CRLA/4508 /2024 Judgment/Order Date: 11-11-2024 (2024) 11 ILRA 478
HEADNOTE hearing
Circumstantial evidence -Neither any complaint was made in respect of the alleged incident occurred four months back- nor any Police report etc is on record-alleged enmity not been substantiated by the prosecution- prosecution has not confronted the accused persons with the circumstance of the incident-in the absence of such facts/circumstances having been referred to the accused persons- the facts in that regard cannot be relied upon by the prosecution as an evidence not confronted to the accused under Section 313 Cr.P.C.- cannot be read or relied upon in evidence- in the second St.ment the motive has been introduced in the testimony of witnesses- neither motive is convincing - circumstantial evidence not been carefully dissected by the trial court and the contradictions in the version of witnesses have been overlooked- related witnesses-impugned judgment and order set aside. Appeal allowed. (E-9)
Title: Sher Singh & Ors. Vs. State of U.P.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Ashwani Kumar Mishra,Gautam Chowdhary
English hearing
WRIA/2003852/1991 Judgment/Order Date: 06-11-2024 (2024) 11 ILRA 466
HEADNOTE hearing
A. Civil Law - Service Law- Constitution of India,1950 - Articles 14, 226, 300-A & 311 - Service Law - Pension - Disciplinary proceedings- Inquiry report - non-supply of report to delinquent before passing punishment order - Violation of principles of natural justice. (Para 18) HELD: On careful consideration of the aforesaid judgment, it is evident that even after the amendment in Article 311 of the Constitution of India, the supply of enquiry report is necessary. It is admitted case of the parties that the petitioner has not been supplied with the enquiry report by the Administrative Tribunal while concluding the enquiry. As such, the ratio of the judgment relied upon is fully applicable to the facts and circumstances of the case of the petitioner. (Para 18) B. Interim orders - Restoration of writ petition - Revival of interim orders- Interim orders granted prior to dismissal of writ petition are automatically revived upon restoration of the petition unless explicitly vacated- Interim protection granted on 16.07.1991 remained operative upon restoration of the writ petition. (Paras 23 and 26) HELD: It is submitted that it is well settled that restoration of a petition automatically revives its ancillary orders/ interlocutory orders passed before its dismissal. In aforesaid regard, reliance has been placed on a judgment rendered in the case of Vareed Jacob Vs Sosamma Geevarghese & ors.[(2004) 6 SCC 378]. (Para 23) Thus, in the peculiar set of facts wherein in respect of the impugned punishment order, already interim protection was granted and the same continues while the petitioner has already left for his heavenly abode on 17.1.2018, the impugned punishment order dated 20.12.1990 and consequential order dated 12.4.1991 are liable to be aside on the aforesaid ground as well. (Para 26) C. Pension - Withholding of pension - Whether pension can be withheld or stopped by administrative orders without due process of law- pension is a constitutional right under Article 300-A- Right to property- Executive orders without statutory backing or breach of due process violate constitutional protections-petition allowed. (Paras 28 and 31) HELD: In the instant matter, as has already been enumerated in the discussion of Issue No.1, the procedure prescribed by law, more particularly in constitutional provisions enshrined in Articles 14 and 311, have not been followed inasmuch as the punishment order has been passed without serving a copy of the enquiry report in disciplinary proceedings upon the petitioner, such an action cannot be sustained as the same infringes Right to Property of petitioner as envisaged under Article 300-A of the Constitution of India, which also includes Right to receive pension of petitioner. As for stopping the pension, due procedure established by law was required to be mandatorily followed and the same could not have been done in utter defiance of mandate contained in Article 14 read with Article 311 of Constitution of India. (Para 28) In a recent judgment dated 23.8.2023, passed in Writ-A No.3180 of 2023 (Prof. Ranjana Sharma & anr.Vs St. of U.P. & others), this Court while allowing the writ petition, has followed the dictum of Hon'ble Supreme Court in St. of Jharkhand (Supra) and Dr. Hiralal (Supra) while reiterating inter alia that right to receive pension is included in Right to property under Article 300-A of the Constitution of India. (Para 31) Petition allowed. (E-14)
Title: Dr. C.B. Agarwal Vs. State of U.P. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Irshad Ali
English hearing
WRIC/36846 /2024 Judgment/Order Date: 18-11-2024 (2024) 11 ILRA 462
HEADNOTE hearing
Civil Law - The Representation of the Peoples Act, 1951-Section 80-Petitioner's seeks quashing of order of rejection of the nomination papers -rejected due to non-filling up of the affidavit accompanying the Form 26,- Clause 6(K) and Clause 8(ii) were not filled up for the bye-election 2024 for the post of M.L.A.- the relief sought is one which can be challenged by way of an election petition under Section 80 of the Act-alternative efficacious remedy . W.P. dismissed. (E-9)
