ahmad Vs. State of U.P. & Ors.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Ajit Kumar

English hearing

SPLA/963/2024 Judgment/Order Date: 25-10-2024 (2024) 10 ILRA 18  

HEADNOTE hearing

A. Civil Law - Allahabad High Court Rules- Chapter VIII, Rule 5-Companies Act,1956- Section 483-The assets of M/s Ganga Asbestos Cement Pvt. Ltd. Under liquidation, were auctioned via e-auction in 2022 on an "as is where is and whatever there is" basis-Appellant emerged as the highest bidder with a bid of Rs. 51 crores and was required to deposit the full amount within 60 days from july 26,2023-After failing to meet the initial deadline , she received a one- month extension on 1 december 2023, with a clear warning of no further extensions-on September 2, 2024 the appellant filed another extension application, citing undisclosed defects on the auctioned land-this application was rejected by the Company Judge on 12 Sep. 2024-the respondent stated that auction terms clearly allowed site inspection, which the appellant neglected-Held, the e-auction terms explicitly stated the "as is where is" basis and the appellant had a chance to inspect the property before bidding, failure to deposit the bid amount despite multiple opportunities constituted a breach of obligations-rewriting auction terms to accommodate the appellant's conditions was beyond the court's domain-Hence, the court upheld the rejection of time extension application, emphasizing the appellant's negligence and the binding nature of auction terms.(Para 1 to 28) The writ petition is dismissed. (E-6)

Title: Mrs. Jayshree Kailash Wani Vs. Official Liquidator

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Arun Bhansali,Vikas Budhwar

English hearing

FAFOD/129/2024 Judgment/Order Date: 16-10-2024 (2024) 10 ILRA 12  

HEADNOTE hearing

Civil Law - Motor Vehicle Act, 1988 - Sections 165, 166 & 140 - Condonation of delay - Plea of Pardanashin lady not taken in affidavit filed along with application for condonation of delay, but such was taken in supplementary affidavit without disclosing as to she was Pardanashin lady - Not taken earlier before Tribunal - A litigant, who was negligent that he/she would not inquire for status of case for such a long period in which allegations are against him/her and he/she has put in appearance and filed written St.ment and documents, was not prevented from preferring appeal in time - Appellant failed to show even a single ground for condonation of such a long delay of 3107 days and destroy right of parties - Failed to disclose that who was person on whose shoulder he has put burden of such a long delay even for period of four years after his death, therefore, grounds are nothing but concocted story to get delay of such a long period condoned in matter of accident claim, in which he had contested case throughout and after affording sufficient opportunity of hearing, tribunal passed impugned award. (Para 7, 8, 14) Appeal Dismissed. (E-13)

Title: Ms. Supreme Transport Co., Lucknow Vs. Smt. Suman Devi & Anr.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Rajnish Kumar

English hearing

CRLA/180/2014 Judgment/Order Date: 01-10-2024 (2024) 10 ILRA 4  

HEADNOTE hearing

(A) Criminal Law - Appeal against conviction - Conviction Overturned - Indian Penal Code, 1860 - Sections 302 - Murder - Principle of benefit of doubt - wrongful conviction - material contradictions - tainted investigation - fair trial. (B) Practice & Procedure - Appellant Spent 17 years of actual sentence and 20 years of total sentence with remission without a criminal history, entitled to pre-mature release, but the case has not been processed - No proper investigation was conducted by the police. Acquittal restores innocence, emphasizing need for rigorous investigation and fair trials. (Para - 36H) Appellant was convicted of murder - 17 years of actual imprisonment and 20 years with remission - prosecution relied on witness testimonies that were later found inconsistent - No substantial evidence to connect appellant to the crime - tainted investigation. (Para 1-19) HELD: - Court acquitted Appellant due to material contradictions in prosecution witnesses' statement of informant - PW-1 and eye-witness - PW-6. Appellant's conviction set aside after 17 years due to unreliable witness testimony and tainted investigation. Appellant entitled to benefit of doubt. Conviction and sentence set aside. Appellant released from judicial custody forthwith. (Para - 36,37,38) Appeal allowed. (E-7)

Title: Mahfooz Vs. State of U.P.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Arvind Singh Sangwan,Mohd. Azhar Husain Idrisi

English hearing

A227/4400/2024 Judgment/Order Date: 13-09-2024 (2024) 9 ILRA 1587  

HEADNOTE hearing

Civil Law-The Constitution of India,195 0- Article 227 - The Limitation Act,1963 - Section 5 - The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - Section 17 - Petition for expeditious disposal of Securitisation Application- Securitisation application was filed with a delay of about 939 days while the limitation period prescribed under Section 17 is 45 days---When this Court from a perusal of the record available before it, finds that the DRT has passed orders in violation of well-settled principles of law, the Court, under the power of superintendence conferred by Article 227 of the Constitution of India, not only has the power to set aside those orders but it is also the responsibility of this Court to set aside the orders passed illegally---A persual of Debt Recovery Tribunal's order sheet duly establishes that while condoning the delay of 939 in presenting the petition on 20/08/2024, on the same day opportunity to file objection against the petition against the securitisation application was closed. Before the application under Section 5 of the Limitation Act was accepted, the securitisation application itself was not admitted and therefore in such circumstances accepting the amendment in that application and closing the opportunity to present objection against the application is an action contrary to well- established judicial principles.---Petition is disposed of with the direction that the learned Debt Recovery Tribunal will ensure to take further action after passing an order on the application for review of the order dated 20.08.2024, after giving adequate opportunity of being heard to the parties in accordance with law. (Para 20, 24 & 32) (E-15)

Title: Tejpal Singh Vs. U.O.I. & Ors.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Subhash Vidyarthi

