JUDICIAL TRAINING & RESEARCH INSTITUTE, U.P., LUCKNOW
Quarterly Digest
CONSTITUTIONAL, CIVIL, CRIMINAL & REVENUE LAWS (Covering important judgments of Supreme Court and Allahabad High Court)
October – December, 2016
Volume: XV Issue No.: 4
EDITOR-IN-CHIEF Pradeep Kumar Srivastava Director
EDITOR-IN-CHARGE
R.M.N. Mishra Additional Director
EDITORS R.M.N. Mishra, Addl. Director Dr. Babbu Sarang, Addl. Director (Research) Sudhir Kumar – V, Addl. Director (Trg.) Pradeep Kumar Singh, Addl. Director (Admin.) Pankaj Jaiswal, Dy. Director Mohinder Kumar, Dy. Director Saurabh Saxena, Dy. Director
FINANCIAL ADVISOR Ram Prakash Pal, Additional Director (Finance)
ASSOCIATE B.K. Mishra, Research Officer ASSISTANCE Waqar Hasan Girish Kumar Singh Anoop Kumar
SUBJECT INDEX (Supreme Court) Sl. No. Name of Act 1. Administration of Justice 2. Advocates Act 3. Allahabad High Court Rules 4. Arbitration Act 5. Arbitration & Conciliation Act 6. Civil Procedure Code 7. Constitution of India 8. Contempt of Court Act 9. Contract Act 10. Criminal Procedure Code 11. Criminal Trial 12. Electricity Act 13. Election Laws 14. Evidence Act 15. Hindu Law 16. Hindu Marriage Act 17. Indian Penal Code 18. Indian Succession Act 19. Interpretation of Statute 20. Juvenile Justice Act 21. Land Acquisition Act 22. Limitation Act 23. N.D.P.S. Act 24. Protection of Women From Domestic Violence Act 25. Public Interest Litigation 26. Registration Act 27. Representation of People Act 28. Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 29. Service Law 30. Specific Relief Act 31. Transfer of Property Act 32. Trust Act 33. U.P. Imposition of Ceiling on Land Holdings (Amendment) Act, 34. ` U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act 35. Miscellaneous ***
SUBJECT INDEX
(High Court)
Sl. No. Name of Act 1. Arbitration and Conciliation Act 2. Civil Procedure Code 3. Constitution of India 4. Court Fee Act 5. Criminal Procedure Code 6. Criminal Trial 7. Easement Act 8. Evidence Act 9. General Clauses Act 10. Indian Penal Code 11. Indian Succession Act 12. Land Acquisition Act 13. Limitation Act 14. Practice & Procedure 15. Provincial Small Cause Courts Act 16. Registration Act 17. Service Law 18. Stamp Act 19. Statutory Provisions 20. Transfer of Property Act 21. U.P. Consolidation of Holdings Act 22. U.P. Imposition of Ceiling on Land Holdings Act 23. U.P. Land Revenue Act 24. U.P. Public Premises (Eviction of Unauthorized Occupants) Act 25. U.P. Revenue Code 26. U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act 27. U.P.Z.A and L.R. Act 28. Wakf Act 29. Words and Phrases 30. Miscellaneous 31. Legal Quiz ***
NOTE:
This journal is meant only for reference and guidance. For authentic detailed information, readers are advised to consult referred Journal(s). (SUPREME COURT)
S.No. Name of the Case & Citation 1. A. Ayyasamy V. A. Paramasivam 2016 (7) Supreme 450: AIR 2016 SC 4675 2. ACC Ltd. V. State of Kerala, 2016 (6) Supreme 327 3. Ajay Arjun Singh v. Sharadendu Tiwari 2016 (6) SCC 440 4. Ajay Kumar Singh v. The Flag Officer, Commanding- in-Chief and others, 2016 Cri.L.J. 4174 (SC) 5. Amin Merchant V. Chairman, Central Board of Excise and Revenue and others, (2016) 9 SCC 191 6. Anita Kushwaha v. Pushap Sudan, (2016) 8 SCC 509 7. Anurag Kumar Singh & Ors. v. State of Uttarakhand & Ors. 2016 (9) SCALE 639 8. Arvind Kumar v. State of U.P., (2016) 9 SCC 221 9. Ashiq Hussain Faktoo v. Union of India, (2016)9 SCC 739. 10. Ashok Kumar V. State of Bihar 2016 (7) Supreme 408
11. B.A. Umesh V. Registrar General, High Court of Karnataka, 2016 (7) Supreme 491 12. B.A. Vani v. Union of India and Another, 2016 (12) SCALE 347 13. Baijnath V. State of Madhya Pradesh 2016(8) Supreme 252 14. Bharwad Navghanbhaj Jakshibhai V. State of Gujarat, 2016(6) Supreme 540 15. Bhikulal Kedarmal Goenka (D) by LRs V. State of Maharashtra, 2016 (133) RD 691 (SC) 16. Board of Control for Cricket v. Cricket Association of Bihar and others, (2016) 8 SCC 535 17. Brajendra Singh Yambem v. Union of Indi, (2016) 9 SCC 20 18. Brij Lal V. State of Rajasthan, 2016 (6) Supreme 365 19. Central Coalfields Limited and Anr. V. SLL-SML (Joint Venture Consortium) & Ors. 2016 (6) Supreme 353 20. Chief Executive Officer, Krishna District Cooperative Central Bank Ltd. V. K. Hanumantha Rao 2016 (8) Supreme 475 21. Delhi Development Authority V. S.K. Garg & Ors., 2016 (12) SCALE 351 22. Delhi Development Authority V. Sukhbir Singh 2016 (7) Supreme 7 23. Dhal Singh Dewangan V. State of Chattisgarh 2016 (6) Supreme 679 24. Girilal and Company v. Income Tax Officer, Mumbai, (2016)9 SCC 510. 25. Govt. of NCT of Delhi V. Mahender Singh, AIR 2016 SC 4895 26. Gujarat Urja Vikas Nigam Ltd. V. Essar Power Ltd., (2016) 9 SC 103. 27. Gulshera Khanam V. Aftab Ahmad, (2016)9 SCC 414 28. Gyani Chand v. State of A.P. 2016 (7) Supreme 1 29. H.P. State Electricity Board Ltd. V. Mahesh Dahiya, AIR 2016 SC 5341: 2016 (12) SCALE 116 30. Harpal Singh @ Chhota V. State of Punjab 2016 (8) Supreme 270 31. Het Ram Beniwal V. Raghuveer Singh, 2016 (7) Supreme 393 32. Hiral P. Harsora V. Kusum Narottamdas Harsora 2016 (2) Supreme 232
33. IDBI Trusteeship Services Ltd. V. Hubtown Ltd 2016 (8) Supreme 194 34. In Re: Punjab Termination of Agreement Act, 2004, AIR 2016 SC 5145 35. Inhuman Conditions in 1382 Prisons (II) 2016 (6) Supreme 765 36. Jamshed Ansari V. High Court of Judicature at Allahabad and others, 2016 (6) Supreme 525
37. Jose @ Pappachan v. The Sub – Inspector of Police, Koyilandy 2016(7) Supreme 148 38. Larsen & Toubro Ltd. v. Additional Deputy Commissioner of Commercial Taxes and another, (2016) 9 SCC 780. 39. M.S. Kazi v. Muslim Education Society, (2016) 9 SCC 263 40. M/s Alcon Electronics Pvt. Ltd. v. Celem S.A. of FOS 34320 Roujan, France 2016 (8) Supreme 465
41. M/S Bharat Catering Corp. Lko. Thru Its Partner And Another V. Indian Railway Catering & Tourism Corp. Ltd. N.Delhi & Ors., 2016 (34) SCD 2604 42. M/s Park Street Properties (Pvt) Ltd. V. Dipak Kumar Singh & Anr. 2016 (6) Supreme 548 43. M/s Suryachakra Power Corporation Limited v. Electricity Department, Rep. by its Superintending Engineer, Port Blair, 2016(7) Supreme 111 44. M/s. Galada Power and Telecommunication Ltd. V. United India Insurance Co. Ltd. and another etc. 2016 (6) Supreme 321
45. M/s. Harish Chandra & Company vs. State of U.P. Thr. Superintending Engineer 2016 (6) Supreme 630 : AIR 2016 SC 4257 46. Madhuri Ghosh v. Debobroto Dutta, (2016) 10 SCC 805 47. Madhya Pradesh State Road Transport Corporation v. Manoj Kumar & Anr. 2016 (6) Supreme 557
48. Madina Begum & Anr. Vs. Shiv Murti Prasad Pandey & Ors., 2016 (3) ARC 273 Supreme Court 49. Mahanadi Coalfields Ltd. & ors. V. M/s Dhansar Engineering Co. Pvt. Ltd 2016 (7) Supreme 124 50. Maharao Bhim Singh of Kota Thr. Maharao Brij Raj Singh, Kota V. Commissioner of Income – tax, Rajasthan – II, Jaipur 2016 (8) Supreme 429 51. Mahavir Singh V. State of Madhaya Pradesh 2016 (7) Supreme 601 52. Mamta Yadav V. State of Bihar 2016(7) Supreme 523 53. Mangalore Electricity Supply Company Limited V. M/s AMR Power Private Limited 2016 (6) Supreme 718
54. Muthuramalingam & Ors. V. State Rep. by Insp. of Police, 2016 Cri.L.J. 4165 (SC) 55. Nagarpalika Thakurdwara vs. Khalil Ahmed, AIR 2016 SC 4477 56. Narendra V. K. Meena, AIR 2016 SC 4599 (Karnataka) 57. Nathiya V. Srate Rep. by Inspector of Police, Bagayam Police Station 2016(8) Supreme 122 58. Pankaj v. State of Rajasthan 2016 (6) SC 619. 59. Park Street Propeties (P) Ltd. V. Dipak Kumar Singh, (2016) 9 SCC 268 : 2016 (6) Supreme 548, 2016 (6) Supreme 548 60. PEPSU RTC v. S.K. Sharma, (2016) 9 SCC 206 61. Principal Secretary, Government of Karnataka V. Ragini Narayan, AIR 2016 SC 4545 62. Raja V. State of Karnataka 2016 (7) Supreme 212 63. Rajendra Kumar Meshram V. Vanshmani Prasad Verma 2016 (7) Supreme 143 64. Raminder Singh v. State of Punjab 2016 (6) Supreme 729 65. Ravindra Ramchandra Waghmare V. Indore Municipal Corporation 2016 (8) Supreme 363 66. S.P.S. Rothore v. C.B.I 2016(7) Supreme 48 67. Saddik @ Lalo Gulam Hussain Shaikh V. State of Gujarat, 2016 (7) Supreme 202 68. Saheb Reddy V. Sharanappa and Ors. 2016 (12) SCALE 79 : AIR 2016 SC 5253 69. Sampelly Satyanarayana Rao V. Indian Renewable Energy Development Agency Limited, 2016 (6) Supreme 733 70. Sasan Power Limited V. North American coal Corporation India Private Limited, 2016 (6) Supreme 481 71. Satya Pall Anand V. State of M.P. & Ors. 2016 (10 ) SCALE 329 : (2016)10 SCC 767 72. Sekhar Suman Verma V. Superintendent of N.C.B. and another, 2016 Cri.L.J. 4182 (SC) 73. Shashi Gupta V. State of Haryana, AIR 2016 SC 4817 (P & H) 74. Shyam Narayan Chouksey v. Union of India, 2016 (12) SCALE 404 75. Sri Mairembam Prithviraj alias Prithviraj Singh V. Sri Pukhrem Sharatchandra Singh, AIR 2016 SC 5087 76. State Bank of India v. Neelam Nag, (2016) 9 SCC 491 77. State Bank of Patiala V. Mukesh Jain 2016 (7) Supreme 591 78. State of Gujarat V. Jayarajbhai Punjabhai Varu, 2016 Cri.L.J. 4185 (SC) 79. State of Haryana V. Ram Mehar & others 2016 (6) Supreme 462: (2016) 8 SCC 762 80. State of Rajasthan v. Union of India and Ors., 2016 (10) SCALE 312 81. State of Uttar Pradesh and others v. Dhirendra Pal Singh, 2016 (12) SCALE 1 82. State of Uttar Pradesh v. Dinesh Singh Chauhan, (2016)9 SCC 749 83. State of Uttarakhand V. Rajiv Berry, 2016 (133) RD 695 (SC) 84. Steel Corporation v. Commissioner of central Excise, (2015) 7 SCC 58. 85. Sukh Ram v. State of Himachal, 2016 Cri.L.J. 4146 (SC) 86. Surender @ Kala V. State of Haryana (2016) 2 SCC (Cri) 448 ; (2016) 4 SCC 617 (Criminal Appeal No. 50 Of 2016) 87. Suresh Prasad @ Hari Kishan & Ors. v. Union of India & Anr., 2016 (12) SCALE 402 88. Syeda Rahimunnisa V. Malan Bi (Dead) by L.Rs. 2016 (7) Supreme 162 89. Syscon Consultants P.Ltd. V. M/S Primella Sanitary Prod. P.Ltd. 2016 (6) Supreme 739 90. Union of India and another v. Indusind Bank Limited and another, (2016) 9 SCC 720 91. Union of India v. Devjee Mishra 2016 (7) Supreme 115 92. Union of India V. M/s. Cipla Ltd. 2016 (8) Supreme 13: AIR 2016 SC 5025 93. Union of India v. Meghmani Organics Limited, (2016) 10 SCC 28 94. Vimal Kishor Shah and others V. Jayesh Dinesh Shah, (2016)8 SCC 788 95. Wardha Power Co. ltd. V. Maharashtra State Electricity Distribution Co. Ltd. and anr. 2016 (6) Supreme 624. 96. Youth Bar Association of India V. Union of India and others, 2016 (6) SC 536
LIST OF THE CASES COVERED IN THIS ISSUE (High Court)
Particulars Sl. No. 1. Abdul Ahmad V. Haq Nawaz Ahmad, 2016 (5) ALJ 750
2. Adya Prasad V. D.D.C., Mirzapur, 2016 (133) RD 4 (Alld.HC) 3. Amarjeet v. Board of Revenue, Allahabad, 2016 (133) RD 8 (Alld.HC) 4. Amit Pachauri v. Smt. Ram Beti, 2016 (133) RD 712 (Alld.HC) 5. Anurag Kumar Singh & Ors. v. State of Uttarakhand & Ors. 2016 (9) SCALE 639 6. Arvind Kumar v. State of U.P. and Others, 2016 (34) LLCD 2557
7. Asad Ali v. Special Judge, E.C. Act/ District Judge and others, 2016 (6) AWC 6488 8. Awadesh Kumar Awasthi v. State Of U.P., 2016 (6) ALJ 306 9. Bahadur Husain @ Kalloo Vs. A.D.J. Room No. 5 Lko. & Ors., 2016 (3) ARC 624 10. Bechan v. Lal Chand, 2016 (133) RD 645 (Alld.HC)
11. Bhola Nath and another v. State of U.P. and others, 2016 (6) AWC 6363 12. Brijesh Kumar v. Union Bank of India and others, 2016 (6) AWC 6013 13. Chandan Prasad V. State of U.P., 2016 (133) RD 648 (Alld.HC) 14. Chandra Kanta Jawahar Lal Public Charitable Trust v. G. Rohtagi, 2016 (133) RD 716 (Alld. HC) 15. Deepika Singh (Smt.) Vs. Zila Panchayat, Bulandshahr And Another, (2016 (3) ARC 824). 16. Dhani Ram V. State of U.P., 2016 (133) RD 92 (Alld.HC) 17. Dinesh Prasad Chaurasia V. Managing Director, U.P. Forest Corporation and others, 2016(5) AWC 5415 18. Dr. Atul Darbari v. State of U.P. and another, 2016 (5) ALJ 505 19. Drigpal Singh v. State of U.P., 2016 (97) ACC 698 20. Gamga Raman Sharma V. State of U.P. and others, 2016 (5) AWC 5023 21. Harish Chand v. Additional Collector (Finance and Revenue)/D.D.C. and others, 2016 (6) AWC 5743 22. Heera Kak Chaurasiya vs. Pradeep Kumar Chaudhary, 2016 (6) ALJ 268 23. Heera Lal and Others V. Chhedi Lal and others, 2016 (34) LCD 2924 24. Ishaq v. Smt. Champa Devi, 2016 (133) RD 121 (Alld.HC) 25. Jagnaysk Singh Gautam v. Union of India and others, 2016 (34) LCD 2714 26. Jaideep Bajpai Vs. Sanjeev Kumar Pandey and Another, (2016(3) ARC 572 27. Jamuna Prasad Vs. Thakur Ji Mahamaya Devi Virajman Temple and 3 Ors, (2016(3) ARC363 28. Jiya Lal and others v. Ayodhya and Another, 2016 (34) 3090 29. Lakshmi Prasad v. Commissioner (Judicial), Varanasi Region, Varanasi, 2016 (133) RD 798 (Alld.HC) 30. Mangal Das V. Akhand Pratp Singh, D.M. Kaushambi and others, 2016 (5) ALJ 758 31. Md. Zamil Ahmed v. The State of Bihar and others, 2016 (34) LCD 3085 32. Mirza Saleem Beg @ Mirza Saleem v. Waqf Tribunal Rampur And 8 Others, 2016 (34) LCD 2977 33. Mohini Gupta through her husband Dilip Sharma v. State of U.P. and others, 2016 (5) AWC 5185 34. Mrs. Santosh Singh v. Union of India and another, 2016 (5) AWC 5396 35. Naya Bans Saraswari Sahkari Grah Nirman Samiti Ltd. v. State of U.P. through its Secy. Revenue and others, 2016(133) RD 765 (Alld.HC) 36. Neshat Aroz V. Collector/Distt. D.D.C.. Jaunpur, 2016 (133) RD 674 (Alld.HC) 37. New Meena Sahkari Awas Samiti V. Addl. District Judge Ors., 2016 (6) AWC 5988 38. Panchayati Akhara Mahanirvani Vaidik Sanatan Bharti V. Ram Prakash Pathak And Another, 2016 (5) ALJ 602 39. Pradeep Kumar v. State of U.P. and another, 2016 (5) AWC 5050 40. Prahlad Singh and others V. State of U.P. and others, 2016 (6) AWC 5672 41. Prem Singh v. State of U.P., 2016 (6) ALJ 354 42. Rajendra Prasad V. Narendra Mittal and others, 2016 (6) AWC 5950 43. Rajesh Kumar Gupta v. Deepak Tandon and another, 2016 (6) AWC 5725 44. Ram Dawar Yadav and others v. Chakbandi Ayukt and another, 2016 (34) LCD 3074 45. Ram Dhani v. Deputy Director of Consolidation, Distt. Varanasi, 2016 (133) RD 685 (Alld.HC) 46. Ram Niwas v. Ramesh Chand, 2016 (133) RD 551 (Alld.HC) 47. Rama Shanker Singh and others v. State of U.P. and others, 2016 (6) AWC 6437 48. Ravindra Singh V. Ashish Mani Tripathi, 2016 (133) RD 299 (Alld.H.C.) 49. S.P. Hargovind Singh v. State of U.P. and others, 2016 (5) ALJ 512 50. Santosh v. State of U.P., 2016 (97) ACC 218
51. Shah Ammar Ahmad @Shah Nayyar Ahmad v. U.P. Sunni Central Waqf Board & Ors., 2016 (5) ALJ 535 52. Shahnaaz V. State of U.P. and others, 2016 (34) LCD 3070 53. Shirpal Singh Chauhan V. Special Judge, C.B.I. Court No. 4, Lucknow, 2016 (133) RD 66 (Alld.HC) 54. Shiv Narayan Goswami V. Jagdish Prasad Guptal (Died) & Others, 2016 (5) ALJ (NOC)20 (All.) 55. Shiv Ram v. State of U.P. and others, 2016 (6) AWC 5565 56. Sita Ram Jaiswal V. State of U.P., 2016 (133) RD 305 (Alld.H,C.) 57. Smt. Premlata Sing v. State of U.P., 2016 (133) RD 810 (Alld.HC) 58. Smt. Shobhawati V. Sudhir and othrs, 2016(6) AWC 6253
59. Smt. Sukhpali Devi v. Civil Judge (Senior Division), Moradabad, 2016 (133) RD 75 (Alld.HC) 60. Smt. Sushila Suri V. Dr. Susheel Suri and others, 2016 (34) LCD 2610 61. Sri Panchayati Akhara Mahnirvani Vaidik Snatan Bharti v. Ram Prakash Pathak and another, 2016 (34) LCD 2738 62. State of U.P. and others v. Karan Singh and another, 2016 (5) ALJ (NOC) 3 (All.) 63. State of U.P. and Others v. M/s Shiv Enterprises, 2026 (34) LCD 2966 64. State of U.P. and others V. Subh Kumar Singh Gautam and another, 2016 (5) AWC 5401 65. State of U.P. through Collector, Bulandshahr v. Ishwari Prasad, 2016 (133) RD 582 66. Sukhan (Dead) through L.Rs. And others v. Brijveer Singh and others, 2016 (133) RD 319 (Alld.H.C.) 67. Sunil Kumar vs. State of U.P., 2016 (6) ALJ 626 68. Surech Kumar Mishra V. Court of Addl. District Judge (Cbi- Iv) Lucknow & 3 Others, (2016(3) ARC 805 69. Suresh Chandra Misra v. U.P. Cooperative Union Ltd. Lucknow And Others, 2016 (5) AWC 4988 70. Suresh Giri vs. Lal Guddan Giri, 2016 (6) ALJ 757 71. U.P. Awas Evam Vikas Parishad vs. Prem Prakash Sharma, 2016 (6) ALJ (NOC) 54 (All) 72. Ved Prakash V. Kanhaiya Lal, 2016 (5) AWC 5190
73. Veer Pal Singh v. State of U.P. and others, 2016 (34) LCD 2940 74. Vibhuti Singh Yadav V. State of U.P., 2016 (133) RD 417 (Alld. H.C.) 75. Vikrant Sharma and others v. State of U.P. and others, 2016 (6) ALJ 729 76. Vinita Sharma v. State of U.P. and Others, 2016 (34) LCD 2662 77. Vinod Kumar and 3Others V. Sudha Land Ventures And Homes Pvt. Ltd., 2016 (3) ARC 729 78. Virendra Yadav V. Ramesh & Anr. 2016 (5) ALJ 744 79. Vivek Kumar Tiwari alias Ashu & another v. State of U.P., 2016 (6) ALJ 460 80. Waqf Musammat Sharifan Biwi V. Dr. Prabhu Saran Rajvedi And Others, (2016(3) ARC 765
Part I (Supreme Court)
Administration of justice
Judicial propriety – Scope of.