Title: Sukramapal Vs. Chief Election Commissioner & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Shekhar B. Saraf,Vipin Chandra Dixit
English hearing
WRIC/28196 /2023 Judgment/Order Date: 28-11-2024 (2024) 11 ILRA 459
HEADNOTE hearing
Advocate's fees-Petitioner is a practicing advocate-representation of petitioner claiming his professional fees was rejected for the cases wherein the petitioner represented Gaon Sabha of District Jaunpur.- petitioner was authorized to appear in all the cases where the Gaon Sabhas of district Jaunpur was a party - he appeared before the Court and assisted the Hon'ble Court in all the matters- he is entitled to receive professional fees-the action of respondent no.2 in denying the professional fees to the petitioner is arbitrary and malafide-impugned order set aside. W.P. allowed. (E-9)
Title: Manoj Kumar Yadav Vs. State of U.P. & Anr.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Shekhar B. Saraf,Vipin Chandra Dixit
English hearing
WRIC/22925 /2024 Judgment/Order Date: 07-11-2024 (2024) 11 ILRA 456
HEADNOTE hearing
The petitioner has already run the coco outlet for a period of three years - impugned order rejected Petitioner's selection- Petitioner had already received the benefit of operating the coco outlet-cannot have any right to seek the same once again. W.P. dismissed. (E-9)
Title: Gajendra Pratap Soni Vs. U.O.I. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Shekhar B. Saraf,Vipin Chandra Dixit
English hearing
SCCR/146 /2023 Judgment/Order Date: 14-11-2024 (2024) 11 ILRA 453
HEADNOTE hearing
Civil Law -Transfer of Property Act, 1882- Section 106- in the absence of any contract between the parties or any local law usage to the contrary- the tenancy is terminable upon notice by the landlord in 15 days' advance- notice would not be rendered invalid merely because the period mentioned therein was short -notice is a must to determine the tenancy and once the tenancy has been determined, tenant is liable to be evicted at the instance of the landlord by instituting the suit-impugned order set aside. Revision allowed. (E-9)
Title: Er. Prabhu Dayal Agrawal & Ors. Vs. Joint Registrar Co-Operative Society & Anr.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Ajit Kumar
English hearing
FAFO/1596 /2022 Judgment/Order Date: 21-11-2024 (2024) 11 ILRA 448
HEADNOTE hearing
Civil law-- first appeal from order has been filed on behalf of claimant-appellant- Section 30(1)(a) of Employees Compensation Act, 1923- Sections 2(dd) & 3 - Definition of 'employee' - Casual labour - Death during course of employment - Worker engaged in painting work on third floor -person engaged in repair/painting of multi-storey building falls under Schedule II - Rejection of claim on ground of lack of employee-employer relationship erroneous -painting work is included within meaning of 'repair' - Appeal allowed, matter remanded. (Paras 10 to 15) HELD: It is admitted fact that the deceased had received grievous injuries on fateful day 31.03.2015 while working as a painter at the building of respondent no.1. It is also admitted that the deceased fell down from third storey of building while he was engaged in repairing/painting work. The Employees Compensation Commissioner itself has recorded the finding after considering the evidence adduced by the parties that the deceased was engaged for white washing and painting work on fateful day i.e. 31.03.2015 and fell down from third storey and had received grievous injuries and died on account of injuries received by him. The claim petition was dismissed merely on the ground that the engagement of deceased was purely casual in nature and there was no employee-employer relation. (Para 10) From the evidence adduced by the parties, it is apparent that the deceased was engaged for repairing/painting work at the house of opposite party no.1 on 31.03.2015 and fell down from third floor and had received injuries and died on account of injuries received by him. The deceased is an employee under the ambit of Employees Compensation Act. The Employees Compensation Commissioner has erred in dismissing the claim petition holding that there was no employeeemployer relation and claim petition was not maintainable, whereas from the definition clause of employee it is apparent that the deceased was working as an employee and had received injuries during the course of his employment. The fining recorded by the Employees compensation Commissioner, in rejecting the claim petition is perverse and against the law. (Para 15) Appeal allowed. (E-14)
Title: Seema Devi Vs. Vimal Jain & Anr.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Vipin Chandra Dixit
English hearing
CRLR/318/2024 Judgment/Order Date: 13-11-2024 (2024) 11 ILRA 444
HEADNOTE hearing
Probation of Offenders Act, 1958 - Impugned order-trial Court has convicted and sentenced all the accused persons-the benefit of Probation of Offenders Act, 1958 has been granted to co-accused but the same has been denied to the revisionists without assigning any cogent reason- revisionists are also first offenders- Trial Court's order to the extent that it denies the benefit of Act, 1958 to the revisionists, is unsustainable in law-set aside. Revision partly allowed. (E-9)