English hearing

SPLA/46/2024 Judgment/Order Date: 02-09-2024 (2024) 9 ILRA 1545  

HEADNOTE hearing

A. Service/Education Law - Essential qualification - The Uttar Pradesh St. Medical Colleges Teachers' Service Rules, 1990 - Minimum Qualification for Teachers in Medical Institution Regulations, 1998. Since the term 'equivalent qualification' was not used in the advertisement, whether the St. Government could have calculated the experience of an Additional Professor as equivalent to that of a Professor and whether this amounted to changing the terms of the advertisement? (i) The Regulations, 1998 consider the posts of Additional Professor and Professor in a Medical College to be equivalent. Therefore, any experience gained as an Additional Professor should be counted towards the required experience for the post of Professor. Notably, it is only after the St. Government determined the equivalency in favour of the Petitioner that the Appellant is attempting to change its position. This shift is not permissible, particularly when no objections were raised before the Hon'ble Single Judge when the direction for determination of equivalence was issued, and especially since the Regulations, 1998 themselves recognize the equivalency between the posts of Additional Professor and Professor in a Medical College. (Para 41, 44) (ii) When an expert body, after considering the relevant Regulations, working conditions, and teaching experience, decides on equivalence, this decision should not be interfered with unless there is a compelling reason to do so. In matters of determining equivalence, the appropriate regulatory authorities responsible for setting qualifications for the posts are the proper entities to make such decisions. Once these authorities have made a decision on equivalence, it should not be challenged by others. The employer is best positioned to decide who should be appointed, and when this decision is supported by an expert body, it should be respected and not interfered with. (Para 45) (iii) The absence of the term "equivalent post" in the advertisement is irrelevant, as the Regulations, 1998 framed by the MCI already establish the equivalence of these two posts. (Para 42) The advertisement must be interpreted in consonance with the Regulations, 1998. If a candidate meets the requirements set out in the Regulations but those in the advertisement differ, the candidate should still be considered eligible, and the statutory requirements should prevail over the advertisement. (Para 43) Since the Regulations 1998 recognized equivalence between these positions and the expert body, after reviewing the relevant Regulations, interpreted the role of Professor as equivalent to that of Additional Professor, this interpretation would not constitute a change to the advertisement's terms by any stretch of imagination. As the Regulations 1998, framed by the MCI, duly recognize the equivalence of the roles of Additional Professor and Professor in a Medical College, and this equivalence has been validated by the expert body, the judgment of the Hon'ble Single Judge is justified and cannot be questioned. (Para 46) B. Whether the rules of the game were changed after the game had begun? (i) The determination of the equivalency between the two posts is merely clarificatory in nature. The Hon'ble Single Judge observed that the orders dated 10.01.2022 and 30.05.2022, issued by the St. Government, which treated the posts in question as equivalent, were consistent with the notifications, guidelines, and clarifications issued by the expert body, i.e. the MCI and its successor-the NMC and were merely clarificatory in nature. (Para 47) (ii) When a candidate participates in a selection process, he/she rightfully expects the recruitment agency to follow the legal requirements. The need for clarification by the St. Government arose because the Respondent Commission was not recognizing or considering the inherent equivalence prescribed in the Regulations, 1998. The orders dated 10.01.2022 and 30.05.2022 issued by the Principal Secretary of the Department of Medical Education, which clarified that the posts of Professor and Additional Professor in a Medical College are equivalent, simply acknowledged an existing situation that was already legally established in the Regulations, 1998. These orders from the St. Government did not create any new rights but merely clarified a right that the Service Commission had not been properly acknowledging. (Para 48) The orders issued by the St. Government, which deemed the posts equivalent, are merely clarificatory and do not alter the rules after the game has begun; instead, they serve as an interpretation of the rules while the game is in progress. (Para 49, 50) C. Whether there was a difference in the grade pay admissible to the posts of Additional Professor and Professor, and whether the two posts could be equated even if there is difference in grade-pay? Differing pay scales do not inherently render two posts "non-equivalent." Equivalence should be assessed based on the similarities in the nature and duties of the positions, as well as the minimum qualifications required for both roles. (Para 53) The St. Government determined the equivalence of the posts of Additional Professor and Professor after considering that the teaching experience required for both posts is identical, the nature of work and responsibilities are the same, and the duration for a teacher to become a Professor in a Government Medical College and an Additional Professor in SGPGIMS is equal. Given these factors, the difference in grade pay is insignificant. (Para 51, 52) The MCI and NMC duly considered the posts of Additional Professor and Professor to be equivalent. The clarification of the St. Government on equivalence was an interpretation of existing rules, which do not amount to changing the rules, and the difference in pay grade alone does not make the posts non-equivalent if other factors are identical, such as duties and qualifications. Therefore, there is no infirmity in the impugned judgment and order dated 22.12.2023, passed by the learned Single Judge. (Para 56) Special appeal dismissed. (E-4) Present special appeal assails the judgment and order dated 22.12.2023, passed by Hon'ble Single Judge in Civil Misc. Writ Petition No. 17887 of 2022.

Title: Dr. Jitendra Singh Kushwaha Vs. State of U.P. & Ors.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Mahesh Chandra Tripathi,Prashant Kumar

English hearing

SPLA/601/2024 Judgment/Order Date: 26-09-2024 (2024) 9 ILRA 1530  

HEADNOTE hearing

A. Service Law - Departmental proceedings - Dismissal - U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 - Rule 14(1) - Whether the dismissal of petitioner from service pursuant to departmental enquiry was justified? In a departmental enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials, which are legally probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. The essence of judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fair play is the basis and if perversity or arbitrariness, bias or surrender or independence of judgment vitiate the conclusions reached, such finding even though of a domestic tribunal, cannot be held good. (Para 27) (i) From brief analysis of the facts of the case, the alleged incident does not inspire confidence at all. The alleged incident is said to have happened at the petitioner's residence. In the departmental enquiry five witnesses were examined. Except Ram Nageena Singh, Sub Inspector, no other witnesses had directly or indirectly supported the occurrence as they were not eye- witnesses. The St.ment of Shri Ram Nageena Singh is also different in the departmental enquiry as well as in criminal trial. One thing is clear that he was not the eye witness of the alleged incident. (Para 26) (ii) The other charge is of absence of two days from duty. If the absence is due to compelling circumstances under which it is not possible to report or perform duty such absence cannot be held to be willful and employee cannot be held to be guilty of misconduct. (Para 28) In the instant case, neither Inquiry Officer nor Appellate Authority found absence of appellant willful. Evidence produced by the appellant to substantiate his claim was ignored by the authorities concerned and on the basis of irrelevant facts and surmises the petitioner was held guilty. (Para 29) Since the charges on which the punishment was invoked even imposed are taken to be correct, what is now left at this belated stage to be considered and examined is, as to whether the punishment imposed was commensurate with the said charges or not. (Para 30) B. Jurisdiction - Irrationality and perversity are recognised grounds of judicial review. The High Court normally does not interfere with the quantum of punishment unless the punishment shocks the conscience of the Court. Normally, it is the disciplinary authority, which should be best left with the duty of imposing the punishment after considering the facts and circumstances of the case. However, it is well settled that in case, if on the admitted facts, the punishment imposed is grossly disproportionate to the offence, which shocks the conscience of the Court, the Court has the power and jurisdiction to interfere with the punishment imposed. (Para 32) In the facts and circumstances of the case, the punishment is found to be disproportionate and unjustified. (Para 33) C. On the facts of the case, what is the effect of acquittal order passed by the trial court in a criminal trial, whereby the petitioner was acquitted? Once the termination order is set aside, the natural consequence is that the employee should be taken back in service and thereafter proceeded with as per the directions. Once the termination order is set aside, then the employee is deemed to be in service. (Para 38) The acquittal in criminal proceeding was after full consideration of prosecution witnesses and prosecution miserably failed to prove the charge and the same can easily be arrived at after reading of judgment in entirety. After examining the factual position, which emerges from the criminal proceeding, it is found that the same witnesses were examined in departmental enquiry, who were examined in the criminal trial. The trial court had acquitted the petitioner-appellant after examining all the prosecution witnesses. (Para 36) The petitioner- appellant was honorably acquitted. The disciplinary proceeding and the orders passed thereon cannot be allowed to stand. The charges were not just the same but identical and the evidence, witnesses and circumstances were all the same. Merely on the basis of two days absence, that so due to ailment, no such major penalty can be inflicted. (Para 37) D. Words and Phrases - "honourable acquittal" - The expressions 'honourable acquittal', 'acquitted of blame' and 'fully exonerated' are unknown to the Criminal Procedure Code or the Penal Code. They are coined by judicial pronouncements. It is difficult to define what is meant by the expression 'honourably acquitted'. When the accused is acquitted after full consideration of prosecution case and the prosecution miserably fails to prove the charges leveled against the accused, it can possibly be said that the accused was honourably acquitted. (Para 35) The orders passed by the disciplinary authority, appellate and revisional authority as well as the judgment passed by the learned Single Judge are not sustainable and the same are accordingly set aside. Consequently, the petitioner-appellant is entitled for reinSt.ment. (Para 40) As the matter is old, at this stage, matter has not been remitted to the authority concerned. Since the petitioner's counsel has not St.d on affidavit as to whether the petitioner-appellant was gainfully working somewhere else or not, petitioner has not been accorded full back wages. The petitioner- appellant is entitled for 25% back wages. Special appeal allowed. (E-4) Present special appeal assails the validity of the impugned judgment and order dated 19.10.2023, passed by the learned Single Judge in Writ-A No. 40893 of 2010.