In the instant case, the insurer was in custody of the policy. It had prescribed the clause relating to duration. It was very much aware about the stipulation made in clause 5(3) to 5(5), but despite the stipulations therein, it appointed a surveyor. Additionally, as has been stated earlier, in the letter of repudiation, it only stated that the claim lodged by the insured was not falling under the purview of transit loss. Thus, by positive action, the insurer has waived its right to advance the plea that the claim was not entertainable because conditions enumerated in duration clause were not satisfied. In Court‘s considered opinion, the National Commission could not have placed reliance on the said terms to come to the conclusion that there was no policy cover in existence and that the risks stood not covered after delivery of goods to the consignee. M/s. Galada Power and Telecommunication Ltd. V. United India Insurance Co. Ltd. and another etc. 2016 (6) Supreme 321
Advocates Act Section 30 and 34 – The two provisions stand on different footings – High Court has right to regulate the conduct of its own proceedings – No fault in Rule 3 or Rule 3A of the Rules framed under Section 34. Court has held that it becomes clear that High Court is duly empowered to make rules and Rules in question are not ultra vires Section 30 of the Act. It is more so when power under Section 34 of the Act is given to the High Courts, which are Constitutional Courts.
It would be necessary to clarify at this stage that the disciplinary jurisdiction conferred on the Bar Councils under Section 36 of the Act for misconduct committed by the advocates stand on a different footing than the powers conferred on the High Courts to frame rules to practice before the High Court or subordinate Courts. It may be the intention of the Parliament to confer the jurisdiction on the lawyers' body like Bar Councils regarding misconduct by advocates to maintain the independence of the Bar. However, again keeping in mind the administration of justice and regulating the Court proceedings and right to practice and right to appear before the high Courts and Subordinate Courts, power is conferred on the High Courts, to frame rules. If High Court keeping in mind, several relevant factors like the purity in a administration of justice, the interest of the litigant public and easy availability of the advocate to assist the court for proper adjudication of the dispute pending before it or expeditious disposal of such proceedings or for any other valid or good reasons which High Court considered just and proper frames such rules, we find no fault in Rule 3 or Rule 3A of the Rules. Jamshed Ansari V. High Court of Judicature at Allahabad and others, 2016 (6) Supreme 525
Allahabad High Court Rules Rules 3 and 3A – Prescribing that an Advocate who is not on rolls of Advocate in the High Court is obligated to file an appointment along with a local Advocate – No absolute bar to appear – Rules 3 and 3A therefore are regulatory provisions and no not impose a prohibition on practice of law.
It needs to be determined as to whether the Rules in question are in the nature of restrictions or they are prohibitory in nature. Our answer to this question is that Rules 3 and 3A of the Rules are regulatory provisions and do not impose a prohibition on practice of law. These Rules prescribe that an Advocate who is not on rolls of Advocate in the High Court is obligated to file an appointment along with a local Advocate. There is no absolute bar to appear. In fact, with the leave of the Court, an Advocate is still permitted to appear even without a local Advocate. In essence, an Advocate who is not on the roll of Advocates in the High Court can appear along with a local Advocate. Alternatively, even without fulfilling this requirement, an Advocate who is not on the rolls of Advocates in the High Court can move an application before the Court seeking leave to appear without even a local Advocate and in appropriate cases, such a permission can be granted.
In N.K. Bajpai v. Union of India[1], this Court made it clear that right to practice can be regulated and is not an absolute right which is free from restriction or without any limitation.
―24. A bare reading of these three provisions clearly shows that this is a statutory right given to an advocate to practice and an advocate alone is the person who can practice before the courts, tribunals, authorities and persons. But this right is statutorily regulated by two conditions – one, that a person's name should be on the State rolls and second, that he should be permitted by the law for the time being in force, to practice before any authority or person. Where the advocate has a right to appear before an authority or a person, that right can be denied by a law that may be framed by the competent legislature.
Thus, the right to practice is not an absolute right which is free from restrictions and is without any limitation. There are persons like Mukhtars and others, who were earlier entitled to practice before the courts, but the Advocates Act itself took away the right to practice which was available to them prior to its coming into force. Thus, the Advocates Act placed a complete prohibition upon the right to practice of those persons who were not advocates enrolled with the State Bar Council. Therefore, the right to practice, which is not only a statutory right under the provisions of the Advocates Act but would also be a fundamental right under Article 19(1)(g) of the Constitution is subject to reasonable restrictions. Jamshed Ansari V. High Court of Judicature at Allahabad and others, 2016 (6) Supreme 525
Arbitration Act
Sec. 30—Award—Setting aside of—Powers of Court
The grounds such as inadequacy of reasons in support of an award, error committed by the arbitrator on facts, alternate or/and more plausible view could be taken then what is taken by the arbitrator, improper appreciation of evidence done by the arbitrator in recording any finding etc. are not the grounds on which any award much less a reasoned award can be set aside. In other words, none of these grounds can be made the foundation for setting aside the award because they do not fall within the four corners of any of the three sub- clauses of Section 30.
In the instant case the High Court virtually sat as an appellate Court as if it was hearing the appeal arising out of the award little realizing rather ignoring its well defined jurisdiction in such matter and proceeded to probe into all factual issues arising in the case. It has permitted the State‘s counsel to file some documents in appeal. The High Court examined the case on facts and eventually held that the arbitrator has travelled beyond clauses of the agreement and hence committed legal misconduct requiring the High Court to set aside the award.
Held, the approach and the reasoning of the High Court, in setting aside the award was wholly against the law. M/s. Harish Chandra and Company V. State of U.P. Thr. Superintending Engineer, AIR 2016 SC 4257
Arbitration and Conciliation Act
Pre.—Scope of
The Arbitration and Conciliation Act should be interpreted so as to bring in line the principle underlying its interpretation in a manner that is consistent with prevailing approaches in the common law world. Jurisprudence in India must evolve towards strengthening the institutional efficacy of arbitration. Deference to a forum chosen by parties as a complete remedy for resolving all their claims is but part of that evolution. Minimizing the intervention of courts is again a recognition of the same principle. A. Ayyasamy V. A. Paramasivam, AIR 2016 SC 4675
Sec. 2(f)—―International Commercial Arbitration‖—Meaning of
If one party to the arbitration agreement is a foreign company then whether such agreement becomes an "international commercial arbitration‖ within the meaning of Section 2(f) of the Act. 20.
In this case, I find that NAC is an American company and being a party to Agreement-I as also to Agreement-II along with two Indian companies (appellant and the respondent), a fortiori, Agreement-I and Agreement-II become an "international commercial arbitration" within the meaning of Section 2(f) of the Act which, in clear terms, provides that if one of the parties to the agreement is a foreign company then such agreement would be regarded as "international commercial arbitration". Sasan Power Ltd. V. North American Coal Corporation India Pvt. Ltd., AIR 2016 SC 3974
Sec. 8—Reference to arbitration—Consideration of
Those cases where there are serious allegations of fraud, they are to be treated as non-arbitrable and it is only the civil court which should decide such matters. However, where there are allegations of fraud simpliciter and such allegations are merely alleged, Court is of the opinion it may not be necessary to nullify the effect of the arbitration agreement between the parties as such issues can be determined by the Arbitral Tribunal. Mere allegations of fraud simpliciter may not be a ground to nullify the effect of arbitration agreement between the parties. It is only in those cases where the Court, while dealing with Section 8 of the Act, finds that there are very serious allegations of fraud which make a virtual case of criminal offence or where allegations of fraud are so complicated that it becomes absolutely essential that such complex issues can be decided only by civil court on the appreciation of the voluminous evidence that needs to be produced, the Court can sidetrack the agreement by dismissing application under Section 8 and proceed with the suit on merits. A. Ayyasamy V. A. Paramasivam, AIR 2016 SC 4675
Sec. 11- Appointment of Arbitrator- Law relating to discussed The essential ingredients of the 'Arbitration Agreement' are provided in Section 2(1) read with Section 7 of the Act. To constitute a valid arbitration agreement between the parties all the essential ingredients are required to be proved. The agreement postulates the contract between the parties to submit to arbitration all or certain disputes existing between them. The disputes can be referred by the parties themselves or with the intervention of the Court only on proof of the existence of a valid arbitration agreement. " An agreement for arbitration is a sine qua non for adjudication of disputes by Arbitration . An arbitration agreement should be in writing i.e. it's term should be reduced to writing but if the agreement is not signed and it is established by another written contemporaneous document, it will be binding between the parties. ( see: P Anand Gajapathy Raju Vs. P.V.G. Raju, (2000) 4 SCC 539: AIR 2000 SC 1886). Section 11 deals with the appointment of arbitrators. According to it a person of any nationality may be appointed as an arbitrator unless otherwise agreed. The parties can also agree on a procedure for appointment of arbitrators subject to sub-section (6). Under sub- section (6) , if under the prescribed procedure the parties fail to agree for appointment under sub-section (2) , each party , in that eventuality shall appoint one arbitrator, and the two appointed arbitrators shall appoint the third arbitrator who shall act as the presiding arbitrator. If despite applicability of the procedure of appointment in terms of sub- section (3) , a party fails to appoint an arbitrator within the time specified or the two appointed arbitrators fail to agree on the third arbitrator within the period of thirty days, the appointment then shall be made , upon request of a party , by the Chief Justice or any person or institution designated by him. Where an agreement provides for the appointment of a sole arbitrator and if the parties fail to agree on arbitrator within thirty days from the receipt of request by one party from the other party the appointment then shall be made on request of a party by the Chief Justice or any designated person or institution , upon request of a party. A decision on a matter entrusted by sub- section (4) or sub section (5) or sub-section (6) , to Chief Justice or the person or institution designated by him, will be final. Chief Justice or a person or institution designated by him shall have due regard to any qualification required of arbitrator by the agreement of the parties and other considerations likely to secure the appointment of an independent and impartial arbitrator. In case of appointment of sole or third arbitrator in an international commercial arbitration, Chief Justice of India or a person or institution so designated, may appoint an arbitrator of a nationality other than the nationalities of the parties where the parties belong to different nationalities. The Chief Justice may frame such scheme as he may deal appropriate for dealing with the matters entrusted to him by sub- section (4), (5) or 6. M/S Bharat Catering Corp. Lko. Thru Its Partner And Another V. Indian Railway Catering & Tourism Corp. Ltd. N.Delhi & Ors., 2016 (34) SCD 2604
Sec. 11 – Judgment under Section 11, though judicial, does not have precedential value.
Before we apply the aforesaid test to the facts of the present case, a word on the observations in Swiss Timing Ltd.'s case to the effect that judgment of N. Radhakrishnan was per incuriam, is warranted. In fact, we do not have to labour on this aspect as this task is already undertaken by this Court in State of West Bengal & Ors. v. Associated Contractors[11]. It has been clarified in the aforesaid case that Swiss Timings Ltd. was a judgment rendered while dealing with Section 11(6) of the Act and Section 11 essentially confers power on the Chief Judge of India or the Chief Justice of the High Court as a designate to appoint an arbitrator, which power has been exercised by another Hon'ble Judge as a delegate of the Chief Justice. This power of appointment of an arbitrator under Section 11 by the Court, notwithstanding the fact that it has been held in SBP & Co. v. Patel Engineering Ltd. & Anr.[12] as a judicial power, cannot be deemed to have precedential value and, therefore, it cannot be deemed to have overruled the proposition of law laid down in N.Radhakrishnan. A. Ayyasamy V. A. Paramasivam 2016 (7) Supreme 450 Civil Procedure Code
Sec. 2—Invocation of
For availing benefit of the provisions of Section 102 of the CPC, the subject matter of the original suit should be only recovery of money and that too, not exceeding Rs. 25,000/-. If the subject-matter of the suit anything other than recovery of money or something more than recovery of money, provisions of Section 102 of the CPC cannot be invoked. In the present case, the original suit was not only for recovery of money, but was also for a declaration and permanent injunction. Moreover, the issue with regard to location of the properties in question had to be decided. It was to be ascertained whether the properties were situated within the municipal limits of the Nagar Palika and if so, whether the appellant was entitled to levy tax thereon under the provisions of the U.P. Municipalities Act. If the properties were not within the municipal limits of the appellant Nagar Palika, the appellant could have been permanently restrained from recovering any tax under the Act in respect of the properties in question. Thus, several other issues were also to be decided in the said suit. Hence, the provisions of Section 102 of the CPC could not have been applied. Nagarpalika Thakurdwara vs. Khalil Ahmed, AIR 2016 SC 4477
Ss. 9/89- Ouster of jurisdiction of Civil Court That the clause in an agreement, which provides for deciding the disputes arising out of such agreement through private arbitration, affects the jurisdiction of the Civil Court and the ouster of jurisdiction of Courts cannot be inferred readily. Vimal Kishor Shah and others V. Jayesh Dinesh Shah, (2016)8 SCC 788
Sec. 13 – Conclusive order passed by following judicial process – Executing court cannot enquire into validity, legality or otherwise of the judgment.
A plaint reading of Section 13, C.P.C. would show that to be conclusive an order or decree must have been obtained after following the due judicial process by giving reasonable notice and opportunity to all the proper and necessary parties to put forth their case. When once these requirements are fulfilled, the executing Court cannot enquire into the validity, legality or otherwise of the judgment.
Section 36 – Execution of orders of court – Legislative intent – Execution of decree or order include payment under a decree or order.
Legislative intent of executing Orders relating to payments of costs is clear from amendment carried out to section 36, C.P.C. to clarify that the provisions relating to execution of decree or order include payment under a decree or order as well.M/s Alcon Electronics Pvt. Ltd. v. Celem S.A. of FOS 34320 Roujan, France 2016 (8) Supreme 465
Section 100 – Findings of trail court and first appellate court not perverse – Not in conflict with any provision of law governing the issue – High Court in second appeal ought not have interfered. None of the findings of the two courts below were perverse to the extent that no judicial person could ever come to such conclusion and that these findings were not in conflict with any provision of law governing the issue and that the findings were also not against the pleadings or evidence. In this view of the matter, in our view, these findings were not capable of being set aside by the High Court in exercise of its second appellate jurisdiction under Section 100 CPC, rather they were binding on the High Court. Syeda Rahimunnisa V. Malan Bi (Dead) by L.Rs. 2016 (7) Supreme 162
O. 6 R. 16 – Authority must be exercised with circumspection and on the basis of some rational principles-
Court think it profitable to examine the scheme of Order VI, Rule 16.
―16. Striking out pleadings – The Court may at any stage of the proceedings order to be struck out or amended any matter in any pleading –
(a) which may be unnecessary, scandalous, frivolous or vexatious, or (b) which may tend to prejudice, embarrass or delay the fair trial of the suit, or (c) which is otherwise an abuse of the process of the Court.‖ It authorizes the court to order that any matter in any pleading before it be struck out on the grounds specified under clauses (a), (b) and (c). Each one of them is a distinct ground. For example, clause (a) authorizes the court to strike out the pleadings which may be (i) unnecessary, (ii) scandalous, (iii) frivolous, (iv) vexatious. If a pleading or part of it is to be struck out on the ground that it is unnecessary, the test to be applied is whether the allegation contained in that pleading is relevant and essential to grant the relief sought. Allegations which are unconnected with the relief sought in the proceeding fall under this category. Similarly, if a pleading is to be struck out on the ground that it is scandalous, the court must first record its satisfaction that the pleading is scandalous in the legal sense and then enquire whether such scandalous allegation is called for or necessary having regard to the nature of the relief sought in the proceeding. The authority of the court under clause (c) is much wider. Obviously, such authority must be exercised with circumspection and on the basis of some rational principles.
In the context of the application of Order VI Rule 16, CPC to the election petition, this Court in Bhikaji Keshao Joshi and Another Vs. Brijlal Nandlal Biyani and Others, AIR 1965 SC 610 held that a court examining an election petition may order striking out of charges which are vague [it should have ordered a striking out of such of the charges which remained vague and called upon the petitioners to substantiate the allegations in respect of those which were reasonably specific.]
This Court opined that for the purpose of determining such an application, the averments in the election petition must be taken to be factually correct and thereafter examine whether such averments furnish the cause of action for granting the relief to the petitioner. Such a conclusion was recorded on the basis of the law laid down in an earlier judgment of this Court. [Liverpool & London S.P. and I Assn. Ltd. Vs. M.V. Sea Success I, (2004) 9 SC 512, Para 8. To the same effect is the decision of this Court in Liverpool & London S.P. and I Assn. Ltd. Vs. M.V. Sea Success I where this Court held that the disclosure of a cause of action in the plaint is a question of fact and the answer to that question must be found only from the reading of the plaint itself. The court trying a suit or an election petition, as the position is in the present case, shall while examining whether the plaint or the petition discloses a cause of action, to assume that the averments made in the plaint or the petition are factually correct. It is only if despite the averments being taken as factually correct, the court finds no cause of action emerging from the averments that it may be justified in rejecting the plaint….
Para 10. Applying the above principles to the case at hand, we do not see any error in the order passed by the High Court refusing to dismiss the petition in limine on the ground that the same discloses no cause of action. The averments made in the election petition if taken to be factually correct, as they ought to for purposes of determining whether a case for exercise of powers under Order 7 Rule 11 has been made out, do in our opinion, disclose a cause of action. The High Court did not, therefore, commit any error much less an error resulting in miscarriage of justice, to warrant interference by this Court in exercise of its extraordinary powers under Article 136 of the Constitution.] The Court is of the opinion the same principles of law are applicable even while adjudicating the application under Order VI Rule 16. Ajay Arjun Singh v. Sharadendu Tiwari 2016 (6) SCC 440 O. 23, R. 1 – Scope of.
There is no bar for taking a defence in a fresh round of litigation in respect of the same point involved in a suit which was withdrawn without seeking liberty.
