WRIA/6383 /2024 Judgment/Order Date: 07-11-2024 (2024) 11 ILRA 168
HEADNOTE hearing
A. Civil Law - Service Law - Selection and Appointment. Issue: Whether a selected candidate has a right to the post? Held: A selected candidate has no vested right to the post, and the State or its instrumentality may, for bona fide reasons, choose not to fill up the advertised vacancies. In the instant case, the petitioner was never declared as a selected candidate; rather, the candidature of the selected candidate was cancelled prior to the issuance of the select list by the respondents. Thereafter, the respondents issued a fresh advertisement. Since fresh advertisement was already been issued, the Court declined to direct the respondents to make selection from the earlier advertisement. (Paras 24, 25, 26) B. Civil Law - Service Law - Challenge to Advertisement for Post. Petitioner challenged advertisement no.3 of 2024 in the month of August 2024, whereas the last date fixed for receipt of applications under the said advertisement was 06.04.2024. Issue: Whether the petitioner could challenge advertisement no.3 of 2024 after expiry of the last date for applications? Held: If the petitioner was aggrieved by the advertisement, he ought to have challenged it before the last date. As the petitioner chose not to do so and filed the petition only in August 2024- after the selection process had proceeded to a substantial stage-the Court declined to interfere. (Para 27) Dismissed. (E-5)
Title: Sachin Srivastava Vs. State of U.P. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Abdul Moin
English hearing
TACL/674 /2024 Judgment/Order Date: 08-11-2024 (2024) 11 ILRA 163
HEADNOTE hearing
A. Civil Law - Civil Procedure Code,1908- Section 24-Hindu Marriage Act,1955- Section 13(1)(a)-The Allahabad high court addressed the issue of territorial jurisdiction between its Principal Seat and the Lucknow Bench concerning matrimonial cases transfers under section 13(1)(a) of the Hindu Marriage Act,1955- the applicant sought to transfer a matrimonial case from Family Court in Lucknow to the District Court in Bareilly- The court reviewed sections 22,23 and 24 of CPC, which address the power to transfer civil cases -It also analyzed the Family Courts Act,1984, and its implications for territorial jurisdiction- Held, transfer applications for cases pending within the territorial jurisdiction of the Lucknow Bench must be filed before the Lucknow Bench, as it is the appellate forum for such cases under sections 22-24 of Civil Procedure Code, and the Family Court s Act 1984.(Para 1 to 16) Every court has its own local or territorial limits beyond which it cannot exercise the jurisdiction. So far as this court is concerned, its jurisdiction is not circumscribed by any territorial limitation and it extends over any person or authority within the territory of India. But it has no jurisdiction outside the country. So far as a High Court is concerned its jurisdiction is limited to territory within which it exercises jurisdiction and not beyond it. On that analogy also, a High court cannot pass an order transferring a case pending in a court subordinate to it to a court subordinate to another High Court. It would be inconsistent with the limitation as to territorial jurisdiction of the Court.(Para 14) (E-6)
Title: Smt. Shivika Upadhayay Vs. Pushpendra Trivedi
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Kshitij Shailendra
English hearing
FAFO/1903/2023 Judgment/Order Date: 14-11-2024 (2024) 11 ILRA 160
HEADNOTE hearing
(A) Civil Law - Partition and Injunction - Civil Procedure Code, 1908 - Order XLIII Rule 1(r) - Specific Relief Act, 1963 - Section 41(h); Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - Sections 13(2), 13(4) & 17 - Alternative remedies under specific statutes - Civil suits are barred when alternative efficacious remedies are available under the SARFAESI Act - Partition suit - Secured assets - Security interest - Injunction under U.P. CPC Amendment, SARFAESI Act - Grant of injunction is not, otherwise, permissible in view of U.P. amendment made under Order XXXIX Rule 2 C.P.C. as per which an injunction which cannot be granted under the Specific Relief Act, 1963, the same cannot be granted under C.P.C. - An injunction cannot be granted if an equally efficacious legal remedy is available, as per Section 41(h) of the Specific Relief Act, 1963 - Any order for injunction granted in contravention of these provisions shall be void. (Paras 3 -12) Appellant, claiming a 1/3rd share in immovable property - mortgaged by co-sharers (respondents) - sought an injunction against the bank - from auctioning the property without partition - civil court rejected application. (Paras 3-5) HELD: - Appeal lacks merit as statutory remedies are available under the SARFAESI Act. Application for injunction was correctly rejected. Dismissal does not affect the appellant's right to pursue other legal remedies. Appellant has a remedy of approaching the Debts Recovery Tribunal independently or by seeking her implement in the pending Securitisation Application. (Paras 9 - 12) Appeal dismissed. (E-7)
Title: Smt. Omika Devi Vs. Indian Bank (Allahabad Bank) Branch & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Kshitij Shailendra
English hearing
FAFO/147 /2024 Judgment/Order Date: 07-11-2024 (2024) 11 ILRA 155
HEADNOTE hearing
(A) Civil Law - Payment of Court Fees - Court Fees Act, 1870 - Sections 6-A - Appeal, Section 7(iv-A) - For cancellation or adjudging void instruments and decrees - Residuary Article - Ad-valorem Fees - Defendant has a statutory right to raise all objections regarding valuation and deficiency in court fees - suit seeking to declare a gift deed null, void, and forged falls under Section 7(iv-A) of the Court Fees Act and not under the residuary Article 17(iii) - Objections to court fees raised by a defendant are permissible under Section 6(4) of the Act. (Para - 12,15,18) (B) Interpretation of Statute - Distinction between Article 17(iii) and Section 7(iv-A) - Section 7(iv-A) - applies to cases involving adjudging instruments void - Article 17(iii) - applies to declaratory relief without consequential relief. (Para - 8,9,10,12) Appellant filed a suit against her son - alleging that under the guise of executing a power of attorney - a fraudulent gift deed was registered - sought a declaration that deed was null, void, and forged - no consequential relief was claimed - suit has been correctly valued - Plaintiff has not deposited ad-valorem Court fees on market value of property - trial court directed appellant to pay ad-valorem court fees under Section 7(iv- A) of Court Fees Act - hence present appeal.(Para 1-4 ) HELD: - Court upheld the trial court's direction to pay ad-valorem fees under Section 7(iv-A), affirming that objections to court fees by the defendant are permissible under the Court Fees Act. (Para -19,20) Appeal dismissed. (E-7)
Title: Kaniz Fatima Vs. Imran Khan
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Kshitij Shailendra
English hearing
FAFO/62 /2024 Judgment/Order Date: 18-11-2024 (2024) 11 ILRA 151
HEADNOTE hearing
(A) Civil Law - Rejection of Plaint on Grounds of Limitation - Code of Civil Procedure, 1908 - Order VI Rule 4 - Particulars to be given where necessary, Order VII Rule 11 - Rejection of Plaint, Limitation Act, 1963 - Article 58 - limitation to institute a suit, Section 17 - Effect of fraud or mistake - Requirement for disclosure of dates in pleadings involving fraud or concealment - Limitation as a mixed question of fact and law - when the evidence is yet to be led on all the disputed questions of fact and law, question of limitation cannot be said to be a pure question of law so as to justify rejection of plaint at its threshold. (Para - 5,6,8,12,13) Plaintiff sought to declare registered gift deeds executed in 1968 and 1987 - null, void ab initio, irrelevant and ineffective - citing fraud and concealment - Trial court rejected plaint as time-barred under Order VII Rule 11 CPC - appellate court treated limitation issue as a "mixed question of fact and law" - remanded the matter for trial. (Para - 3,4) HELD: - Appellate court was justified in leaving the question of limitation to be decided as a mixed question of fact and law after leading the evidence. (Para -13) Appeal dismissed. (E-7)
Title: Shrivatsa Goswami Vs. Anant Prasad Singh & Anr.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Kshitij Shailendra
English hearing
SAPLD/94 /2024 Judgment/Order Date: 13-11-2024 (2024) 11 ILRA 147
HEADNOTE hearing
Civil Law-The Indian Evidence Act,1872- Sections 107 & 108- Suit for declaration of death---Section 107 provides that when the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it and Section 108 provides that when the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it. Thus, when a question will arise as to whether a man is alive or dead, only then the presumption can be drawn by the court on the cogent evidence adduced by the person, who affirms it. This question may arise, if a person claims or he is denied any right or benefit or for any other cause, which may be dependent on the death of the person, who has not been heard of for seven years by those who would have naturally have heard of him. Appeal Dismissed. (E-15)
