WRIA/11061 /2024 Judgment/Order Date: 27-11-2024 (2024) 11 ILRA 619  

HEADNOTE hearing

A. Service Law - Suspension - Intermediate Education Act, 1921 - Section 16G(5) - The court/tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The courts and tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the court/tribunal and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the court/tribunal comes to the conclusion that the non- supply of the report would have made no difference to the ultimate findings and the punishment given, the court/tribunal should not interfere with the order of punishment. (Para 20) Hon'ble Supreme Court has propounded on the aspect of 'prejudice' that may be caused to an employee where he/she alleges some violation. In the instant case, the violation, as alleged, is non issuance of the formal order of reinSt.ment. Petitioner neither in his arguments nor in the petition has indicated anywhere as to the prejudice that may have been caused to him on account of non issuance of the formal order of reinSt.ment after his suspension order was quashed. In the absence thereto, merely because no formal order was issued prior to placing the petitioner under suspension, the same, in the opinion of the Court, will not vitiate the impugned suspension order as no prejudice has been caused to him. (Para 21) B. Non passing of a formal order of reinSt.ment can also be seen in context of 'Useless Formality Theory'. (Para 22) Once the petitioner had only been placed under suspension vide order dated 04.10.2024, which had been quashed by the writ court vide judgment and order dated 05.11.2024. Consequently, the petitioner can be deemed to have been reinSt.d in service. Thus merely because a formal order of his reinSt.ment was not passed prior to he again being placed under suspension by means of the order impugned the same would clearly fall within the ambit of Useless Formality Theory. (Para 23) C. Unless there is a failure of justice, the Court may refuse to exercise the extraordinary jurisdiction with which it is vested. Merely because a formal order of reinSt.ment was not passed prior to the petitioner being placed under suspension, there has been no failure of justice and as such, this court refuses to exercise the extraordinary jurisdiction. (Para 24) D. Perusal of the suspension order would indicate that the same had been passed both under the provisions of Section 16G(5)(a) and (b). Suspension could not have been ordered without an enquiry been initiated as provided u/s 16G(5)(b) of the Act, 1921 yet a perusal of the suspension order would indicate that the same has also been passed under the provisions of Section 16G(5)(a) of the Act, 1921 also and thus once the charges are serious as such the suspension order would squarely be covered by the provisions of Section 16G(5)(a) of the Act, 1921 and thus the petitioner has correctly been placed under suspension in terms of the aforesaid provisions. (Para 30) No opinion with regard to provisions of Section 16G(5)(b) of the Act, 1921 has been expressed that without issuance of a charge-sheet the suspension order cannot be passed and the said question is left open to be considered in an appropriate case. Writ Petition dismissed. (E-4) Present petition assails order dated 09.11.2024, by which the petitioner has been placed under suspension.

Title: Dr. Gyanvati Dixit Vs. State of U.P. & Ors.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Abdul Moin