This Court in Sarguja Transport Service held that withdrawal of a Writ Petition without seeking permission to file a fresh Writ Petition would bar filing of a fresh Writ Petition. But there is no bar for taking a defence in a fresh round of litigation in respect of the same point involved in a suit which was withdrawn without seeking liberty. Mangalore Electricity Supply Company Limited V. M/s AMR Power Private Limited 2016 (6) Supreme 718
O. 37, R. 3 read with section 115 – Grant or refusal of leave to defend – Discretion of the trial Judge – Guiding principles thereof.
Relying upon the judgment of Milkhiram‘s case, the court observed as follows:
a. If the defendant satisfies the Court that he has a substantial defence, that is, a defence that is likely to succeed, the plaintiff is not entitled to leave to sign judgment, and the defendant is entitled to unconditional leave to defend the suit; b. if the defendant raises triable issues indicating that he has a fair or reasonable defence, although not a positively good defence, the plaintiff is not entitled to sign judgment, and the defendant is ordinarily entitled to unconditional leave to defend; c. even if the defendant raises triable issues, if a doubt is left with the trial judge about the defendant‘s good faith, or the genuineness of the triable issues, the trial judge may impose conditions both as to time or mode of trial, as well as payment into court or furnishing security. Care must be taken to see that the object of the provisions to assist expeditious disposal of commercial causes is not defeated. Care must also be taken to see that such triable issues are not shut out by unduly severe orders as to deposit or security; d. if the Defendant raises a defence which is plausible but improbable, the trial Judge may impose conditions as to time or mode of trial, as well as payment into court, or furnishing security. As such a defence does not raise triable issues, conditions as to deposit or security or both can extend to the entire principal sum together with such interest as the court feels the justice of the case requires. if the Defendant has no substantial defence and/or raises no genuine triable issues, and the court finds such defence to be frivolous or vexatious, then leave to defend the suit shall be refused, and the plaintiff is entitled to judgment forthwith; e. if any part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit, (even if triable issues or a substantial defence is raised), shall not be granted unless the amount so admitted to be due is deposited by the defendant in court. IDBI Trusteeship Services Ltd. V. Hubtown Ltd 2016 (8) Supreme 194 Constitution of India
Pre. - Power of Judicial review is part of basic structure of Constitution The High Courts and Supreme Court can exercise power of judicial review under Articles 226 and 32, respectively, of the Constitution of India in cases of statutory exercise of power by the President or Governor. In the case of Dr. Yashwant Trimbak v. Yashwant Trimbak, (1996) 2 SCC 305 this Court held that the power of judicial review is not available in case of executive exercise of power by the President or the Governor. The Supreme Court held that in the said case is not tenable in law in view of the decision of this Court in the landmark judgment of Kesavananda Bharati Sripadagalvaru & Ors. v. State of Kerala and Anr.(1973) 4 SCC 225 wherein this Court has clearly held that the power of judicial review is part of the basic structure of the Constitution of India. The power of under Articles 77(3), 166 (3) operate in completely different fields. It would thus, be clear that the Rules framed in exercise of power under Articles 77(3) and 166(3) cannot be compared while exercising power under Article 309 of the Constitution and framing rules and regulations for recruitment and conditions of service of persons appointed to such posts either in connection with the affairs of the Union government or a state government. It is for this reason that the statutory exercise of power by the President of India under Rules 9(2)(b)(i) and (ii) of the CCS (Pension) Rules, 1972 cannot be equated with power exercised under Article 77(2) of the Constitution of India. Brajendra Singh Yambem v. Union of Indi, (2016) 9 SCC 20
Arts. 14 and 39-A -Meaning of Access to Justice Access to Justice will not affect the quality of human life so as to take access to justice out of the purview of right to life guaranteed under Article 21. We have, therefore, no hesitation in holding that access to justice is indeed a facet of right to life guaranteed under Article 21 of the Constitution. We need only add that access to justice may as well be the facet of the right guaranteed under Article 14 of the Constitution, which guarantees equality before law and equal protection of laws to not only citizens but non-citizens also. We say so because equality before law and equal protection of laws is not limited in its application to the realm of executive action that enforces the law. It is as much available in relation to proceedings before Courts and tribunal and adjudicatory fora where law is applied and justice administered. The Citizen‘s inability to access courts or any other adjudicatory mechanism provided for determination of rights and obligations is bound to result in denial of the guarantee contained in Article 14 both in relation to equality before law as well as equal protection of laws. Absence of any adjudicatory mechanism or the inadequacy of such mechanism, needless to say, is bound to prevent those looking for enforcement of their right to equality before laws and equal protection of the laws from seeking redress and thereby negate the guarantee of equality before laws or equal protection of laws and reduce it to a mere teasing illusion. Article 21 of the Constitution apart, access to justice can be said to be part of the guarantee contained in Article 14 as well. Access to justice is and has been recognised as a part and parcel of right to life in India and in all civilized societies around the globe. The right is so basic and inalienable that no system of governance can possibly ignore its significance, leave alone afford to deny the same to its citizens. The Magna Carta, the Universal Declaration of Rights, the International Covenant on Civil and Political Rights, 1966, the ancient Roman Jurisprudential maxim of `Ubi Jus Ibi Remediuma, the development of fundamental principles of common law by judicial pronouncements of the Courts over centuries past have all contributed to the acceptance of access to justice as a basic and inalienable human right which all civilized societies and systems recognise and enforce. Access to justice will again be no more than an illusion if the adjudicatory mechanism provided is so expensive as to deter a disputant from taking resort to the same. Article 39-A of the Constitution promotes a laudable objective of providing legal aid to needy litigants and obliges the State to make access to justice affordable for the less fortunate sections of the society. Anita Kushwaha v. Pushap Sudan, (2016) 8 SCC 509.
Arts. 14, 265-Taxing statue-When can be said to be violative of Art. 14 Every legislation is done with the object of public good as said by Jeremy Bentham. Taxation is an unilateral decision of the Parliament and it is the exercise of the sovereign power. The financial proposals put forth by the Finance Minister reflects the governmental view for raising revenue to meet the expenditure for the financial year and it is the financial policy of the Central Government. The Finance Minster‘s speech only highlights the more important proposals of the budget. Those are not the enactments by the Parliament. The law as enacted is what is contained in the Finance Act. After it is legislated upon by the Parliament and a rate of duty that is prescribed in relation to a particular Tariff Head that constitutes the authoritative expression of the legislative will of Parliament. Now in the present facts of the case, as per the finance bill, the legislative will of the Parliament is that for the commodities falling under Tariff Head 2208.10, the tariff is Rs.300/- per litre or 400% whichever is higher. Even assuming that the amount of tax is excessive, in the matters of taxation laws, the Court permits greater latitude to the discretion of the legislature and it is not amenable to judicial review. Hence the Supreme Court is unable to concur with the submission of the appellant that the budget proposals are duly passed and approved by the Parliament and moreover, if the appellant is aggrieved by the particular tariff prescribed under the Finance Act and the same is contrary to the approved budget proposals, he ought to have questioned the same if permissible. Hence, this issue is answered against the appellant. Statute Law- Generally A Taxing Statute can be held to contravene Article 14 of the Constitution if it purports to impose certain duty on the same class of people differently and leads to obvious inequality. Such a material is not placed before us to come to a just conclusion that the action of the respondents is discriminative. Hence, the same is held against the appellant. Amin Merchant V. Chairman, Central Board of Excise and Revenue and others, (2016) 9 SCC 191
Art. 19 and Sec. 12 of Contempt of Courts Act, 1971 – Fundamental right to speech – Act 1971 is on the restrictions on the right. The appellants with Sheopat Singh belong to the Marxist Communist Party. Sheopat Singh died during the pendency of these proceedings. It is relevant to mention that appellants Nos. 2 and 3 are advocates. A prominent trader union activist of Sri Ganganagar District Shri Darshan Koda was murdered on 18.12.2000. Some of the accused were granted anticipatory bail in February, 2001 by the High Court of Rajasthan. The Appellants addressed a huge gathering of their party workers in front of the Collectorate at Sri Ganganagar on 23.02.2001. While addressing the gathering, the Appellants made scandalous statements against the High Court which were published in Lok Sammat newspaper on 24.02.2001. The advocate General gave his consent to Respondent no. 1 for initiation of contempt proceedings on 16.01.2002. Thereafter, Respondent no. 1 filed a Contempt Petition in the High Court. The Appellants were found guilty of committing contempt by the High Court of Judicature for Rajasthan at Jodhpur. Every citizen has a fundamental right to speech, guaranteed under Article 19 of the Constitution of India. Contempt of Court is one of the restrictions on such right. We are conscious that the power under the Act has to be exercised sparingly and not in a routine manner. If there is a calculated effort to undermine the judiciary, the Courts will exercise their jurisdiction to punish the offender for committing contempt. We approve the findings recorded by the High Court that the Appellants have transgressed all decency by making serious allegations of corruption and bias against the High Court. The caustic comments made by the Appellants cannot, by any stretch of imagination, be termed as fair criticism. The statements made by the Appellants, accusing the judiciary of corruption lower the authority of the Court. The Explanation to sub- Section 12 (1) of the Act provides that an apology should not be rejected merely on the ground that it is qualified or tendered at a belated stage, if the accused makes it bona fide. The stand taken by the Appellants in the contempt petition and the affidavit filed in this Court does not inspire any confidence that the apology is made bona fide. After a detailed consideration of the submissions made by both sides and the evidence on record, we are in agreement with the judgment of the High Court that the Appellants are guilty of committing contempt of Court. Het Ram Beniwal V. Raghuveer Singh, 2016 (7) Supreme 393
Arts 19(1)(c) & (4) & 19(1)(g)& (6) - Right of Citizens to form Association
Article 19(1)(c) of the Constitution of India guarantees to the citizens of this country the right to form associations, unions or cooperative societies. It reads: (a)-(b) * * * (c) to form associations or unions or cooperative societies; (d)-(g) * * *
The right is evident from the above, is guaranteed in foam of citizens and citizens also.
Recourse to Article 19(1)(C) is not, therefore, open to juristic or other persons and entities who are non- citizens. Confronted with this position, it was argued on behalf of the BCCI and intervening associations that even when the provisions of Article 19(1)(c) may not be available to the State Cricket Associations who are members of BCCI , yet the recommendations made by the Committee, if accepted, would prejudicially affect the citizens who have come together to form such State associations. It was contended that this Court could in its discretion lift the veil to determine whether the right of any citizen/citizens was affected and grant suitable relief if the answer was in the affirmative. It was contended that once this Court decides to do so it will find that citizens comprising the State Cricket Associations are the ones actually affected by the recommendations in question.
Right under Article 19(1)(c) does not extend to guaranting to the citizens the concomitant right to pursue their goals and objects uninhibited by any regulatory or other control.
In the light of the above authoritative pronouncements, no room for any doubt that the right guaranteed under Article 19(1)(c) cannot be claimed by an association or union or a co-operative Society as is sought to be done in the case at hand, even when the right to form an association or union or cooperative society extends to the continued existence of such association or union or cooperative society with its original voluntary composition. But the right does not extend so far as to include the right of any such association or union or cooperative society to achieve its objects or to conduct its business unhindered by any regulatory or other control. Anything beyond the protection of the original composition of the association or union or cooperative society would fall outside Article 19(1)(C) and shall be governed by other clauses of Article 19 of the Constitution. For instance, the right of the association or union or cooperative society to conduct its business or pursue its objects shall be regulated under Article 19(1)(g) read with sub- Article (6) of the Constitution. So also, the right to move freely throughout the territory of India shall be governed by Article 19(1)(d) read with sub-Article 5 of the Constitution. Suffice it to say that so long as the initial voluntary composition of the State Cricket Associations who are complaining of the breach of their right under Article 19(1)(c) remains unaffected, there is no violation of what is guaranteed by Article 19(1)(c). Board of Control for Cricket v. Cricket Association of Bihar and others, (2016) 8 SCC 535
Art. 21 - Fair and Speedy trial-Concept of There is no denial of the fact that fair trial is an insegregable facet of Article 21 of the Constitution. This court on numerous occasions has emphasized on the fundamental conception of fair trial as the majesty of law so commends. The concept of fair trial is not in the realm of abstraction. It is not a vague idea. It is a concrete phenomenon. It is not rigid and there cannot be any strait-jacket formula for applying the same. On occasions it has the necessary flexibility. Therefore, it cannot be attributed or clothed with any kind of rigidity or flexibility in its application. It is because fair trial in its ambit requires fairness to the accused, the victim and the collective at large. Neither the accused nor the prosecution nor the victim which is a part of the society can claim absolute predominance over the other. Once absolute predominance is recognized, it will have the effect potentiality to bring in an anarchical disorder in the conducting of trial defying established legal norm. There should be passion for doing justice but it must be commanded by reasons and not propelled by any kind of vague instigation. It would be dependent on the fact situation; established norms and recognized principles and eventual appreciation of the factual scenario in entirety. There may be cases which may command compartmentalization but it cannot be stated to be an inflexible rule. Each and every irregularity cannot be imported to the arena of fair trial. There may be situations where injustice to the victim may play a pivotal role. The centripodal purpose is to see that injustice is avoided when the trial is conducted. Simultaneously the concept of fair trial cannot be allowed to such an extent so that the systemic order of conducting a trial in accordance with Cr.P.C. or other enactments get mortgaged to the whims and fancies of the defence or the prosecution. The command of the Code cannot be thrown to winds. In such situation, as has been laid down in many an authority, the courts have significantly an eminent role. A plea of fairness cannot be utilized to build Castles in Spain or permitted to perceive a bright moon in a sunny afternoon. It cannot be acquiesced to create an organic disorder in the system. It cannot be acceded to manure a fertile mind to usher in the nemesis of the concept of trial as such. State of Haryana v. Ram Mehar, (2016) 8 SCC 762
Arts. 21, 32 & 226 – Right to convict under Article 21 Prisoners both under trials and convicts have certain fundamental rights and human rights, little or no attention is being paid in this regard by the States and some Union Territories including the National Capital Territory of Delhi. Certainly fundamental rights and human rights of people, however they may be placed, cannot be ignored only because of their adverse circumstances. Even a convicts are not, by mere reason of the conviction, denuded of all the fundamental rights which they otherwise possess. A compulsion under the authority of law, following upon a conviction, to live in a prison-house entails by its own force the deprivation of fundamental freedoms like the right to move freely throughout the territory of India or the right to ―practise‖ a profession. A man of profession would thus stand stripped of his right to hold consultations while serving out his sentence. But the Constitution guarantees other freedoms like the right to acquire, hold and dispose of property for the exercise of which incarceration can be no impediment, likewise, even a convict is entitled to the precious right guaranteed by Article 21 of the Constitution that he shall not be deprived of his life or personal liberty except according to procedure established by law. Inhuman Conditions in 1382 prisons (II) In Re, (2016) 10 SCC 17
Art. 32 – Doctrine of ex debito Justitiae when can be invoke and prevail The doctrine of ex debito justitiae would prevail over procedural law but would be applicable only in a situation where the order of this Court had been passed without notice or where the order has the effect of eroding the public confidence in the justice delivery system. It would also not be maintainable as a review petition filed by writ petitioner dismissed by Supreme Court. The principle of ex debito justitiae is founded on a recognition of a debt that the justice delivery system owes to a litigant to correct an error in a judicial dispensation. Its application, by the very nature of things, cannot be made to depend on varying perceptions of legal omissions and commissions but such recognition of the debt which have the potential of opening new vistas of exercise of jurisdiction to relook concluded cases, must rest on surer foundations which have been discerned and expressed in Rupa Ashok Hurra (2002)4 SCC 388. Frantic cries of injustice founded on perceived erroneous application of law or appreciation of facts will certainly not be enough to extend the frontiers of this jurisdiction. The said jurisdiction because of its very nature has attracted the terminology of curative jurisdiction. The procedural steps with regard to filing and disposal of applications invoking the curative jurisdiction, termed as curative petitions, have also been laid down in paragraphs 52 and 53 of the report of Syed Shah Mohammed Quadri, J. in Rupa Ashok Hurra (2002)4 SCC 388 which now finds mention in Order XLVIII of the Supreme Court Rules, 2013. Merely because in the comprehension of the writ petitioner the judgment of this Court is erroneous would not enable the Court to reopen the issue in departure to the established and settled norms and parameters of the extent of permissible exercise of jurisdiction as well as the procedural law governing such exercise. Ashiq Hussain Faktoo v. Union of India, (2016)9 SCC 739.
Arts. 32, 21—Prisons Act (9 of 1894), Sec. 4—Over-crowding in jails—Earlier orders passed by Supreme Court directing State and Inspector-General of Prisons to prepare Plan of Action for reducing prison population—Non-compliance of Unless due importance is given to the fundamental rights and human rights of the people, the right to life and the right to live with dignity under Article 21 of the Constitution will have no meaning. Under these circumstances, Court is constrained to direct the Union of India through the Ministry of Home Affairs to obtain the status of compliance of our orders passed on 5th February 2016 and 6th May, 2016 as on 30th September, 2016. The information should be collated by the Ministry of Home Affairs and shared with the learned Additional Solicitor General and the learned Amicus so that even the rights of prisoners, whether convicts or under trials are given due importance. The needful be done before the next hearing, that is 18th October, 2016. Re-Inhuman Conditions 1382 Prisons (II), AIR 2016 SC 4527
Arts. 32 & 137 – Reversal of judgment of acquittal and recorded a conviction and sentence by Supreme Court Held- A writ petition could be filed challenging the judgment which is contrary to the established procedure of law and also on the maxim ex debito justitiae inclusive of violation of the principle of natural justice. If the present writ petition is converted to a review petition and heard in the open court on the fundamental principles of review as well as the maxim ex debito justitiae, the cause of justice would be sub served. Direction issued to Registry to convert the present writ petition to a review petition. Ashiq Hussain Faktoo v. Union of India, (2016)9 SCC 746.
Art. 131- CPC –Order VII Rule 11- Rejection of plaint – Applicability of doctrine of election- After choosing one particular remedy the plaintiff cannot avail the other remedy as well, in respect of the same relief founded on same cause of action After hearing the arguments of the learned counsel for the parties, court found substance in the submission of the defendants. Even if court presume that the suit was maintainable, at the same time the plaintiff also had remedy of filing the statutory appeals etc. by agitating the matter under the Finance Act. It chose to avail the remedy under the Finance Act. The Doctrine of Election would, therefore, become applicable in a case like this. After choosing one particular remedy the plaintiff cannot avail the other remedy as well, in respect of the same relief founded on same cause of action. The plaint is, therefore, rejected under Order VII Rule 11 of the Code of Civil Procedure. State of Rajasthan v. Union of India and Ors., 2016 (10) SCALE 312
Art. 136 – Criminal Appeal- Concurrent findings of courts below – Supreme Court will not interfere save in exceptional circumstances. The principles for the exercise of jurisdiction in a petition under Article 136 of the Constitution of India have been succinctly summarized by a two-judge Bench of this Court in Ganga Kumar Srivastava Vs. The State of Bihar, (2005) 6 SCC 211, in the following terms: i. ―The powers of this Court under Article 136 of the Constitution are very wide but in criminal appeals this Court does not interfere with the concurrent findings of the fact save in exceptional circumstances. ii. It is open to this Court to interfere with the findings of fact given by the High Court if the High Court has acted perversely or otherwise improperly. iii. It is open to this Court to invoke the power under Article 136 only in very exceptional circumstances as and when a question of law of general public importance arises or a decision shocks the conscience of the Court. iv. When the evidence adduced by the prosecution fell short of the test of reliability and acceptability and as such it is highly unsafe to act upon it. v. The appreciation of evidence and finding is vitiated by any error of law of procedure or found contrary to the principles of natural justice, errors of record and misreading of the evidence, or where the conclusions of the High Court are manifestly perverse and unsupportable from the evidence on record.‖ Saddik @ Lalo Gulam Hussain Shaikh V. State of Gujarat, 2016 (7) Supreme 202
Arts. 136 & 226- Exercise of equitable jurisdiction Departmental enquiry and criminal proceedings whether can be initialed simultaneously with criminal proceedings. The High Court in exercise of equitable writ jurisdiction, can stay ongoing departmental proceeding in larger public interest and having regard to long pendency of trial. The remedy of writ being an equitable jurisdiction, disciplinary proceeding pending for more than 10 years. The same was stayed by Supreme Court until they closure of recording evidence of prosecution witnesses cited in criminal trial. Criminal case pending against the respondent employee was directed to be decided expeditiously within a year. State Bank of India v. Neelam Nag, (2016) 9 SCC 491
Art. 141 – Ratio decidendi The ratio decidendi consists in the reasons formulated by the court for resolving an issue arising for determination and not in what logically appear to flow from observations on non-issues. Union of India v. Meghmani Organics Limited, (2016) 10 SCC 28.