Title: Constable No. 118 Awadhes Kumar Pandey Vs. State of U.P. & Ors.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Mahesh Chandra Tripathi,Prashant Kumar

English hearing

WRIA/68692/2006 Judgment/Order Date: 25-09-2024 (2024) 9 ILRA 1512  

HEADNOTE hearing

A. Education Law - Extension of maintenance grant - Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971- The Right of Children to Free and Compulsory Education Act, 2009 - Uttar Pradesh Junior High Schools (Payment of Salaries of Teachers and other Employees) Act, 1978. Non-receipt of compensatory grants could not be a ground to exclude the primary section of the Institution, as it would create a class within a class, which had no reasonable nexus with the object sought to be achieved by the scheme. (Para 12) B. In this case, since the Institution is an intermediate college, the question of extension of grant-in-aid to its primary section, that is otherwise claimed to be an integral part of it, has to be decided under the provisions of the Act of 1971, and not the Uttar Pradesh Junior High Schools (Payment of Salaries of Teachers and other Employees) Act, 1978 (for short, 'the Act of 1978'). The position of law that a high school or an intermediate college, which is an institution governed by the Act of 1971, would be regarded as an integral whole and the teachers of its attached primary section, if part of that whole or as it is described in Jai Ram Singh a 'composite integrality', would entitle the teachers of the primary section to salaries paid out of the Exchequer under the Act of 1971. (Para 20) The conclusions in Jai Ram Singh and the orders made w.r.t. the attached primary sections of recognized and aided high schools or intermediate colleges, do not spare a shadow of doubt that the attached primary section of an intermediate college, like the Institution, cannot be denied grant-in-aid, subject to satisfaction of the test of 'composite integrality'. The fact that the attached primary section of the Institution is an integral part of it, has not been seriously disputed by the respondents. Rather, it has not been disputed at all. In the day when the order of this Court was set aside by the Division Bench in Special Appeal Defective No. 1193 of 2013, there was insistence by the St., almost with reverence about the cut-off date, on which permission was granted for attachment to the primary section of an institution, be it a high school or an intermediate college or a junior high school. The only difference in the policy carried in the GOs dated 06.09.1989 and 01.10.1989 on one hand, and the one carried in the GO dated 27.10.2016 on other, was that whereas under the GOs of 1989, the cut-off date for permitting attachment or more than that submitting compensation St.ments in regard to grant for the attached primary sections of intermediate colleges was 01.04.1971, under the GO dated 27.10.2016, the policy spelt out the date for passing an order of attachment as 21.06.1973. (Para 23) This Court is, therefore, of opinion that on the right to receive maintenance grant for the attached primary section of the Institution, the Government concede the position of 'composite integrality' as regards the attached primary section. The attached primary section of the Institution would, therefore, clearly be entitled to receive grant-in-aid already provided to them under the GO dated 09.12.2014, as amended on 15.03.2024. Since the right of children to receive free and compulsory education, who are in the age-group of 6- 14 years, is ultimately the right, that is subject matter of action in this writ petition, we cannot permit the said right to depend upon the mere edifice of an executive order with its inherent vagaries of what is known as policy and the change of which is at times more unpredictable than the weather. The right involved here, which is one belonging to students in the age- group of 6-14 years, must stand on more firm footing. It would require the shadows of the impugned order to be annihilated by this Court out of existence. And, further, a command by us for the continued payment of the maintenance grant to the attached primary section of the Institution. (Para 27) C. Words and Phrases - (i) " institution" - The expression ''institution'' has been defined under the enactment to mean a recognised institution which is receiving a maintenance grant from the St. Government. The expression ''institution'' as defined under the 1971 Act does not exclude a primary section which meets the test of composite integrality with a High School or Intermediate college. The contention that the benefit of the 1971 Act can only apply if all sections of a composite institution are in receipt of financial aid is negated. Teachers of primary sections attached to High Schools and Intermediate colleges, notwithstanding the fact that the said section is not in receipt of financial aid, would be entitled to the benefit of the 1971 Act. (Para 21) (ii) "recognition" - The word ''recognition'' is defined under the 1921 Act to mean recognition for the purposes of preparing candidates for admission to the examinations conducted by the Board. On a conjoint reading of these two provisions it would be evident that an institution is contemplated to be one which holds the requisite permission and authority to admit students desirous of taking the examinations conducted by the Board and is in receipt of a maintenance grant. In light of the construction accorded to Section 2(b) by the Court, it is manifest that a primary section which is a homogenous part of a recognised and aided high school or intermediate institution would fall within the ambit of the 1971 Act. Secondly such a primary section viewed in light of the principle of composite integrality as propounded herein above cannot be understood to be a separate or distinct component. It would, irrespective of the fact that it may not be in receipt of a maintenance grant, remain an integral component of that institution. The teachers of such a primary section cannot therefore be denied the protection of the 1971 Act. (Para 20) Writ petition allowed. (E-4) Present petition assails the order dated 17.11.2006, passed by the Director of Education (Secondary), refusing extension of maintenance grant to the attached primary section of the Digvijay Nath Inter College, Chowk Bazar, Maharajganj.