Title: Vidhan Chandra Pandey & Anr. Vs. State of U.P. & Anr.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Rajnish Kumar
English hearing
CRLA/748 /1983 Judgment/Order Date: 05-11-2024 (2024) 11 ILRA 140
HEADNOTE hearing
(A) Criminal Law - Criminal Procedure Code, 1973 - Sections-161, 207 & 313 - Indian Penal Code,1860 - Section 302 - Arms Act,1959 - Sections - 25, 25(1)(a) & 25(1)(b) - Appeal - against conviction & sentence - offence of murder - FIR - allegation that, when the accused called the deceased son of informant from his house and when he reached at door he shot at and died on spot - investigation - trial by session judge - conviction & sentence - benefit of doubt - Evaluation of evidence - court finds that, in the light of finding of trial court its becomes imperative to examine the witness on two aspects - firstly motive & secondly the act performed by the accused in commission of crime - the motive behind the commission of murder according to PW-1 (informant, father of deceased) that despite reprimand the deceased kept working with Bhagwan Singh with whom he had animosity - convention is based solely on the testimony of PW-1 and PW-3 - PW -1 in stated that the incident was witnessed/seen by Murlidhar, Ram Ratan, Ram Asrey, Chaman, Rafiq, but filed to justify except Ram Asrey (PW- 2) as to why the police are not produced the other witnesses - and police witness Bhagwan Singh whose name is also figured in FIR and whom had animosity with accused has also not produced which caste serious doubt on the prosecution story - Moreso when suggestion was given to the PW-1 that his son's name was arrayed as an accused in the murder of Bhagwan Singh's father, showed ignorance which also cast doubt on the truthfulness of the witness deposited - held, conviction, based on a testimony which is neither wholly reliable nor wholly unreliable, would be unsafe - accordingly, appellant is entitled for the benefit of doubt as suspicion so raised cannot take the place of evidence - Appeal allowed - impugned conviction and sentence is hereby set-aside. (Para - 18, 24, 25, 26, 27) Appeal Allowed. (E-11)
Title: Ram Krishna Vs. State of U.P.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Siddhartha Varma,Vinod Diwakar
English hearing
A227/11516 /2024 Judgment/Order Date: 11-11-2024 (2024) 11 ILRA 130
HEADNOTE hearing
Civil Law-The Arbitration and Conciliation Act, 1996 - Section 4 & 36- Jurisdiction for filing execution case lies with the Judgeship of Kanpur or Etawah---Dispute is arising out of acquirement of land of petitioners at District Etawah, meaning thereby, property and assets of the petitioners is situated at there, therefore, even if the office of petitioners is at Kanpur or arbitration award was pronounced at Kanpur, that would make no difference in filing of execution proceeding at Etawah in light of interpretation made by the Hon'ble Apex Court and the provision of CPC as well as Act, 1996 occupying the field--- Undisputedly against an award given at Kanpur, petitioners themselves have preferred appeal under Section 34 of the of the Act, 1996 before District Judge, Etawah, therefore, petitioners acquiesce their right and their objection is certainly barred by Section 4 of the Act. (E-15)
Title: National Highway Authority of India & Anr. Vs. Jagpal Singh & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Neeraj Tiwari
English hearing
A482/4826 /2024 Judgment/Order Date: 07-11-2024 (2024) 11 ILRA 118
HEADNOTE hearing
Criminal Law-The Code of Criminal Procedure,1973 - Section 233- The scope and object of Section 233 is to advance the cause of substantial justice by providing the accused an opportunity for compelling the production or attendance of any document or witness which is normally required to be allowed and can be rejected for reasons to be recorded only on the three grounds which are vexation or delay or defeating the ends of justice indicated under sub-section (3) of Section 233 Cr.P.C--- Impugned order is quashed--- Trial court shall ensure that process is issued for attendance of witnesses five and six indicated in the application no.91Kha as also production required in terms of application no. 92Kha/1. Petition partly allowed. (E-15)
Title: Sanket Singh Vs. State of U.P. & Anr.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Manish Mathur
English hearing
WTAX/1757 /2024 Judgment/Order Date: 18-11-2024 (2024) 11 ILRA 106
HEADNOTE hearing
Tax Law - Goods and Services Tax Act, 2017 - Section 74 - Financial Year 2021- 22 - Audi alteram partem - Petitioner's business premises were searched, found that petitioner wrongly availed ITC and refund of same on purchase of glycerin, fatty acid and finishing chemical made up of perfumery compound, not produced proper evidence with regard to cancelling of 115 e-way bills - Show cause notice issued, asking it to refund excess utilization of ITC along with penalty amounting to Rs. 2,24,24,710/- Petitioner denied allegations, mentioning that show cause notice not supported with any evidence - By another show cause notice amount of tax and penalty revised - In spite of reply having been uploaded by petitioner on portal, respondent asked to appear for personal hearing - Petitioner informed that it has already given detailed reply - By impugned order, respondent demanded tax along with penalty and interest amounting to Rs. 37,31,642/-. (Para 3) Contention that impugned order was copy-paste of reply given by petitioner to show cause notice and explanation provided not considered in reasonable manner - Raw materials glycerine, fatty acid and perfumery compound used for manufacture of fabrics, not dealt in order. (Para 4) Held, entire show cause notice and order are speculative in nature, based on survey report, by which authorities concluded that said items are not used without carrying out any test for manufacture of fabrics. (Para 5) Explanation given by petitioner in affidavit annexing certificates of three experts not considered by respondents, no reasons provided for rejection - Once such explanation has provided, it was incumbent upon respondents to have tested fabrics to come to conclusion that three raw materials were not used in manufacture of fabrics, without granting opportunity of hearing, fastening of such liability was arbitrary and illegal - Thus, impugned order quashed, set aside. (Para 6, 20) Writ Petition allowed. (E-13)
Title: Agmotex Fabrics Pvt. Ltd. Vs. State of U.P. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Shekhar B. Saraf,Vipin Chandra Dixit
English hearing
WTAX/1689 /2024 Judgment/Order Date: 11-11-2024 (2024) 11 ILRA 105
HEADNOTE hearing
Tax Law - Goods and Services Tax Act, 2017 - Section 129 - Detention, seizure and release of goods and conveyances in transit - Against order of Additional Commissioner - Technical breaches - Impugned order arises out of proceedings after interception of vehicle carrying offending goods - Revenue authorities upon finding that E-Way Bill was not filled, asked assessee/petitioner to show cause and after physical inspection of goods no discrepancy found. (Para 2) Contention by assessee that goods in vehicle were fully reconciled with E-Way Bill - Non filling of part of E-Way Bill would not ipso facto attract proceedings u/s 129, GST Act. (Para 4) When substantial compliance of provisions was disclosed and physical inspection of goods tallies with goods declared in E- Way Bill and no intent of tax evasion was made out, proceedings under aforesaid section became vitiated - Thus, impugned order quashed. (Para 7) Writ Petition allowed. (E-13)
Title: M/s Monotech Systems Limited Vs. State of U.P. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Ajay Bhanot
English hearing
WTAX/264 /2024 Judgment/Order Date: 12-11-2024 (2024) 11 ILRA 102
HEADNOTE hearing
Tax Law - U.P.G.S.T. Act, 2017 - Sections 44(1) & 73(10) - Quashing of assessment order - Financial year 2017-18 - Due date for filing annual return was 31st December of end of Financial Year i.e 31.12.2018 for financial year 2017-18, due date for filing annual return extended vide notification dated 03.02.2018 to 05.02.2020 and adopted by St. of U.P. vide notification dated 05.02.2020 - Based on this notification, period of three years mentioned in Section 73(10) would end on 05.02.2023 meaning thereby, order u/s 73 (9) for financial year 2017-18 could have been passed by 05.02.2023 but not after it - Opposite parties relied on notification dated 24.04.2023 to submit that they could have passed order up till 31.12.2023, they omit to consider para no. 2 of said notification which says that notification would be applicable retrospectively but only from 31.03.2023 means if time limit of three years prescribed in Section 73(10) r/w Section 44(1) expired prior to 31.03.2023, then notification extending time limit for passing order u/s 73(9) would not be applicable. (Para 7) Thus, impugned orders are beyond time limit and beyond jurisdiction, accounts of petitioner which have been freezed shall be de-freezed. (Para 8) Writ Petition allowed. (E-13)
Title: M/s A.V. Pharma Vs. State of U.P. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Rajan Roy,Manish Kumar
English hearing
IAPL/85 /2024 Judgment/Order Date: 21-11-2024 (2024) 11 ILRA 96