English hearing

WRIA/7862 /2023 Judgment/Order Date: 22-11-2024 (2024) 11 ILRA 609  

HEADNOTE hearing

A. Service Law - Compassionate Appointment - Constitution of India,1950 - Articles 14, 15, 16 - Uttar Pradesh Recruitment of Dependents of Government Servant (Dying in Harness) Rules, 1974 - Rule 2(c) - Non- inclusion of a "married daughter" in the definition of a "family", Rule 2 (c) of the Rules, 1974, and in the note below the regulation 104 of the 1975 Regulations, thereby denying her the opportunity of being considered for compassionate appointment, even though, she was dependent on the government servant at the time of his death, is discriminatory and is in violation of Article 14, 15 and 16 in Part III of the Constitution of India and as such read down the said definition of "family" in Rule 2 (c) of the Rules, 1974, and in the note below the regulation 104 of the 1975 Regulations, to save it from being held unconstitutional. (Para 27) High Courts have given purposive and expansive interpretation to the meaning of the term 'family member' and included even married daughters within the meaning of family of dependent. If a married son is eligible for compassionate appointment if he was dependent upon his father at the time of his death unless he had his own means of livelihood, then, there is no reason as to why a married daughter who is similarly placed, under the aforesaid scheme. Any distinction in this regard would be without any reasonable basis and without any link to the object sought to be achieved, therefore, it would be discriminatory and hit by Article 14 of the Constitution. (Para 29, 31) A scheme dated 09.10.1998 has been adopted by BSNL, in order to bring uniformity and transparency in the matter of compassionate appointment and a weightage system has been introduced vide Corporate Office Order dated 27.06.2007. (Para 30) The word 'daughter' used in the scheme is not preceded by the word 'unmarried' just as the word 'son' used in the scheme is not preceded by the word 'unmarried'. The absence of such prefix gives a reasonable basis to conclude that this definition does not exclude a 'married daughter', especially as the definition is an inclusive one, therefore, it has to be given an expansive meaning keeping in mind the object sought to be achieved. Although the word 'unmarried daughter' has been used in the proforma documents annexed with O.M. dated 27.06.2007 by which weightage point system was introduced but O.M. cannot supplant the substantive provision contained in the scheme dated 09.10.1998 as the weightage point system merely provides a procedure and is not the substantive provision. Even otherwise, the word unmarried daughter used in the documents annexed with the aforesaid O.M. would not be sustainable in view of the decisions referred. Any action/clauses of the policy which deprives a widowed daughter from a right of consideration for compassionate appointment if she was dependent upon her father, the deceased employee would run contrary to Article 14, 15, 16 read with 39A of the Constitution of India. (Para 31) Therefore, it is held that the words 'daughter (including adopted daughter)' occurring in Note- I of the Guidelines dated 09.10.1998 includes a married daughter, the only caveat is that such married daughter should be dependent upon her father/mother on the date of his/her death. (Para 32) B. The question of dependency is one of fact which is to be determined by the authorities. If widowed daughter was not dependent upon her father then she would not be entitled to compassionate appointment under the guidelines. Consequently, a 'widowed daughter' would be covered in the definition of 'daughter' contained in Note-I of the Guidelines dated 09.10.1998 if she was dependent upon her deceased father or mother on the date of his/her death. (Para 35) A 'widowed daughter' stands on a better footing than a married daughter as, prima facie with the loss of her husband, she also loses her source of livelihood unless of course in the facts of a given case it is found that she is herself employed or has other means of sustenance which are adequate to sustain her in which case she may not have been dependent upon her father, but, unless this is proved, it would be reasonable to draw an inference that she was dependent upon her father unless of course there is evidence to the contrary. (Para 33) Even after marriage as also after her widowhood, she continues to be his daughter and her status as such continues even at the time of death of her father. Her widowhood occurred prior to the death of her father, therefore, she was for all legal and practical purposes daughter of late Om Prakash Bhakta although a widowed daughter, on the date of his death. (Para 34) C. Words and Phrases - "dependent" - a spouse/son/unmarried or widowed daughter/adopted son/adopted unmarried daughter legally adopted by the deceased government servant during his/her lifetime and who were wholly dependent on the deceased government servant at the time of his/her death. The said definition was amended w.e.f. 28.10.2021, wherein it included married daughter in the said definition but with certain conditions. The Rajasthan High Court after examining various judgments passed by different High Court held that the use of word "unmarried" and Rule 2(c) after of the Rules, 1996, deprived a married daughter from right of consideration for compassionate appointment, violates the equality clause and cannot be countenanced. (Para 28) Writ petition allowed. (E-4)

Title: Punita Bhatt @ Punita Dhawan Vs. B.S.N.L. New Delhi & Ors.