Title: C/M Digvijay Nath Inter College Vs. State of U.P. & Ors.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: J.J. Munir

English hearing

WRIA/21492/2023 Judgment/Order Date: 30-09-2024 (2024) 9 ILRA 1482  

HEADNOTE hearing

A. Service Law - Salary - U.P. Secondary Education Service Selection Board, 1982 - Sections 18 & 33G(8) - The U.P. Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981 - The action of St. terminating services and stopping salary on 09.11.2023 was against the statutory provisions as well as the dictum of Hon'ble Apex Court. The GO of 09.11.2023 had created the entire chaos in the St. of U.P. as far as regularization of candidates appointed prior to 30.12.2000. (Para 29) In the St. ad hocism has been going on for last 40 years in the aided Institutions. The Government from time to time had inserted various provisions in the Act of 1982 for regularising the services of teachers who were appointed either on ad hoc basis or against a short term vacancy. The candidates had been litigating the matter before this Court either for getting their salary post appointment, or for getting their services regularised. Many of the candidates have been working in these aided Institutions for a long time on the basis of interim order granted by this Court. (Para 24) The last of the provision which was inserted in the Act of 1982 was Section 33-G which has provided the cut off date as 30.12.2000 for consideration of regularization of services of such ad hoc/ short term teachers. The St. authorities had proceeded not to accord consideration for all these teachers who were appointed between the cut off date of 1985 to 2000 on the ground that the ad hocism was to end in the St. as mandated by Hon'ble Apex Court on 26.08.2000. (Para 25) The two issues, one the appointment on ad hoc basis post 2000 and those appointments prior to 2000 have to be dealt with separately by St. authorities keeping in mind the two decisions of Hon'ble Apex Court, one rendered in case of Sanjay Singh (infra), and the other in case of Raghvendra Prasad Pandey (infra). (Para 28) On 26.08.2000, the Hon'ble Apex Court never intended to stop the salary of those candidates who were appointed prior to 30.12.2000 as Section 33-B, 33-C, 33-F and 33-G clearly provided for regularization of all the teachers appointed between the date given in the said sections if the procedure provided therein was complied with. (Para 30) The GO of 09.11.2023 was issued on a wrong premise and the Government had never taken any stand before the Hon'ble Apex Court in case of Sanjay Singh (infra) that the ad hocism was to end for the candidates who were appointed prior to 2000 and neither the St. had brought to the notice of Hon'ble Apex Court the provisions of Section 33-B, C, F and G. (Para 31) From the counter affidavit filed by St. in S.L.P. of Sanjay Singh (infra) it is clear that the St. has accepted before the Hon'ble Apex Court that regularization has been undertaken u/s 33 and case of Sanjay Singh (infra) does not fall for consideration u/s 33 as he was appointed after 2000. (Para 33) B. The St. should not have mixed the two issues of Sanjay Singh and regularization to be undertaken u/s 33, which has resulted into unnecessary litigation before this Court and has caused financial hardship to the petitioners for no fault of theirs. (Para 34) The St. has corrected its stand on 26.09.2024 and has issued a clarification, clarifying the GO dated 09.11.2023. (Para 35) This Court is faced with the task of considering each and individual case on merits, as in most of cases, the regularization Committee has proceeded to reject the regularization of candidates basically on the ground that relevant documents were not placed before it when due consideration was accorded. In many cases, termination has taken place on the basis of Government Order dated 09.11.2023. Learned Additional Advocate General appearing for the St. has clearly conceded to the fact that all those matters which have been rejected by regularization Committee on the basis, that interim order was operating and cannot be considered in terms of Section 33-G(8) needs fresh consideration in the light of the conditions mentioned in the said provisions. (Para 37) Writ petition disposed of. (E-4) Present writ petitions assail orders dated 21.11.2023 and 22.11.2023, passed by District Inspector of Schools, Jalaun at Orai, stopping salary of the petitioner in terms of GO dated 09.11.2023.

Title: Vinod Kumar Srivastava Vs. State of U.P. & Ors.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Rohit Ranjan Agarwal

English hearing

WTAX/1396/2024 Judgment/Order Date: 27-09-2024 (2024) 9 ILRA 1472  

HEADNOTE hearing

Law of taxation - Constitution of India,1950 - Article 226 - The Central Goods and Services Tax Act, 2017- Section 61 -Show cause notice under Section 74 CGST Act,2017 under challenge-previous proceedings under Section 73 CGST Act,2017 already dropped-no allegation of fraud or suppression of facts- notice lacked jurisdiction as it did not specify any fraud, wilful misSt.ment, or suppression of facts, which are necessary to invoke Section 74- show cause notice quashed-possibility of fresh proceedings allowed if necessary conditions are met-petition allowed. (Paras 19, 20, 21, 22, 25,26 and 27) HELD: We take note of the fact that Section 73 of the CGST Act gives power to the adjudicating authority to initiate proceedings for recovery of wrongly availed or utilized Input Tax Credit along with interest and penalty for any reason other than the reason of fraud or any wilful mis- St.ment or suppression of facts to evade tax. It is to be taken note of that Section 73 comes into play in all other circumstances except the cases where Input Tax Credit has been wrongly availed or utilized due to fraud or any wilful misSt.ment or suppression of facts to evade tax. Thus, from bare reading of Section 73 of the CGST Act, it becomes crystal clear that if the proceedings under Section 73 of the CSGT Act have been finalized, they cannot be reopened except the case where the Input Tax Credit has wrongly been availed or utilized due to fraud or any wilful mis-St.ment or suppression of facts to evade tax. (Para 21) We find that proceedings initiated against the petitioner for availing or utilizing the excessive ITC have already been finalized by the Respondent No. 2 and the proceedings were dropped vide order dated 30.12.2023 therefore, the said proceedings could have been reopened under Section 74 of the CGST Act only if the adjudicating authority was prima facie satisfied that the petitioner has availed or utilized Input Tax Credit due to any fraud or any wilful mis- St.ment or suppression of facts to evade tax. The field of operation of Section 73 and 74 of the CGST Act is altogether different i.e. Section 73 operates in all other cases of wrongly availed or utilized Input Tax Credit for any reason other than fraud or wilful mis-St.ment or suppression of facts and Section 74 comes into play when the excessive Input Tax Credit has been availed due to some fraud or wilful mis-St.ment or suppression of facts. Thus it is patently manifest that for deriving the jurisdiction to initiate proceedings under Section 74 of the CGST Act, the adjudicating authority must expressly mention in the Show Cause Notice that he is prima-facie satisfied that the person has wrongly availed or utilized Input Tax Credit due to some fraud or a wilful mis-St.ment or suppression of facts to evade tax and that must be specifically spelled out in the Show Cause Notice. Once the aforesaid basic ingredient of the Show Cause Notice under Section 74 of the CGST Act is missing, the proceedings become without jurisdiction as the adjudicating authority derives jurisdiction to proceed under Section 74 of the CGST Act only when the basic ingredients to proceed under Section 74 are present. (Para 22) We find that the impugned Show Cause Notice does not make even a whisper of the fact that petitioner has wrongly availed or utilized Input Tax Credit due to any fraud, or wilful mis- St.ment or suppression of facts to evade tax therefore, the proceedings initiated against the petitioner under Section 74 of the CGST Act are without jurisdiction for the lack of basic ingredients required under the said clause. So far as the argument advanced by the learned counsel appearing for the respondents that the writ petition against the Show Cause Notice is not maintainable, is concerned, we find that it is consistent view of the Hon'ble Supreme Court that if the Show Cause Notice is without jurisdiction, then the same can be challenged by filing writ petition before the High Court under Artilce 226 of the Constitution of India. (Para 25) In the present case, we do not find that the basic ingredients required for initiating proceedings under Section 74 of the CGST Act are present in the impugned Show Cause Notice dated 30.12.2023. Therefore, the entire exercise including the Show Cause Notice is without jurisdiction and thus this writ petition under Article 226 of the Constitution of India is maintainable. (Para 26) In view of the aforesaid reasons, we are of the categorical view that the impugned Show Cause Notice dated 03.08.2024 in its present form lacks basic ingredients to proceed in the matter under Section 74 of the CGST Act. Therefore, the impugned Show Cause Notice dated 03.08.2024 and the entire exercise initiated pursuant thereto is absolutely without jurisdiction and is liable to be quashed. (Para 27) Petition allowed. (E-13)