HEADNOTE hearing
Tax Law - Income Tax Act, 1961 - Sections 143(3) & 263 - Assessment Years 2017- 18 - Appeal against order of Appellate Tribunal by Commissioner - Assessment order completed by Assessing Officer - Subsequently, PCIT by exercising his jurisdiction revised order on ground that assessment was prejudicial to interest of revenue, set aside assessment order, directed for de novo assessment - Order was challenged before Tribunal and held that inquiries by Assessing Officer in respect of cash deposit of Rs.91 lakhs was proper and thereafter assessment order was passed. (Para 3) Held, Tribunal has gone into details of questionnaire issued by Assessing Officer, examined inquiry carried out by Assessing Officer in detail and thereafter, held in favour of assessee, examined replies given by assessee - Tribunal concluded that it was not possible under any circumstances to conclude that Assessing Officer misstated fact or recorded false order sheet entries and further held that only conclusion was that allegation made by PCIT that Assessing Officer not recorded any finding with regard to cash deposit during demonetization period, was not based on material on record - Twin conditions of assessment order being erroneous and prejudicial to interest of revenue in order to invoke power by PCIT u/s 263 of Act was not fulfilled as Assessing Officer made all inquiries and verifications as per law. (Para 7) Thus, no perversity in impugned order as no substantial question of law involved, accordingly appeal dismissed. (Para 16) Appeal Dismissed. (E-13)
Title: Pr. CIT, Bareilly, U.P. Vs. Dharam Singh
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Shekhar B. Saraf,Vipin Chandra Dixit
English hearing
WRIC/1002288 /1994 Judgment/Order Date: 12-11-2024 (2024) 11 ILRA 93
HEADNOTE hearing
A. Revenue Law - Civil Procedure Code,1908 - Section 151 - Order IX - Rule 13 - UP Zamindari Abolition & Land Reform Act, 1950 - Section 229-B - Declaratory suit - Recall application to set aside the decree was rejected - Rather filing regular appeal, the petitioner moved an application u/s 151 CPC - Scope of inherent jurisdiction - Held, the inherent power so provided u/s 151 C.P.C. can only be invoked where there is no alternative remedy before the aggrieved party, but in the instant case, the remedy was to file an appeal u/s 331 (4) of the U.P. Z. A. & L. R. Act, therefore, the order passed on the application filed u/s 151 C.P.C. is wholly without jurisdiction and is liable to be set aside. (Para 20) B. Revenue Law - Consolidation of Holding Act, 1953 - Section 4 - Abatement of proceeding - Notification u/s 4 already issued - Effect - Held, the power to entertain the application by other modes were not available to respondent nos. 1 to 3 due to abating of the proceedings - The respondent acted illegally and without authority of law in entertaining the application and setting aside the judgment and decree dated 31.8.1988. (Para 19) Writ petition allowed. (E-1)
Title: Kalloo Vs. State of U.P.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Irshad Ali
English hearing
WRIC/1000315 /2012 Judgment/Order Date: 04-11-2024 (2024) 11 ILRA 61
HEADNOTE hearing
A. Labour Law - Contract Labour (Regulation and Abolition) Act, 1970 - Section 10(1) - Industrial Disputes Act, 1947 - Sections 2(a) & 39 - Industrial dispute - Reference to Tribunal for adjudication - Competence of St. Govt. - Appropriate authority concerning to Hindustan Aeronautics Ltd. (HAL) - Whether Central Govt. or St. Govt. - Holding of shares in the company - Relevance - Held, the Central Government is the appropriate Government in respect to the industrial disputes concerning HAL, which is a Government Company in which more than 51% shares are held by the Central Government - The Central Government having delegated its powers to the St. Government u/s 39 of the Central Act, the St. Government is legally authorized to exercise the delegated power in respect of HAL. (Para 77 and 78) B. Labour Law - Industrial Disputes Act, 1947 - Sections 7-A & 39 - UP Industrial Dispute Act, 1947 -Section 4-B - Industrial dispute - Competence of Government to refer the dispute - Whether Central Govt. u/s 7-A of the Central Act or St. Govt. u/s 4-B of the St. Act - Held, if the Central Government can refer a dispute to an Industrial Tribunal constituted by the St. Government, the same can also be done by the St. Government in exercise of powers delegated by the Central Government u/s 39 of the Central Act - St. Government has the power to refer the dispute concerning HAL to the Industrial Tribunal constituted u/s 4-B of the St. Act. (Para 80 and 81) C. Labour Law - Industrial Disputes Act, 1947 - Section 10(4) - Industrial dispute - Reference - Competence of Tribunal to decide reference which was not referred to it - Held, Tribunal was required to examine the question whether the workmen in question can be treated as employees of HAL keeping in view their long continuous service - Finding returned by the Industrial Tribunal, that the contract between HAL and the canteen contractor was sham, was beyond the scope of reference and it has been recorded without jurisdiction. (Para 84 and 87) D. Labour Law - Industrial Disputes Act, 1947 - Section 2(k) - Industrial dispute - Employer - Competence of Tribunal to decide dispute, which is not 'industrial dispute' - The employees were working in canteen and they were not performing any duties relating to the principal business of HAL, i.e., manufacturing parts of aircrafts - Effect - Held, unless HAL is found to be the employer of the workmen in question, the dispute between the workmen and HAL is not an 'industrial dispute' within the meaning of the expression used in the Industrial Disputes Act and the Tribunal has no jurisdiction to adjudicate upon the dispute between HAL and the workmen - Tribunal has no jurisdiction to examine the validity of the contract between HAL and the canteen contractor and to record a finding that the contract is sham. (Para 98, 99 and 112) E. Labour Law - Industrial dispute - Back wages - Entitlement - Right of employee to claim against HAL, who is the principal employer - Enforceability - Held, back wages are payable only when the employees are illegally restrained from working, although they are willing to perform their duties - The employees were employed by the canteen contractor and HAL was merely their principal employer. Therefore, the employees had no right to claim reinSt.ment and regularization in HAL and they having declined to perform the duties assigned by HAL, had no right to claim any back wages. (Para 117 and 118) F. Labour Law - Industrial Disputes Act, 1947 - Sections 25-K & 25-N - Industrial dispute - Retrenchment - Establishment having less than 100 employees - Applicability of Section 25-N - Held, requirement for attracting Section 25-N is that not less than one hundred workmen were employed in the establishment on an average per working day for the preceding twelve months, which is not the case here. Therefore, the provision of Section 25-N will not apply to the present case. (Para 121) Employer's Writ allowed and employee's Writ dismissed. (E-1)
Title: Hindustan Aeronautics Ltd. Vs. Hindustan Aeronautics Karmchari Sabha & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Subhash Vidyarthi
English hearing
WRIC/9723 /2024 Judgment/Order Date: 14-11-2024 (2024) 11 ILRA 58
HEADNOTE hearing
A. Recovery Law - Constitution of India,1950 - Article 226 - Writ - Maintainability - SARFAESI Act, 2002 - Section 14 - Execution of an order passed u/s 14 of the Act, 2002 was sought by secured creditor - Alternative remedy to approach the DM or CJM available - Though the order passed u/s 14 was challenged by the borrower u/s 17, but there is no interim order - Effect - Held, it is the District Magistrate or the Chief Metropolitan/Judicial Magistrate are obliged to take possession of such assets and documents relating thereto, and to forward such assets & documents to the secured creditor - It is not the secured creditor, who after obtaining an order u/s 14 of the Act, 2002, is supposed to run from pillar to post or to the police personnel to get the order executed - High Court granted liberty to the petitioner/ secured creditor to move the application before the Chief Judicial Magistrate for execution of the order passed u/s 14 - High Court further directed the officer to verify as to whether there is any interim order in favour of borrower or not in a proceeding u/s 17. (Para 4, 5 and 6) Writ petition disposed off. (E-1)
Title: Pnb Housing Finance Ltd. Vs. State of U.P. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Rajan Roy,Brij Raj Singh
English hearing
WRIA/31358 /2021 Judgment/Order Date: 14-11-2024 (2024) 11 ILRA 51
HEADNOTE hearing