Art. 142—Execution of final judgment or decree—Delay—Should not be countenanced by any authority Delay in execution of a final judgment or decree, moreso when it is of the Apex Court, should never the countenanced by any authority because it would surely tend to undermine people‘s faith in the judicial system of the country, entailing in turn avoidable harm to all the institutions and functionaries under the Constitution, may be even to the Constitution itself. In Re: Punjab Termination of Agreement Act, 2004, AIR 2016 SC 5145
Art. 143 – Power of President to consult Supreme Court – Scope of. A bare perusal of Article 143 of the Constitution would show that the President is authorized to refer to this Court a question of law or fact, which in his/her opinion is of such a nature and of such a public importance that it is expedient to obtain the opinion of the Supreme Court upon it. The Article does not restrict the President to obtain opinion only on a pure question of law. The submission made by the learned counsel appearing for the State of Punjab that several questions of fact are involved in the Reference is thus hardly relevant, for the reason that an opinion can be sought on question of law and even on question of fact. In Re: The Punjab Termination of Agreement Act, 2004, Special reference No. 1 of 2004 (under Article 143(1) of the Constitution of India. 2016 (8) Supreme 153
Art. 226—Interim order—Passing of—Court ought to circumspect in granting any interim relief when public interest is involved In matters where public interest in involved, the Court ought to be circumspect in granting any interim relief. The consequence of an interim order might be quite serious to society and consumers and might cause damage to public interest and have a long term impact. The Supreme Court made it clear that it is not its intention to suggest to any Court how in what circumstances interim orders should or should not be passed but it is certainly its intention to make it known to the Courts that the time has come when it is necessary to be somewhat more circumspect while granting an interim order in matters having financial or economic implications. Union of India V. M/s. Cipla Ltd., AIR 2016 SC 5025
Art. 226 – Invoking extraordinary jurisdiction of High Court To invoke the extraordinary jurisdiction of this Court must also make out a case that no part o the relevant material had been kept out from the assessing officer and/or that it would not be unreasonable for the assessing officer to draw inference from the annexure produced. Girilal and Company v. Income Tax Officer, Mumbai, (2016)9 SCC 510.
Arts.226, 141 and Schedule VII List I Moulding of relief prayed for in writ petition under Article 226 – Held – approach of High Court unquestionable. Point for consideration was whether the High Court exceeded its jurisdiction in setting aside the Government Order dated 28.02.2014 providing for reservation to in-service candidates, when the writ petition filed by the in-service candidates was limited to equate them with the in-service candidates who had the experience of working in remote or difficult areas. Indeed, the challenge before the High Court was limited. However, the High Court having held that the State Government could not have issued such order in violation of Regulation 9, quashed the same. The High Court had invited the parties to advance arguments on the validity of the said Government Order before passing the final order. The High Court relied on the decisions of the Supreme Court and opined that it was not permissible, in law, for the State Government to provide reservation for in-service candidates in Post-Graduate ―Degree‖ courses in violation of Regulation 9. Concededly, action taken on the basis of such a void Government Order would be nothing short of a nullity in law. As a result, the High Court proceeded to issue directions to follow the admission process for Post Graduate ―Degree‖ Courses strictly in conformity with Regulation 9. The High Court thus moulded the relief on the basis of the settled legal position. That approach is un- exceptionable, except that it may be necessary to mould the relief further. State of Uttar Pradesh v. Dinesh Singh Chauhan, (2016)9 SCC 749.
Arts. 226 and 227 – Maintainability of order passed by Education Tribunal infirmity dismissal of appellant from service. The point for consideration was whether a tribunal or court whose order is challenged in the proceeding under Arts 226 and 227 of the constitution is a necessary purity to the proceeding.
The tribunal is not required to defend its orders when they are challenged before the High Court in a Special Civil Application under Articles 226 and 227. The lis is between the management and a member of its teaching or non-teaching staff, as the case may be. It is for the person aggrieved to pursue his or her remedies before the tribunal. An order of the tribunal is capable of being tested in exercise of the power of judicial review under Articles 226 and 227. When the remedy is invoked, the tribunal is not required to step into arena of conflict for defending its order. Hence, the tribunal is not a necessary party to the proceedings in a Special Civil Application. The tribunal was not required to defend its order in the writ proceedings before the learned Single Judge. Even if the High Court was to require the production of the record before the tribunal, there was no necessity of impleading the tribunal as a party to the proceedings. The tribunal not being required in law to defend its own order, the proceedings under Articles 226 and 227 of the Constitution were maintainable without the tribunal being impleaded. M.S. Kazi v. Muslim Education Society, (2016) 9 SCC 263
Art. 227 – Scope of There is no ground on which the High Court could have upset the concurrent finding on this question in its writ jurisdiction under Article 227, which is more or less akin to revisional jurisdiction of the High Court. The High Court also failed to hold that finding of the two courts were so perverse to the extent that any judicial person could ever reach to such conclusion or that the findings were against any provision of law or were contrary to evidence adduced etc. In above case High Court did not keep in mind the principle of law laid down by the Constitution Bench of the Supreme Court in Hindustan Petroleum Corporation Ltd., (2014)9 SCC 78 for deciding the revision petition in rent matters and also the principle laid down by the Supreme Court in Surya Dev Rai, (2003)6 SCC 675 in relation to exercise of jurisdiction under Article 227 of the Constitution of India. The High Court proceeded to decide like the first appellate court. The High Court, as clear from the impugned judgment, probed into all the factual aspects of the case, appreciated the evidence and then reversed the factual findings of the appellate court and the prescribed authority. This was a jurisdictional error, which the High Court committed while deciding the writ petition. In other words, the High Court should have confined its inquiry to examine as to whether any jurisdictional error was committed by the first appellate court while deciding the first appeal. It was, however, not done. The High Court also failed to hold that the findings of the two courts were so perverse to the extent that no judicial person could ever reach to such conclusion or that the findings were against any provision of law or were contrary to evidence adduced etc. Gulshera Khanam v. Aftab Ahmad, (2016)9 SCC 414
Arts. 299/ 300 -Government contract – Acceptance or rejection of bid- Decision making process – Should not be irrational or biased. The issue of the acceptance or rejection of a bid or a bidder should be looked at not only from the point of view of the unsuccessful party but also from the point of view of the employer. As pointed out in Tata Cellular there must be judicial restraint in interfering with administrative action. Ordinarily, the soundness of the decision taken by the employer ought not to be questioned but the decision making process can certainly be subject to judicial review. The soundness of the decision may be questioned if it is irrational or mala fide or intended to favour someone or a decision ―that no responsible authority acting reasonably and in accordance with relevant law could have reached‖ as held in Jagdish Mandal followed in Michigan Rubber. Therefore, whether a term of the NIT is essential or not is a decision taken by the employer which should be respected. Even if the term is essential, the employer has the inherent authority to deviate from it provided the deviation is made applicable to all bidders and potential bidders as held in Ramana Dayaram Shetty. However, if the term is held by the employer to be ancillary or subsidiary, even that decision should be respected. The lawfulness of that decision can be questioned on very limited grounds, as mentioned in the various decisions discussed above, but the soundness of the decision cannot be questioned, otherwise this Court would be taking over the function of the tender issuing authority, which it cannot. Central Coalfields Ltmited and Anr. V. SLL-SML (Joint Venture Consortium) & Ors. 2016 (6) Supreme 353
Arts. 309, 16—Civil Services (Classification, Control and Appeal) Rules (1965), Rr. 14, 15—Disciplinary inquiry—Natural justice – Non observance of Both the learned Single Judge and the Division Bench have heavily relied on the fact that before forwarding the copy of the report by letter dated 02.04.2008 the Disciplinary Authority-cum-Whole Time Members have already formed an opinion on 25.02.2008 to punish the writ petitioner with major penalty which is a clear violation of principle of natural justice. Court is of the view that before making opinion with regard to punishment which is to be imposed on a delinquent, the delinquent has to be given an opportunity to submit the representation/reply on the inquiry report which finds a charge proved against the delinquent. The opinion formed by the Disciplinary Authority-cum-Whole Time Members on 25.02.2008 was formed without there being benefit of comments of the writ petitioner on the inquiry report. In his representation any inputs and explanation given by the delinquent are also entitled to be considered by the Disciplinary Authority before it embarks with further proceedings as per statutory rules. Court is, thus, of the view that there was violation of principle of natural justice at the level of Disciplinary Authority when opinion was formed to punish the writ petitioner with dismissal without forwarding the inquiry report to the delinquent and before obtaining his comments on the inquiry report. Court is, thus, of the view that the order of the High Court setting aside the punishment order as well as the Appellate order has to be maintained. Court has found that principles of natural justice have been violated after submission of the inquiry report dated 29.12.2007 all proceedings taken by the Disciplinary Authority after 29.12.2007 have to be set aside and the Disciplinary Authority is to be directed to forward the copy of the inquiry report in accordance with Rule 15(2) of Rules 1965 and further proceedings, if any, are to be taken thereafter. H.P. State Electricity Board Ltd. V. Mahesh Dahiya, AIR 2016 SC 5341
Arts. 323 A & 323B - Establishment of Tribunals That is wake of the 42nd amendment to the Constitution of India, incorporating Article 323A and 323B of the Constitution under Part XIVA, various Tribunals have been set up. The Tribunals constitute alternative institutional mechanism for dispute resolution. The declared objective of such Tribunals is inability of the existing system of courts to cope up with the volume of work. This Court has gone into the question of validity of scheme under which the High Court is by passed without the alternative institutional mechanism being equally effective for the access to justice which was necessary component of rule of law and this Court being over burdened with routine matters in several judgments to which reference may be made. Appeal to Supreme Court on question of Law show that Tribunals deal with such questions or substantial questions. Direct appeals to this Court has the result of denial of access to the High Court. Such Tribunals thus become substitute for High Courts without manner of appointment to such Tribunals being the same as the manner of appointment of High Court Judges. A perusal of Sections 113(b)(i) to (iii) and 113(3) read with Section 78, Sections 84, 85 and 125 of the Electricity Act and corresponding provisions of similar Acts may, thus, need a fresh look. Gujarat Urja Vikas Nigam Ltd. v. Essar Power Ltd., (2016) 9 SC 103.
Art. 366 (29-A)(b) – Work contract In a works contract property in goods passes out as movable but on the theory of accretion. It was further submitted that the property passes by accession just once which, by a fiction, is taxed as a sale. The Article also identifies the transferor and transferee effecting the deemed sale and deemed purchase. The taxable person is the contractor executing the works contract so that the main contractor, who assigns the work to another person to execute the work, cannot be a transferor, nor any property in goods vest in the main contractor, when the contract is executed by a sub-contractor. Larsen & Toubro Ltd. v. Additional Deputy Commissioner of Commercial Taxes and another, (2016) 9 SCC 780.
Contempt of Court Act
Sec. 12 – Contempt of Court –Conviction and sentence If a person has been asked to do something which is impossible and if he fails to do so, he cannot be held guilty of contempt. Gyani Chand v. State of A.P. 2016 (7) Supreme 1
Contract Act
Section 28 (as it stood prior to its amendment in 1997 and after its amendment in 2013) Bar under – When attracted. That Section 28, being substantive law, operates prospectively as retrospectivity is not clearly made out by its language. Being remedial in nature, and not clarificatory or declaratory of the law, by making certain agreements covered by Section 28(b) void for the first time, it is clear that rights and liabilities that have already accrued as a result of agreements entered into between parties are sought to be taken away. This being the case, we are of the view that both the Single Judge and Division Bench were in error in holding that the amended Section 28 would apply. Considering that the un-amended Section 28 is to apply, it is important to advert to the said Section and see what are its essential ingredients. First, a party should be restricted absolutely from enforcing his rights under or in respect of any contract. Secondly, such absolute restriction should be to approach, by way of a usual legal proceeding, the ordinary Tribunals set up by the State. Thirdly, such absolute restriction may also relate to the limiting of time within which the party may thus enforce its rights. Union of India and another v. Indusind Bank Limited and another, (2016) 9 SCC 720.
Criminal Procedure Code
Ss. 31, 427, Penal Code (45 of 1860), Ss. 53, 300 – Sentence of life imprisonment – Implies imprisonment till end of normal life of convict – Cannot be directed to run consecutively
Section 31 of the Code which deals with conviction for several offices at one trial. Section 31(1) deals with and empowers the Court to award, subject to the provisions of Section 71 of the IPC, several punishments prescribed for such offences and mandates that such punishments when consisting of imprisonment shall commence one after the expiration of the other in such order as the Court may direct unless the Court directs such punishments shall run concurrently. The power to award suitable sentences for several offences committed by the offenders is not and cannot be disputed. The order in which such sentences shall run can also be stipulated by the Court awarding such sentences. So also the Court is competent in its discretion to direct that punishment warded shall run concurrently not consecutively. Section 427 (2) carves out an exception to the general rule recognized in Section 427 (1) that sentences awarded upon conviction for a subsequent offence shall run consecutively. The Parliament, it manifest from the provisions of Section 427 (2), was fully cognizant of the anomaly that would arise if a prisoner condemned to undergo life imprisonment is directed to do so twice over. It has, therefore, carved out an exception to the general rule to clearly recognize that in the case of life sentences for two distinct offences separately tried and held proved the sentences cannot be directed to run consecutively. Thus while multiple sentences for imprisonment for life can be awarded for multiple murders or other offences punishable with imprisonment for life, can be awarded cannot be directed to run consecutively. Such sentences would, however, be super imposed over each other so that any remission or commutation granted by the competent authority in one does not ipso facto result in remission of the sentence awarded to the prisoner for the other. Muthuramalingam & Ors. V. State Rep. by Insp. of Police, 2016 Cri.L.J. 4165 (SC)
Sec. 207 - Scope of - Accused entitled to get a copy of First Information Report at an earlier stage than as prescribed under Section 207 Court thinks it appropriate to record the requisite conclusions and thereafter, proceed to issue the directions:- a) An accused is entitled to get a copy of the FIR at an earlier stage than as prescribed under Section 207 of the Cr.P.C. (b) An accused who has reasons to suspect that he has been roped in a criminal case and his name may be finding place in a FIR can submit an application through his representative agent for grant of a certified copy before the concerned police officer or to the Superintendent of Police on payment of such fee which is payable for obtaining such a copy from the Court. On such application being made, the copy shall be supplied within twenty-four hours. (c) Once the FIR is forwarded by the police station to the concerned Magistrate or any Special Judge, on an application being filed for certified copy on behalf of the accused, the same shall be given by the Court concerned within two working days. The aforesaid direction has nothing to do with the statutory mandate inhered under Section 207 of the Cr.P.C. (d) The copies of the FIRs, unless the offence is sensitive in nature, like sexual offences, offences pertaining to insurgency, terrorism and of that category, offences under POCSO Act and such other offences, should be uploaded on the police website, and if there is no such website, on the official website of the State Government, within twenty-four hours of the registration of the First Information Report so that the accused or any person connected with the same can download the FIR and file appropriate application before the Court as per law for redressal of his grievances. In case there are connectivity problems due to geographical location or there is some other unavoidable difficulty, the time can be extended up to forty-eight hours. The said 48 hours can be extended maximum up to 72 hours and it is only relatable to connectivity problems due to geographical location. (e) The decision not to upload the copy of the FIR on the website shall not be taken by an officer below the rank of Deputy Superintendent of Police or any person holding equivalent post. In case, the States where District Magistrate has a role, he may also assume the said authority. A decision taken by the concerned police officer or the District Magistrate shall be duly communicated to the concerned jurisdictional Magistrate. (f) The word 'sensitive' apart from the other aspects which may be thought of being sensitive by the competent authority would also include concept of privacy regard being had to the nature of the FIR. The examples given are absolutely illustrative and are not exhaustive. (g) If an FIR is not uploaded, needless to say, it shall not ensure per se a ground to obtain the benefit under Section 438 of the Cr.P.C. (h) In case a copy of the FIR is not provided on the ground of sensitive nature of the case, a person grieved by the said action, after disclosing his identity, can submit a representation to the Superintendent of Police or any person holding the equivalent post in the State. The Superintendent of Police shall constitute a committee of three officers which shall deal with the said grievance. As far as the Metropolitan cities are concerned, where Commissioner is there, if a representation is submitted to the Commissioner of Police who shall constitute a committee of three officers. The committee so constituted shall deal with the grievance within three days from the date of receipt of the representation and communicate it to the grieved person. (i) The competent authority shall constitute the committee within eight weeks from the date of the order. (j) In cases wherein decisions have been taken not to give copies of the FIR regard being had to the sensitive nature of the case, it will be open to the accused/his authorized representative to file an application for grant of certified copy before the Court to which the FIR has been sent and the same shall be provided in quite promptitude by the concerned Court not beyond three days of the submission of the application. (k) The directions for uploading of FIR in the website of all the States shall be given effect from 15th November, 2016. Youth Bar Association of India V. Union of India and others, 2016 (6) SCC 536
Sec. 235(2) – Scope of In this matter it is contended on behalf of the petitioner (Review Applicant) that since no separate date for hearing on sentence was given in the present case by the trial court, as such for violation of Section 235(2) Cr.P.C., the sentence of death cannot be affirmed. We have considered the argument of Ms. Suri. It is true that the convict has a right to be heard before sentence. There is no mandate in Section 235(2) Cr.P.C. to fix separate date for hearing on sentence. It depends on the facts and circumstances as to whether a separate date is required for hearing on sentence or parties feel convenient to argue on sentence on the same day. Had any party pressed for separate date for hearing on the sentence, or both of them wanted to be heard on some other date, situation could have been different. In the present case, the parties were heard on sentence by both the courts below, and finally by this Court, as is apparent from the judgment under review. As such, merely for the reason that no separate date is given for hearing on the sentence, the Review Petition cannot be allowed. B.A. Umesh V. Registrar General, High Court of Karnataka, 2016 (7) Supreme 491
Sec.311 – Recall of a witness cannot be allowed for the asking or reasons related to mere convenience – Change of counsel cannot be a ground for recall.
It is well settled that the exercise of power under Section
311 CrPC should be resorted to only with the object of finding out the truth or obtaining proper proof of such facts which lead to a just and correct decision of the case, as it is the primary duty of a criminal court. Calling a witness or re-examining a witness already examined for the purpose of finding out the truth in order to enable the court to arrive at a just decision of the case cannot be dubbed as ―filling in a lacuna in the prosecution case‖ unless the facts and circumstances of the case make it apparent that the exercise of power by the court would result in causing serious prejudice to the accused resulting in miscarriage of justice. Be it stated, in the said case the court came to held that summoning of the witnesses was necessary for just and fair decision of the case and accordingly it allowed the appeal and set aside the order passed by the High court. State of Haryana V. Ram Mehar & others 2016 (6) Supreme 462
Sec. 311-A, (as introduced by Act 25 of 2005) – Power of Magistrate – To order person to give specimen signature or handwriting – Provision is prospective in nature and not retrospective After referring to Section 5 of the Identification of Prisoners Act, 1980 in Ram Babu Misra‘s case, this Court suggested that a suitable legislation be made along its lines to provide for investiture of Magistrates with powers to issue directions to any person including an accused person to give specimen signatures and handwriting. Accordingly, a new Section 311-A was inserted in the Criminal Procedure Code. Section 311-A Cr.P.C. reads as under:- ―Section 311A. Power of Magistrate to order person to give specimen signatures or handwriting.-If a Magistrate of the first class is satisfied that, for the purposes of any investigation or proceeding under this Code, it is expedient to direct any person, including an accused person, to give specimen signatures or handwriting, he may make an order to that effect and in that case the person to whom the order relates shall be produced or shall attend at the time and place specified in such order and shall give his specimen signatures or handwriting: Provided that no order shall be made under this section unless the person has at some time been arrested in connection with such investigation or proceeding.‖ Sukh Ram v. State of Himachal, 2016 Cri.L.J. 4146 (SC)
Sec. 313 – Unnatural deaths in the house – Appellant present – Non disclosure as to how his family members died – Important to believe prosecution story.