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

English hearing

WRIA/6031/2024 Judgment/Order Date: 29-11-2024 (2024) 11 ILRA 599  

HEADNOTE hearing

A. Service Law - Compassionate appointment - Succession - Indian Succession Act,1925- Section 372 - Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974. Nature of the right conferred by a succession certificate - The grant of a certificate does not establish title of the grantee as the heir of the deceased, but only furnishes him with authority to collect his debts and allows the debtors to make payments to him without incurring any risk. In order to succeed in the succession application the applicant has to adduce cogent and credible evidence in support of the application. All that the succession certificate purports to do is to facilitate the collection of debts, to regulate the administration of succession and to protect persons who deal with the alleged representatives of the deceased persons. Such a certificate does not give any general power of administration on the eSt. of the deceased. The respondents can oppose grant of succession certificate. It is for the parties to place evidence in support of their respective claims and establish their stands. DNA test is not to be directed as a matter of routine and only in deserving cases such a direction can be given. (Para 16) A nomination in the service records and a succession certificate granted by the Court u/s 372 of the Indian Succession Act are at par; neither confers any beneficial interest upon the recipient of the proceeds. A person who asserts title or beneficial interest in moneys or movable property received by another under a succession certificate, or for that matter, a nomination can always institute a suit for declaration or other appropriate consequential relief in order to establish his beneficial interest or entitlement. At the same time, once there is a nomination left by the deceased in his service records in favour of a person, who is his wife, there is no reason for the respondents or any employer to withhold payment of the post retiral benefits in favour of the nominee in the service records. It is for the other person, not so nominated, to establish his/her claim through suit. In the present case, the fifth respondent is certainly not a nominee of the deceased in any of the service records. Her name does not appear in those records as the deceased's wife. Before this Court she has filed a photostat copy of a Nikahnama dated 01.05.2016 and a photostat copy of the certificate issued by the Gram Pradhan, without occasion, about the deceased and the fifth respondent living together as man and wife. (Para 19) There is not a shred of evidence produced by the fifth respondent w.r.t. the divorce between the first petitioner and the deceased. The evidence about the fifth respondent's marriage to the deceased at this stage is not of a kind, upon which this Court in the exercise of writ jurisdiction may act to accept her case even prima facie, defeating the first petitioner's claim founded on a nomination entered in the service records of the deceased. Fifth respondent can establish her claim to the whole or a share of the moneys that the first petitioner would be entitled to receive on account of the nomination in her favour in the service records, by moving the competent Court of original civil jurisdiction through a suit for appropriate relief. But, respondent Nos.1, 2, 3 and 4 are not entitled to deprive the first petitioner of the post retiral benefits, regarding which there is a nomination in her favour in Rashid's service records. The fact that the nomination is there is admitted in para No.5 of the counter affidavit filed by respondent Nos.1, 2 and 3. Also, the information posted on the Manav Sampada Sansadhan Prabandhan Pranali Portal carries a nomination in favour of the first petitioner relating to the General Provident Fund, Gratuity and Pension in the event of Rashid's death and shows her relationship to Rashid as his wife. None of these postings on the official portal disclose the fifth respondent's name, even by remote mention. (Para 20) A mandamus is issued to respondent Nos.1 to 4 to ensure amongst themselves immediate sanction and payment of family pension and other benefits to the first petitioner. A mandamus is further issued to each of respondents to ensure amongst themselves consideration and decision of the second petitioner's claim for compassionate appointment. (Para 21) Writ Petition allowed. (E-4)

Title: Rafat Naaz & Anr. Vs. State of U.P. & Ors.