A. Service Law -Constitution of India,1950-Article 226-Temporary Government Servants(Termination of Service Rules),1975-The petitioner was appointed as Dental Surgeon and he was terminated under Rules 1975 citing unauthorized absence-The court held that the petitioner's appointment was substantive and on a permanent post making the Rules 1975 inapplicable-The termination order was stigmatic since it accused the petitioner of absconding which requires proper inquiry and an opportunity to respond-The court cited several Supreme court judgments that stigmatic orders must follow due process- Failure to provide such procedural safeguards renders the termination arbitrary, illegal, and violative of article 14 and 16 of the Constitution of India-thus, the termination order was quashed-The petitioner was directed to be reinstated with all consequential benefits from the date of his appointment.(Para 1 to 26) The writ petition is allowed. (E-6)
Title: Dr. Prabhanshu Srivastava Vs. State of U.P. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Alok Mathur
English hearing
WRIA/24901/2021 Judgment/Order Date: 20-11-2024 (2024) 11 ILRA 48
HEADNOTE hearing
A. Service Law -Constitution of India,1950-Article 226-UP Recruitment of Dependedants of Government Servants Dying in Harness Rules,1974-The petitioner challenged the rejection of her claim for compassionate appointment after her brother died in harness-the claim was based on Rules 1974 as amended in 2011, which allows an unmarried sister of a deceased government servant to seek compassionate appointment-The Allahabad High Court clarified that a "divorced" individual qualifies as "unmarried" for the purpose of compassionate appointment under Rules 1974-The court held that a divorce being legal dissolution of marriage, renders a person unmarried in status unless they remarry-A non-speaking rejection order, lacking application of mind or reasoning, violates principles of natural justice and is liable to be quashed-The court directed the competent authority to reconsider the claim within a stipulated period, ensuring compliance with the law and fair application of the Rules.(Para 1 to 16) The writ petition is allowed. (E-6)
Title: Km. Farha Vs. State of U.P. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Abdul Moin
English hearing
WRIA/17117 /2024 Judgment/Order Date: 13-11-2024 (2024) 11 ILRA 43
HEADNOTE hearing
A. Service Law - Transfer Policy - Principle of "Last Come First Go" - Classification of Teachers on Basis of Length of Service - Constitution of India, Art. 14 - Test of Reasonable Classification under Article 14 - U.P. Basic Education (Teachers) Service Rules, 1981 - U.P. Basic Education Teachers Service Regulations, 1981 - Right to Education Act, 2009 - U.P. Right of Children to Free and Compulsory Education Rules, 2011 - Clauses 3, 7, 8, & 9 of the Government Order dated 26.06.2024 issued by the Basic Education was challenged. Clause 3 provided that surplus teachers as per the bench mark of the pupil-teacher ratio are to be shifted to schools where such bench mark remains unfulfilled. Clause 7 provides that transfer of teachers would be under the principle of "last come first go" whereby the junior most teacher would be shifted out first. Clauses were challenged on the ground that it would entail frequent transfers of junior teachers while maintaining senior teachers in the same school for years together. Held: Impugned clauses of the G.O. do not indicate any reasoning as to why the aforesaid principle is required to be followed for transfer/adjustment of teachers. By introducing such a concept, a classification has been made pertaining to those teachers who have been posted in a particular school longer than others who have been posted there subsequently. If the aforesaid procedure prescribed under the impugned clauses is kept intact, it would entail frequent transfer of junior teachers while keeping intact the posting of senior teachers for all times to come since a teacher after transfer and joining in another district would ipso facto remain a junior. No intelligible differentia has been indicated either in the Government Order, the circular or even in the counter affidavit . Procedure for "last in first out" also does not appear to have any rational nexus with the object sought to be achieved by the Act of 2009 and the Rules framed thereunder. Court found the classification to be discriminatory and failing the test of reasonable classification. (Para 57, 58, 59) B. Civil Law - Service Law - U.P. Basic Education (Teachers) Service Rules, 1981 - Clauses 3, of the G.O. dated 26.06.2024 - Inclusion of Shiksha Mitra in Parity with Assistant Teachers Impermissible under Service Rules - Clause 3 of the Government Order, which provides for transfer or adjustment by considering the number of Shiksha Mitra employed in a particular school, for determination of Pupil-Teacher Ratio is contrary to the Service Rules of 1981. Qualifications required for appointment as an Assistant Teacher are not applicable to Shiksha Mitras, and therefore, the Government Order clearly erred in equating the two. Inclusion of Shiksha Mitra in parity with Assistant Teachers is impermissible, as executive orders can only supplement statutory provisions but cannot supplant or override them. Evidently, unequals have been treated as equals. (61, 62, 63) Dismissed. (E-5)
Title: Saurabh Srivastava Vs. State of U.P. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Ajay Bhanot
English hearing
WRIA/16420 /2024 Judgment/Order Date: 11-11-2024 (2024) 11 ILRA 37
HEADNOTE hearing
A. Service Law - Constitution of India,1950-Disciplinary proceedings- Natural justice-Procedural Flaws in Inquiry-Dismissal quashed-The court quashed the dismissal of the petitioner, who was an office Assistant -III in UPPCL, due to procedural irregularities in the disciplinary inquiry-The inquiry committee failed to follow principles of natural justice and procedural requirements (absence of witness examination and cross-examination opportunities and lack of evidence to prove charges beyond presumptions) under the UPPCL Employees(Discipline and Appeal) Regulations 2020-The court emphasized that in disciplinary inquiries leading to major penalties charges must be proven with documentary and oral evidence-The burden of proof lies on the establishment, and procedural safeguards cannot be waived-Thus, the dismissal and appellate orders were set aside-The petitioner was ordered to be reinstated with liberty to the respondents to conduct a fresh inquiry while ensuring adherence to proper disciplinary procedures.(Para 1 to 18) The writ petition is allowed. (E-6)
Title: Smt. Neetu Chaudhary Vs. State of U.P. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: J.J. Munir
English hearing
WRIA/12642 /2020 Judgment/Order Date: 12-11-2024 (2024) 11 ILRA 35
HEADNOTE hearing
A. Service Law -Constitution of India,1950-Article 226-entitlement to interest on delayed payment of retiral dues, including family pension and provident fund, to the legal heir of a deceased government employee-The petitioner is the widow of govt. employee who died in service-despite receiving a "No Dues Certificate" the retiral dues were not disbursed in a timely manner-After prolonged delays the dues were finally disbursed-The court relied on Yogendra Singh Case and Sanjay Upadhyay Case which establish that delayed payment of pension and retiral dues entitles the beneficiary to interest-The court directed the respondents to pay simple interest at 8% per annum for the delayed period.(Para 1 to 9) The writ petition is allowed. (E-6)
Title: Smt. Krishnawati Vs. State of U.P. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Ajay Bhanot
English hearing
WRIA/10700 /2024 Judgment/Order Date: 20-11-2024 (2024) 11 ILRA 31
HEADNOTE hearing
A. Civil Law - Departmental Disciplinary Proceedings - Uttar Pradesh Police Officer of Subordinate Ranks, (Punishment and Appeal) Rules, 1991 - Rule 14 - Whether during the pendency of the criminal proceedings, the departmental proceedings should be stayed ? - Departmental as well as criminal, both the proceedings can go simultaneously as there is no bar. The question as to whether during the pendency of the criminal proceedings, the departmental proceedings should be stayed depends upon the facts and circumstances of the case. One of the main consideration for staying of the departmental proceedings during the pendency of the criminal trial is to see that the defence of the delinquent Government Servant is not prejudiced in the criminal trial. Court must record a finding that non grant of stay on a departmental proceedings would not only prejudice the delinquent officer, that the matter also involves complicated question of law (Para 15, 16) B. Civil Law - Departmental Disciplinary Proceedings simultaneously with the criminal trial - In the instant case charges levelled in departmental inquiry and criminal case, emanate from the common incident but the charges in both the proceedings are different. Charges in departmental proceedings relate to violation of the conduct rules and the departmental rules while in the criminal case charge relates to the offence under various sections of the I.P.C. and of the Arms Act. Though the evidence may be common but the legal principles under charges are entirely different. Also petitioner submitted his reply on merits he would be deemed to have subjugated himself to the disciplinary authority. It cannot be said that his defence can be prejudiced during the criminal trial. No infirmity in the departmental disciplinary proceedings simultaneously with the criminal trial. (Para 13, 16) Dismissed. (E-5)
