SPLAD/601 /2024 Judgment/Order Date: 12-11-2024 (2024) 11 ILRA 284
HEADNOTE hearing
Allahabad High Court Rules-Chapter VIII Rule 5-U.P. Revenue Code,2006-Section 67(a)-U.P. Zamindari Abolition and Land Reforms Act,1950-Section 123(1)- quashing of disciplinary proceedings initiated against the respondent(a Deputy Collector)-respondent was issued a charge-sheet and a supplementary charge-sheet during her tenure as Sub- Divisional Magistrate-the charges alleged negligence, procedural violations, and illegal orders favoring private individuals at the cost of public property -the respondent was found guilty in the inquiry report dated 03.08.2024 - Held-Disciplinary proceedings against public officials exercising judicial or quasi -judicial powers are permissible when there is evidence of misconduct, negligence or malafide intent -The single judge erred in quashing the charge -sheets without examining the evidence or providing the State an opportunity to file a response -The appellants are directed to conclude the disciplinary proceedings against the respondent in furtherance of the chargesheets issued against the respondent and enquiry report dated 03.08 .2024 expeditiously.(Para 1 to 36) (E-6)
Title: State of U.P. & Ors. Vs. Shivani Singh
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Attau Rahman Masoodi,Subhash Vidyarthi
English hearing
SAPL/227 /2005 Judgment/Order Date: 23-11-2024 (2024) 11 ILRA 273
HEADNOTE hearing
Civil Law-The Code of Civil Procedure,1908-Order 41 - Rule 27- Additional evidence can be filed in the appellate court in three contingencies. The first of which is that where the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted; secondly the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not be produced before passing of the decree and thirdly if the appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause---The additional evidence sought to be produced by the defendant is required to be taken on record for the just decision of the case and pronouncement of the judgment because it will have to be considered as to whether the suit was filed by material concealment of fact and the decree was obtained by playing fraud on the court which can be considered at any stage, if comes to light and the suit can be dismissed on this ground alone because no relief can be granted in such case and as to whether the suit could have been filed on behalf of the Custodian, Enemy Property without his permission or authority. Application under Order 41 Rule 27 CPC allowed. (E-15)
Title: Ishtiyak Ali Vs. Shiv Raj
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Rajnish Kumar
English hearing
SAPL/112 /2023 Judgment/Order Date: 29-11-2024 (2024) 11 ILRA 257
HEADNOTE hearing
Civil Law-The Specific Relief Act-1963- Section 16(c)-Second appeal against concurrent judgment---Trial court in a suit for specific performance failed to frame the specific issue regarding readiness and willingness---It was incumbent upon the plaintiff-respondents to specifically St. in the plaint that they have arranged the remaining money of sale consideration and ready to pay the same and prove it---In a suit for specific performance, the issue of readiness and willingness of the person claiming the relief of specific performance is required to be framed so that he may know that he has to prove the readiness and willingness to perform his part of contract and the other party may prove that the person claiming was not ready and willing to perform his part ---Courts below failed to consider the case in terms of provision made in Section 16(C) and the law on the point and allowed the suit filed by the plaintiff without appropriately analyzing the evidence and material on record, while recording the findings of readiness and willingness on the part of the plaintiff, the impugned judgments are not sustainable in the eyes of law. Second Appeal allowed. (E-15)
Title: Rama Kant & Ors. Vs. Smt. Prema Devi & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Rajnish Kumar
English hearing
FAPL/55 /2021 Judgment/Order Date: 14-11-2024 (2024) 11 ILRA 251
HEADNOTE hearing