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

English hearing

WRIA/5252 /2024 Judgment/Order Date: 22-11-2024 (2024) 11 ILRA 592  

HEADNOTE hearing

A. Service Law - Pendency of criminal proceedings - If in a criminal case the incumbent has not been acquitted and the case is pending trial, employer may well be justified in not appointing such an incumbent or in terminating his services as conviction ultimately may render him unsuitable for job and the employer is not supposed to wait till outcome of the criminal case. The decision has to be taken by the employer after considering that a higher post would involve more rigorous criteria. (Para 8) The petitioner has been charged and put on trial in Case Crime No. 731 of 2017 registered u/Ss 498-A/323/324/504/506 of the Indian Penal Code r/w Section 3/4 of the Dowry Prohibition Act, 1961. The said case is still pending. The petitioner is already a member of the Indian Defence Estates Service (Group 'A' Gazetted Post) which is a Central Government Service. The petitioner has been selected for appointment in Provincial Civil Services (Executive) in the State of Uttar Pradesh in the examinations held in Combined State & Upper Subordinate Service Examination-2019. In his verification form, the petitioner truthfully disclosed the details of the criminal case pending against him. It be noted that the criminal case was pending against the petitioner on the date the vacancies were notified by the Uttar Pradesh Public Service Commission. (Para 7) B. Judicial review is permissible only to ensure that the norms prescribed for appointment are fair and reasonable and applied fairly in a non-discriminatory manner but the autonomy or choice of the public employer is greatest as long as the process of decision-making is neither illegal, unfair or lacking in bona fides. Courts exercising the power of judicial review cannot second guess the suitability of a candidate for any public office or post. 'Absent evidence of malice or mindlessness (to the materials), or illegality by the public employer, an intense scrutiny on why a candidate was excluded as unsuitable renders the courts' decision suspect to the charge of trespass into executive power of determining suitability of an individual for appointment.' Public service-like any other, presupposes, that the State employer has an element of latitude or choice on who should enter its service. (Para 10) C. Distinction has to be made between judicial review and justiciability of a particular action. Justiciability relates to a particular field falling within the purview of the power of judicial review. On account of want of judicially manageable standards, there may be matters which are not susceptible to the judicial process. In other words, during the course of exercise of the power of judicial review it may be found that there are certain aspects of the exercise of that power which are not susceptible to judicial process on account of want of judicially manageable standards and are, therefore, not justiciable. (Para 12) D. Two different public employers may have different views regarding the suitability of a candidate for appointment and one employer is not bound by the decision and discretion of the other employer. (Para 13) So far as the opinion of the appointing authority that the post of the Deputy Collector is more sensitive post than the post currently held by the petitioner under the Central Government is concerned, the comparative assessment of the sensitivities of different posts lies within the exclusive domain of the Executive and the correctness of the decision regarding the sensitivity and importance of different posts cannot be made on the basis of any judicially manageable and recognized standards. The said fact is a non-justiciable fact preventing this Court from exercising its power of judicial review. (Para 14) Writ Petition dismissed. (E-4)

Title: Vishal Saraswat Vs. State of U.P. & Anr.

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

English hearing

WRIA/6187 /2024 Judgment/Order Date: 08-11-2024 (2024) 11 ILRA 586  

HEADNOTE hearing

A. Service Law - Gratuity - Payment of Gratuity Act, 1972 - Section 7 - Payment of Gratuity (Central) Rules, 1972 - Rule 7 - The word used in Rule 7(1) of the Rules 1972 is "may" meaning thereby that it is open for the employee to either apply for payment for gratuity or not. Once Section 7(2) of Act, 1972 itself stipulates that irrespective of an employee applying for gratuity or not the gratuity would become payable and that the said amount is to be paid in terms of Section 7(3) of Act, 1972 within thirty day of the same becoming payable then irrespective of Rule 7 of the Rules, 1972 which gives a discretion to the employee concerned to apply for gratuity or not under provisions of Act, 1972 the gratuity would in fact become payable and due and thus no application in this regard would be required to be submitted by the employee. (Para 17) From perusal of Rule 7 of Rules, 1972 it emerges that Rule 7(1) of Rules, 1972 provides that an employee who is eligible for payment of gratuity under the Act, 1972 where the date of superannuation or retirement of an employee is known may apply to the employer before thirty days of the date of superannuation or retirement. (Para 16) Petitioner having superannuated on 31.12.2019 and gratuity would fall due on 01.01.2020 and that u/s 7(3) of the Act, 1972, should have been paid by 01.02.2020. Gratuity became payable to the petitioner on 01.02.2020 and the same having been in fact paid to the petitioner on 03.11.2020 the petitioner would be entitled for being paid interest on delayed payment of gratuity which interest would be payable as per the provisions of Section 7(3) of Act, 1972. (Para 15, 18) Writ petition allowed. (E-4) Present petition prays for a writ of mandamus commanding the respondents to pay 18% interest on the amount of gratuity for delayed period from the date of retirement i.e. 31.12.2019 upto the date of payment i.e. 05.11.2020.