Title: Manbodh @ Manoj & Ors. Vs. State of U.P. & Anr.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Subhash Vidyarthi
English hearing
BAIL/32236/2024 Judgment/Order Date: 14-11-2024 (2024) 11 ILRA 421
HEADNOTE hearing
Criminal law- Criminal Procedure Code, 1973 - Section 439 - Bail application- Prevention of Money Laundering Act, 2002 - Sections 3, 4 & 45 - Bail - Prolonged incarceration - Delay in trial -Trial of predicate offence yet to begin - Cognizance taken in PMLA case without charge sheet in predicate offence - existence of predicate offence is sine qua non for trial under PMLA - Delay in trial infringes fundamental right under Article 21 - PMLA - Section 45 - Twin conditions - Not absolute - Can be relaxed in cases of undue delay and where accused is already on bail in predicate offence-Bail granted. (Paras 5,6,8 and 9) HELD: After having heard learned counsels for the parties and perusing the records, it is evident that- (1) The applicant is in custody in connection with an offence under Prevention of Money Laundering Act. (2) In the predicate offence he has been granted bail. The said order stands final till date. (3) No charge sheet has been submitted in the predicate offence with regards to the present issue being committed relating to Punjab National Bank till date. (4) The law with regards to trial is clear and well settled. (5) The case under PMLA and the predicate offence has to be tried together by the same court which is not possible in the present case as of now since predicate offence is yet to see its charge sheet, if any. (6) The challenge to declaring M/s SVOGL Oil Gas & Energy Limited as "Wilful Defaulter" and its account as "Fraud" was successful and the same was struck down by Hon'ble Delhi High Court. The said order also attains finality. (7) Custodial interrogation is not needed. The principle of "bail is a rule and jail is an exception" is being consistently followed and repeatedly being reiterated and reminded by the Apex Court and other Courts. (9) The applicant is in jail since 07.02.2024. (10) There are no chances of his absconding. (11) Looking to the facts and circumstances of the case, it is a fit case for grant of bail. (Para 8) Bail Application allowed. (E-14)
Title: Padam Singhee Vs. Directorate of Enforcement
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Samit Gopal
English hearing
ARCO/95 /2023 Judgment/Order Date: 08-11-2024 (2024) 11 ILRA 413
HEADNOTE hearing
Civil law- Arbitration and Conciliation Act, 1996 - Sections 11(6 ) & 11(8) - Appointment of arbitrator - Partnership dispute - Whether arbitration clause in prior agreements binds non-signatory inducted under supplementary deed - supplementary deed executed in continuation of earlier partnership deeds - Arbitration clause in earlier deeds binds non-signatory partner - Partnership Act, 1932 - Section 69(3) - Unregistered firm - Bar on other proceedings - Applicability to arbitration -arbitral proceedings not hit by Section 69(3 ). Stamp Act, 1899 - Sections 33 & 35 - Arbitration agreement inadequately stamped - Effect on Section 11 application - Held, non-stamping not a ground to reject request for appointment - Defect curable and to be decided by arbitral tribunal. Non-signatory to arbitration agreement - Whether bound by prior agreement - Supplementary deed silent on arbitration - Held, supplementary agreement incorporated earlier partnership terms - Issue whether non-signatory is bound by arbitration clause to be decided by arbitral tribunal. Multiple agreements forming single contractual relationship - Interpretation - Held, supplementary deed executed to incorporate change in partners - Prior terms including arbitration clause remain binding - Arbitration maintainable even in absence of express clause in latest deed - Constitution of arbitral tribunal directed. (Paras 7,8,9,14, 15, 16, and 17) HELD: The first issue which, thus, falls for consideration is whether the partnership deed being unregistered, the dispute between the partners could be referred to the arbitral tribunal or the bar contained in Section 69(3) of the Partnership Act would operate. The issue is no more res integra. In Umesh Goel Vs Himachal Pradesh Cooperative Group Housing Society Limited, the Supreme Court has held that the expression "other proceedings" in Section 69(3) of the Partnership Act does not cover arbitral proceedings as well as arbitral award. The same view has been taken in Shiv Developers through its partner Sunilbhai Sombhai Ajmeri Vs Aksharay Developers & ors.. Accordingly, the contention is devoid of any merit. (Para 7) The issue as to whether the agreements could not be enforced because of any deficiency in stamp duty is also squarely covered by the judgement of Supreme Court in Interplay Between Arbitration Agreements under Arbitration and Conciliation Act, 1996 and Stamp Act, 1899, In Re. (Para 8) Thus, in case, there is any deficiency in stamp duty an objection to the said effect can be taken before the arbitral tribunal but the same would not detain the