Title: Hcl Infotech Ltd. Vs. Commissioner, Commercial Tax & Anr.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Shekhar B. Saraf,Manjive Shukla

English hearing

WRIC/14235/2023 Judgment/Order Date: 18-09-2024 (2024) 9 ILRA 1470  

HEADNOTE hearing

Civil Law - Constitution of India,1950 - Article 226 - cancellation of selection of the petitioner as Member of the District Consumer Commission-under challenge- Rule 5(5) of the Consumer Protection (Qualification for appointment, method of recruitment, procedure of appointment, term of office, resignation and removal of the President and members of the St. Commission and District Commission) Rules, 2020- cancellation order lacked valid reasoning, as the political affiliation did not constitute a disqualification under the specified rules- reasons provided in a counter affidavit cannot substitute for those absent in the original order- cancellation order quashed-petition allowed. (Paras 4 and 5) HELD: In the counter affidavit, the ground for cancellation of the selection of the petitioner is that the petitioner was an office bearer of a political party, and therefore, his working as a Member of the District Consumer Commission would be prejudiced. It is to be noted that in the impugned order, no reason whatsoever was provided and this explanation has been provided only in the counter affidavit. Supplanting of reason by way of a counter affidavit cannot be a substitute for having providing reasons in the main order itself. (see: Mohinder Singh Gill & another vs The Chief Election Commissioner, New Delhi & ors., reported in 1978 (1) SCC 405). (Para 4) In any event, we find that the reason provided in the counter affidavit is flimsy and does not fall in any of the clauses for disqualification as prescribed in Rule 5 of the Rules. The petitioner has himself informed to this Court that if he was appointed as a Member of the District Consumer Commission, he would have given resignation from the post that he was holding. Under such circumstances, we find that the impugned order is without any merit and deserves to be quashed and set-aside. (Para 5) Petition allowed. (E-13)

Title: Jitendra Kumar Vs. State of U.P. & Ors.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Shekhar B. Saraf,Manjive Shukla

English hearing

CRLP/6581/2024 Judgment/Order Date: 19-09-2024 (2024) 9 ILRA 1462  

HEADNOTE hearing

Criminal Law - Constitution of India , 1950 - Article 226 -order of the Magistrate denying renewal of passport on the ground of lack of jurisdiction challenged whether the petitioner could renew his passport despite pending criminal proceedings-notification of Government of India dated 25.08.1993-Office Memorandum dated 10.10.2019-no restriction to the learned trial court to direct for grant of permission for renewal of passport-citizens of country entitled to passport-fundament right under Article 19(1) (d) of the Constitution of India- petition allowed. (Paras 8 and 9) HELD: After considering the arguments as advanced by learned counsel for the parties as well as after perusal of record, this Court finds that Under Article 19(1)(d) and Article 21 of the Constitution of India, the citizens of the country are entitled for passport. In Maneka Gandhi Vs U.O.I. 1978 (1) SCC 248, the Apex Court has held that having passport is a fundamental right of the citizen of India and a citizen can not be deprived of such fundamental right.... (Para 8) Thus, this Court after considering the aforesaid judgment of Hon'ble the Supreme Court in the case of Maneka Gandhi (Supra) is of the view that right to travel abroad is a part of the personal liberty guaranteed under Article 21 and 19 (1) (g) of the Constitution of India and in addition thereto a careful reading of provisions of the Passport Act and the Notification dated 25.08.1993 alongwith the Office Memorandum dated 10.10.2019 in the light of it's legislative backgrounds as mentioned above, it is clear that passport or travel document of a person, who is facing trial can be refused by the authority concerned during pendency of his criminal case, but there is no statutory bar for giving no objection by the court concerned. No hard and fast straight jacket formula can be laid down regarding issuance of permission or giving no objection by the court concerned for issuance of passport. It is always discretion of the court concerned and depend upon the facts and circumstances of each case, act and conduct of the accused as well as nature of alleged offence committed by him/her and stage of trial, etc. Some time on account of enmity or ill will one party enmesh the other party in a frivolous criminal case to settle his personal score, therefore, in the interest of justice, it is necessary to consider all aspects of the matter and surrounding circumstances while granting or refusing the no objection for renewal or reissue of passport or travel documents by the court concerned or by the authorities concerned and the trial in the above case is not likely to conclude very soon. These were relevant factors to be considered by the learned Trial Court while passing the impugned order. The learned trial court had completely ignored the Notification issued by Ministry of External Affairs, New Delhi dated 25.08.1993 as well as Office Memorandum dated 10.10.2019 issued by the Ministry of External Affairs, Government of India, New Delhi (referred above) while passing the impugned order for grant permission for renewal/re-issue of passport, thus, the impugned order is not sustainable in the eyes of law, therefore, the same is liable to be set aside/reversed. (Para 9) Petition allowed. (E-13)

Title: Mohd. Hasan Vs. U.O.I. & Anr.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Shamim Ahmed