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

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Abdul Moin

English hearing

WRIC/21949 /2024 Judgment/Order Date: 23-11-2024 (2024) 11 ILRA 567  

HEADNOTE hearing

Civil Law - Constitution of India,1950 - Article 226 - Writ Petition - Challenge to the Impugned orders to the effect that despite culmination of inquiries, one after another, in favour of the petitioner, the respondent-officers are bent upon to hold de novo inquiry - Non-compliance with Court Orders - Respondent No. 5 failed to comply with the Court's directive to file a personal affidavit, leading to his personal appearance - Violation of Interim Stay - Abuse of Process - Despite the Court's interim stay order dated 08.08.2024, a fresh inquiry was initiated - Respondent No. 5 submitted a personal affidavit - misuse of authority - abuse of Process and Influence - Court finds that - respondent No. 5 has acted above the law, disregarded judicial orders, and engaged in malpractice and has attempted to shield his actions by shifting blame on to the Chief Standing Counsel, making it clear that adverse inference must be drawn - Disciplinary Action ordered - held, malpractices and reprehensible conduct cannot be tolerated and respondent No. 5 accountable for violating judicial orders and engaging in malpractice - thus, the St. Government is directed to initiate disciplinary proceedings against the officer and to make interim arrangements for the functioning of his post - further, present matter is directed to be list among the top ten cases - Standing counsel shall place the action taken by the St. Govt. - the Registrar (Compliance), High Court, Allahabad, is directed to send a copy of the order to the Chief Secretary, U.P., for immediate action - writ petition pending. (Para - 10, 11, 12, 14, 15) Writ Petition pending. (E-11)

Title: Amita Tripathi Vs. State of U.P. & Ors.

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

English hearing

WRIC/8197 /2024 Judgment/Order Date: 13-11-2024 (2024) 11 ILRA 562  

HEADNOTE hearing

A. Banking Law - Succession - Banking Regulation Act, 1949 - Section 45ZA - Section 45-ZA(2) merely puts the nominee in the shoes of the depositor after his death and clothes him with the exclusive right to receive the money lying in the account. It gives him all the rights of the depositor so far as the depositor's account is concerned. But it by no stretch of imagination makes the nominee the owner of the money lying in the account. The Banking Regulation Act is enacted to consolidate and amend the law relating to banking. It is in no way concerned with the question of succession. All the monies receivable by the nominee by virtue of S. 45-ZA(2) would, therefore, form part of the estate of the deceased depositor and devolve according to the rule of succession to which the depositor may be governed. (Para 8) The petitioner's main argument is that the petitioner being the nominee, the petitioner is entitled to receive the money in the FDRs as per Section 45ZA. (Para 5) The petitioner has a right to obtain the money from the bank as he is a nominee. However, this money which is received by the petitioner would be subject to the succession laws and the heirs of the deceased would have a right to the said amount in accordance with law. (Para 11) Writ petition disposed of. (E-4)

Title: Manoj Kumar Sharma Vs. U.O.I. & Anr.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Shekhar B. Saraf,Vipin Chandra Dixit

English hearing

CRLAD/1431 /2023 Judgment/Order Date: 21-11-2024 (2024) 11 ILRA 558  

HEADNOTE hearing

Criminal Law - Criminal Procedure Code, 1973 - Sections 161, 164, 173(2) & 375, - Indian Penal Code, 1860 - Section 354-A - The Protection of Children from Sexual Offences Act, 2012 - Sections 11 & 12 - Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Section 3(1)X - Appeals - against Conviction and Sentence - written complaint - FIR - offence of Sexual assault and attempt to rape of a minor girl Child - Investigation - Final report u/s 173(2) Cr.P.C. - Cognizance - Summoning Order - Bail Granted - Charges framed - Application to plead guilty - Request for concluding the Trial - conviction - sentencing - Application for release from custody - Dismissed - on the ground, sentence does not contain concession for concurrent running of Sentences - Appeal filed - Court finds that, ordinarily, Sentences for different offences related to one Incident run concurrently - if not, Trial Court must record reasons for consecutive Sentences - Rigours of Section 375 Cr.P.C. barring Appeal not strictly applicable in instant case - Resultantly, Appeal Partly Allowed - Impugned Judgment of conviction modified, Accordingly (Para - 17, 18, 19) Appeal partly allowed. (E-11)

Title: Chandan Mishra @ Shailesh Mishra Vs. State of U.P. & Ors.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Manoj Bajaj