After considering the evidence on record, the Sessions Court, District Durg by its judgment and order dated 23.04.2013 in Sessions Case No.96 of 2012 found the appellant guilty of offence punishable under Section 302 IPC on six counts. Though the statement of PW-6 Kejabai in court had not attributed any criminal act to the appellant, in the opinion of the trial court, her version implicating the appellant, as spoken to by PWs 1, 2 , 3 and 5 would be admissible under Section 6 of the Evidence Act. Placing reliance on those statements of PWs 1, 2, 3 and 5 as well as failure on part of the appellant in not offering any explanation how the crime was committed, the trial court found that the Prosecution was successful in bringing home the case against the appellant. Having thus convicted the appellant on six counts under Section 302 IPC, by a separate order of even date, the trial court awarded death sentence to the appellant, subject to confirmation by the High Court in terms of Chapter 28 of the Code. Dhal Singh Dewangan V. State of Chattisgarh 2016 (6) Supreme 679 Sec. 378 – Appeal against acquittal – Two views possible – View favourable to accused should be adopted The burden of proof in criminal law is beyond all reasonable doubt. The prosecution has to prove the guilt of the accused beyond all reasonable doubt and it is also the rule of justice in criminal law that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other towards his innocence, the view which is favourable to the accused should be adopted. State of Gujarat V. Jayarajbhai Punjabhai Varu, 2016 Cri.L.J. 4185 (SC)
Sec. 378 – Appeal against acquittal- Consideration of
Every accused is presumed to be innocent unless his guilt is proved. The presumption of innocence is a human right. Subject to the statutory exceptions, the said principle forms the basis of criminal jurisprudence in India. The nature of the offence, its seriousness and gravity has to be taken into consideration. The appellate court should bear in mind the presumption of innocence of the accused, and further, that the trial court's acquittal bolsters the presumption of his innocence. Interference with the decision of the trial court in a casual or cavalier manner where the other view is possible should be avoided, unless there are good reasons for such interference.
Courts is however of the considered view, that the High Court relied upon cogent evidence, to set aside the order of acquittal passed by the Additional Sessions Judge. We are also satisfied in recording, that the trial Court had overlooked vital evidence recorded on behalf of the prosecution, especially during the cross- examination of the prosecution witnesses, whereupon, the position of there being any second way of viewing the facts, was absolutely out of question. We are of the considered view, that the statements of the two prosecution witnesses, namely, Mohan Ram – PW-1 and Mohan Lal – PW-15, along with the testimony of the other witnesses, would clearly and unequivocally lead to the inference, that the accused-appellant – Brij Lal was guilty of having committed the offence under Section 302 of the IPC, insofar as his having caused the murders of Om Prakash and Sultan Bhat are concerned. There is absolutely no question of extending the benefit of any doubt to the accused-appellant – Brij Lal, in the present case. Brij Lal V. State of Rajasthan, 2016 (6) Supreme 365
Ss. 378 & 379 – Presumption of innocence of accused gets reinforced by acquittal by trial court – If two views are possible, appellate court should not substitute its view for that of the trial court – Judgment of acquittal can be interfered only if found to be perverse.
The scope of interference with a judgment of acquittal, this Court in Sunil Kumar Shabukumar Gupta (Dr.) (supra) echoed the hallowed proposition that if two views are possible, the appellate court should not ordinarily interfere therewith though its view may appear to be the more probable one. While emphasizing that the trial court has the benefit of watching the demeanour of the witnesses and is thus the best judge of their credibility, it was held that every accused is presumed to be innocent unless his guilt is proved and that his presumption of innocence gets reinforced with his acquittal by the trial court's verdict. It was reiterated that only in exceptionable cases and under compelling circumstances, where the judgement of acquittal is found to be perverse i.e. if the findings have been arrived at by ignoring or excluding relevant materials or by taking into consideration irrelevant/inadmissible material and are against the weight of evidence or are so outrageously in defiance of logic so as to suffer from the vice of irrationality, that interference by the appellate court would be called for. Raja V. State of Karnataka 2016 (7) Supreme 212
Sec. 378 – Appeal against acquittal – Scope of interference.
In the criminal jurisprudence, an accused is presumed to be innocent till he is convicted by a competent Court after a full-fledged trial, and once the Trial Court by cogent reasoning acquits the accused, then the reaffirmation of his innocence places more burden on the appellate Court while dealing with the appeal. No doubt, it is settled law that there are no fetters on the power of the appellate Court to review, reappreciate and reconsider the evidence both on facts and law upon which the order of acquittal is passed. But the court has to be very cautious in interfering with an appeal unless there are compelling and substantial grounds to interfere with the order of acquittal. The appellate Court while passing an order has to give clear reasoning for such a conclusion.
It is no doubt true that there cannot be any strait jacket formula as to under what circumstances appellate Court can interfere with the order of acquittal, but the same depends on facts and circumstances of each case. In the case on hand, we have to examine the rationale behind the conclusion of the High Court in convicting the accused and the compelling reasons to deviate from the order of acquittal passed by the Trial Court. Mahavir Singh V. State of Madhaya Pradesh 2016 (7) Supreme 601
Sec. 482 r/w sec. 138, Negotiable Instruments Act, 1881 – Quashing petition – Court to proceed on the basis of complaint – Defence of accused cannot be considered.
The parameters of jurisdiction of the High Court in exercising of its jurisdiction under Section 482 of the Code of Criminal Procedure are now well settled. Although it is the wide amplitude, a great deal of caution is also required in its exercise. What is required is application of the well known legal principles involved in the matter. Sampelly Satyanarayana Rao V. Indian Renewable Energy Development Agency Limited, 2016 (6) Supreme 733
Criminal Trial
Acquittal of co–accused – Tried separately. Acquittal of co- accused in separate.
The co-accused – Kashi Ram, who was separately tried, was acquitted. In this behalf, the projection of learned counsel was, that the very same witnesses, who were relied upon by the prosecution in the separate trial of the appellant, had deposed during the course of the trial conducted against the co-accused – Kashi Ram, and as such, the acquittal of Kashi Ram and the conviction of the accused- appellant – Brij Lal, made no sense whatsoever. It would be relevant to mention, that the most vital prosecution witness, in the case on hand, was Mohan Lal – PW-15. All the allegations focus around Mohan Lal – PW-15. The entire prosecution story revolved around the fact, that the accused-appellant – Brij Lal and the co- accused – Kashi Ram were out and out to harm Mohan Lal – PW-15, on account of their previous discord. Whereas, Mohan Lal who appeared as PW-16 in the trial of the co-accused – Kashi Ram, was described as, son of Lekhram Bhat (in the judgment dated 18.3.1994 rendered by the Additional Sessions Judge No.2, Sri Ganganagar, in Sessions Trial No.26 of 1993), wherein Kashi Ram was the accused. In the above judgment, most of the prosecution witnesses had resized, and did not identify the co-accused – Kashi Ram, as the person involved in the occurrence. The position in the present case is just the reverse. All the relevant prosecution witnesses, duly identified the accused-appellant – Brij Lal. It is therefore not possible for us to accept, that the accused-appellant – Brij Lal deserves to be acquitted, because of the acquittal of Kashi Ram in the separate trial conducted against him. The instant contention is therefore, accordingly, declined. Brij Lal v. State of Rajasthan, 2016 (6) Supreme 365
Appreciation of evidence
Admittedly, the only eye witness to the actual act of abduction is the victim himself who had suffered the ordeal. He thereafter encountered the treatment meted out to him in captivity and is privy too, to the ransom claim made by his abductors to his father. The statement made by the victim (PW1) under Section 161 Cr.P.C. though had outlined the whole incident in the bare essentials, his version under Section 164 Cr.P.C. and at the trial are adequately elaborate to project the whole gamut of the development, commencing from his forcible abduction till his release. There is as such no mutually mutative inconsistency in the three renditions of his, so as to render the prosecution case untrustworthy and discardable on all counts.
Apart from the fact that there is nothing convincing on record to even infer any false implication of the accused persons, we are of the unhesitant opinion that the mere omission on the part of the victim to mention at the first instance the name of appellant Harpal Singh @ Chhota, having regard to the charge of conspiracy and the concerted steps, to actualise the same is of no fatal bearing on the prosecution case, more particularly he having named/identified him at the trial as one of the perpetrators of the offence. In this perspective, the omission on the part of the investigating agency to hold the TIP is not fatal, in the facts and circumstances of the case. Harpal Singh @ Chhota V. State of Punjab 2016 (8) Supreme 270
Appreciation of evidence of Child witness aged seven years- permissibility of.
In this case, it is further submitted on behalf of the petitioner that though the testimony of the child (PW – 2) aged about seven years could be sufficient for holding the petitioner guilty of offence for conviction but the death sentence should not be imposed on the basis of testimony of seven years old child. We are unable to accept this proposition. If the statement of the witness, aged seven years, has been found natural, trustworthy and without any chance of being tutored, it cannot be taken lightly as mitigating circumstances, particularly, in the facts and circumstances, particularly, in the facts and circumstances of the present case. B.A. Umesh V. Registrar General, High Court of Karnataka, 2016 (7) Supreme 491
Criminal jurisprudence – Deficiency in proof – Benefit would be available to the persons charged.
The predicament of the prosecution is compounded further its failure to prove, the precise cause of the death of the deceased. It is not clear as to whether the death has been suicidal or homicidal. It is also not proved beyond doubt, the origin and cause of the external injuries. Though the obscurity of the causative factors is due to the putrefaction of the body, the benefit of the deficiency in proof, logically would be available to the persons charged. Baijnath V. State of Madhya Pradesh 2016(8) Supreme 252
Circumstantial evidence – Consideration of
The circumstances brought forth by the prosecution do not rule out in absolute terms the hypothesis of the innocence of the appellant. We thus consider it to be wholly unsafe to maintain his conviction as recorded by the courts below. We are therefore inclined to extend benefit of doubt to him. The conclusions drawn by the courts below are not tenable on the basis of the evidence available. The appeal is thus allowed and the conviction and sentence recorded by the courts below is hereby set aside. The appellant be released from the jail forthwith if he is not required in any other case. Jose @ Pappachan v. The Sub – Inspector of Police, Koyilandy 2016(7) Supreme 148 Delay in lodging complaint – Not fatal if duly explained In the instant case, the victim-Ms. Ruchika not informing about the incident to the parents under the circumstances that the appellant- accused, who being a very senior police officer of the State, was reasonable and it would not have been an easy decision for her to speak out. In the normal course of human conduct, this unmarried minor girl, would not like to give publicity to the traumatic experience she has undergone and felt terribly embarrassed in relation to the incident to narrate it to her parents and others overpowered by a feeling of shame and her natural inclination would be to avoid talking about it to anyone, lest the family name and honour is brought into controversy. After informing the incident to her parents, the follow up action was immediately taken by the residents and the fellow players and a Memorandum containing allegations against the appellant-accused was prepared and submitted before the then Secretary (Home). Therefore, giving a due consideration to the appellant- accused, once the victim and her family members got assurance of justice from the superior authorities, they lodged a formal complaint against the appellant- accused. S.P.S. Rothore v. C.B.I 2016(7) Supreme 48
Forging of signature – Opinion of hand writing expert - Only an opinion evidence – Cannot be conclusive.
The sole evidence of a handwriting expert is not normally sufficient for recording a definite finding about the writing being of a certain person or not. A court is competent to compare the disputed writing of a person with others which are admitted or proved to be his writings. It may not be safe for a court to record a finding about a person‘s writing in a certain document merely on the basis of expert comparison, but a court can itself compare the writings in order to appreciate properly the other evidence produced before it in that regard. The opinion of a handwriting expert is also relevant in view of Section 45 of the Evidence Act, but that too is not conclusive.
It is thus clear that uncorroborated evidence of a hand writing expert is an extremely weak type of evidence and the same should not be relied upon either for the conviction or for acquittal. The courts, should, therefore, be wary to give too much weight to the evidence of handwriting expert. It can rarely, if ever, take the place of substantive evidence. Before acting on such evidence, it is usual to see if it is corroborated either by clear, direct evidence or by circumstantial evidence. S.P.S. Rothore v. C.B.I 2016(7) Supreme 48
Fair trial –An insegregable facet of Article 21, Constitution of India – Fair trial means a trial conducted in such a manner which would totally ostracise injustice, prejudice, dishonesty and favouritism – It would include speedy trial. In Rattiram and others v. State of Madhya Pradeshspeaking on fair trial the Court opined that:- ―… Fundamentally, a fair and impartial trial has a sacrosanct purpose. It has a demonstrable object that the accused should not be prejudiced. A fair trial is required to be conducted in such a manner which would totally ostracise injustice, prejudice, dishonesty and favouritism.‖ In the said case, it has further been held:- ―60. While delineating on the facets of speedy trial, it cannot be regarded as an exclusive right of the accused. The right of a victim has been given recognition in Mangal Singh v. Kishan Singh[10] wherein it has been observed thus: (SC p. 307, para 14) ―14. … Any inordinate delay in conclusion of a criminal trial undoubtedly has a highly deleterious effect on the society generally, and particularly on the two sides of the case. But it will be a grave mistake to assume that delay in trial does not cause acute suffering and anguish to the victim of the offence. In many cases the victim may suffer even more than the accused. There is, therefore, no reason to give all the benefits on account of the delay in trial to the accused and to completely deny all justice to the victim of the offence.‖ In J. Jayalalithaa and others v. State of Karnataka and others[12] it has been ruled that fair trial is the main object of criminal procedure and such fairness should not be hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society. Thus, fair trial must be accorded to every accused in the spirit of the right to life and personal liberty and the accused must get a free and fair, just and reasonable trial on the charge imputed in a criminal case. Any breach or violation of public rights and duties adversely affects the community as a whole and it becomes harmful to the society in general. It has further been observed that in all circumstances, the courts have a duty to maintain public confidence in the administration of justice and such duty is to vindicate and uphold the ―majesty of the law‖ and the courts cannot turn a blind eye to vexatious or oppressive conduct that occurs in relation to criminal proceedings. In Bablu Kumar and others v. State of Bihar and another[13] the Court referred to the authorities in Sidhartha Vashisht alias Manu Sharma v. State (NCT of Delhi)[14], Rattiram (supra), J. Jayalalithaa (supra), State of Karnataka v. Yarappa Reddy[15] and other decisions and came to hold that keeping in view the concept of fair trial, the obligation of the prosecution, the interest of the community and the duty of the court, it can irrefragably be stated that the court cannot be a silent spectator or a mute observer when it presides over a trial. It is the duty of the court to see that neither the prosecution nor the accused play truancy with the criminal trial or corrode the sanctity of the proceeding. The decisions of this court when analyzed appositely clearly convey that the concept of the fair trial is not in the realm of abstraction. It is not a vague idea. It is a concrete phenomenon. State of Haryana V. Ram Mehar & others 2016 (6) Supreme 462
Conviction – when not proper.
It is a well-settled principle of law that when the genesis and the manner of the incident is doubtful, the accused cannot be convicted. Inasmuch as the prosecution has failed to establish the circumstances in which the appellant was alleged to have fired at the deceased, the entire story deserves to be rejected. When the evidence produced by the prosecution has neither quality nor credibility, it would be unsafe to rest conviction upon such evidence. After having considered the matter thoughtfully, we find that the evidence on record in the case is not sufficient to bring home the guilt of the appellant. In such circumstances, the appellant is entitled to the benefit of doubt. Pankaj V. State of Rajasthan, 2016 (6) SC 619.
Evidence – Sole witness – Having no reason to depose falsely against appellant / accused – Should be relied upon.
Learned senior counsel for the appellant –accused has contended that in the present fact situation, how a person can embrace other while standing behind the table and then suddenly fall into his chair on the entry of PW -13. In this regard, we have carefully considered the evidence given by the prosecution, especially the evidence of P.W. 13. She, being the sole witness to prove the actus reus, her evidence should receive some careful consideration and we do not find any reason or her to depose falsely against the appellant – accused. S.P.S. Rathore V. C.B.I., 2016 (7) Supreme 48
Electricity Act
Sec. 125 – Appeal to Supreme Court – Lies only when there is a substantial question of law.
Under Section 125 of the Electricity Act, 2003, an appeal to this Court lies only when there is a substantial question of law, as required for a second appeal under Section 100 of Code of Civil Procedure, 1908. Though the appellant has raised 34 questions, they are actually grounds for attacking the appellate order. Grounds for attacking an order are different from substantial question of law evolved in the appeal. On appreciation of the correspondence between the parties during the subsistence of the agreement, both the Commission and the Appellate Tribunal have held against the appellant.
Court, thus, do not find any substantial question of law so as to exercise our jurisdiction under Section 125 of the Electricity Act, 2003. Wardha Power Co. ltd. V. Maharashtra State Electricity Distribution Co. Ltd. and anr. 2016 (6) Supreme 624.
Election Laws Representation of People Act – Ss. 36, 100—Conduct of Election Rules, R. 4(A)—Election—Filing of nomination—Defect of substantial nature—False declaration relating to educational qualification made by appellant, returned candidate—Is defect of substantial nature—Warranting rejection of nomination Every voter has a fundamental right to know about the educational qualification of a candidate. It is also clear from the provisions of the Act, Rules and Form 26 that there is a duty cast on the candidates to give correct information about their educational qualifications. It is not in dispute that the Appellant did not study MBA in the Mysore University. Plea by the Appellant that the declaration relating to his educational qualification in the affidavit is a clerical error cannot be accepted. It is not an error committed once. Since 2008, the Appellant was making the statement that he has an MBA degree. The information provided by him in the affidavit filed in Form 26 would amount to a false declaration. The said false declaration cannot be said to be a defect which is not substantial. He was given an opportunity by the Returning Officer to produce the relevant document in support of his declaration. At least at that point of time he should have informed the Returning Officer that an error crept into the declaration. He did not do so. The false declaration relating to his educational qualification cannot be stated to be not of a substantial character. It is no more res integra that every candidate has to disclose his educational qualification to subserve the right to information of the voter. Having made a false declaration relating to his educational qualification, the Appellant cannot be permitted to contend that the declaration is not of a substantial character. The false declaration relating to the educational qualification made by the Appellant being substantial in nature, entails rejection of his nomination. Sri Mairembam Prithviraj alias Prithviraj Singh V. Sri Pukhrem Sharatchandra Singh, AIR 2016 SC 5087
Evidence Act, 1972
Sec. 3 - Evidence of hostile witness –Ought not stand effaced altogether in all eventualities – Can be accepted to the extent found dependable on a careful scrutiny.
The evidence of a hostile witness in all eventualities ought not stand effaced altogether and that the same can be accepted to the extent found dependable on a careful scrutiny was reiterated by this Court in Himanshu @ Chintu (supra) by drawing sustenance of the proposition amongst others from Khujii vs. State of M.P. (1991) 3 SCC 627 and Koli Lakhman Bhai Chanabhai vs. State of Gujarat (1999) 8 SCC 624. It was enounced that the evidence of a hostile witness remains admissible and is open for a Court to rely on the dependable part thereof as found acceptable and duly corroborated by other reliable evidence available on record. Raja V. State of Karnataka 2016 (7) Supreme 212
Sec.6 – Statements of P.Ws 1 and 2 in the court inconsistent with their reporting at police station – admissibility – Testimony not admissible as evidence. According to PWs 1 and 2, after receipt of information about the crime, they had reached Gandhi Chowk where PW-6 Kejabai was crying aloud that the appellant had killed his wife and children. Thereafter PWs 1 and 2 along with Chait Ram went to the police station and at their instance information was recorded in General Diary at Ext.P-37. The extract of General Diary Entry is completely silent about any relevant features regarding the crime or the role of the appellant and in fact shows lack of knowledge about the crime. All that it says is that they had heard sounds of shouting coming from the house of the appellant. It is not the case of the Prosecution, that the recording vide Ext.P-37 was in any way incorrect. The version of PWs 1 and 2 in Court is thus completely inconsistent with the contemporaneous record, namely, extract Ext.P- 37. If they were aware that the appellant had killed his wife and daughters even before they reached the police station, as they now claim in Court, the nature of their reporting would have been completely different. The fact that their reporting did not disclose any essential features of the crime is accepted on record and their reporting was also never treated as FIR in the matter. We find it extremely difficult to rely on the testimony of PWs 1 and 2 and would presently eschew from our consideration the statements of these two witnesses. Dhal Singh Dewangan V. State of Chattisgarh 2016 (6) Supreme 679
Sec. 8 -Motive- scope of – Conviction can be made even in absence of motive if there is direct trustworthy evidence of witnesses as to commission of an offence.