English hearing

ELEP/11/2024 Judgment/Order Date: 30-09-2024 (2024) 9 ILRA 1450  

HEADNOTE hearing

Election Law -Election petition challenging the election of the returned candidate in MLC elections-petition filed beyond time by 92 days- beyond the 45- day limit prescribed by Section 81 of the Representation of People Act, 1951-no power in the Act for delay condonation- Act is a complete code and does not allow for the extension of the filing period or the application of the Limitation Act- if an election petition does not comply with the provisions of Section 81 or Section 82 or Section 117 of the Act, 1951-the High Court shall dismiss it-election petition held to be time-barred-petition dismissed. (Paras 13, 19, 20 and 21) HELD: There is no provision in the Act, 1951 for considering the period of limitation. There is nothing in the Act, 1951 which gives powers for condonation of delay, if any, and the extension of the period of limitation. The time prescribed for presentation of an election petition is provided specifically in Section 81 of the Act, 1951. The judgement in the case of Nijam Uddin (supra) as is being relied upon by the learned counsel for the petitioner is distinguishable in as much as the presentation of the present petition beyond 92 days is an admitted fact and as such nothing lay to be decided on the said fact. The case relied upon by the learned counsel for the petitioner has a different fact in as much as the fact about limitation was in dispute therein. The issue with regard to a delayed presentation of an election petition which arises in the present petition is an admitted fact and is no more res integra. (Para 13) The High Court while hearing an election petition operates as an Authority under Article 329 (b) of the Constitution of India whose jurisdiction is circumscribed by the statutory provisions as per the Act, 1951. (Para 19) After having heard learned counsel for the petitioner and perusing the records, it is settled that unless and until an election petition is maintainable and is not barred by limitation, the merits of the matter cannot be seen and considered. In the present matter, from the judgement relied by the learned counsel for the petitioner and the discussion as above, it is apparent that the provisions of Limitation Act, 1963 do not apply to election petitions. The filing / presentation of the election petition is strictly governed by Section 81 of the Act, 1951. The trial of the election petition is provided under Section 86 of the Act, 1951. The Act specifically provides that if an election petition does not comply with the provisions of Section 81 or Section 82 or Section 117 of it, the High Court shall dismiss it. (Para 21) Petition dismissed. (E-13)

Title: Prahlad Singh Vs. Yogesh Chaudhary

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Samit Gopal

English hearing

HABC/445/2024 Judgment/Order Date: 25-09-2024 (2024) 9 ILRA 1443  

HEADNOTE hearing

Criminal Law - Constitution of India,1950 - Article 226 - order of preventive detention by District Magistrate- under Section 3 (2) of the National Security Act, 1980-detention under F.I.R. under Sections 147, 148, 149, 302 and 404 of IPC-detention is based on this FIR- no sucg proceedings initiated against the petitioner in St. of Haryana on basis of earlier registered FIR- matter of trial whether the petitioner who is nominated on the St.ment of co-accused-such St.ment can be read in evidence against the petitioner when eyewitnesses have not named him-petitioner was not initially named in FIR-implicated later on the St.ment of co-accused- lack of a proper hearing and non-disclosure of vital materials to petitioner- NSA provisions cannot be used to prevent bail applications-detention order set aside- petition allowed. (Paras 26 and 27) HELD: The detention of the petitioner is based on two F.I.R. i.e. one Case Crime No. 0611 of 2023 under Sections 147, 148, 149, 302 and 404 of IPC at Police Station - Teelamod, Trans Hindon Commissionerate Ghaziabad in U.P. In this F.I.R., for a period of one month, the informant, his wife, and wife of his deceased-brother did not name the petitioner as an accused. Rather, perusal of the F.I.R. shows that the same has been registered against the co-villagers on account of enmity regarding the election of Village Pradhan and all the three witnesses have assigned specific roles of firing on deceased to those persons who are residents of the same village. Therefore, it will be the mater of trial whether the petitioner who is nominated on the St.ment of co-accused, such St.ment can be read in evidence against the petitioner when eyewitnesses have not named him. It is well settled principle of law that provisions of NSA cannot be invoked just to deter a person from exercising his right to apply for bail before the competent Court of law. The order dated 16.4.2024 passed by the Special Secretary rejecting the representation of the petitioner is a totally non speaking order and does not qualify the test as laid down by the Supreme Court in Nenavath Bhujji's Case (Supra). (Para 26) Thus, from the above, it is apparent that the material forming basis of the opinion of the competent authority to pass impugned orders were never supplied to the petitioner in terms of the decisions in Smt. Icchu Devi Choraria's Case (Supra), Mohinuddin's Case (Supra), Smt. Shalini Soni's Case (Supra) and S. Gurdip Singh's Case (Supra) and he has not been afforded proper opportunity of hearing and the impugned order of rejection is a totally non speaking order with regard to the pleas raised by the petitioner. (Para 27) Petition allowed. (E-13)

Title: Kallu @ Praveen Vs. U.O.I. & Ors.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Arvind Singh Sangwan,Mohd. Azhar Husain Idrisi

English hearing

A227/3907/2024 Judgment/Order Date: 13-09-2024 (2024) 9 ILRA 1438  

HEADNOTE hearing

Civil Law - Constitution of India,1950 - Article 227 -validity of judgement delivered by Permanent Lok Adalat challenged-dispute regarding insurance claim for a truck accident-whether the owner of the truck who had agreed to sell the truck to some other person retained insurable interest- statutory provision regarding transfer of vehicles- contained in Section 157 of the Motor Vehicles Act, 1988- as the truck's ownership had not legally transferred-no change in ownership-respondent owner thus entitled to claim- legislative intent to hold insurers liable even if ownership transfer isn't recorded-petition dismissed. (Paras 13, 14, 16, 17 and 18) HELD: Further, Section 157 provides that upon transfer of ownership of a vehicle, the certificate of insurance and the policy described in the certificate shall be deemed to have been transferred in favour of the person to whom the motor vehicle is transferred with effect from the date of its transfer. The deeming fiction provided by the statute means that even if the insurance policy is not transferred in fact, the insurance company would become liable under the policy to the transferee of the vehicle. Therefore, the intention of the legislature is to make the insurance company liable immediately, in spite the transfer having not been recorded in the records of the transport office. The intention of the legislation is to include the transferees liberally and not to exclude them strictly. (Para 13) This judgment also affirms the conclusion drawn by this Court in the preceding paragraph that the intention of the legislature is to make the insurance company liable immediately, in spite the transfer having not been recorded in the records of the transport office. The intention of the legislation is to include the transferees liberally and not to exclude them strictly. (Para 14) The Hon'ble Supreme Court held that the transfer of the vehicle was not in dispute and the insurance company was liable to satisfy the claim. This judgment also supports the view of this Court that the intention of the legislature is to make the insurance company liable immediately, in spite the transfer having not been recorded in the records of the transport office and the intention is not to exclude the transferees strictly. (Para 16) In the present case the transfer does not stand completed and the claimant continues to be the registered owner of the vehicle. He had entered into a contract of insurance with the appellant and he filed the claim. (Para 17) In absence of the ownership of the vehicle having been transferred, the petitioner would continue to be liable under the contract of insurance entered between the appellant and the registered owner of the vehicle. (Para 18) Petition dismissed. (E-13)

Title: The New India Assurance Company Ltd., Lakhimpur Kheri Vs. Permanent Lok Adalat, Lakhimpur Kheri & Anr.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Subhash Vidyarthi