Court from entertaining application for constitution of an arbitral tribunal. (Para 9) Above view stands fortified by some of the decisions noted hereinafter. A similar controversy was considered by Calcutta High Court in Juggilal Kamlapat v. N.V. Internationale CredietEn-Handels Vereeninging 'Rotterdam'. It was held that the arbitration clause contained in the earlier deeds would continue to govern the rights and obligations of the parties. (Para 14) Similar view has been taken by Gujarat High Court in Creative Infocity Ltd. Vs Gujarat Informatics Ltd. In the said case, a concession agreement was executed between Gujarat Informatics Limited, a Government owned company and a private joint venture company (appellant) for private sector participation in infrastructure projects. It contemplated execution of master lease in favour of the appellant in furtherance of the concession agreement. The concession agreement provided for arbitration clause but it was missing in the master lease agreement. The issue before the court was whether arbitration clause in concession agreement would survive after execution of master lease agreement. The entire objective of the scheme was examined and it was concluded that the master lease agreement was entered into between parties in pursuance of concession agreement. Accordingly, the arbitration clause in the original concession agreement was held to govern the jural relationship between the parties. (Para 15) The Constitution Bench in Cox and Kings Ltd. (supra) examined the issue as to whether a non-signatory to an agreement can be held bound by it. It is held that the said issue may require consideration of evidence on factual aspects and ordinarily it should be left to the tribunal to decide the same. At the referral stage, a referral court should not enter into the said issue. Following the law laid down in the Constitution Bench judgement in Cox and Kings Ltd. (supra), the Supreme Court while deciding Arbitration Petition No.38 of 2020, constituted the arbitral tribunal but left it open to the parties to raise the said issue before it. Accordingly, I am of the view that the said issue which involves appreciation of evidence should be left to the wisdom of the arbitral tribunal for being decided in accordance with law. (Para 17) In the result, I am of the opinion that the arbitration clause in the partnership agreement dated 2 March 2020 read with supplementary partnership agreement dated 20 February 2021 would merit constitution of an arbitral tribunal. This would be without prejudice to the pleas and contentions of the parties. (Para 18) Constitution of Arbitration Tribunal directed. (E-14)
Title: Ram Taulan Yadav & Anr. Vs. Himanshu Kesarwani & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Manoj Kumar Gupta
English hearing
A482/25510 /2024 Judgment/Order Date: 12-11-2024 (2024) 11 ILRA 408
HEADNOTE hearing
Criminal law- Criminal Procedure Code, 1973 -Section 482- Food Safety and Standards Act, 2006 - Sections 51, 59(i), 77 & 89 - Limitation for prosecution - Cognizance beyond one year - Effect of approval under Section 77 - Commissioner of Food Safety may extend limitation up to three years by recording reasons - Overriding effect of the Act under Section 89 - Section 468 CrPC not applicable - Cognizance rightly taken - application dismissed. (Paras 9 to 12, 15, and 16) HELD: Ratio of St. of Rajasthan Vs Sanjay Kumar (supra) is also applicable in the Act, 2006 because, at the time of collection of a sample of food, no offence can be said to be committed as there is no prohibition to sell food which is not prohibited. It is only when Food Analyst Report received about unfit/unsafe food, offence can be said to be committed. In case of sell of unsafe or sub-standard milk, the date of commission of offence would be the date when the report of Food Analyst is received about its quality. (Para 9) Thus applying the above Principle of Law in the present case, date of commission of offence would be 10.12.2017. Thereafter application for seeking approval was submitted by the Food Safety Officer on 14.05.2018 and approval under Section 77 of the Act, 2006 was granted on 20.06.2019. Therefore period between 14.05.2018 to 20.06.2019 would be excluded because of Section 470(3) Cr.P.C., as Section 470(3) Cr.P.C. provides exclusion of time taken by Sanctioning Authority in computation of limitation. Therefore complaint filed on 04.07.2019 was well within one year. (Para 10) As per the law laid down in Sarah Mathew Vs Institute of Cardio Vascular Diseases & ors.; (2014) 2 SCC 62, the date of cognizance would be the date when the complaint is filed. (Para 11) So far as the contention of counsel for the applicant that the offence is punishable for one year and because of Section 468 Cr.P.C., the cognizance cannot be taken after one year is concerned, is incorrect because as per Section 77 of the Act, 2006 prosecution even after one year can be approved by the Commissioner, Food Safety and the same has already been approved by the Commissioner by order dated 20.06.2019. The specific provision of extension of limitation provided under Section 77 of the Act, 2006 will prevail over Section 468 Cr.P.C. because of Section 89 of the Act, 2006. (Para 15) From the above observation in the judgement of Ram Nath's case (supra), it is clear that the overriding effect of the FSS Act is not confined to only food-related laws but also other Laws including Cr.P.C. (Para 17) Application dismissed. (E-14)