Title: Amit Yadav Head Constable 112622578 Vs. State of U.P. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Alok Mathur
English hearing
WRIA/9965 /2024 Judgment/Order Date: 19-11-2024 (2024) 11 ILRA 28
HEADNOTE hearing
A. Civil Law - Service Law - Disciplinary Proceedings and Criminal Proceedings - Acquittal in Criminal Proceedings - Effect - Disciplinary proceedings and criminal proceedings are distinct and separate and they do not bar each other. In case an employee is punished in departmental proceedings, it would have no bearing upon the criminal trial even if the allegations are the same and, vis-à-vis, in case an employee is acquitted in the criminal case, it would not have any bearing on the disciplinary proceedings. Each proceeding proceeds on the evidence and material adduced before the respective authorities. Mere acquittal in the criminal case will not diminish, reduce, or extinguish the punishment granted in a disciplinary proceeding. (Para 10) B. Complaint was made by the petitioner's wife alleging that he had married again during the lifetime of his first wife. On her complaint, disciplinary proceedings were initiated against wherein the charge of bigamy was found proved and, by means of order dated 18.01.2010, the petitioner was punished by reverting him to the lowest pay scale for a period of three years. Petitioner never challenged the order dated 18.01.2010 and subsequently superannuated on 28.02.2018. With regard to the allegations of bigamy, an F.I.R. was also lodged by his wife, in which case the petitioner was acquitted. On the strength of the acquittal order, the petitioner prayed for a direction to pay arrears for the period 2010 to 2013 on account of deductions made from his salary pursuant to the punishment order. Held - Deductions made in pursuance of a valid punishment order cannot be set aside merely because of the fortuitous circumstance that on similar allegations the petitioner has been acquitted on criminal charges.(Para 9) Petition dismissed. (E-5)
Title: Ram Tirath Pno. 802031471 Vs. State of U.P. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Alok Mathur
English hearing
WRIA/9755 /2024 Judgment/Order Date: 06-11-2024 (2024) 11 ILRA 24
HEADNOTE hearing
A. Civil Law - Departmental Disciplinary Proceedings - Suspension - Judicial Review of suspension order - Constitution of India,1950 - Article 226 - Order of suspension can be interfered where it is shown that the said order has been passed without jurisdiction or no inquiry is contemplated or the charges levelled against the delinquent government servant are vague and bald and even proved will not entail a major penalty. Merely because the government servant feels that the allegations are false will not be a ground in itself for this Court to assume the jurisdiction and to embark on an inquiry to determine the veracity of the allegations levelled against the government servant. In the instant case, the Court found that the allegations were serious, which required inquiry, and the petitioner would have sufficient opportunity to place all the material before the Inquiry Officer in his defence and also would have a chance of personal hearing before the prescribed authority. (Para 12, 14) A. Civil Law - Initiation of the inquiry proceedings on the basis of an unverified complaint without supporting affidavit - Government Order dated 9th May, 1997 - G.O. dated 09.05.1997 provides that a complaint which is not supported by an affidavit would be unactionable. Held : An affidavit is required along with the complaint where the allegations levelled against the government servant were in the personal opinion and knowledge of the person making the said allegation. However if the allegations levelled against the delinquent government servant are otherwise verifiable from the government records or from the records then there would not be any need for obtaining an affidavit in support of the allegations. If the allegations are preceded by a preliminary inquiry then the complaint itself loses its relevance as the decision making authority proceeds further on the basis of preliminary inquiry report. (Para 16, 17, 18) Dismissed. (E-5)
Title: Ravikant Shukla Vs. State of U.P. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Alok Mathur
English hearing
WRIA/5232 /2024 Judgment/Order Date: 06-11-2024 (2024) 11 ILRA 7
HEADNOTE hearing
A. Civil Law - Transfer of teachers employed in Basic Schools - Constitution of India, Article 14 - Intelligible differentia - Transfer/adjustment of teachers to maintain Pupil-Teacher Ratio - Right of Children to Free and Compulsory Education Act, 2009, Sections 19 and 25 - U.P. Basic Education Act, 1972 - U.P. Basic Education (Teachers) Service Rules, 1981, Rule 21 - Legality of Clauses 3, 7, 8, & 9 of Government Order dated 26.06.2024 and Circular dated 28.06.2024 - Proceedings initiated for fulfilment of the pupil-teacher ratio. Clause 7 of the Government Order provides that shifting of teachers would be affected by transferring teachers under the principle of "last come, first go", whereby the junior-most teacher would be shifted out first. Held : Impugned Government Order does not indicate any reasoning as to why the principle of "last in, first out" is required to be followed for transfer/adjustment of teachers."Last in, first out" does not have any rational nexus with the object sought to be achieved by the Act of 2009. There is no provision in the Act of 2009 or rules framed thereunder for transfer/adjustment to be made in keeping with the norms prescribed under Schedule by transferring the junior-most teacher of a school/district. If the procedure prescribed under the impugned clauses is kept intact, the real purpose or effect of such a condition would entail frequent transfer of junior teachers while keeping intact the posting of senior teachers for all times to come, since a teacher after transfer and joining in another district would ipso facto remain a junior. By introducing such a concept, a classification has been made pertaining to those teachers who have been posted in a particular school longer than others who have been posted there subsequently. For such a classification, no intelligible differentia has been indicated either in the Government Order, the Circular, or even in the counter affidavit filed by the opposite parties - Court held the classification to be discriminatory and failing the test of reasonable classification in the context of Article 14 of the Constitution of India. B. U.P. Basic Education (Teachers) Service Rules, 1981, Rules 5 & 8 - Legality of Clause 3 of Government Order dated 26.06.2024 - Clause 3 of the Government Order stipulates that transfer/adjustment would also take into account the number of Shiksha Mitra employed in a particular school. Held - Inclusion of Shiksha Mitra for determining Pupil-Teacher Ratio under Clause 3 of the Government Order is contrary to statutory provisions. Rule 5 and Rule 8 of the 1981 Service Rules stipulate specific sources of recruitment and qualifications for Assistant Teachers, which cannot be diluted through executive instructions. Qualifications required for appointment as an Assistant Teacher are not required for appointment as a Shiksha Mitra. Government Order equating Assistant Teachers with Shiksha Mitra treats unequals as equals. Executive orders cannot override statutory rules. Executive orders may supplement but not supplant statutory provisions. (Paras 60, 61, 62, 63) Allowed. (E-5)
Title: Pushkar Singh Chandel & Ors. Vs. State of U.P. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Manish Mathur
English hearing
ARPL/423 /2024 Judgment/Order Date: 12-11-2024 (2024) 11 ILRA 4
HEADNOTE hearing
Civil Law - Arbitration and Conciliation Act, 1996 - Section 34 - Right to Fair Compensation and Transparency in Land Acquisition in Land Acquisition, Rehabilitation and Resettlement Act, 2013 - Section 26 - In impugned order, learned court below remanded matter to arbitrator for fresh consideration and found that amount of compensation was not computed in light of provisions of Land Acquisition Act - Contention by appellant that court below had no power to remand matter to arbitrator. (Para 1, 2) Question before High Court was to examined whether court below was justified in remanding matter to arbitrator - In P. Nagaraju alias Cheluvaiah (infra), question regarding power of remand in proceedings u/s 34 of Arbitration and Conciliation Act arose for consideration. (Para 6) The judgement of Supreme Court in Kinnari Mullick (infra) relied upon by appellant was not applicable to instant case and it arose out of private contract between parties - Dealing with distinction between private contracts and statutory contracts under National Highways Act, Supreme Court held in P. Nagaraju alias Cheluvaiah (infra) there exists statutory arbitrator as in instant case - Private contracts between parties which contemplate appointment of arbitrator and cases where statutory arbitrators are appointed under statute fall in two separate classes. (Para 8) Appeal dismissed. (E-13)
Title: N.H.A.I. Vs. Dwarikesh Sugar Industries Ltd. & Anr.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Ajay Bhanot
English hearing
NA528/44720 /2024 Judgment/Order Date: 21-04-2025 (2025) 4 ILRA 800
HEADNOTE hearing