English hearing

CRLP/15393/2024 Judgment/Order Date: 10-09-2024 (2024) 9 ILRA 1433  

HEADNOTE hearing

Criminal Law - Constitution of India,1950 - Article 226 -prayer seeking appointment of another agency-fair investigation-FIR registered under Sections 452, 376, 313, 506, 323, 427 IPC- alleging bias due to ongoing civil disputes with the informant- accused individuals cannot demand a change in the investigating agency- unless there is clear evidence of malafide actions by the current investigators- petitioners failed to demonstrate such malafide intent-petition dismissed. (Paras 8 and 9) HELD: With above observations, the Hon'ble Apex Court concluded that -In view of the above, it is clear that the consistent view of this Court is that the accused cannot ask for changing the Investigating Agency or to do investigation in a particular manner including for Court monitored investigation. However, Hon'ble Apex Court while placing reliance on an earlier judgement in In Narmada Bai v St. of Gujarat,22 the petitioner filed a writ 22 (2011) 5 SCC 79, observed that "this case supports my view that in the interest of justice, and particularly when there are serious doubts regarding the investigation being carried out, it is not only permissible, but our constitutional duty to ensure that the investigation is carried out by a special investigation team or a special investigative agency so that justice is not compromised. (Para 8) In present case, the main contention raised on behalf of the petitioners is that they have been roped in by the informant in present criminal case with a view to exert pressure in a civil suit filed at the instance of petitioner No.1 for avoidance of a sale deed propounded by respondent No.4, the informant with regard to disputed land on which petitioners claimed their title and possession. Only, on this count, it cannot be discerned that the case lodged at the instance of the informant is malicious or investigation carried out by the police has been shoddy or perfunctory or partial. Law will take its own course. (Para 9) Petition dismissed. (E-13)

Title: Devendra Tripathi & Anr. Vs. State of U.P. & Ors.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Siddhartha Varma,Ram Manohar Narayan Mishra

English hearing

CRLP/9932/2024 Judgment/Order Date: 21-09-2024 (2024) 9 ILRA 1424  

HEADNOTE hearing

Criminal Law - Constitution of India, 1950 - Article 226 -whether the Central Bureau of Investigation (CBI) should investigate the death of daughter of petitioner, who died in the USA- under Section 188 of the Cr.P.C.- Sections 5 and 6 of Delhi Special Police Establishment Act, 1946- Governement Notification dated 27.05.2016 and circular dated 11.05.2017-for offences committed outside India by Indian citizens, only the Central Government's sanction is required-not the St. Government's consent-court directed the CBI and the Ministry of Home Affairs-complete the necessary formalities and conduct the investigation within 15 days-petition allowed. (Paras 15 and 16) HELD: In view of above analysis this Court holds that for conducting investigation for the offence committed outside the India by Indian citizen under Section 188 Cr.P.C. there is no requirement to seek consent of St. Government under Section 6 of DSPE Act and only sanction of Central Government is required. (para 16) Reverting back to the present case, though it is clear from above analysis that there is no requirement for seeking consent of the St. Government to conduct investigation under Section 188 Cr.P.C. but the affidavit filed by the Secretary, Department of Personnel and Training, Government of India specifically mentioned that the consent of the St. Government is required and on the other hand it was also mentioned in the aforesaid affidavit that the St. Government has also conveyed its consent for conducting investigation in the present case to Ministry of External Affairs, Government of India by letter dated 5.9.2023, therefore, in substance St. of U.P. already conveyed its consent to Government of India for conducting the investigation by C.B.I. about the death of daughter of the petitioner but the C.B.I. as well as DoPT unnecessarily raising technical issue and shifting burden on each other instead of taking any fruitful action to conduct the investigation for the death of daughter of the petitioner in United St.s of America. (Para 16) Petition allowed. (E-13)

Title: Smt. Kalpana Maheshwari Vs. State of U.P. & Anr.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Vivek Kumar Birla,Arun Kumar Singh Deshwal

English hearing

CRLR/4562/2024 Judgment/Order Date: 06-09-2024 (2024) 9 ILRA 1412  

HEADNOTE hearing

Criminal Law -Code of Criminal Procedure, 1973 - Section 397/401 - order rejecting discharge application challenged- -Section 13 (1) (b) r/w Section 13 (2) of Prevention of Corruption Amendment Act- Section 227 Cr.P.C-application of discharge-disproportionate assets in check period-at the stage of framing charges-it is not required to evaluate the evidence's probative value but only to determine if a prima facie case exists- there was sufficient ground to proceed with the trial based on the material presented-trial court's decision to reject the discharge application-well-reasoned- revision dismissed. (Paras 12 and 23) HELD: The Apex Court, in the case of Sajjan Kumar Vs C.B.I. : (2010) 9 SCC 368, held that at the time of framing of charge, the Court has to look at all the material placed before it and determine whether a prima facie case is made out or not, and the court is not required to consider the evidentiary value of the evidence as any question of admissibility or reliability of evidence is a matter of trial. (Para 12) Thus, the position of law that emerges is that at the stage of discharge/framing of charge, the Court is merely required to shift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused i.e. whether a prima facie case is made out against the accused. Further the ground that income of other family members has not been considered also cannot be looked into and considered at the stage of discharge, it is to be considered in the trial only. (Para 23) Revision dismissed. (E-13)

Title: Sanjeev Nayan Mishra Vs. State of U.P. & Ors.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Samit Gopal

English hearing

WRIA/39076 /2015 Judgment/Order Date: 23-09-2024 (2024) 9 ILRA 1406  

HEADNOTE hearing

Service Law - claim for compassionate appointment-rejected-father's post as Sahyogi to the Collection Amin was abolished upon his death-Uttar Pradesh Co-operative Collection Fund and the Amins and other Staff Service Rules, 2002-Rule 5-rules have statutory force- framed by the Governor-Section 130 read with Section 92(A) and Section 92(B) of the U.P. Cooperative Societies Act, 1965- deceased employee-government servant- post's abolition did not preclude offering a compassionate appointment on a suitable Group 'D' post-rejection order quashed- direction to grant compassionate appointment-petition allowed. (paras 10, 12, 14, 15 and 16) HELD: Rule 5 clearly stipulates that strength of service of each category of post under the service cadre mentioned under the Rules would be with prior approval of the Government. The rules that have been framed by the Governor taking aid to the provision as contained under Section 130 read with Section 92(A) and Section 92(B) of the U.P. Cooperative Societies Act, 1965, are definitely having statutory force. Number of posts of Sahyogi to the Amin are prescribed to be 90 in the service cadre and it appears that immediately after rules were framed and brought into force, the Government decided to regularize all such Sahyogis working on a temporary basis and so resultantly the order of confirmed appointment was issued in favour of the petitioner's father on 23rd November, 2002. (para 10) Thus, there is no quarrel about the status of the vacancy as to be belonging to the government service within the definition of the rules and appointment order issued as a consequence thereof to the father of the petitioner. The plea taken in the counter affidavit vide paragraphs 5 & 6 to the effect that petitioner's father was not a government employee is, therefore, clearly misplaced one. In the entire counter affidavit the appointment order has not been disputed, nor it has been questioned on the ground of being obtained by fraud or by any mischief at the end of petitioner's father. (Para 12) Insofar as the other plea taken in the order impugned that since cadre in which petitioner's father was appointed became a dying cadre as the word and expression 'otherwise' would relate to all such eventualities including the death of the employee as contemplated under the rules, to treat the post abolished as a consequence thereof, also does not appeal to reason. The dying in harness Rules, 1974 do not provide that a person seeking compassionate should be offered appointment upon such posts only on which the deceased employee was working and, therefore, the appointment could have been offered on any group 'D' post. It is not a case of respondent that no other group 'D' post' available to accommodate the petitioner in the matter of compassionate appointment. (Para 14) In a judgment of Supreme Court in the case of the St. of Uttar Pradesh & ors. v. Premlata in Civil Appeal No. - 6003 of 2021 decided on 5th October, 2021 the Court has very categorically held that suitability of the posts means that the applicant seeking compassionate appointment should be offered appointment only in the status in which his father was working. For instance, if father was working on a group 'D' post then a dependent should not be offered group 'C' post. The appointment on equivalent post can be made. (Para 15) Petition allowed. (E-13)