Civil Law-The Hindu Marriage Act, 1955- Section 13 -The Family Court Act, 1984- Sections 19 & 28 - The allegations with regard to cruelty as set out by the appellant/ husband are nothing but the normal wear and tear in married life. The couple lived together for around six years and the appellant-husband could not bring on record specific instances of mental harassment to enable the Court to adjudicate the case of mental cruelty in favour of the appellant/husband--- Allegations leveled by the husband are general and omnibus in nature which alone is not sufficient to grant a decree of divorce--- The instances of physical and mental harassment, as pleaded and asserted by the respondent/wife in her written St.ment, are on the better footing than those alleged by the appellant/husband. Petition for Domestic Violence has been allowed in favour of the respondent/wife, wherein she has even been awarded compensation and a monthly maintenance. This all goes on to show the contrary implication of the allegations made by the Appellant--- Pleadings of the appellant/husband are not so grave and weighty so as to dissolve the marriage. Appeal dismissed. (E-15)
Title: Dr. Bagish Kumar Mishra Vs. Rinki Mishra
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Rajan Roy,Om Prakash Shukla
English hearing
ABAIL/6849 /2024 Judgment/Order Date: 08-11-2024 (2024) 11 ILRA 227
HEADNOTE hearing
Criminal Law- The Code of Criminal Procedure,1973 - Section 438- Power of anticipatory bail is somewhat extraordinary in character and it is to be exercised only in exceptional cases where the person is falsely implicated. Though in many cases it was held that bail is said to be a rule, it cannot, by any stretch of imagination, be said that anticipatory bail is the rule--- Where from the material and allegation against an accused, offence is made out, the accused is required to show exceptional circumstances warranting the protection of liberty--- The Court is required to exercise jurisdiction of anticipatory bail on sound judicial principles. The court should be slow to grant anticipatory bail to an accused who does not abide by law and commits an offence--- No extraordinary circumstances have been shown by applicants that refusal to grant anticipatory bail would lead to injustice. Anticipatory bail applications lack merit and are accordingly dismissed. (E-15)
Title: Mukesh & Ors. Vs. State of U.P.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Vikram D Chauhan
English hearing
BAIL/1538 /2023 Judgment/Order Date: 12-11-2024 (2024) 11 ILRA 215
HEADNOTE hearing
Criminal Law - Indian Penal Code, 1860 - Sections 147, 148, 149, 307, 326, 302, 120-B, 34 & 427 - Arms Act, 1959 - Section 30 - The Motor Vehicle Act, 1988 - Section 177 - Code of Criminal Procedure, 1973 - Section 144 - Constitution of India, 1950 - Article 21 - Indian Evidence Act, 1872 - Section 9 - F.I.R. lodged with allegations that farmers and labours of local area were protesting peacefully, main accused reached on spot with four wheelers along with unknown persons armed with weapons - Said accused started firing and moving ahead at high speed, crushed crowd - Due to firearm injury, one person died on spot, some pedestrians received injuries - In said incident, four farmers died. (Para 19, 20) Contention by applicants, they are not named in FIR, their name came up during investigation in statement of eye- witnesses - Cross-version to instant case was registered by co-accused with allegations that protestors attacked them - Postmortem report from side of accused persons, indicates cause of death was antemortem injuries received by blunt object, as they were beaten to death by farmers. (Para 21, 22, 23) Case was later on modified from gunshot injuries to injuries caused due to crushing by vehicles - Out of 114 witnesses, only seven examined. (Para 26, 30) Held, regarding criminal antecedents, it was not case of St.that applicants might adversely influence investigation or might intimidate witnesses - No exceptional circumstances shown to deny bail to accused, hence, bail on ground of criminal antecedent can't be deny. (Para 53) Cross-version to present case, acknowledged by both parties - Main accused, granted bail by Supreme Court - Significant number of witnesses to be examined, no likelihood that trial will conclude in near future - Applicants have not misused interim bail previously granted. (Para 56) Bail applications allowed. (E-13)
Title: Nandan Singh Bisht Vs. State of U.P.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Krishan Pahal
English hearing
WRIB/3319 /2022 Judgment/Order Date: 19-11-2024 (2024) 11 ILRA 211
HEADNOTE hearing