(A) Criminal Law - Cognizance - Magistrate's Power to Add or subtract any section - Code of Criminal Procedure, 1973 - Sections 190(1)(b), 204, 216, 218 & 228 - Bharatiya Nagarik Suraksha Sanhita, 2023 - Section 210 - Indian Penal Code, 1860 - Sections 376/511, 406, 354, 498-A, 323, 504 & 506 - Dowry Prohibition Act - Sections 3/4, Magistrate, while taking cognizance u/s 190(1)(b) Cr.P.C., can take cognizance of all offences constituted by the facts reported by the police which also include the offences which are not mentioned in the charge-sheet - Not bound by Investigating Officer's conclusion - may take independent decision regarding cognizance of an offence on the basis of material available with the police report - Constitution Bench in Dharam Pal held Magistrate can issue process on basis of police report though accused not named - Magistrate has discretion under S.190(1)(b) CrPC/210 BNSS to take cognizance beyond IO's conclusions.(Para - 10,14,18,19,22,23) Applicant lodged an FIR under Sections 498-A, 354, 323, 504, 506 IPC and Sections 3/4 of Dowry Prohibition Act - On submission of charge-sheet - she filed a protest petition seeking cognizance under Sections 376/511 and 406 IPC based on her statement u/s 164 Cr.P.C. - Magistrate rejected her plea citing lack of prima facie material - Present application under Section 528 BNSS was filed challenging that order.(Para - 2,3,4,24) HELD: - Magistrate can take cognizance of an offence based on the police report's material, regardless of the Investigating Officer's opinion. This power includes (i) Summoning unnamed accused persons. (ii) Taking cognizance of offences under different sections than those mentioned in the charge-sheet. (iii) Dropping sections if there's insufficient material in the report. Court does not find any illegality in the impugned order passed by the learned Magistrate by which it refused to take cognizance of the offence u/s 376, 511 and 406 I.P.C. .(Para - 22,25) Application U/S 528 BNSS dismissed. (E- 7)
Title: Nisha Kushwaha Vs. State of U.P. & Anr.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Arun Kumar Singh Deshwal
English hearing
NABAIL/398/2025 Judgment/Order Date: 02-05-2025 (2025) 5 ILRA 14
HEADNOTE hearing
Criminal Law - Bharatiya Nyaya Sanhita, 2023 - Sections 80 & 85 - Dowry Prohibition Act, 1961 - Section ¾ - Sessions Court entertained anticipatory bail applications of three co-accused but declined interim protection, thereby continuing their apprehension of arrest - Reasonable likelihood that applicant would be denied interim relief if he would approach Sessions Court - These circumstances constitute exceptional situation justifying applicant, a young B.Tech. student, in directly approaching High Court for anticipatory bail - Having considered facts and circumstances, including FIR implicates applicant's mother (co-accused) in strangulation, while post-mortem report indicates death by asphyxia due to ante-mortem hanging with only 6 cm-interrupted ligature mark and no other injuries, no specific allegation made against applicant, he is 21-year-old engineering student, he has undertaken to cooperate in investigation and trial, case is made out for grant of anticipatory bail. (Para 8, 16) Application allowed. (E-13)
Title: Prashant Shukla Vs. State of U.P. & Anr.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Subhash Vidyarthi
English hearing
NA528/2582 /2025 Judgment/Order Date: 20-05-2025 (2025) 5 ILRA 286
HEADNOTE hearing
Private opposite party no. 2 is wife of the applicant- -various matrimonial disputes are pending between the parties -as per medical report- five injuries are found on the body of the injured person/first informant-Inherent power must be utilised with the sole purpose of preventing the abuse of the process of the court or to otherwise serve the ends of justice- proper scrutiny of facts and circumstances of the case concerned is absolutely imperative. Application dismissed. (E-9)
Title: Raghvendra Singh Vs. State of U.P. & Anr.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Sanjay Kumar Pachori
English hearing
NA528/30850 /2024 Judgment/Order Date: 27-05-2025 (2025) 5 ILRA 321
HEADNOTE hearing
Criminal Law - Bharatiya Nagarik Suraksha Sanhita, 2023 - Section 528 - Criminal Procedure Code, 1973 - Section 482 - Negotiable Instruments Act, 1881 - Sections 7, 8, 9, 138, 141 & 142 - Indian Partnership Act, 1932 - Sections 2, 2(a), 4, 11, 18, 19 & 22 - The Insolvency And Bankruptcy Code, 2016 - Section 14 - Application - challenging summoning the summoning orders and dismissal of criminal revision ?- under Section 138 of the NI Act, 1881 - dishonour of four cheques, due to insufficient funds - Complaint Case - summon orders - Criminal Revision - dismissed - plea taken that the complaint was filed by a partner without authorization from the firm, which was the actual payee, - and the absence of firm authorization violates Sections 19 and 22 of the Indian Partnership Act - Additionally, they argue that proceedings are barred under Section 14 of the Insolvency and Bankruptcy Code - due to an NCLT order placing firm under moratorium - They also claim non-compliance with Section 141 of the NI Act - court finds that, the revisional court failed to adequately consider substantive legal objections, rendering its order legally unsustainable - however, the judgment ultimately affirms the maintainability of the complaint under Section 138 of the NI Act - court held that, (i) a partner, acting as an agent of the firm, possesses implied authority to initiate proceedings when the cheque is issued in the firm's name - (ii) applicants being Directors of the body corporate are not entitled to any protection u/s 14 of the IBC and they have no right to forestall the proceedings u/s 138 NI Act, - relies on authoritative rulings including P. Mohanraj, Ajay Kumar Goenka, and Rakesh Bhanot, court reiterates that disputed facts and presumptions under Section 139 must be adjudicated at trial - cautions against premature quashing under Section 482 CrPC - accordingly, no jurisdictional error was committed by the trial court - consequently, both applications are dismissed. (Para - 9, 10, 11) Application Dismissed. (E-11)
Title: Mohnish Jain & Anr. Vs. State of U.P. & Anr.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Vikas Budhwar
English hearing
NA528/5944 /2025 Judgment/Order Date: 02-05-2025 (2025) 5 ILRA 626
HEADNOTE hearing
Bharatiya Nagarik Suraksha Sanhita, 2023 - Section 173 (4)-Application U/S 173(4) BNSS moved- impugned order-directed to proceed with the application as a complaint case-Cases where Magistrate takes cognizance and postpones issuance of process are cases where the Magistrate has yet to determine "existence of sufficient ground to proceed- on a prima facie reading of the complaint -clearly indicate the need for police investigation-the discretion granted in Section 156(3) can only be read as it being the Magistrate's duty to order the police to investigate-if investigation in the matter is not required then in that eventuality, the Magistrate/Court of competent of jurisdiction can treat the application under Section 173(4) BNSS as a 'complaint case'-no interference in impugned order. Application dismissed. (E-9)
Title: Smt. Raveena Meena Vs. State of U.P. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Manju Rani Chauhan
English hearing
NA528/11862 /2025 Judgment/Order Date: 06-05-2025 (2025) 5 ILRA 633
HEADNOTE hearing
Criminal Law - Criminal Procedure Code,1973- Section 161 & 164 -St.ment of opposite party no.2 recorded u/s 161 and 164 Cr.P.C.- specific allegation of cruelty and also the harassment against the husband for demand of dowry-as well as committing unnatural carnal sex upon his wife against her wishes-to attract the offence u/s 498A IP- specific demand of dowry is not necessary-cruelty committed by the husband is itself sufficient to attract the ingredients of Section-498A IPC-from the perusal of the St.ments of Section 161 Cr.P.C. and 164 Cr.P.C., offence mentioned in charge sheet are made out-no ground for quashing. Application rejected. (E-9)
Title: Imran Khan @ Ashok Ratna Vs. State of U.P. & Anr.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Arun Kumar Singh Deshwal
English hearing
NA528/14125 /2025 Judgment/Order Date: 09-05-2025 (2025) 5 ILRA 642
HEADNOTE hearing
Civil Law - Essential Commodities Act, 1955 - Section 11 - there is hardly any sanction of prosecution in pursuance to section 11 of Essential Commodities Act available-entire proceedings is conducted by way of ignoring the strict provisions- specifically defined under section 11 of the Act-not permissible- unjustified- Proceedings quashed. Application allowed. (E-9)
Title: Rajkumar Vs. State of U.P. & Anr.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Saurabh Srivastava
English hearing
WTAX/30 /2025 Judgment/Order Date: 03-06-2025 (2025) 6 ILRA 183
HEADNOTE hearing