It is settled legal position that even if the absence of motive, as alleged, is accepted, that is of no consequence and pales into insignificance when direct evidence establishes the crime. Therefore, in case there is direct trustworthy evidence of witnesses as to commission of an offence, the motive part loses its significance. Therefore, if the genesis of the motive of the occurrence is not proved, the ocular testimony of the witnesses as to the occurrence cannot be discarded only on the ground of absence of motive, if otherwise the evidence is worthy of reliance. Saddik @ Lalo Gulam Hussain Shaikh V. State of Gujarat, 2016 (7) Supreme 202
Sec. 32 – Dying declaration The dying declaration of Raj Kumar was allegedly recorded at 10:45 p.m. on 19.03.2008 at Agra by Shri Naresh Pal Gangwal, who was the then SDM. Dr. Vanay Singh (PW-6), who first examined the body of the deceased at the General Hospital categorically stated in his statement that he was unconscious when he was brought to the hospital at 12:45 p.m. The dying declaration is also alleged to have been recorded on the said date at 10:45 p.m. It is really very hard to believe that Raj Kumar, who was unconscious in the noon, regained consciousness in front of SDM that too in the absence of certificate of the duty doctor that the patient is fit to make a statement. In view of such infirmities in the dying declaration, we are of the opinion that the High Court has rightly discarded the same. It has already been held by this Court in a catena of cases that when a dying declaration is suspicious, it should not be acted upon without corroborative evidence. Pankaj V. state of Rajasthan 2016 (6) Supreme 619.
S. 45 – Robbery – Expert evidence – Chance fingerprints lifted from entrance glass doors of bank – Non-examination of photographer – Also non-production of negatives of photographs of chance fingerprints – Said lapse cannot result in acquittal of accused – Criminal trials should not be made casualty for such lapses in investigation or prosecution
Contention of respondents is that evidence of PW-15- Fingerprint Expert incriminates the appellants A.K. Singh and U.K. Singh. However, in proving this incriminating evidence, there seems to be lapses on the part of the prosecution. As noticed earlier, police constable Tirumal Kumar- photographer of MFSL Unit had taken the photographs of the preserved chance fingerprints. To prove the chance fingerprints lifted from the entrance glass doors of the bank, the prosecution should have proved the photographs by examining constable-Trimul Kumar and should have produced the negatives of the photographs of the chance fingerprints. This lapse in the prosecution, in our view, cannot result in acquittal of the appellants. The evidence adduced by the prosecution must be scrutinized independently of such lapses either in the investigation or by the prosecution or otherwise, the result of the criminal trial would depend upon the level of investigation or the conduct of the prosecution. Criminal trials should not be made casualty for such lapses in the investigation or prosecution. Evidence of PW-14 (Manager) and PW- 18 (Cashier) identifying the appellants and their evidence as to identity of the appellants in the test identification parade ought not to have been disbelieved by the tribunal. In exercise of power under Section 30 of the Armed Forces Tribunal Act, this Court normally does not re-appreciate the evidence and slow to interfere with the findings of the tribunal unless there is substantial question of public importance. But when it is found that appreciation of evidence in a given case is vitiated by serious error, this Court can re- appreciate the evidence and interfere with the findings. In our view, the tribunal was not right in disbelieving the evidence of PW-14 (Manager) and PW- 18 (Cashier) in identifying the appellants A.K. Singh, U.K, Singh and D.K. Singh as culprits and their identity in test identification parade and their conviction is to be affirmed on the evidence of PW-14 and PW-18, if not on the evidence of fingerprint expert and the appeals are liable to be dismissed. Ajay Kumar Singh v. The Flag Officer, Commanding-in-Chief and others, 2016 Cri.L.J. 4174 (SC)
Sec. 65B(2) and (4) – Admissibility of mobile phone call details Qua the admissibility of the call details, it is a matter of record that though PWs 24, 25, 26 and 27 have endeavoured to prove on the basis of the printed copy of the computer generated call details kept in usual ordinary course of business and stored in a hard disc of the company server, to co-relate the calls made from and to the cell phones involved including those, amongst others recovered from the accused persons, the prosecution has failed to adduce a certificate relatable thereto as required under Section 65B(4) of the Act. Though the High Court, in its impugned judgment, while dwelling on this aspect, has dismissed the plea of inadmissibility of such call details by observing that all the stipulations contained under Section 65 of the Act had been complied with, in the teeth of the decision of this Court in Anvar P.V. (supra) ordaining an inflexible adherence to the enjoinments of Sections 65B(2) and (4) of the Act, we are unable to sustain this finding. As apparently the prosecution has relied upon the secondary evidence in the form of printed copy of the call details, even assuming that the mandate of Section 65B(2) had been complied with, in absence of a certificate under Section 65B(4), the same has to be held inadmissible in evidence. Harpal Singh @ Chhota V. State of Punjab 2016 (8) Supreme 270
Section 106 – Presumption – Drawn of The competing arguments and the materials on record have received our due scrutiny. It is patent in the present factual setting that there is no eye witness to the occurrence and that the prosecution case is based wholly on circumstantial evidence. The genesis of the suspicion against the appellants, being their amorous association to the anguish disliking of the deceased, he being almost reduced to a helpless entity, having failed to prevent such liaison inspite of his best endeavours. There is indeed some evidence suggestive of such an alliance between the appellants at the relevant point of time. This, per se, in our comprehension, however, cannot be accepted as a decisive incriminating factor to deduce their culpability qua the charge of murder of the deceased Gurunathan. In this matter the place of occurrence is a well, away from the residence of the deceased for which any definitive presumption against his wife Nathiya, as a conspirator of the crime, cannot be drawn without the risk of going wrong to cast a burden on her, as contemplated under Section 106 of the Evidence Act. Nathiya V. Srate Rep. by Inspector of Police, Bagayam Police Station 2016(8) Supreme 122
Hindu Law Hindu Succession Act, Sec. 15- Hindu Adoption and Maintenance Act, Sec. 12- Effects of Adoption- Adopted son would not divest any person in whom the property had been vested prior to adoption It is undisputed that late Shri Sharnappa died intestate in the year 1957 leaving behind him his wife Smt. Sharnappa and three daughters namely Smt. Kydigamma, Smt. Nagamma and Smt. Sarojamma. In the instant case, there was no coparcenary, as Late Shri Sharnappa was the sole male member in the family. In the circumstances, upon his death his properties were inherited by his widow and three daughters. At the time when Shri Sharnappa died in 1957, defendant no.1 was not in the picture as he was adopted by Smt. Sharnappa on 9th February, 1971. By virtue of proviso to Section 12 of the Adoption Act, an adopted child cannot divest any person of any estate which vested in him or her before the adoption. Thus, the property of late Shri Sharnappa which, upon his death in 1957, had vested in his widow and three daughters, would not be disturbed by virtue of subsequent adoption of defendant no.1. As originally Smt. Sharnappa was to get 1/4th share from the property of Shri Sharnappa, from her 1/4th share, the properties would be inherited by her adopted son and heirs of her predeceased daughters. As stated hereinabove, the plaintiff would be getting 1/16th share in the property of Smt. Nagamma and 1/64th share upon death of Smt. Sharnappa and thus, the plaintiff would be getting 5/64th share in the suit property, whereas defendant no.1 would get 1/16th share of the suit property. Upon appreciation of the evidence, it was found by the trial Court that the adoption was valid because that was by virtue of a registered adoption deed and the said deed had been duly proved. In the circumstances, Court Does not think it necessary to discuss the said evidence again. Thus Court has confirm the view of the first appellate Court that the adopted son viz. defendant no.1 would not divest any person in whom the property had been vested prior to adoption. Saheb Reddy V. Sharanappa and Ors. 2016 (12) SCALE 79 : AIR 2016 SC 5253
Hindu Marriage Act Section 13(1)(ia)—Divorce—Cruelty by wife—Persistent effort of wife to constrain husband to be separated from family— Constitutes an Act of ―cruelty‖—Husband entitled to decree of divorce It is not a common practice or desirable culture for a Hindu son in India to get separated from the parents upon getting married at the instance of the wife, especially when the son is the only earning member in the family. A son, brought up and given education by his parents, has a moral and legal obligation to take care and maintain the parents, when they become old and when they have either no income or have a meager income. In India, generally people do not subscribe to the western thought, where, upon getting married or attaining majority, the son gets separated from the family. In normal circumstances, a wife is expected to be with the family of the husband after the marriage. She becomes integral to and forms part of the family of the husband and normally without any justifiable strong reason, she would never insist that her husband should get separated from the family and live only with her. In the instant case, upon appreciation of the evidence, the trial Court came to the conclusion that merely for monetary considerations, the Respondent wife wanted to get her husband separated from his family. The averment of the Respondent was to the effect that the income of the Appellant was also spent for maintaining his family. The said grievance of the Respondent is absolutely unjustified. A son maintaining his parents is absolutely normal in Indian culture and ethos. There is no other reason for which the Respondent wanted the Appellant to be separated from the family - the sole reason was to enjoy the income of the Appellant. Unfortunately, the High Court considered this to be a justifiable reason. In the opinion of the High Court, the wife had a legitimate expectation to see that the income of her husband is used for her and not for the family members of the Respondent husband. Court do not see any reason to justify the said view of the High Court. As stated hereinabove, in a Hindu society, it is a pious obligation of the son to maintain the parents. If a wife makes an attempt to deviate from the normal practice and normal custom of the society, she must have some justifiable reason for that and in this case, Court do not find any justifiable reason, except monetary consideration of the Respondent wife. In our opinion, normally, no husband would tolerate this and no son would like to be separated from his old parents and other family members, who are also dependent upon his income. The persistent effort of the Respondent wife to constrain the Appellant to be separated from the family would be torturous for the husband and in our opinion, the trial Court was right when it came to the conclusion that this constitutes an act of ‗cruelty‘. Narendra V. K. Meena, AIR 2016 SC 4599 (Karnataka)
S. 13-B- Constitution –Article 32 & 142- Divorce by Mutual Consent- Prayer for waiving off the six months‘ period in view of long separation of seven year between the parties and several rounds of litigation the parties have gone through- Validity of It is submitted that they have accordingly, filed a petition under Section 13 B of the Hindu Marriage Act for a decree of divorce on mutual consent. Both the petitioner and the second respondent are present before this Court today. Both are advocates. It is submitted by the learned Amicus Curiae that this is an eminently fit case where this court could invoke its jurisdiction under Article 142 of the Constitution of India for waiving off the six months‘ period provided under Section 13 B of the Hindu Marriage Act in view of the long separation of seven years between the parties and the several rounds of litigation the parties have gone through. Though the Writ Petition is wholly misconceived, in view of the steps now taken by the petitioner and for which the second respondent- husband has wholeheartedly supported, court is of the view that the interest of justice would demand that the ordeal should be put to quietus once and for all. Accordingly, the marriage between the petitioner and the second respondent stand dissolved by way of a decree of divorce on mutual consent, under Section 13 B of the Hindu Marriage Act B.A. Vani v. Union of India and Another, 2016 (12) SCALE 347
Indian Penal Code
Sec. 149 – Consideration of – After establishing membership of an unlawful assembly, prosecution is not required to establish whether any specific overt act has been assigned to any accused – Mere membership of the unlawful assembly is sufficient.
As per catena of decisions of the Hon‘ble Supreme Court as well as this Court, to attract the provisions of section 149 of the IPC, once membership of an unlawful assembly is established, it is not incumbent on the prosecution to establish whether any specific overt act has been assigned to any accused. In other words, mere membership of the unlawful assembly is sufficient and every member of an unlawful assembly is vicariously liable for the acts done by others either in the prosecution of the common object of the unlawful assembly or such which the members of the unlawful assembly knew were likely to be committed. Bharwad Navghanbhaj Jakshibhai V. State of Gujarat, 2016(6) Supreme 540
Sec. 149 – Members of unlawful assembly – Carrying arms with common object – It is immaterial whether all arms carried by all accused persons were used or not.
In light of the observations of this Court in Masalti Vs. State of U.P., AIR 1965 SC 202= 1964(8) SCR 133, wherein it was held:
―Where a crowd of assailants who are members of an unlawful assembly proceeds to commit an offence of murder in pursuance of the common object of the unlawful assembly, it is often not possible for witnesses to describe accurately the part played by each one of the assailants. Besides, if a large crowd of persons armed with weapons assaults the intended victims, it may not be necessary that all of them have to take part in the actual assault. In the present case, for instance, several weapons were carried by different members of the unlawful assembly, but it appears that the guns were used and that was enough to kill 5 persons. In such a case, it would be unreasonable to contend that because the other weapons carried by the members of the unlawful assembly were not used, the story in regard to the said weapons itself should be rejected. Appreciation of evidence in such a complex case is no doubt a difficult task; but criminal courts have to do their best in dealing with such cases and it is their duty to sift the evidence carefully and decide which part of it is true and which is not.‖ Saddik @ Lalo Gulam Hussain Shaikh V. State of Gujarat, 2016 (7) Supreme 202
Sec. 302 – Sentence – consideration for. Failure of State to show how the appellant is a continuing threat to society or that he is beyond reformation and rehabilitation – there is no criminal antecedents for life would meet the ends of justice. Dhal Singh Dewangan V. State of Chattisgarh 2016 (6) Supreme 679 Ss. 302/ 149 – Murder –Common object of unlawful assembly – Appeal against conviction – Injured eye-witnesses have fully supported prosecution case- validity of.
Five appellants, who were tried for offence under Section 302 read with Section 149 of the Indian Penal Code and convicted by the trial court, have approached this Court after their conviction was upheld by the High Court as well vide impugned judgment dated September 28, 2007. During the pendency of this appeal, one of the accused persons, namely Hiralal Yadav, expired and the appeal qua him stood abated. The validity of the judgment of the High Court in respect of the remaining four appellants is the subject matter of this appeal.
There are six eye witnesses and three of them are injured eye witnesses, which is a weighty factor to show the actual presence of these witnesses at the scene of occurrence. Moreover, the credibility and trustworthiness of all these eye witnesses could not be shaken by the accused persons. Once it is found that these witnesses, who are eye witnesses, were present and they have truthfully narrated the incidence as it happened and their depositions are worth of credence, conviction can be based on their testimonies even if they were related to the deceased. The only requirement, while scrutinising the interested witnesses, is to examine their depositions with greater caution and deeper scrutiny is needed, which exercise has been done by both the courts below. In fact, when the learned counsel for the appellants was confronted with the aforesaid factual and legal position, he could not even provide any answer to the same.
We thus, do not find any merit in this appeal, which is accordingly dismissed. Mamta Yadav V. State of Bihar 2016(7) Supreme 523
Ss. 304B and 498A – constituent of Patently thus, cruelty or harassment of the lady by her husband or his relative for or in connection with any demand for any property or valuable security as a demand for dowry or in connection therewith is the common constituent of both the offences. (30) The expression ―dowry‖ is ordained to have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961. The expression cruelty‖, as explained, contains in its expanse, apart from the conduct of the tormentor, the consequences precipitated thereby qua the lady subjected thereto. Be that as it may, cruelty or harassment by the husband or any relative of his for or in connection with any demand of dowry to reiterate is the gravamen of the two offences. Baijnath V. State of Madhya Pradesh 2016(8) Supreme 252
Sec. 354 – A man using criminal force on the woman intending thereby to outrage her modesty – Liable for conviction.
It is undoubtedly correct that if intention or knowledge is one of the ingredients of any offence, it has got to be proved like other ingredients for convicting a person. But it is also equally true that those ingredients being state of mind may not be proved by direct evidence and may have to be inferred from the attending circumstances of a given case. The sequence of events which we have detailed earlier indicates that the appellant – accused had the requisite culpable intention. S.P.S. Rothore v. C.B.I 2016(7) Supreme 48
Sec. 376 – Evidence of prosecutrix – It can never be taken as gospel truth.
This Court in Raju (supra), while reiterating that the evidence of the prosecutrix in cases of rape, molestation and other physical outrages is to be construed to be that of an injured witness so much so that no corroboration is necessary, ruled that an accused must also be protected against the possibility of false implication. It was underlined that the testimony of the victim in such cases, though commands great weight but the same, cannot necessarily be universally and mechanically accepted to be free in all circumstances from embellishment and exaggeration. It was ruled that the presumption of absence of consent of the victim, where sexual intercourse by the accused is proved as contemplated in Section 114A of the Evidence Act, was extremely restricted in its application compared to the sweep and ambit of the presumption under Sections 113A and 113B of the Indian Evidence Act. It was exposited that insofar as the allegation of rape is concerned, the evidence of the prosecutrix must be examined as that of a injured witness whose presence at the spot is probable but it can never be presumed that her statement should always without exception, be taken as gospel truth. Raja V. State of Karnataka 2016 (7) Supreme 212
Indian Succession Act Ss. 95 & 88, 138-139 Where an absolute bequest has been made in respect of certain property to certain persons, then a subsequent bequest made qua the same property later in the same will to other persons will be of no effect.A reading of Para 2 of the will leaves no manner of doubt that what is granted jointly in favour of the widow and the elder daughter is an absolute right to the property. There are no words of limitation used in this paragraph. Therefore, the High Court‘s conclusion that what is bequeathed by para 2 is only a limited interest in favour of the widow and the elder daughter is unacceptable, is erroneous. But there is conflict between the recitals contained in Clause 2 and Clause 4 of the will. However, in law the position is that where an absolute bequest has been made in respect of certain property to certain persons, then a subsequent bequest made qua the same property later in the same will to other persons will be of no effect. Where in an earlier part of the document some property is given absolutely to one person but later on, other directions about the same property are given which conflict with and take away from the absolute title given in the earlier portion. In case of such a conflict the earlier disposition of absolute title should prevail and the later directions of disposition should be disregarded as unsuccessful attempts to restrict the title already given. The fact that clause 4 has thus been declared to be of no effect would not impact the bequest made under Clause 2, and the rest of the will, therefore, would have to be given effect to. The distinction between a repugnant provision and a defeasance provision is sometimes subtle, but the general principle of law seems to be that where the intention of the donor is to maintain the absolute estate conferred on the donee but he simply adds some restrictions in derogation of the incidents of such absolute ownership, such restrictive clauses would be repugnant to the absolute grant and therefore void; but where the grant of an absolute estate is expressly or impliedly made subject to defeasance of the happening of a contingency and where the effect of such defeasance would not be a violation of any rule of law, the original estate is curtailed and the gift over must be taken to be valid and operative. Madhuri Ghosh v. Debobroto Dutta, (2016) 10 SCC 805
Interpretation of Statute Interpretation of contract – Clause 5 – A clause of the contract cannot be read in isolation – Other terms and conditions of the contract must be read as a whole. For doing so, the High Court has taken support from clause 5 of the Contract. That clause cannot be read in isolation. The other terms and conditions of the contract must be read as a whole. Mahanadi Coalfields Ltd. & ors. V. M/s Dhansar Engineering Co. Pvt. Ltd 2016 (7) Supreme 124
Interpretation – Deed – Intention of parties- To be gathered from document itself. The rule of interpretation, which is applicable while construing any Deed. The learned Judge Vivian Bose, J. speaking for the Bench in his inimitable style of writing succinctly laid down the rule in a leading decision of this Court in Pandit Chunchun Jha vs. Sheikh Ebadat Ali & Anr., AIR 1954 SC 345 in following words: ―Deed – Construction – (T.P. Act, 1882, S. 8) Where a document has to be construed, the intention must be gathered, in the first place, from the document itself. If the words are express and clear, effect must be given to them and any extraneous enquiry into what was thought or intended is ruled out. The real question in such a case is not what the parties intended or meant but what is the legal effect of the words which they used. If, however, there is ambiguity in the language employed, then it is permissible to look to the surrounding circumstances to determine what was intended.‖ Sasan Power Limited V. North American coal Corporation India Private Limited, 2016 (6) Supreme 481
Interpretation – Principle of There is a wholesome principle that the Courts have been following for a very long time and which was articulated in Nazir Ahmad v. king Emperor, AIR 1936 PC 253 namely ―Where a power is given to do a certain thing in a certain way the ting must be done in that way or not at all. Other methods of performance are necessarily forbidden.‖ There is no valid reason to give up this salutary principle or not to apply it mutatis mutandis to bid documents. This principle deserves to be applied in contractual disputes, particularly in commercial contracts or bids leading up to commercial contracts where there is stiff competition. Central Coalfields Limited and Anr. V. SLL-SML (Joint Venture Consortium) & Ors. 2016 (6) Supreme 353
Validity A statute enacted to acquire property but not protected by Articles 31- A, 31-B and 31-C of the Constitution of India – Can be challenged for violation of Article 14, violation of basic structure of Constitution, violation of Rule of Law which amounts to violation of basic structure or for lack of legislative competence. Ravindra Ramchandra Waghmare V. Indore Municipal Corporation 2016 (8) Supreme 363
Interpretation of Taxing statute – Exemption – Exemptions are for the benefit of the assessee. It is a settled rule of interpretation that if two Statutes dealing with the same subject use different language then it is not permissible to apply the language of one Statute to other while interpreting such Statutes.S imilarly, once the assessee is able to fulfill the conditions specified in section for claiming exemption under the Act then provisions dealing with grant of exemption should be construed liberally because of exemptions are for the benefit of the assessee. Maharao Bhim Singh of Kota Thr. Maharao Brij Raj Singh, Kota V. Commissioner of Income – tax, Rajasthan – II, Jaipur 2016 (8) Supreme 429
Juvenile Justice Act
Manual for Juveniles – Guidelines issued.