(A) Land Law - Consolidation of Holdings - Orders regarding Chak allotment under U.P.C.H. Act under challenge - Uttar Pradesh Consolidation of Holdings Act, 1953 - Section 19 - Conditions for Consolidation Scheme, Section 21(2) - Appeals , Section 48 - Revisional Powers of Deputy Director - Compact area - Source of irrigation - Rectangulation - Chak Objection - Chak Appeal - Chak revision - Tenure holder be allotted Chak as far as possible on his original largest holding considering the source of irrigation of tenure holder copuled with the process of rectangulation of Chak of tenure holder.(Para -11) Petitioner, holder of Chak Nos. 799 and 800 - challenged allocation of chaks made under consolidation proceedings - objection was partially allowed by Consolidation Officer - subsequent appeal and revision were dismissed - sought allotment on his original holdings (536 and 539) - claiming that current allocation (496 and others) was unfit for cultivation due to its L- shape - which was denied by authorities. (Para 2, 4) HELD: - Petitioner's allotment of Chak to his source of irrigation was adjusted on plot no. 496. No illegality in allotment of the Chak to the petitioner by Consolidation Officer. Consolidation Officer dismissed an appeal to allocate the Chak to other holdings. Deputy Director of Consolidation also dismissed a revision under Section 48 of the U.P.C.H. Act. No scope of interference against the impugned orders. (Para -10,12) Petition dismissed. (E-7)
Title: Suraj Singh @ Suraj Dev Vs. State of U.P. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Chandra Kumar Rai
English hearing
WRIB/3143 /1993 Judgment/Order Date: 21-11-2024 (2024) 11 ILRA 205
HEADNOTE hearing
(A) Land Revenue Law - U.P. Zamindari Abolition and Land Reforms Act, 1950 - Section 198(2) - Writ jurisdiction - Article 226 - Court of law - Court having extraordinary, equitable and discretionary jurisdiction - In extraordinary circumstances the High Court under writ jurisdiction may exercise equitable jurisdiction in the interest of justice would be relevant - Cardinal principle of exercise of extraordinary jurisdiction - In a given case, even if some action or order challenged in the writ petition is found to be illegal and invalid, the High Court while exercising its extraordinary jurisdiction thereunder can refuse to upset it with a view to doing substantial justice between the parties - power to pass such orders as public interest dictates & equity projects.(Para - 18) Dispute arose regarding piece of land - being part of two resolutions (1972 and 1975) - for allotment of Patta under provisions of U.P.Z.A. - 1972 resolution, though upheld, was not acted upon - 1975 resolution granted possession to petitioners - Petitioners were beneficiaries under the 1975 resolution - their possession protected by interim orders for decades - earlier resolution was later challenged on equity grounds. (Para- 1 to 10) HELD:- Court exercised equitable jurisdiction. Set aside orders dated 24.09.1992 and 15.07.1981. Protected petitioners' possession and directed fresh allotment proceedings to include eligible contesting respondents. (Para - 19) Petition disposed of. (E-7)
Title: Beer Singh Vs. Board of Revenue Alld. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Saurabh Shyam Shamshery
English hearing
WRIB/2398/2019 Judgment/Order Date: 22-11-2024 (2024) 11 ILRA 196
HEADNOTE hearing
(A) Land Laws and Specific Performance - Agreement to Sale and Adverse Possession - Concurrent findings of Revenue Courts under challenge - U.P. Zamindari Abolition and Land Reforms Act, 1950 - Section 209 - Ejectment of persons occupying land without title , Section 210 - Consequence of failure to file a suit under Section 209 - Section 229- B - Suit for declaration of rights - Executory Contract - Permissive Possession - Adverse Possession - Specific Performance - Provisions of Sections 209 and 210 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 do not apply to cases where possession is permissive, such as under an executory contract of sale -Possession under an executory contract of sale is permissive and does not constitute adverse possession.(Para - 15,17,18) Petitioner claimed possession over a plot under an agreement to sell executed in 1973 - with partial payment made and possession given - sale deed was never executed - Petitioner filed a suit for specific performance in 2011 - later sought declaration under Section 229B of U.P. Zamindari Abolition and Land Reforms Act, 1950 - dismissed by three revenue courts - claiming ownership based on adverse possession. (Paras - 2 to 9) HELD:- Possession under an agreement to sale is permissive, not adverse, and thus cannot form the basis for claiming title under Section 210 of the Act. Petitioner failed to establish adverse possession or ownership under law. No ground to interfere in concurrent findings of three Revenue Courts. (Para - 18,19) Petition dismissed. (E-7)