English hearing

WRIA/1934 /2018 Judgment/Order Date: 05-11-2024 (2024) 11 ILRA 554  

HEADNOTE hearing

A. Service Law - Compulsory retirement - The petitioner has been inflicted with censure entry in 2007 and five annual increments were withheld in the 2010 and again in the year 2012, censure entry was awarded in his character roll. The aforesaid entries clearly indicate that there was sufficient material before the screening committee to conclude that the petitioner was a deadwood and accordingly, provision of Regulation 56 of the Financial Hand Book 2 to 4 were clearly applicable in the case of the petitioner. (Para 15) The screening committee constituted of the Sub Divisional Officer, who was the appointing authority of the petitioner, apart from the Tehsildar, Kanoongo and Revenue Inspector. In the present case, the appointing authority was mandated by the GO dated 26.10.1985 to be a part of the screening committee and accordingly, he had examined the entire service record of the petitioner and was a party to the screening committee. He in his capacity as the appointing authority has issued letter dated 18.10.2019 compulsory retiring the petitioner relying on the report of screening committee. There is no infirmity in the said order, as the Sub Divisional Officer himself was the Presiding Officer of the screening committee and was duly aware of the facts and circumstances of the said report and accordingly, the argument of learned counsel for petitioner and there was absence of subjective satisfaction is clearly not made out in peculiar facts of the present case. (Para 14) B. There is no doubt even if the government servant is compulsory retired, he is certainly entitled for all service dues for which he is entitled as per rules. Accordingly, liberty is given to the petitioner to move a fresh representation to respondent no. 3 i.e. Sub Divisional Officer Mitauli, District Lakhimpur Kheri giving all the details of the dues to which he is entitled. (Para 18) C. Words and Phrases - 'Quorum' - 'Quorum denotes the minimum number of members of any body of persons whose presence is necessary in order to enable that body to transact its business validly so that its acts may be lawful. (Para 9) Writ petition dismissed. (E-4) Present petition challenges order dated 18.10.2017, passed by the Sub Divisional Officer/appointing authority, Mitauli, Lakhimpur Kheri, whereby the petitioner has been compulsorily retired from the service.

Title: Vijay Bahadur Verma Vs. State of U.P. & Ors.

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

English hearing

CRLA/2289 /2022 Judgment/Order Date: 14-11-2024 (2024) 11 ILRA 541  

HEADNOTE hearing

Criminal Law - Criminal Procedure Code, 1973 - Sections 161, 164 & 313 - Indian Penal Code, 1860 - Sections - 376-d, 506 & 506(2) - The Protection of Children from Sexual Offences Act, 2012 - Sections 3, 4 & 42: - Appeals - against Conviction and Sentence - FIR - offence of abduction and sexually assault to a minor girl - charges-sheet - cognizance - sentence -- Trial Court relying on witness testimonies and legal precedents - convicted the accused appellant and sentenced to life imprisonment and imposing fines - appeal - Evaluation of Evidence - the appellate court found, - significant inconsistencies in the evidence, - contradictions in the victim's St.ments - delay in FIR registration and - the trial court failed to comment on the medico- legal report, a crucial piece of evidence - the appellate court ruled that the prosecution failed to establish the allegations beyond reasonable doubt, granting the appellant the benefit of doubt, consequently - held, the prosecution failed to prove the allegations beyond a reasonable doubt - impugned judgment set aside - present appeal is allowed - acquitted from charges - direction issued for releasing him, accordingly. (Para - 20, 21, 22) Appeal Allowed. (E-11)

Title: Ram Krishna @ Ram Kishan Vs. State of U.P. & Ors.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Ashwani Kumar Mishra,Gautam Chowdhary

English hearing

BAILC/532 /2023 Judgment/Order Date: 27-11-2024 (2024) 11 ILRA 536  

HEADNOTE hearing

(A) Criminal Law - Criminal Procedure Code, 1973 - Section - 438 (1)(ii) - Indian Penal Code, Sections - 420, 467, 468, 471, 386, 397, 115, 323, 504 & 506 - Bail Cancellation Application - order of trial court granting Anticipatory Bail - by allowing second Anticipatory Bail Application - wherein the accused/opposite party no. 2 has not approached the court below with clean hand - Court finds that, - opposite party no. 2 has criminal antecedents and that too has not explained, as such, the order granting anticipatory bail to the applicant cannot be sustained and him being a practicing advocate makes his case worse -held, the court seeks to strike a delicate balance between safeguarding individual liberty and upholding the interest of justice and public safety - hence, he impugned order is not sustainable and is liable to be set aside - accordingly, instant bail cancellation application is allowed - direction issued to opposite party no. 2 to surrender before the trial court with liberty to avail the remedy for regular bail. (Para - 18, 23, 24) Application allowed. (E-11)