Title: Heeraman Prasad Vs. State of U.P. & Ors.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Ajit Kumar

English hearing

WRIA/8771/2024 Judgment/Order Date: 30-09-2024 (2024) 9 ILRA 1404  

HEADNOTE hearing

A. Service Law - Re-fixation of salary after retirement - Recovery of Rs. 5,68,082/- - Permissibility - Government Order dated 16.01.2007 permit the employer to examine the last 34 months period of an employee after his retirement for re- fixation of salary - Violation thereof - Effect - High Court found the impugned recovery order in violation of the instructions being issued by the Hon'ble Apex Court in Rafiq Masih's case - Held, re-fixation of salary beyond the period of 34 months not permissible in view of the Government Order dated 16.01.2007 - Sushil Kumar Singhal's case relied upon (Para 11) Writ allowed. (E-1)

Title: Aniruddh Singh Vs. State of U.P. & Ors.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Rajesh Singh Chauhan

English hearing

WRIC/17513/2024 Judgment/Order Date: 26-09-2024 (2024) 9 ILRA 1397  

HEADNOTE hearing

Civil Law - The Constitution of India, 1950-Article 226 - The Uttar Pradesh Revenue Code, 2006 - Section 207 - Uttar Pradesh Revenue Code Rules, 2006-Rule 183- The duty of the appellate court is to review the findings of the trial court and decide whether to reverse or affirm them. The appellate court has the power to rehear the case on both the question of law and fact. It is essential for the appellate court to address all the issues and contentions raised by the parties in the appeal- The order to be passed in appeal must reflect a conscious application of mind and record findings supported by reasons on all issues arising from the contentions put forth and pressed by the parties- The appeal under Section 207 of the Revenue Code, being a regular first appeal, it would be the duty of the first appellate court to write a self-contained judgment after applying its mind to the facts of the case, recording findings and arriving at a conclusion based on reasons. (Para 17-19) Petition allowed. (E-15)

Title: Ved Prakash & Ors. Vs. State of U.P. & Ors.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Yogendra Kumar Srivastava

English hearing

WRIB/853/2024 Judgment/Order Date: 23-09-2024 (2024) 9 ILRA 1374  

HEADNOTE hearing

A. Land Law - Concealment and non- disclosure - U.P. Consolidation of Holdings Act, 1953 - Section 4(2), 48(3) - It is a fraud in law if a party makes representations which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad. Fraud as is well-known vitiates every solemn act. Fraud and justice never dwells together. Fraud is a conduct either by letter or words, which induces the other person, or authority to take a definite determinative stand as a response to the conduct of former either by word or letter. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentations may also give reason to claim relief against fraud. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. The principle of 'finality of litigation' cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The very basis of the writ jurisdiction rests in disclosure of true and complete (correct) facts. If material facts are suppressed or distorted, the very functioning of Writ Courts and exercise would become impossible. The petitioner must disclose all the facts having a bearing on the relief sought without any qualification. This is because, "the Court knows law but not facts". The principle that a person who does not come to the court with clean hands is not entitled to be heard on the merits of his grievance and, in any case, such person is not entitled to any relief is applicable not only to the petitions filed u/Articles 32, 226 and 136 of the Constitution but also to the cases instituted in others courts and judicial forums. The object underlying the principle is that every court is not only entitled but is duty bound to protect itself from unscrupulous litigants who do not have any respect for truth and who try to pollute the stream of justice by resorting to falsehood or by making misSt.ment or by suppressing facts which have a bearing on adjudication of the issue(s) arising in the case. (Para 26) In the entire present petition there is not a whisper of the fact as to how the petitioners had any personal cause or what is their personal right in respect of any plot. (Para 29) The petitioners have definitely not disclosed the fact regarding their right to file the instant petition. Moreover, multiple petitions filed by the petitioners were not disclosed in this writ petition but were mentioned by the St./Garam Sabha in their counter-affidavit. It is only when the rejoinder-affidavit was filed that the same has been accepted by the petitioner as a conformation of the averments made in the counter-affidavit but there was no effort of the petitioners to bring the facts which were there in their knowledge at the time of filing of the instant petition including its outcome. (Para 28) It prima facie appears from the record that the petitioners no.1 and 4 have already been held to be the beneficiaries of fraudulent entries against whom action has been taken and the fraudulent entries have been expunged. This aspect of the matter and the background of the litigation has been deliberately suppressed. (Para 30, 32) The petition suffers gross concealment of material facts. The petition is vague, no personal cause of action of the petitioners has been made out coupled with the fact that the petition suffers from concealment of material fact and is an attempt to waste the precious time of the court by resorting to filing a frivolous petition and if the St. Counsel and the Gaon Sabha would not have brought the facts to the notice of the Court, the petitioners would have had a leverage by getting away with concealment and non disclosure of material facts. (Para 36) B. There is a great sanctity attached to the proceedings conducted in the court. Every Advocate putting his signatures on the Vakalatnamas and on the documents to be filed in the Courts, and every Advocate appearing for a party in the courts, particularly in the Supreme Court, the highest court of the country is presumed to have filed the proceedings and put his/her appearance with all sense of responsibility and seriousness. No professional much less legal professional, is immuned from being prosecuted for his/her criminal misdeeds. (Para 35) The role of an advocate in the justice dispensation system is of crucial importance. The counsel representing a case of his client is first an officer of the Court and then he pleads the case for his client fearlessly. In the instant case, the counsel for the petitioner, who has been representing them in various petitions appears to have lost sight of his duties as an officer of the Court. Writ petition dismissed. (E-4)

Title: Keshav Prasad & Ors. Vs. Consolidation Commissioner, Lko. & Ors.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Jaspreet Singh

English hearing