When this petition was listed on 14th March, 2016 we had noted that the Ministry of Women and Child Development of the Government of India had set up a Committee on 24th February, 2016 for drafting a Manual similar to the Prison Manual prepared by the Ministry of Home Affairs of the Government of India concerning issues pertaining to juveniles in custody either in Observation Homes or Special Homes or Places of Safety in terms of the Juvenile Justice (Care and Protection of Children) Act, 2015. We were informed that although the Committee was required to submit its report by 31st May, 2016 the time given was rather short. We were in agreement with the Member Secretary of the Committee in this regard and had expressed the view that there was no need to show undue haste in the preparation of the Manual or produce a half baked document. We had also suggested the inclusion of representatives from academia and NGOs in the drafting process.
On the basis of the above, we heard learned counsel for the parties and the learned Amicus and find that more than sufficient time has elapsed but the Manual for juveniles in custody has not yet been prepared by the Ministry of Women and Child Development of the Government of India. Accordingly, we are left with no option but to direct the said Ministry to expedite the preparation of the Manual and ensure that it is ready positively on or before 30th November, 2016.
We also find that not a single State or Union Territory has bothered to prepare a Plan of Action and bring it to our notice or to the notice of the learned Amicus. Consequently, we are left with no option but to direct the States and the Inspector General of Prisons to prepare a Plan of Action as already directed on 6th May, 2016 for reducing the prison population. In this context we may mention that the learned Amicus has informed us on the basis of affidavits filed by some of the States, that there are proposals for constructing additional barracks or jails but these appear to be ad hoc proposals with no time limit specified for completion and in some cases it is not clear whether provision has been made for providing resources for the construction. A viable Plan of Action should be preparedwithin the next six months and in any event by 31st March, 2017. Information in this regard should be given to the learned Additional Solicitor General and the learned Amicus. We are a little distressed to note that even though this Court has held on several occasions that prisoners both under trials and convicts have certain fundamental rights and human rights, little or no attention is being paid in this regard by the States and some Union Territories including the National Capital Territory of Delhi. Certainly fundamental rights and human rights of people, however they may be placed, cannot be ignored only because of their adverse circumstances. Inhuman Conditions in 1382 Prisons (II) 2016 (6) Supreme 765
Land Acquisition Act 1894
Ss. 4 & 23- Compensation claims- Determination of
The present appeals are directed against the judgment and order dated 14.03.2012 whereby the High Court had dismissed a bunch of appeals preferred by the land owners whose lands were acquired in exercise of the power under the Land Acquisition Act, 1984 (for short, the ‗Act‘). There is no dispute that the lands are situated in village Masoodabad. Be in noted, a notification under Section 4 of the Act was issued on 05.08.2003 and eventually award was passed on 04.08.2005 by the Land Acquisition Officer determining the compensation at Rs. 15.70 lacs per acre. On the matter being referred to the reference Court under Section 18 of the Act, the Reference Court, vide judgment and order dated 21.12.2004 enhanced the compensation amount to Rs. 18.84 lacs per acre. Being aggrieved by the aforesaid judgment and order, the appeals were preferred and the learned Single Judge of the High Court of Delhi at New Delhi dismissed the appeals.
In the case at had, the facts are similar barring that the notification was issued on 05.08.2003 instead of 04.11.2004. Regard being had to the proximity of the notification and the evidence brought on record, court are inclined to think that the amount of compensation should be fixed ate Rs. 24 lacs per acre. Needless to say, all other statutory benefits will be available to the appellants. Suresh Prasad @ Hari Kishan & Ors. V. Union of India & Anr., 2016 (12) SCALE 402
Sec. 4(1), 5-A, 6, 17 (1) and 17 (4) – Acquisition of land – validity Acquisition for purpose of expansion of secretariat on both sides of existing secretariat. Urgency clause under section 17(1) invoked and enquiry under Section 5-A dispensed with landowners given opportunity of hearing consequent upon directions of the High Court. Objections of landowners considered on merits. Declaration under section 6-A came to be issued. Possession of the land taken on 17.3.2006. High Court struck down the acquisition on ground that there was no satisfactory consideration by State Government of report of the Collector after holding enquiry under section 5-A and notification issued under section 6 was faulty. High Court set aside notification under section 4 of the Act. Evidence shows that decision to approve the report of the Collector taken by the then Departmental Secretary (PWD). Decision making process involved a multi tier process, no fault with the manner in which decision was arrived at. Nothing wrong with the decision taken or notification issued. Report of the Collector was duly considered by the Government. Sections 17(1) and 17(2) vest power in the State to take possession before passing of the award. Invocation of section 17(4) empowers the State to take possession prior to making of award. Payment of compensation after taking over possession would not invalidate the acquisition would not invalidate the acquisition. Notice to handover possession was issued and served prior to taking the possession. Acquisition does not suffer from any fundamental flaw or illegality requiring the same to be struck down. Impugned order of the High Court set aside. Appeal of the State allowed and the other appeal dismissed. State of Uttarakhand V. Rajiv Berry, 2016 (133) RD 695 (SC)
Sec. 18 – Reference – Enhancement of market value of land – Deduction towards development charges Land acquired within heart of town and surrounded by residential houses, commercial complexes, etc. Major part of area adjoining Akola-Akot Road. High Court determined market value of Rs. 200/- per sq. meter. However, High Court directed deduction at rate of 1/3rd towards development charges. Arrived at conclusion that market value payable ought to have been at rate of Rs. 133/- per sq. meter. Justification of public purpose in instant case to raise a school and to provide play grounds for students to be enrolled in school. So hardly any requirement development charges. Therefore, deduction of 1/3rd amount wholly unjustified. Exemplar land itself sold at rate of Rs. 161/- per sq. meter. Area of exemplar land rather small in comparison to acquired land. Therefore, no justification for acquired land being given land value more than exemplar land. Justice and appropriate to determine market value of acquired land at rate Rs. 161/- per sq. meter i.e same as exemplar land. Appeal allowed. Bhikulal Kedarmal Goenka (D) by LRs V. State of Maharashtra, 2016 (133) RD 691 (SC)
Taking over possession – Open piece of land – Taken over by Panchnama signed by all necessary officers – Held, possession was validly taken over.
It remains to deal with one submission of Shri A.K. Sanghi. According to Shri Sanghi, physical possession has not been taken of the land in dispute. We are afraid this may not be correct. The Panchnama dated 27th January, 2000 specifically records that possession of the land above stated was recovered and handed over to the representatives of the Office of Land and Buildings. The Panchnama is also signed by all the necessary officers. This piece of land admittedly being open land is governed by the ratio of Raghbir Singh Sehrawat v. State of Haryana & Ors., (2012) 1 SCC 792 in which it has been held:
―In Banda Development Authority v. Moti Lal Agarwal [(2011) 5 SCC 394 : (2011) 2 SCC (Civ) 747] , the Court referred to the judgments in Balwant Narayan Bhagde v. M.D. Bhagwat [(1976) 1 SCC 700] , Balmokand Khatri Educational and Industrial Trust v. State of Punjab [(1996) 4 SCC 212] , P.K. Kalburqi v. State of Karnataka [(2005) 12 SCC 489], NTPC Ltd. v. Mahesh Dutta [(2009) 8 SCC 339 : (2009) 3 SCC (Civ) 375] , Sita Ram Bhandar Society v. Govt. (NCT of Delhi) [(2009) 10 SCC 501 : (2009) 4 SCC (Civ) 268] and culled out the following propositions: (Banda Development Authority case [(2011) 5 SCC 394 : (2011) 2 SCC (Civ) 747] , SCC p. 411, para 37)
―(i) No hard-and-fast rule can be laid down as to what act would constitute taking of possession of the acquired land.
(ii) If the acquired land is vacant, the act of the State authority concerned to go to the spot and prepare a panchnama will ordinarily be treated as sufficient to constitute taking of possession.
(iii) If crop is standing on the acquired land or building/structure exists, mere going on the spot by the authority concerned will, by itself, be not sufficient for taking possession. Ordinarily, in such cases, the authority concerned will have to give notice to the occupier of the building/structure or the person who has cultivated the land and take possession in the presence of independent witnesses and get their signatures on the panchnama. Of course, refusal of the owner of the land or building/structure may not lead to an inference that the possession of the acquired land has not been taken.
(iv) If the acquisition is of a large tract of land, it may not be possible for the acquiring/designated authority to take physical possession of each and every parcel of the land and it will be sufficient that symbolic possession is taken by preparing appropriate document in the presence of independent witnesses and getting their signatures on such document.
(v) If beneficiary of the acquisition is an agency/instrumentality of the State and 80% of the total compensation is deposited in terms of Section 17(3-A) and substantial portion of the acquired land has been utilised in furtherance of the particular public purpose, then the court may reasonably presume that possession of the acquired land has been taken.‖ [para 27]
As the present case will fall within sub-paragraph (ii), physical possession of the land can be said to have been taken on the facts of the present case. Delhi Development Authority v. Sukhbir Singh 2016 (7) Supreme 7
Limitation Act 1963
Sec. 14 – Applicability of – It can be applied even when section 5 of the Act is not applicable.
The principles under Section 14 of the Limitation Act, 1963 can be applied even when Section 5 of the Act is not applicable, is no more res integra, in view of M.P. Steel Corporation v. Commissioner of central Excise, (2015) 7 SCC 58.
Sec. 14 – Ingredients.
For the purpose of application of Section 14 before this Court for exclusion of the period, in the facts of the present case, it cannot be said that there was due diligence. Under Section 2(h) of the Limitation Act, 1963, nothing shall be deemed to be done in good faith which is not done with due care and attention. The facts are narrated above would also show lack of good faith on the part of the appellant in conducting its case. Thus, the appellant having not prosecuted his case with due diligence and good faith is not entitled for the application of the principles under section 14 of the Limitation Act, 1963. M/s Suryachakra Power Corporation Limited v. Electricity Department, Rep. by its Superintending Engineer, Port Blair, 2016(7) Supreme 111
NDPS Act
Ss. 21, 42, 50 – Search and seizure – Compliance of Ss. 42, 50 – Gazetted Officer himself conducted search and seizure of appellant – Not necessary for him to ensure compliance of S, 42 – Also offer to search the appellant was given to him in writing and on his giving consent, he was accordingly searched – Finding that requirement of S., 50 complied with is just, legal and proper – No interference with conviction Court is in complete agreement with the aforementioned finding of the High Court as, in our opinion, it is just, legal and proper calling no interference in this appeal. Firstly, the High Court has recorded the finding keeping in view the law laid down by this Court in State of Haryana vs. Jarnail Singh & Ors., (2004) SAR (Criminal) 535. Secondly, since PW-7 himself was the gazetted officer, it was not necessary for him to ensure compliance of Section 42 as held by this Court in Prabha Shankar Dubey vs. State of M.P. (2003) 8 Supreme 565 = (2004) 2 SCC 56 and lastly, so far as compliance of the requirement of Section 50 is concerned, it was found and indeed rightly that the offer to search the appellant was given to him in writing and on his giving consent, he was accordingly searched. The High Court was, therefore, right in upholding the procedure followed by the raiding party for ensuring compliance of Section 50 and rightly held against the appellant on this issue. We find no ground to take a different view than the one taken by the High Court and accordingly uphold the finding on this issue against the appellant. Sekhar Suman Verma V. Superintendent of N.C.B. and another, 2016 Cri.L.J. 4182 (SC)
Protection of Women from Domestic Violence Act, 2005
Sec. 2(q) – Under the Act a proceeding can be brought against only the adult male respondent.
When we come to Section 26 of the Act, the sweep of the Act is suchthat all the innovative reliefs available under Sections 18 to 22 may also be sought in any legal proceeding before a civil court, family court or criminal court affecting the aggrieved person and the respondent. The proceeding in the civil court, family court or criminal court may well include female members of a family, and reliefs sought in those legal proceedings would not be restricted by the definition of ―respondent‖ in the 2005 Act. Thus, an invidious discrimination will result, depending upon whether the aggrieved person chooses to institute proceedings under the 2005 Act or chooses to add to the reliefs available in either a pending proceeding or a later proceeding in a civil court, family court or criminal court. It is clear that there is no intelligible differentia between a proceeding initiated under the 2005 Act and proceeding initiated in other fora under other Acts, in which the self-same reliefs grantable under this Act, which are restricted to an adult male person, are grantable by the other fora also against female members of a family. This anomaly again makes it clear that the definition of ―respondent‖ in Section 2(q) is not based on any intelligible differentia having any rational relation to the object sought to be achieved by the 2005 Act. The restriction of such person to being an adult male alone is obviously not a differentia which would be in sync with the object sought to be achieved under the 2005 Act, but would in fact be contrary to it. Hiral P. Harsora V. Kusum Narottamdas Harsora 2016 (2) Supreme 232
Public Interest Litigation
National Anthem- Prevention of insults to National Honour Act, 1971- Constitution – Article 51 A- Obligation and duty of even citizen to show respect for the National Anthem and the National Flag- All the Cinema halls in India shall play the National Anthem before the feature film starts and all present in the hall are obliged to stand up to show respect to the National Anthem
Heard the learned counsel for the parties and awaiting the reply from the Union of India, as an interim measure, it is directed that the following directions shall be scrupulously followed:- (a) There shall be no commercial exploitation to give financial advantage or any kind of benefit. To elaborate, the National Anthem should not be utilized by which the person involved with it either directly or indirectly shall have any commercial benefit or any other benefit. (b) There shall not be dramatization of the National Anthem and it should not be included as a part of any variety show. It is because when the National Anthem is sung or played it is imperative on the part of every one present to show due respect and honour. To think of a dramatized exhibition of the National Anthem is absolutely inconceivable. (c) National Anthem or a part of it shall not be printed on any object and also never be displayed in such a manner at such places which 3 may be disgraceful to its status and tantamount to disrespect. It is because when the National Anthem is sung, the concept of protocol associated with it has its inherent roots in National identity, National integrity and Constitutional Patriotism. (d) All the cinema halls in India shall play the National Anthem before the feature film starts and all present in the hall are obliged to stand up to show respect to the National Anthem. (e) Prior to the National Anthem is played or sung in the cinema hall on the screen, the entry and exit doors shall remain closed so that no one can create any kind of disturbance which will amount to disrespect to the National Anthem. After the National Anthem is played or sung, the doors can be opened. (f) When the National Anthem shall be played in the Cinema Halls, it shall be with the National Flag on the screen. (g) The abridge version of the National Anthem made by any one for whatever reason shall not be played or displayed.
It is clear as crystal that it is the sacred obligation of every citizen to abide by the ideals engrafted in the Constitution. And one such ideal is to show respect for the National Anthem and the National Flag. Be it stated, a time has come, the citizens of the country must realize that they live in a nation and are duty bound to show respect to National Anthem which is the symbol of the Constitutional Patriotism and inherent national quality. It does not allow any different notion or the perception of individual rights, that have individually thought of have no space. The idea is constitutionally impermissible. Shyam Narayan Chouksey v. Union of India, 2016 (12) SCALE 404
Registration Act
Ss. 17, 32, 34, 35, 36 & 69- Constitution – Article 226- Madhya Pradesh Cooperative Societies Act, 1960 –Section 64 – Extinguishment Deed- Registration of- Prayer for cancellation of registration of Extinguishment Deed- Maintainability- Once the document is registered, it is not open to any Authority under the act of 1908 to cancel the registration- Power conferred on the Registrar by virtue of Section 69 cannot be invoked to cancel the registration of documents already registered
In the present case, view of Justice V. Gopala Gowda, however, is that it was the duty of the High Court to answer the matters in issue because of the unilateral registration of the Extinguishment Deed by the Society without authority and a nullity. Ordinarily, if the party had not resorted to any other remedy provided by law and had straightway approached the High Court to question the action of the statutory Authority of registering a document improperly and in particular in disregard of the prescribed procedure, that would stand on a different footing. In the present case, however, the appellant not only entered into a compromise deed with the Society and the subsequent purchaser but also resorted to statutory remedy. Having entered into a compromise deed, it is doubtful whether the appellant can be heard to complain about the irregularity in the registration of the Extinguishment Deed, if any. It is noticed that the appellant has not disputed the execution of the compromise deed, nor has he paid any heed to the notice given by the other party to refund the amount accepted by him in furtherance of the compromise deed. No Court can be party to a speculative litigation much less the High Court in exercise of writ jurisdiction. Having said this it must necessarily follow that the Writ Petition filed by the appellant deserved to be dismissed, as was rightly dismissed by the High Court. Satya Pall Anand V. State of M.P. & Ors. 2016 (10 ) SCALE 329
Ss. 34-35 -Documents to be compulsorily registered- Some procedural irregularity- would not lead to a fraudulent execution and remedy lies before Civil Court If the document is required to be compulsorily registered, but while doing so some irregularity creeps in, that, by itself, cannot result in a fraudulent action of the State Authority. Non-presence of the other party to the Extinguishment Deed presented by the Society before the Registering Officer by no standard can be said to be a fraudulent action per se. The fact whether that was done deceitly to cause loss and harm to the other party to the Deed, is a question of fact which must be pleaded and proved by the party making such allegation. That fact cannot be presumed. Suffice it to observe that since the provisions in the Act of 1908 enables the Registering Officer to register the documents presented for registration by one party and execution thereof to be admitted or denied by the other party thereafter, it is unfathomable as to how the registration of the document by following procedure specified in the Act of 1908 can be said to be fraudulent. As aforementioned, some irregularity in the procedure committed during the registration process would not lead to a fraudulent execution and registration of the document, but a case of mere irregularity. In either case, the party aggrieved by such registration of document is free to challenge its validity before the Civil Court. Admittedly, the documents in question do not fall within Sections 31, 88 and 89. Further, Section 32 does not require presence of both parties to the document when it is presented for registration. In that sense, presentation of Extinguishment Deed by the authorized person of the Society for registration cannot be faulted with reference to Section 34 of the Act of 1908. That provision stipulates the enquiry to be done by the Registering Officer before registration of the document. The same reads thus: ―34. Enquiry before registration by registering officer.- (1) Subject to the provisions contained in this Part and in sections 41, 43, 45, 69, 75, 77, 88 and 89, no document shall be registered under this Act, unless the person executing such document, or their representatives, assigns or agents authorised as aforesaid, appear before the registering officer within the time allowed for presentation under sections 23, 24, 25 and 26: PROVIDED that, if owing to urgent necessity or unavoidable accident all such persons do not so appear, the Registrar, in cases where the delay in appearing does not exceed four months, may direct that on payment of a fine not exceeding ten times the amount of the proper registration fee, in addition to the fine, if any, payable under section 25, the document may be registered. (2) Appearances under sub-section (l) may be simultaneous or at different times. (3) The registering officer shall thereupon- (a) enquire whether or not such document was executed by the person by whom it purports to have been executed; (b) satisfy himself as to the identity of the persons appearing before him and alleging that they have executed the document; and (c) in the case of any person appearing as a representative, assignee or agent, satisfy himself of the right of such person so to appear. (4) Any application for a direction under the proviso to sub-section (1) may be lodged with a Sub-Registrar, who shall forthwith forward it to the Registrar to whom he is subordinate. (5) Nothing in this section applies to copies of decrees or orders.‖ Even this provision does not require presence of both parties to the document when presented for registration before the Registering Officer. Satya Pal Anand v. State of M.P., (2016)10 SCC 767.