Title: M/s Kewal Dairy Vs. State of U.P. & Anr.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Arun Kumar Singh Deshwal
English hearing
A227/9641 /2023 Judgment/Order Date: 12-11-2024 (2024) 11 ILRA 405
HEADNOTE hearing
Motor Vehicles Act, 1988 - Section 207 - Central Motor Vehicles Rules, 1989 - Rule 56(2) - Form 31 - Custody of seized vehicle - Minor petitioner sole legal heir of registered owner - Notary sale deed relied on by respondent held untrustworthy - Succession certificate and RTO authorization in favour of minor petitioner valid - Held, custody of vehicle to be restored to minor petitioner - litigation should not be prolonged to detriment of minor's rights- Revisional order set aside-Petition allowed. HELD: Considering the aforesaid facts and circumstances of the case and the submissions advanced by the parties, the order dated 25.8.2023 passed by learned Additional Session Judge, Court No. 29, Agra passed in Criminal Revision No. 179 of 2023 (Ram Ratan Vs St. of U.P. & anr.) is hereby set-aside with the direction to the Court concerned to handover the custody of the vehicle immediately to the petitioner Gunjan (minor) through her legal guardian Kishan Pal Singh and settle the dispute at the earliest. Petition allowed. (E-14)
Title: Km. Gunjan (minor) Vs. Ram Ratan
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Nand Prabha Shukla
English hearing
A227/1205 /2024 Judgment/Order Date: 07-11-2024 (2024) 11 ILRA 397
HEADNOTE hearing
Civil Law - U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. 13 of 1972) - Section 21(1)(a) - Bona fide need - Comparative hardship - Petition under Article 227 challenging concurrent findings of Prescribed Authority and Appellate Authority allowing landlord's application for release of shop for setting up chamber - Landlord was an advocate by profession - Tenant claimed shop was unsuitable and concealed facts regarding landlord's existing chamber - Both authorities below held landlord's need as genuine and bona fide - Tenant failed to deny specific averments in release application; adverse inference drawn - Order VIII Rule 5(1) CPC- Comparative hardship also decided against tenant as no alternative accommodation was explored. Constitution of India, 1950 - Article 227 - Scope and limitation - Interference permissible only in cases of jurisdictional error, grave dereliction of duty, or manifest injustice - Reappreciation of evidence or correction of mere factual errors not permissible - Reaffirmed by catena of Supreme Court decisions- petition dismissed. (Paras 11, 14, 17, 18, 19, 20, 21 to 31 and 32) HELD: In the opinion of the Court since the tenant/ petitioner has not specifically denied the averments in para 5 of the release application an adverse inference is liable to be drawn against him and the fact St.d in para 5 of the release application would be treated to have been admitted. Order VIII Rule 5 (1) CPC provides that every allegation of fact in the plaint if not denied specifically in the written St.ment shall be taken to be admitted by the defendant. I am fortified by the view taken by the Apex Court in the case of Suresh Chandra Jain Vs Jai Krishna Goswamy & ors.reported in 1993 (2) ARC 484. (para 11) The scope of judicial review in such matters where the orders of courts below are assailed before this Court in a writ petition under Article 226/227 of the Constitution is very limited. This power involves a duty on the High Court to keep the inferior courts and tribunals within the bounds of their authority and to see that they do what their duty requires and that they do it in a legal manner. But this power does not vest the High Court with any unlimited prerogative to correct all species of hardship or wrong decisions made within the limits of the jurisdiction of the Court or Tribunal. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principle of law or justice, where grave injustice would be done unless the High Court interferes. (Para 14) The above discussion leaves no scope for interference with the orders impugned in this writ petition. I have no doubt in holding that this petition lacks substance and is devoid of merits. (Para 32) Petition dismissed. (E-14)
Title: Usman Vs. Smt. Rajeshwari & Anr.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Ashutosh Srivastava
English hearing
A482/8635 /2023 Judgment/Order Date: 26-11-2024 (2024) 11 ILRA 369
HEADNOTE hearing