Title: Vinod Singh Vs. State of U.P. & Anr.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Krishan Pahal

English hearing

A227/9914 /2023 Judgment/Order Date: 21-11-2024 (2024) 11 ILRA 532  

HEADNOTE hearing

Civil Law - Constitution of India,1950 - Article 227 - Criminal Procedure Code,1973 - Sections 145 & 146: - Misc. Petition - Challenge to the Impugned order - Plot in question belongs to the petitioners, whose name was recorded in CH 45 during consolidation proceedings, and whom have residing there after constructing a two-story house - Respondent No. 6, claiming co- sharership over the house, initiated proceedings under Section 145 Cr.P.C. on the grounds of apprehension of breach of peace - Police report, submitted - objection raised - spot inspection, conducted by Naib Tehsildar and area Lekhpal - SDM ordered to drop the proceedings u/s 145 Cr.P.C., based on the report of the Naib Tehsildar - respondents No. 5 to 7 filed Criminal Revision - remand order for fresh consideration - Misc. Petition - Court observations - Spot inspection report shows that petitioners are in possession of the disputed plot and the house constructed upon it and during proceedings u/s 145 Cr.P.C., respondents No. 5 to 7 also instituted an Original Suit wherein notices were issued - Held: Considering the Naib Tehsildar's report, it is fairly concluded that petitioners are in peaceful possession of the plot and the two-story house, and there exists no apprehension of breach of peace - hence, impugned order is set aside, reaffirming the order of the SDM - Writ petition allowed accordingly. (Para - 11, 12, 15, 16) Misc. Petition Allowed. (E-11)

Title: Lakshmi Narayan & Ors. Vs. State of U.P. & Ors.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Nand Prabha Shukla

English hearing

A227/9750 /2023 Judgment/Order Date: 12-11-2024 (2024) 11 ILRA 530  

HEADNOTE hearing

Civil Law - Constitution of India,1950 - Article 227 - Criminal Procedure Code,1973 - Sections - 145 & 146: - Misc. Petition - challenge to the impugned order - petitioner in peaceful possession over the land in question for 40-50 years - respondent no. 4 initiates proceedings u/s 145/146 Cr.P.C. for forcible possession - objection raised, citing pending civil suit - no likelihood of breach of peace - impugned proceedings alleged as an attempt to harass the petitioner - SDM directs attachment and custody takeover - Criminal Revision - dismissed - Misc. Petition - court observes - respondent no. 4 not impleaded as a defendant in civil suit - no ad-interim injunction in petitioner's favour - held, relying on case law of Hon'ble Supreme Court in Amresh Tiwari's case, no illegality in impugned order - petition dismissed. (Para - 7, 8, 9) Misc. Petition Dismissed. (E-11)

Title: Babbar @ Pabbar & Ors. Vs. State of U.P. & Ors.

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Nand Prabha Shukla

English hearing

A482/10390 /2024 Judgment/Order Date: 26-11-2024 (2024) 11 ILRA 527  

HEADNOTE hearing

Criminal Law - Criminal Procedure Code, 1973 - Sections 161, 164, 209-A & 482 - The Indian Penal Code, 1860 - Sections 302 & 328 - Bharatiya Nagarik Suraksha Sanhita, 2023 - Sections 210 & 223(1) - Application u/s 482 - for quashing entire criminal proceedings - FIR - offence of murder - police filed final report - complainant filed protest petition - which was treated as complaint case - issue notices - examination of complainant - court finds that, trial court issue notices without recording the St.ment of complainant as well as witnesses - held, in light of judgment and order passed in case of Sri Basangouda R. Patil Vs Sri Shivananda S. Patil - impugned order is in violation of the provision of Section 223 of BNSS - hence, application is allowed - matter is remitted back to the learned Magistrate to pass fresh order after recording the St.ment of the complainant as well as witnesses. (Para - 6, 9, 10, 11) Application Allowed. (E-11)

Title: Prateek Agarwal Vs. State of U.P. & Anr.