A. Taxation Law- The Constitution of India, 1950-Article 226 - The Income Tax Act, 1961-Sections 131(1A) & 132---Writ petition challenging warrant of authorization and the validity of search proceedings conducted at the premise of the petitioners as well as notice issued U/S 131(1A) of the Act---- In order to initiate any action section 132, first of all, there has to be information in possession of the officers referred thereunder. Secondly, such officers should have reason to believe as a consequence of such information and based thereon. Thirdly, this information and reason to believe should have a relation with any of the three clauses (a), (b) or (c) contained therein, otherwise such exercise would be bad in law. B. The information and reason to believe has to be related/ referrable to clause (b) aforesaid and should have a rational connection with the said clause (b) and if it is not then it can be a ground for interference under Article 226 of the Constitution of India because then it would be a case of absence of such information/ reason to believe in the context of said clause (b) of sub- Section (1) of Section 132 and would lead to a conclusion that it is an arbitrary exercise of power, without application of mind to the provisions of law and legal requirements contained therein. C. The jurisdictional prerequisites for exercise of power under Section 132 are / were woefully absent in this case and consequently entire search operations based on such satisfaction note and warrant of authorization are illegal--- The authorised officer does not have any power to issue notices under section 131(1A) post- search, at best issuance of such notice would render the notice invalid. But issuance of notice under s. 131(1A) post-search would not in any manner render the proceedings under section 132 invalid, if they were otherwise initiated pursuant to a valid authorization issued after recording satisfaction on the basis of the material available on record. Petition allowed. (E-15)
Title: Pramod Swarup Agarwal Vs. Prin. Director of Income Tax (Inv.) Lko & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Rajan Roy,Om Prakash Shukla
English hearing
WRIC/38609/2019 Judgment/Order Date: 10-06-2025 (2025) 6 ILRA 170
HEADNOTE hearing
(A) Administrative Law - Fair Price Shop - Cancellation of Licence - The Essential commodities Act,1955 - Section 3/7 & 13(2) - UP Essential Commodities (Regulation of Sale & Distribution Control) Order, 2016 - Information Technology Act, 2000 - Section 43,60,66 - Cancellation of fair price shop licence cannot be ordered merely on the ground of lodging of a criminal case - Government Order dated 05.08.2019 prescribes a mandatory preliminary inquiry prior to cancellation/suspension - Failure to follow prescribed procedure vitiates order of cancellation - Licence of fair price shop cannot be cancelled only on ground of FIR registration under Section 3/7 of the Essential Commodities Act without conducting proper inquiry under Government Order dated 05.08.2019. (Para - 32, 33, 34) Licence of the petitioner's fair price shop was cancelled - ground - FIR was lodged under Section 3/7 of the U.P. Essential Commodities Act and 66 of I.T. Act - no preliminary inquiry as mandated by the Government Order dated 05.08.2019 was conducted - Statutory appeals under Clause 13(2) of Control Order, 2016 were dismissed. (Para - 3 to 24, 31, 32) HELD: - Fair price shop licence/agreement could not be cancelled on the ground of registration of F.I.R. under Section 3/7 Essential Commodities Act. It is mandatory for the authorities to conduct a preliminary inquiry as prescribed under the Government Order dated 05.08.2019 before cancelling or suspending the licence. Since this procedure was not followed, the cancellation order is unsustainable. Authorities were directed to restore the fair price shop licences forthwith. (Para 32, 33, 34, 36) Petitions allowed. (E-7)
Title: M/s Sajid Vs. State of U.P. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Prakash Padia
English hearing
WRIA/35844/2019 Judgment/Order Date: 06-06-2025 (2025) 6 ILRA 157
HEADNOTE hearing
A. Service Law - Constitution of India,1950 - Article 14 - Principle of natural justice - Appointment - Post of Producer - Withdrawal of appointment - No reason was given in the impugned order - Effect - Held, the manner under which the impugned order withdrawing the offer of appointment has been issued is violative of Article 14 of the Constitution of India inasmuch as it is a settled law that the requirement to record reasons is a fundamental principle of natural justice which acts as a check against arbitrary exercise of powers and ensures fairness. The opposite parties acted arbitrarily and in violation of principles of natural justice. (Para 36) B. Service Law - Appointment - Irregularity in constitution of Selection Committee - Effect - Principle of legitimate expectation - Applicability - The petitioners was selected and offered appointment - How far petitioners put to suffer due to fault of authorities in constituting the committee - Food Corporation of India's case relied upon - Held, though the petitioners have got no absolute right of appointment in these circumstances, but their expectation cannot be defeated arbitrarily or without adhering to principles of fairness and reasonableness. (Para 39 and 40) C. Service Law - Principle of Promissory Estoppel - Applicability - The petitioners, acting in a good faith manner, appeared before the Selection Committee and also succeeded in selection - Effect - Held, where any party makes promise on which the other party acts to his detriment, the promisor is estopped from going back on the promise - Motilal Padampat Sugar Mills Co. Ltd.'s case relied upon. (Para 39 and 40) Writ petition allowed. (E-1)
Title: Anand Singh Aswal Vs. U.O.I. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Rajesh Singh Chauhan
English hearing
WRIA/19578/2024 Judgment/Order Date: 13-06-2025 (2025) 6 ILRA 148
HEADNOTE hearing
A. Civil Law - Constitution of India, 1950 - Article 226-Uttar Pradesh Cane Co- operative Service Regulations,1975- Regulations 68 and 69-The petitioner challenged disciplinary order dated 11.03.2022 passed by the cane commissioner, U.P. imposing the penalties of withholding two increments with cumulative effect, proportionate recovery of loss and censure and appellate order dated 24.09.2024 affirming the disciplinary action-The charges against the petitioner, a Cashier at a Cane Cooperative Society related to alleged negligence leading to a financial loss of Rs. 75 lakhs-A department inquiry was conducted, wherein the Inquiry Officer found the petitioner guilty -The court found that the inquiry violated mandatory procedural safeguards under Regulations 68 and 69 of the Regulations 1975-No witnesses were examined, and no oral or documentary evidence was produced during inquiry proceedings-The inquiry officer merely relied on the charg-sheet and reply without proper evidentiary proceedings-The charge-sheet itself was defective as it failed to detail the evidence proposed for each charge-Relying on settled law and Supreme Court precedents, the Court held that disciplinary proceedings require production of evidence and examination of witnesses, especially where major penalties are involved. (Para 1 to 28) The writ petition was allowed and both the disciplinary and appellate orders were quashed. (E-6)
Title: RAJESH KUMAR Vs. State of U.P. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: J.J. Munir
English hearing
NA528/14448/2025 Judgment/Order Date: 08-05-2025 (2025) 5 ILRA 1027
HEADNOTE hearing
Muslim Law- if a Muslim male performs his first marriage as per Mohammedan law -then second, third or fourth marriage will not be void-ingredients of Section 494 I.P.C. will not be attracted for the second marriage- except in second marriage itself declared Batil (void marriage) -as per Shariat by the Family Court u/s 7 of the Family Court Act or by any competent court.-if the first marriage is performed under Special Acts-and performs second marriage as per the Mohammedan law, after conversion to Islam then his second marriage will be void and offence u/s 494 I.P.C. (E-9)
Title: Furkan S/o Akhtar Ali & Ors. Vs. State of U.P. & Anr.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Arun Kumar Singh Deshwal
English hearing
NA528/10997/2025 Judgment/Order Date: 27-05-2025 (2025) 5 ILRA 1277
HEADNOTE hearing
Criminal Law - Criminal Procedure Code,1973- Section 155 (2) - Bharatiya Nagarik Suraksha Sanhita, 2023 - Section 174 (2) -The mandate of Section-155 (2) Cr.P.C. (corresponding Section 174(2) of BNSS) - that police cannot investigate a non-cognizable offence-if the police continues to investigate an FIR-which does not disclose cognizable offence- it would be against the mandate of Cr.P.C./BNSS and in such case, court can interfere-or stop the investigation in exercise of its power u/s 528 BNSS (corresponding Section 482 Cr.P.C.)- legal principles established in the Full Bench decision of Ramlal Yadav - may no longer be applicable due to recent developments in the law as interpreted by the Apex Court-refer this matter to a Larger Bench comprising nine judges. (E-9)
Title: Shashank Gupta @ Guddu & Ors. Vs. State of U.P. & Anr.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Arun Kumar Singh Deshwal
English hearing
WRIA/19042/2024 Judgment/Order Date: 09-06-2025 (2025) 6 ILRA 138
HEADNOTE hearing