Criminal law- reference to larger bench- Criminal Procedure Code, 1973 - Section 482 - Inherent jurisdiction of High Court - Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Section 14-A - Scope of bar - Whether application under Section 482 CrPC maintainable in presence of appeal under Section 14-A of SC/ST Act- SC/ST Act, 1989 - Section 14-A - Nature of remedy - Bar on recourse to inherent jurisdiction - Distinction between "not maintainable" and "not liable to be entertained"- Jurisdiction under Section 482 CrPC is not absolutely ousted by Section 14-A of the SC/ST Act- Inherent Powers - Exercise in cases of private/civil dispute disguised as criminal case under SC/ST Act - Abuse of process - offence appears civil in nature and unconnected to caste identity, or is instituted with mala fide intent, the High Court can intervene under Section 482 CrPC-reference answered accordingly. (Paras 3, 33, 35 and 36) HELD: Confronted by these two judgments, a learned Judge of our Court, on 20.9.2023, referred the matter to a Larger Bench after framing the following questions: "1. The first Question involved in this batch of Applications under Section 482 of the Code of Criminal Procedure, 1973 (for short, 'the Code') is whether a challenge laid to the entire proceedings of a case under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, 'the SC/ ST Act') with no challenge to any interlocutory order i.e. a summoning order, would be within the mischief of the rule laid down in answer to Question No. (II) by the Full Bench in Ghulam Rasool Khan v. St. of U.P. & ors., 2022 (8) ADJ 691 (FB) (LB). 2. The allied and second Question involved is whether a challenge to a proceeding under the SC/ ST Act can be laid before this Court through an Application under Section 482 of the Code, in view of the principle in the Full Bench in Ghulam Rasool Khan (supra), where along with proceedings, the order taking cognizance and summoning the applicant is also challenged. 3. The third and a corollary to the aforesaid questions is: Whether there is a conflict of opinion between the learned Single Judge of this Court in Sushil Kumar Singh v. St. of U.P. & anr., (2023) 123 ACC 544 and Devendra Yadav & ors.v. St. of U.P. & anr., 2023 (5) ADJ 452, necessitating reference to a larger bench." Thus, what needs to be understood is that there has to be a distinction between a proceeding being "not maintainable" and "not liable to be entertained". "Not being maintainable" would mean that the proceedings would not lie at all, whereas "not liable to be entertained" would mean that the application, though it would lie, shall not be entertained in the given facts of the case. The distinction may seems to be fine, and at times, it gets blurred, but nevertheless, it does exist and has to be compulsorily kept in mind. Whether an application involving the inherent jurisdiction of the High Court is to be entertained or not is a question to be considered and answered case to a case basis in the given facts- and circumstances of the case, and no general proposition or straight jacket formula could be laid down. The guiding principle is whether, in the given case, the continuance of proceedings would amount to abuse of the process of the Court and/ or whether interference of the High Court is necessary to secure ends of justice. (Para 33) The first Question is thus answered by holding that there can be no hard and fast rule regarding the interference of the High Court under its inherent jurisdiction. The High Court can if it finds that by interfering in a particular case, it can prevent the misuse or abuse of the Court or law, then it may always so interfere. (Para 35) We also would like to observe that Question No.III by the Full Bench in Ghulam Rasool Khan (supra) did not answer the aforesaid question. Therefore, we answer accordingly; when a challenge lies to the entire proceeding of a case registered under the SC/ST Act, the High Court could entertain the case under its inherent jurisdiction to secure the end of justice. High Courts are not merely Courts of law but also Courts of Justice, and as such, they possess inherent powers to remove injustice. (Para 36) As far as the answers to Questions nos.2 and 3 are concerned, we would like to mention that, as has been held by the Supreme Court in Gulam Mustafa (supra) decided on 10.5.2023; the High Court can also look into the correctness and validity of the summoning order, etc., when it takes cognizance of the entire proceeding under Section 482 Cr.P.C. However, when the proceedings are not under challenge under Section 482 Cr.P.C., the only course open to an accused/applicant is to file an appeal under Section 14-A of the SC/ST Act. (Para 37) Reference answered accordingly. (E-14)
Title: Abhishek Awasthi @ Bholu Awasthi Vs. State of U.P. & Anr.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Siddhartha Varma,Vinod Diwakar
English hearing
WRIC/1000081/1994 Judgment/Order Date: 22-11-2024 (2024) 11 ILRA 367
HEADNOTE hearing
A. Revenue Law - UP Zamindari Abolition & Land Reform Act, 1950 - Section 198(4) - Cancellation of patta - Land is a pond - Lessee is not the landless agricultural labour and her husband is in government job of Sub Divisional Officer in Tube Well Department - Effect - Held, allotment of lease is to be granted in favour of persons, who comes under the category defined under the Act. The petitioner does not come under the ambit nor is a landless agriculturist - No illegality has been committed in passing the impugned orders. (Para 13) Writ petition dismissed. (E-1)
Title: Smt. Sushma Srivastava Vs. State of U.P. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Irshad Ali
English hearing