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

English hearing

CRLA/413 /2001 Judgment/Order Date: 07-11-2024 (2024) 11 ILRA 516  

HEADNOTE hearing

(A) Criminal Law - Criminal Procedure Code, 1973 - Sections 161, 207 & 313 - Indian Penal Code, 1860 - Sections 147, 148, 149, 302, 300 & 304 - Appeal - against conviction & sentence - offence of murder - FIR - allegation that, accused appellants armed with Pharsa, ballam, lathi assaulted the father- in-law of the informant - investigation - trial by session judge - conviction & sentence - Evaluation of evidence - court finds that, (i) there is no contradiction in the testimony of prosecution witnesses on any point, as such, the truthfulness of factual matrix cannot be doubt in the absence of any material evidence to the contrary - (ii) the ground of enmity, ground of interested witnesses and ground of delay in lodging FIR does not stand to appeal which is proved beyond the reasonable doubt - (iii) antemortem injuries found on the body of deceased indicate that they were caused by the Pharsa, ballam and lathi as such the medical evidence corroborates with the ocular evidence - (iv) The surviving appellants were armed with lathi and they only wants to cause bodily injuries to the deceased and they were not having any intention to kill the deceased - held, on appreciation of peculiar facts and circumstances of the case, instead of conviction of the surviving appellants under section 302 r/w 149 IPC is concern offence would be punishable u/section 304 part 1 of the IPC - Appeal is partly allowed - impugned conviction and sentence is liable to be altered and modified - directions issued accordingly. (Para - 32, 35, 39, 45, 48, 49, 50, 51, 53, 54) Appeal Partly Allowed. (E-11)

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

Coram (Hon'ble Mr./Ms./Mrs./Dr.) Justice: Attau Rahman Masoodi,Ajai Kumar Srivastava-I

English hearing

FAPL/122 /2023 Judgment/Order Date: 14-11-2024 (2024) 11 ILRA 508  

HEADNOTE hearing

(A) Family Law - Divorce proceedings - Hindu Marriage Act, 1955 - Sections 13 - grounds for divorce, Section 19 (1) - Appeals, Section 28 - Code of Civil Procedure, 1908 - Section 11 - Res Judicata, Order II Rule 2 - Suit to include the whole claim, Domestic Violence Act, 2005 - Section 12 - relief sought by the aggrieved woman - Principle of res judicata - A fresh and subsequent cause of action permits filing a second matrimonial case even when an earlier case was dismissed on similar grounds - Second matrimonial case is not barred if it is based on a new cause of action.(Para - 16,17) (B) Word or Phrases - Cause of action - a bundle of facts constituting the right of a party which he or she has to establish in order to obtain a relief from a Court - same has to be tested on the anvil of evidence led by the parties.(Para 16) First matrimonial suit was by appellant - for dissolution of marriage with respondent - dissolved on the ground of desertion - Appellant filed second divorce petition - after first petition was dismissed - second case alleged subsequent acts of cruelty by respondent - based on a subsequent and fresh cause of action - issue - maintainability of second divorce petition - applicability of principle of res judicata. (Paras 3, 9, 10,16) HELD: - Second matrimonial case for divorce on ground of cruelty and desertion not hit by principle of res judicata as it is based on new and subsequent cause of action. Second divorce petition was maintainable. Impugned judgment was set aside. Matter was remitted to the Family Court for fresh consideration. (Para - 17, 18) Appeal allowed. (E-7)

Title: Dinesh Verma @ Dinesh Vs. Smt. Malti Verma @ Malti Devi

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

English hearing

WRIC/14257/2024 Judgment/Order Date: 11-11-2024 (2024) 11 ILRA 487  

HEADNOTE hearing

Dispossession-impugned notice issued mentioning that the petitioner is illegally occupying the house and to hand over the possession to the owner of the house-Petitioner has been dispossessed -from the possession memo, it is apparent that the possession was taken by the joint revenue and police team-Respondent No. 3- Sub-Divisional Magistrate has no authority in law to interfere with the possession of the petitioner at the behest of private respondents- admittedly a civil dispute pending - Respondent No. 3 acted against the settled law of the land -prohibiting the executive authorities from interfering with the private disputes between the parties, especially, where the suits are pending before the competent court-respondents are directed to restore the possession of the petitioner. (E-9)

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

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

English hearing

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