Title: Shahid Hussain Vs. Board of Revenue U.P. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Saurabh Shyam Shamshery
English hearing
WRIB/1633 /2023 Judgment/Order Date: 19-11-2024 (2024) 11 ILRA 182
HEADNOTE hearing
(A) Civil Law - Land Law & Tenancy Law - Orders related to tenancy rights over disputed land under challenge - Title Dispute - Interim Injunction - Order 39 Rule 1 and 2 CPC (application 6-C) - Maintainability - U.P. Land Revenue Act, 1901 - Section 33/39 , U.P. Tenancy Act, 1939 - Section 242 - Suits and applications cognizable by Revenue Courts only - Relevant provisions concerning eviction procedures, Government Grants Act, 1895 - Rules related to lease agreements - Revenue records are not documents of title - Mutation in revenue records neither create nor extinguishes title, nor does it have presumptive value on title - If the matter involves complicated question of law and fact relating to title, the Court will relegate the parties to a remedy by way of a comprehensive declaration of title, instead of deciding the issue in a suit for mere injunction. (Para -25,27,28) Appellants/contesting respondents claimed title to a disputed land based on revenue entries - as Class 10-A (non-occupancy tenants) - but State/Irrigation Department produced documents showing that - land was granted to the predecessors of the appellants on lease under the Government Grants Act - whether interim injunction can be granted in a case of disputed title. (Para - 4, 25,26) HELD: - Appellants/contesting respondents never filed any suit under U.P. Tenancy Act to crystalize their rights. Title highly disputed. Relief sought for interim injunction rightly rejected by trial Court. No illegality in impugned order, hence, FAFO stands dismissed. Matter (Petition) remitted back to Board of Revenue for fresh decision after affording opportunity to both parties. (Para -30) FAFO stands dismissed. Writ Petition partly allowed. (E-7)
Title: State of U.P. & Anr. Vs. Board of Revenue & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Saurabh Shyam Shamshery
English hearing
WRIB/504 /2023 Judgment/Order Date: 08-11-2024 (2024) 11 ILRA 178
HEADNOTE hearing
Civil Law - U.P. Revenue Code, 2006 - Sections 38(1) &. 144 - Code of Civil Procedure, 1908 - Order VII - Rule 11 - Rule 13 - Rejection of Plaint under Order VII Rule 11 - Concealment of Prior Proceedings under Section 38(1) in Suit under Section 144 of U.P. Revenue Code - Effect - In a suit under Section 144 of the U.P. Revenue Code, the plaintiff claimed rights over land based on oral baynama and adverse possession but suppressed the outcome of earlier proceedings under Section 38(1), wherein his claim based on a sale deed was rejected. Defendant filed an application under Order VII Rule 11 CPC for rejection of the plaint due to concealment of material facts. Held: Plaintiff was under a legal obligation to disclose the earlier proceedings. However, under Order VII Rule 13 CPC, the plaintiff has liberty to file a fresh suit on the same cause of action. (Paras 12, 14) Dismissed. (E-5)
Title: Mahendra Singh Vs. Board of Revenue U.P. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Saurabh Shyam Shamshery
English hearing
WRIA/10894 /2024 Judgment/Order Date: 20-11-2024 (2024) 11 ILRA 175
HEADNOTE hearing
A. Service Law-Constitution of India,1950- Article 226-The petitioner, Gram Panchyat, Chamurkha filed a writ petition challenging the adjustment order dated 6.07.2024, appointing respondent no.6 as Rojgar Sewak in the Gram Panchayat, and the rejection of their representation dated 21.10.2024-The Allahabad High Court, Lucknow Bench, dismissed the petition on the grounds of lack of locus standi-The court held that the petitioner failed to establish any legal injury or right affected by the impugned orders-The petitioner raised various grounds, including non- residency of the appointee, lack of disciplinary authority, absence of rules for adjustment and alleged expiration of appointment tenure-However, these grounds were found to be legally unsustainable-Furthermore, the petitioner's reliance on the decision in Smt. Geeta Devi case was deemed inapplicable to the facts of this case-The court reiterated that only a person aggrieved by a legal injury can challenge an act, and mere sentimental or fanciful grievances are insufficient.(Para 1 to 20) The writ petition is dismissed. (E-6)
Title: Gram Panchayat Pratappur Chamurkha Vs. State of U.P. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Abdul Moin
English hearing
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