WRIC/34710 /2022 Judgment/Order Date: 11-11-2024 (2024) 11 ILRA 359
HEADNOTE hearing
A. Local Body Law - Constitution of India,1950 - Article - 243-Q - UP Municipalities Act, 1916 - Sections 3(2) & 4 - Inclusion of Gram Panchayat in the transitional area of Nagar Panchayat - Non-consideration of the petitioner's objection - Effect - Held, the object of S. 4 is to provide opportunity to the general public to file objections against the proposal. The objection could be on various aspects, which is an invaluable right conferred in the general public, with avowed object of strengthening their hands in all facets of local self-governance - High Court quashed the impugned notification. (Para 15 and 20) Writ petition allowed. (E-1)
Title: Gram Panchayat & Anr. Vs. State of U.P. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Anjani Kumar Mishra,Jayant Banerji
English hearing
WRIC/33687 /2021 Judgment/Order Date: 22-11-2024 (2024) 11 ILRA 346
HEADNOTE hearing
A. Civil Law - Maintenance and Welfare of Parents and Senior Citizens Act, 2007 - Object and Scope - Senior citizen's right of eviction - Imposing restriction to the right guaranteed under the Statute - Permissibility - Held, the Act and the Rules offer a life preserving protective umbrella to all the aged members of the society, who may feel victimized or helpless at the hands of their children, or their relatives & ors., both with respect to provision for maintenance allowance and with respect to protection of their properties. Once that protection has been granted, there is no reason to restrict its operation - Held further, summary proceeding may remain subject to the out come of any civil suit wherein larger issues and other rights may be involved - High Court disagreed with Ravi Shankar's case (Patna High Court) and Simrat Randhawa's case (Punjab and Haryana High Court) - Krishna Kumar's case was also held distinguishable as it relate to Ch. II, not Ch. V of the Act. (Para 30, 31 and 33) B. Civil Law - Maintenance and Welfare of Parents and Senior Citizens Act, 2007 - S. 22 - UP Maintenance and Welfare of Parents and Senior Citizens Rules, 2014 - R. 21 - Allegation of initiation of proceeding by the father (F) as proxy proceeding for the benefit of elder son (S1) - Reliability - No material in support of allegation - Effect - Held, merely because 'S1' may either be neutral to the dispute between 'F' and 'S2' and / or merely because 'S1' may be supporting 'F' in his dispute with 'S2', it may not lead to the conclusion as suggested by learned counsel for the petitioner - High Court found the objection of the petitioner misconceived. (Para 22 and 23) Writ petition dismissed. (E-1)
Title: Dinesh Ahuja @ Chinu & Anr. Vs. D.M. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Saumitra Dayal Singh,Donadi Ramesh
English hearing
WRIC/3944 /2024 Judgment/Order Date: 22-11-2024 (2024) 11 ILRA 322
HEADNOTE hearing
A. Civil Law - Constitution of India,1950 - Article 300-A - UP Urban Planning and Development Act, 1973 - Planned development - Public interest versus Individual's right - Preference to one of them or strike balance between them - Court's liability - Held, on one hand is right of an individual to make the most profitable use of his property, is a right which is protected under article 300A of the Constitution of India, and on the other hand is the claim of the development authority for a planned development and also to prevent a haphazard development and accordingly the competing rights have to be interpreted in relation to each other. The courts must make an endeavour to strike a balance between public interest on one hand and protection of constitutional rights of an individual to hold property on the other. (Para 34) B. Constitution of India,1950 - Article 300-A - Right to property - Scope - Right to get map sanctioned - Enforceability - Held, right to property includes right to construct on the property owned by a person subject to the applicable regulations made in this regard - To enjoy property is a right which is protected under article 300-A of the constitution of India, and denial of sanction of map, is depriving an individual of his right of property, and the same can be done only with the sanction of law. (Para 37) C. UP Industrial Area Development Act, 1976 - Section 6(f) - Deed of Exchange - Nature - Transfer through the deed of exchange executed by NOIDA - Validity - Held, the NOIDA was competent to execute and transfer land as per the Act of 1976 in as much as it was within their competence to transfer either by be of sale or lease or otherwise plots of land for industrial, commercial or residential purposes. (Para 57) D. UP Urban Planning and Development Act, 1973 - UP Industrial Area Development Act, 1976 - Section 6(f) - Sanction of map - Rejection on the ground of lack of lease deed - Validity challenged - Held, once the land has been transferred by the NOIDA in exercise of powers under Act of 1976, then the transferee would be entitled to have a map sanctioned as per regulations of 2010. Merely because the instrument by which the land has been vested in the petitioner is not a lease deed, cannot be a ground for rejection of the application for sanction of map. (Para 58) E. Interpretation of statute - Expropriatory legislation - Strict interpretation - Application - Held, whenever an interpretation is being made with regard to the provisions of an expropriatory legislation it would be subject to strict interpretation- Indore Vikas Pradhikaran's case relied upon. (Para 35) F. Interpretation of statute - Beneficial legislation - Purposive construction - Applicability - The provisions of the statute must be construed so as to make it effective and operative and to further the ends of justice and not to frustrate the same. The court has the duty to construe the statute to promote the object of the statute - Edukanti Kistamma's case relied upon. (Para 45) Writ petition allowed. (E-1)