A. Service Law - UP Co-operative Societies' Employees Service Regulations, 1975 - Reg. 84 - Disciplinary proceeding - Punishment -Withholding of increment with cumulative effect - Principle of natural justice - Applicability - Petitioner took defence against the charges imposed - Non-speaking punishment order was passed - Validity challenged - No discussion about defence was made - Effect - Held, in the absence of a discussion on the particulars of the three charges, the petitioner's defence and reasons to conclude why the charges were held proved, the underlying decision of the Committee of Management, as expressed in the impugned order passed by the Secretary/Chief Executive Officer of the Bank, is certainly violative of natural justice. -The order, despite being verbose on other details, maintains critical silence on what went on in the mind of the decision makers to conclude that the charges against the petitioner are proved by the requisite standard of preponderant probability. (Para 16) B. Constitution of India,1950 - Article 14 -Classification - Vires of Reg. 84 of Regulation, 1975 not classifying the penalty of withholding of increment as major penalty - How far Court can interfere in the absence of challenge to it - Held, the penalty of withholding increments with cumulative effect, that would have the effect of postponing future increments, would be certainly a major penalty by all established norms, and Reg. 84, to this extent seems to arbitrarily classify penalties. But, that question cannot be gone into in the absence of a challenge laid by the petitioner to the vires of the said Regulation. (Para 12) Writ petition allowed. (E-1)
Title: Ranjeet Kumar Vs. The Registrar Corporative Societies & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: J.J. Munir
English hearing
WRIA/18453/2024 Judgment/Order Date: 06-06-2025 (2025) 6 ILRA 124
HEADNOTE hearing
A. Service Law - Constitution of India,1950 - Article 226 & 300A - Payment of Gratuity Act,1972-Section 4(6)-U.P. Cooperative Societies Employees Service Regulations,1975- Regulations 84 and 96- withholding of gratuity and dues-The petitioner , a retired Senior Branch Manager of the District Cooperative Bank Limited Ghaziabad challenged the withholding of Rs. 19.25000 from his post retirement benefits by the Bank-The amount was retained due to loans he had sanctioned, which later became non-performing assests(NPAs)-The court held that such recovery was illegal in the absence of any disciplinary proceedings or criminal conviction-Gratuity and post-retiral benefits are protected u/s 4(6) of the Act,1972 and Article 300A of the Constitution -Recovery from such benefits is impermissible unless services were terminated for proven misconduct- Administrative decisions or internal resolutions cannot override these legal protections-Thus, Impugned orders and resolution quashed-Bank directed to release withheld amount with interest. (Para 22 to 35)
Title: Rakesh Kumar Tyagi Vs. State of U.P. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: J.J. Munir
English hearing
WRIA/15771/2024 Judgment/Order Date: 10-06-2025 (2025) 6 ILRA 115
HEADNOTE hearing
A. Civil Law - U.P. Government Servant (Discipline and Appeal) Rules, 1999 - Rule 7 - Disciplinary Proceedings - Burden of Proof: In major penalty inquiries, the establishment must prove charges through documentary and oral evidence, including witnesses, regardless of the delinquent's participation. The inquiry officer cannot presume guilt or rely solely on documents without witness testimony. Failure to produce establishment witnesses vitiates the inquiry. St.of U.P. Vs Saroj Kumar Sinha, (2010) 2 SCC 772; Roop Singh Negi Vs Punjab National Bank, (2009) 2 SCC 570; St.of Uttaranchal Vs Kharak Singh, (2008) 8 SCC 236; Satyendra Singh Vs St.of U.P., 2024 SCC OnLine SC 3325 (Paras 2, 6, 7). B. Departmental Inquiry - Ex-Parte Proceedings - Establishment's Duty: Even if the delinquent absents, the establishment must produce evidence, including witnesses, at the scheduled inquiry to prove charges by preponderant probability. Absence does not lead to default guilt; ex-parte inquiry requires evidence presentation. St.of U.P. Vs T.P. Lal Srivastava, (1996) 10 SCC 702 (Paras 12, 13). C. Central Civil Services (Classification, Control and Appeal) Rules, 1965 - Article 351-A - Procedural Fairness: Inquiry flawed by requiring delinquent to produce and cross- examine own witnesses, misunderstanding examination-in-chief and cross-examination principles. Establishment's failure to produce witnesses invalidates findings of guilt. St.of U.P. Vs Kishori Lal, 2018 (9) ADJ 397 (DB); Smt. Karuna Jaiswal Vs St.of U.P., 2018 (9) ADJ 107 (DB); St.of U.P. Vs Aditya Prasad Srivastava, 2017 (2) ADJ 554 (DB) (Paras 2, 10, 11). D. Judicial Review - Departmental Inquiry - Persistent Procedural Flaws: Despite prior court remand for fresh inquiry, respondents' failure to follow legal principles on evidence production warrants quashing of punishment order. Courts may consider penal costs or disciplinary action against erring authorities for repeated breaches. (Paras 15, 16). Writ Petition Allowed.
Title: Dr. Trihuti Kumar Vs. State of U.P. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: J.J. Munir
English hearing
WRIA/6603/2025 Judgment/Order Date: 10-06-2025 (2025) 6 ILRA 104
HEADNOTE hearing
A. Civil Law - Constitution of India,1950 - Article 226 - Writ Petition - Delay and Laches - Discretionary Relief Denied: Unexplained delay of 363 days in challenging Tribunal's order on disciplinary proceedings against a retiring employee bars extraordinary relief under Article 226. Courts must scrutinize laches to prevent injustice from stale claims, even in cases involving fundamental rights. Shiv Dass Vs U.O.I., (2007) 9 SCC 274; UP Jal Nigam Vs Jaswant Singh, (2006) 11 SCC 464 (Paras 8, 9, 10, 11). B. Central Civil Services (Classification, Control and Appeal) Rules, 1965 - Rule 16 - Disciplinary Proceedings - Recovery of Loss: Recovery of Rs. 20,000 from employee at retirement for irregularities by another official (SPM) is unsustainable without direct culpability. Tribunal's finding of lack of fair hearing opportunity upheld, rendering proceedings vitiated. Tridip Kumar Dingal Vs St.of W.B., (2009) 1 SCC 768; Karnataka Power Corpn. Ltd. Vs K. Thangappan, (2006) 4 SCC 322 (Paras 12, 13). C. Doctrine of Laches - Application in Service Matters - Laches applies in pension and service disputes; delay defeats equity and causes prejudice. Writ courts exercise discretion judiciously, refusing relief where negligence or inaction is evident, even for continuing causes of action. Chennai Metropolitan Water Supply & Sewerage Board Vs T.T. Murali Babu, (2014) 4 SCC 108 (Paras 13). Writ Petition Dismissed.
Title: U.O.I. & Ors. Vs. Govind Narain Mishra
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Saurabh Lavania,Syed Qamar Hasan Rizvi
English hearing
NA529/285/2025 Judgment/Order Date: 14-05-2025 (2025) 5 ILRA 1632
HEADNOTE hearing
Criminal Law-The Code of Criminal Procedure,1973-Sections 483 & 145- (The Bharatiya Nagarik Suraksha Sanhita,2023-Section 529--- The High Court is empowered to exercise its superintendence over the Court of Judicial Magistrates subordinate to it to ensure the expeditious and proper disposal of the cases by such Magistrate but when an order is passed by an Executive Magistrate or any direction is required to be issued for expeditious and proper disposal of a case which is pending before the Executive Magistrate, the High Court can't exercise its superintendence over the courts of Executive Magistrates--- The High Court under Sec. 529 BNSS(Section 483 Cr.P.C.) is not required to make any superintendence over the working of a Executive Magistrate and no direction under Section 483 Cr.P.C. (Section 529 of BNSS) can be issued to the Executive Magistrates where a case under Section 145 Cr.P.C. is pending before it as prescribed in Section 483 Cr.P.C.(Section 529 of BNSS). Application rejected. (E-15)
Title: Sudha Shukla Vs. State of U.P. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Nalin Kumar Srivastava
English hearing
NABAIL/487/2025 Judgment/Order Date: 28-05-2025 (2025) 5 ILRA 1662
HEADNOTE hearing
Criminal Law-The Bharatiya Nagarik Suraksha Sanhita,2023-Section 482--- Application seeking anticipatory bail in Case Crime No.34 of 2025 under Sections 110, 191(2), 191(3), 115(2), 352, 351(2), 351(3), 109, 103(1), 118(1) of B.N.S.--- That a co- accused person was taken into custody and he has been enlarged on regular bail, does not affect the right of the applicant to seek anticipatory bail and he cannot be compelled to first surrender to custody and thereafter apply for his release on bail--- The deceased died two months and eighteen days after the incident and the cause of death has been opined to be cardiopulmonary arrest due to chronic lung disease; that the applicant is a 55 years old person and the person against whom the allegation of making assault with an axe has been levelled has already been granted bail by the Session Court whereas the allegation against the applicant is of exhortation only and the other persons have received simple injuries- -- Applicant is entitled to be granted on anticipatory bail. Application allowed. (E-15)
Title: Nafees Ahmad Vs. State of U.P. & Anr.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Subhash Vidyarthi
English hearing