Title: Kapil Misra & Anr. Vs. State of U.P. & Anr.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Alok Mathur
English hearing
WRIA/10219 /2024 Judgment/Order Date: 06-11-2024 (2024) 11 ILRA 313
HEADNOTE hearing
Civil Law - Constitution of India, 1950 - Article 226 - Delay and Laches - Petitioner was appointed on 1.1.1984 as a Mali on daily wager. Respondents by means of order dated 3.11.2013 regularized the services of the petitioner from the date the said order was passed i.e.23.11.2013. Petitioner superannuated from the services on 30.4.2024. After his superannuation he started representing that his services deserve to be regularized from 2001 onwards. Held: During his services after passing of the order of regularization no grievance was raised by the petitioner. Petitioner accepted the order of regularization in 2013 and not challenged the order of regularization till the date of his superannuation. Court was of the opinion that the claim of the petitioner suffers from unexplained delay and laches of 11 years, as such, no interference is required in exercise of its extraordinary jurisdiction under Article 226 of the Constitution. (Para 8) Dismissed. (E-4)
Title: Hanuman Singh Vs. State of U.P. & Ors.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Alok Mathur
English hearing
WRIA/817 /2024 Judgment/Order Date: 05-11-2024 (2024) 11 ILRA 300
HEADNOTE hearing
A. Civil Law - Constitution of India,1950- Article 226-whether the omission to disclose pending criminal cases by a selected candidate in a declaration form disqualified him from govt. employment, despite subsequent acquittal and non- involvement in one of the cases-Non- disclosure of pending or past criminal cases must be evaluated contextually, taking into account the nature of offenses, the outcome of the cases and the intent behind the omission-The Apex Court laid down principles in Avtar Singh cases and subsequent cases, held that suppression of trivial matters or unintentional omissions cannot automatically disqualify a candidate-Employers must exercise discretion reasonably and fairly, avoiding arbitrary decisions in assessing character verification and suitability for appointment-Hence, the court quashed the rejection order issued by the State and directed the issuance of the appointment letter to the petitioner within one month-the court held that the petitioner's omission was neither deliberate nor material to his suitability for the post, given his acquittal and the District Magistrate's favorable report. The writ petition is allowed. (E-6)
Title: Dinesh Kumar Vs. State of U.P. & Anr.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Salil Kumar Rai
English hearing
A482/34275/2024 Judgment/Order Date: 11-11-2024 (2024) 11 ILRA 295
HEADNOTE hearing
Criminal Law - Indian Penal Code, 1860 - Sections 420, 452, 504 & 506 - Against summoning order - Maintainability - Constitution of India, 1950 - Article 227 - The Code of Criminal Procedure, 1973 - Sections 156(3), 200, 397(3) - St. raised objection regarding maintainability of instant application, and submitted that in view of fact summoning order and revisional order was under challenge, application was not maintainable since applicants have alternative remedy of filing petition u/a 227 - Further taken recourse to Section 397(3) and bar contained therein to submit that in cases where second revision was not maintainable, applicants cannot take recourse proceeding u/s 482 to bye pass the bar. (Para 5) Held, neither Article 227 nor Section 482 indicate any aspect ousting jurisdiction of other - In such circumstances, provisions of Article 227 and Section 482 operate on concurrent basis providing option to applicant to approach Court under either provision. (Para 11) Regarding complaint, complainant admitted he had taken loan pertaining to moveable property from Bank, did not repay - Applicants, official of Finance Company, initiated proceedings for recovery of loan amount by arbitration proceedings, award passed and due to this, complaint lodged against applicants not to recover loan. (Para 14) Serious contradiction in averments made in complaint regarding injury upon complainant and his family members by applicants - Till next date of listing, proceedings shall remain stayed. (Para 15) Application pending. (E-13)
Title: Manoj Kumar Yadav & Anr. Vs. State of U.P. & Anr.
Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Manish Mathur
English hearing
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