Sec. 47—Registered document—Operates from date of its execution—Not from date it is registered Section 47 of the Registration Act, 1908 reads as under: ―47. Time from which registered document operates.—A registered document shall operate from the time which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration. In view of the above provision of law, Court is in agreement with the submission of learned counsel for the Respondent No. 1 that the document registered on a subsequent date, operates from the date of execution, not from the date of registration. Principal Secretary, Government of Karnataka V. Ragini Narayan, AIR 2016 SC 4545
Representation of People Act Sec. 77 – Allegation of suppression of expenditure on use of helicopter – Appellant being star campaigner claiming that the expenditure cannot be added to his account – Validity of.
The specific pleading in the election petition at paragraph 14M is that the appellant herein used the helicopter on many occasions during the relevant period only between Bhopal and Sidhi, both of which are outside the constituency of the appellant. The admitted fact is that the appellant was one of the star campaigners for the said election for the State of Madhya Pradesh. Therefore, he was required to campaign for his political party, not only in his constituency but also in other constituencies of the State. In the absence of any allegation that the appellant used the helicopter for traveling within 76-Churahat constituency for the purpose of campaigning, the expenditure incurred on that account, in our opinion, cannot be included in the election expenditure of the appellant. Therefore, paragraph 14M of the election petition is liable to be struck off and is, accordingly, struck off. Ajay Arjun Singh v. Sharadendu Tiwari 2016 (6) Supreme 440
Sec. 87 and Sec. 100 (1)(a) – Trial of election petition – Provisions of Code of Civil procedure, 1908 apply.
The election of the appellant to the No.81 Deosar Constituency of Madhya Pradesh Legislative Assembly which was held on 11.05.2013 has been set aside by the High Court in an election petition filed by the respondent No.1 herein. The validity of the said order of the High Court is the subject matter of the present appeal. The trial of an election petition, as per Section 87 of 1951 Act has to be in accordance with the provisions of the Code of Civil Procedure, 1908. When no pleadings that the election of the returned candidate was void on grounds mentioned in Section 100(1)(a) were made and no issue on this score was struck and no opportunity to the returned candidate to adduce relevant evidence was afforded, the High Court, in our considered view, could not have found that the election of the returned candidate was void under Section 100(1)(a).
In view of the state of the pleadings as noticed above; the issues framed and the evidence led by the parties, we cannot agree with the High Court that the respondent-election petitioner had made out a case for declaration that the result of the election in favour of the returned candidate was void under Section 100(1)(a) of the 1951 Act. Rajendra Kumar Meshram V. Vanshmani Prasad Verma 2016 (7) Supreme 143
Right to fair compensation and Transparency in land Acquisition, Rehabilitation and resettlement Act, 2013
Sec. 11- Lapse of Acquisition proceedings- Proceedings have lapsed since the acquisition proceedings have not been taken to their logical conclusion within the period permitted under the Act- Effect of
In this case, it is not disputed that the proceedings have lapsed since the acquisition proceedings have not been taken to their logical conclusion with the period permitted under The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013
Therefore, these appeals are dismissed.
However, in the peculiar facts and circumstances of these cases, the appellant is given period of one year to exercise its liberty granted under Section 11 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, if it is so advised, for acquisition afresh.
Court make it clear that in case no fresh acquisition proceedings are initiated within the said period of one year from today by issuing a Notification under Section 11 of the Act the appellant, if in possession, shall return the physical possession of the land to the original land owner. Delhi Development Authority v. S.K. Garg & Ors., 2016 (12) SCALE 351
Sect. 12—Award of collector to be final—Persons whose property is expropriated need to be paid immediately so as to rehabilitate themselves.
A notice of award under Section 12(2) to persons interested can only be issued after money is received by the Land Acquisition Collector, and that the said Collector shall not take possession of land unless and until compensation amount is received by him. Further, actual payment to land owners must be made latest within a period of 60 days. It is high time that the State realizes that persons whose property is expropriated need to be paid immediately so as to rehabilitate themselves. Also, it cannot be forgotten that the amount usually offered by way of an award of a Land Acquisition Collector under the 1894 Act is way below the real market value, which is only awarded and paid years later when the reference proceedings culminate in judgments of the High Courts and of Supreme Court. Delhi Development Authority vs. Sukhbir Singh, AIR 2016 SC 4275
Section 24(2)—Land Acquisition proceedings—Lapse of It was brought to the notice of the Court that in view of the operation of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (in short, ―the 2013 Act‖), the proceedings have lapsed and, therefore, on 05.05.2016, the Court passed the following order :-- ―In answer to RTI application, the petitioners have been informed that though the Award has been passed on 16.07.2007, the petitioners have not received the compensation. It is also stated in the RTI reply that the possession could not be taken on account of state of dispossession in CWP No. 18579 of 2006.‖
On the admitted facts, the land acquisition proceedings have lapsed since there is no stay on any count operating in the matter of possession or acquisition of the lands of the appellants after 12.08.2008. The 2013 Act came into force on 01.01.2014. Therefore, five years prior to the coming into force of the 2013 Act, the appellants have not been dispossessed. It is also a fact that there is no payment of compensation in accordance with law as declared by this Court in Pune Municipal Corporation & Anr. vs. Barakchand Misirimal Solanki & Ors. reported in (2014) 3 SCC 183 : (AIR 2014 SC 982). In view of the above admitted position, it is not necessary to remit the matters to the High Court. The land acquisition proceedings have lapsed in the facts of the present cases in view of the operation of Section 24(2) of the 2013 Act. Shashi Gupta V. State of Haryana, AIR 2016 SC 4817 (P & H)
Section 24(2)—Lapse of acquisition proceedings
The crucial difference between lapse under Section 11A of the 1894 Act and that under Section 24(2) of the 2013 Act is that the former is a pre-award situation whereas the latter is post-award. In other words, what gets lapsed under Section 11A of the 1894 Act is the ... "entire proceedings for the acquisition of the land", whereas, under Section 24(2) of the 2013 Act, what gets lapsed is the land acquisition proceedings initiated under The Land Acquisition Act, 1894 which has culminated in passing of an award under Section 11 but where either possession is not taken or compensation not paid within five years prior to 01.01.2014. Since the lapse under Section 24(2) of the 2013 Act is post-award, that would affect only the land referred to in the award and not the entire lands covered by the Section 4(1) notification under which the proceedings for acquisition were initiated. In the present case, there is no dispute on facts that after passing the award under Section 11 of the 1894 Act, no compensation has been paid and the possession also has not been taken within five years prior to 01.01.2014. Therefore, Section 24(2) of the 2013 Act has to operate, and the acquisition proceedings in respect of respondents' lands where award under Section 11 of the 1894 Act had been passed, have lapsed. Govt. of NCT of Delhi vs. Mahender Singh, AIR 2016 SC 4895 Ss 24(2), 11A—Lapse of acquisition proceedings—Expression used in S. 24(2) ―deemed to have lapsed‖— Is of great significance and differs from use of expression ―lapsed‖ in S.11A
The expression used in Section 24(2), namely, ―deemed to have lapsed‖ is of great significance and differs from the use of the expression ―lapsed‖ in Section 11A. As is well settled, a deeming fiction is enacted so that a putative state of affairs must be imagined, the mind not being allowed to boggle at the logical consequence of such putative state of affairs. Even if Court is to agree with Shri Sharan that, post vesting, acquisition proceedings cannot be said to lapse, yet Court has to give effect to the deeming fiction contained in Section 24(2). In fact, Section 24(2) uses the expression ―deemed to have lapsed‖ because the Legislature was cognizant of the fact that, in cases where compensation has not been paid, and physical possession handed over to the State, vesting has taken place, after which land acquisition proceedings could be said to have ended. . Delhi Development Authority vs. Sukhbir Singh, AIR 2016 SC 4275
Service Law Absorption- Generally The ordinary rules providing for asking of option or issuance of letters of absorption depend upon nature of stipulations which may get attracted to a case of deputation. There may be similar stipulations in case of merger by transfer. But if there are no such stipulations like in the present case then the transferee concern like the Corporation has no obligation to ask for options and to issue letters of options to individual employees who become employees of the transferee organization simply by virtue of order and action of transfer of the whole concern leading to merger. No doubt in case of any hardship, the affected employees have the option to protest and challenge either the merger itself or any adverse stipulation. However, if the employees choose to accept the transition of their service from one concern to another and acquiesce then after decades and especially after their retirement they cannot be permitted to turn back and challenge the entire developments after a gap of decades. PEPSU RTC v. S.K. Sharma, (2016) 9 SCC 206
Departmental proceedings – Courts, while exercising power of judicial review, do not sit as appellate authority – High Court can interfere with penalty only when it is outrageously disproportionate to the nature of charge.
The court while undertaking judicial review of the matter is not supposed to substitute its own opinion on reappraisal of facts. (See UT of Dadra & Nagar Haveli v. Gulabhia M. Lad [(2010) 5 SCC 775 : (2010) 2 SCC (L&S) 101] . In exercise of power of judicial review, however, the court can interfere with the punishment imposed when it is found to be totally irrational or is outrageous in defiance of logic. This limited scope of judicial review is permissible and interference is available only when the punishment is shockingly disproportionate, suggesting lack of good faith. Otherwise, merely because in the opinion of the court lesser punishment would have been more appropriate, cannot be a ground to interfere with the discretion of the departmental authorities.
When the punishment is found to be outrageously disproportionate to the nature of charge, principle of proportionality comes into play. It is, however, to be borne in mind that this principle would be attracted, which is in tune with the doctrine of Wednesbury [Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn., (1948) 1 KB 223 : (1947) 2 All ER 680 (CA)] rule of reasonableness, only when in the facts and circumstances of the case, penalty imposed is so disproportionate to the nature of charge that it shocks the conscience of the court and the court is forced to believe that it is totally unreasonable and arbitrary. This principle of proportionality was propounded by Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service [1985 AC 374 : (1984) 3 WLR 1174 : (1984) 3 All ER 935 (HL)] in the following words: (AC p. 410 D-E)
―...Judicial review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads of the grounds upon which administrative action is subject to control by judicial review. The first ground I would call ‗illegality‘, the second ‗irrationality‘ and the third ‗procedural impropriety‘. This is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of ‗proportionality‘.‖ Chief Executive Officer, Krishna District Cooperative Central Bank Ltd. V. K. Hanumantha Rao 2016 (8) Supreme 475
Services- Appointments- Uttar Pradesh Prosecuting Officers service Rules, 1991- Rule 3 (1)- Making appointments to posts more than those advertised –Effect of – Only the number of vacancies that are advertised can be filled up –If the advertisement gives liberty to the Government to vary the number of posts, such power cannot be exercised for filling up future vacancies
The recruitment to posts of Assistant Prosecuting Officers is governed by the Uttar Pradesh Prosecuting Officers Service Rules, 1991. Rule 3 (l) defines ‗year of recruitment‘ as a period of 12 months commencing from the 1st day of July of calendar year. The requisition made by the First Respondent to the Second Respondent on 17.11.2008 was for selection of 38 Assistant Prosecuting Officers. The year of recruitment for conducting selection would be between 1st July, 2008 and 30th June, 2009. As stated earlier, only 38 posts were notified in the advertisement. As per the advertisement the Government could vary the number of posts to be filled up. Such power could have been exercised by the Government only to the extent of posts that arose between 1st July, 2008 and 30th June, 2009. The Second Respondent filed a counter in this Court in which it was stated that the advertisement issued on 19.09.2009 was for 38 posts and that it was only on 06.01.2011 that the Government intimated 36 additional posts to be filled up. The letter dated 25.08.2009 of the Chief Secretary, State of Uttarakhand was relied upon by the Appellants to contend that additional vacancies were created and they were available to be filled up. It is clear from the pleadings and the various documents filed by the Appellants that no additional posts were created between 1st July, 2008 and 30th June, 2009. It is significant that the Rules refer to the recruitment year. It is a well-accepted principle of service law that only the number of vacancies that are advertised can be filled up.
Court has examined the possibility of granting relief to the Appellants by taking into account the facts and circumstances of this case. The Appellants participated in the selection which was initially for 38 posts which later increased to 74 posts. They could not be appointed due to the judgment of the High Court which directed the selection to be only for 38 posts. In view of there being no fault on the part of the Appellants, court examined whether we could exercise our judicial discretion to direct their appointments. Court realise that any such direction given by us for their appointments would be contrary to the Rules. Judicial discretion can be exercised by a Court only when there are two or more possible lawful solutions. In any event, Courts cannot give any direction contrary to the Statute or Rules made thereunder in exercise of judicial discretion.
As court has held that the selection pursuant to the advertisement dated 19.09.2009 should be confined only to posts that were advertised, the additional posts that were created after the expiry of the recruitment year shall be filled up by issuance of an advertisement afresh. In view of the shortage of Assistant Prosecuting Officers in the State of Uttarakhand, Court direct the authorities to expedite the process of selection. Anurag Kumar Singh & Ors. v. State of Uttarakhand & Ors. 2016 (9) SCALE 639 Removal- CCS (CCA) Rules, 1965- Rule 14 & 15 (2)- Central Civil Services Leave Rules- Rule 7- Willful absence from duties- Disobedience of orders of the superiors- Principles of natural justice violated after submission of the inquiry report – Disciplinary Authority to be directed to forward the copy of the inquiry report in accordance with Rule 15 (2) of Rules, 1965
The charges, which have been leveled against the writ petitioner were in two parts, as noted above i.e. willful absence from duties and disobedience of the orders of the superiors. Learned counsel for appellant confined his submission only to second charge that is willful disobedience of superior officers. He submitted that, even if, on account of illness of the writ petitioner, his absence is not treated as willful, the second part of the charge is fully proved in the inquiry. During the inquiry, writ petitioner was also asked, as to whether, at any point of time he has requested for constitution of a Medical Board at Rohtak which suggestion was replied in negative by him. As noted above, the Division Bench in para 31 to 33 has come to the conclusion that the Inquiry Officer has not discussed the evidence of defence witnesses.
As noted above, the Division Bench, having posed the question, as to whether, inquiry is to be quashed from the stage whether the Disciplinary Authority committed fault i.e. from the Rule 15, has not further dwelt upon the question not has given any reason as to why the opportunity for holding the inquiry from the stage fault was found be not given. Both the learned Single Judge and the Division Bench has heavily relied on the fact that before forwarding the dopy of the report by letter dated 02.04.2008 the Disciplinary Authority-cum-Whole Time Members have already formed an opinion on 25.02.2008 to punish the writ petitioner with major penalty which is a clear violation of principle of natural justice. Court are of the view that before making opinion with regard to punishment which is to be imposed on a delinquent, the delinquent has to be given an opportunity to submit the representation/reply on the inquiry report which finds a charge proved against the delinquent. H.P. State Electricity Board Ltd. v. Mahesh Dahiya, 2016 (12) SCALE 116
Services – Retiral Benefits- U.P. Civil Service Regulations- Article 351 A- Withholding 30% of gratuity and pension – Justifiability
Admittedly, no departmental enquiry was initiated in the present case against the respondent for the misconduct, if any, nor any proceedings drawn as provided in Article 351-A of UP Civil Service Regulations. Learned single Judge of the High Court has observed that the document which is the basis of enquiry and relied upon by the State authorities, copy of which was Annexure C.A.1 to counter affidavit filed in the writ petition, itself reflected that the document showing discrepancy in the stock was dated 26.12.2009, i.e. after about more than five months of retirement of the respondent. In the circumstances, keeping in view Article 351-A of UP Civil Service Regulations, Court agree with the High Court that the orders dated 23.07.2015 and 06.08.2015 were liable to be quashed and, to that extent, Court decline to interfere with the impugned order. In the light of law laid down by this Court, and further considering the facts and circumstances of the case, Court modify the impugned order passed by the High Court in respect of interest directed to be paid on the amount of withheld gratuity and pension. Court hasdirect that the appellants shall pay interest at the rate of 6% per annum on the unpaid amount of pension from the date it had fallen due and interest at the rate of 8% per annum on the unpaid amount of gratuity from the date of retirement of the employee. State of Uttar Pradesh and others v. Dhirendra Pal Singh, 2016 (12) SCALE 1
Recruitment – Estoppel – Candidates participating in selection process – Challenging the process after being unsuccessful – Not permissible.
The law on the subject has been crystalized in several decisions of this Court. In Chandra Prakash Tiwari v. Shakuntala Shukla[4], this Court laid down the principle that when a candidate appears at an examination without objection and is subsequently found to be not successful, a challenge to the process is precluded. The question of entertaining a petition challenging an examination would not arise where a candidate has appeared and participated. He or she cannot subsequently turn around and contend that the process was unfair or that there was a lacuna therein, merely because the result is not palatable. In Union of India v. S. Vinodh Kumar[5], this Court held that :
―18. It is also well settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same… Ashok Kumar V. State of Bihar 2016 (7) Supreme 408
Voluntary Retirement Scheme (VRS) – Withdrawal –Offer to retire may be withdrawn during validity period – Offer cannot be withdrawn after validity period even if it is not accepted.
Therefore VRS Scheme floated by the employer would be treated as invitation to offer and the application submitted by the employees pursuant thereto is an offer which does not amount to resignation in praesenti and the offer can be withdrawn during the validity period. This would be the position even when there is a clause in the Scheme that offer once given cannot be withdrawn at all. However, exception to this principle is that in such cases offer is to be withdrawn during the validity period of the Scheme and not thereafter even when if it is not accepted during the period of the Scheme. That is the clear mandate of Romesh Chander Kanoji. Madhya Pradesh State Road Transport Corporation v. Manoj Kumar & Anr. 2016 (6) Supreme 557
Recruitment – Anything prescribed in the advertisement de hors the Rules – Bad in law Learned Counsel for the respondents, however, contended that the appellant did not possess the requisite qualifications that were necessary for the promotional post as prescribed in the advertisement and hence cancellation of the appellant‘s promotion was appropriate. We do not find any force in this contention. As held, the appellant had fulfilled the necessary criteria prescribed in Rule 10. It was, in our view, sufficient compliance for the in service candidate. Anything prescribed in the advertisement, which was de hors the Rules was bad in law. Raminder Singh v. State of Punjab 2016 (6) Supreme 729
Specific Relief Act
A suit for equitable relief – Court has to see what ultimately is the justice of the case. A suit for specific performance, being a suit for equitable relief, this Court has the duty to see what ultimately is the justice of the case. Syscon Consultants P.Ltd. V. M/S Primella Sanitary Prod. P.Ltd. 2016 (6) Supreme 739
(A) Section 10- Limitation Act, 1963- Article 54-Suit for specific performance of an agreement to sell-Limitation for filing the suit- If the date is fixed for performance of an agreement, then non- compliance with the agreement on the date would give a cause of action to file a suit for specific performance within three years would begin when plaintiff has notice that the defendant has refused the performance of the agreement.
In so far as the present appeal is concerned, the High Court only considered the issue of limitation and did not consider the other issues in the appeal. This was impermissible. The result is that since we do not agree with the view taken by the High Court on the issue of limitation, there is no option but to set aside the view expressed by the High Court and following the decisions of this Court, remand the matter to the High Court to decide the remaining issues in the first appeal filed under Section 96 of the Code of Civil Procedure. It is a little unfortunate that the parties have to undergo another round of litigation which could easily have been avoided if the settled legal principles laid down by this Court from time to time were followed in regard to the requirements of Section 96 of the Code of Civil Procedure. This is quite apart from the delay caused in the resolution of the dispute between the parties. In view of our discussion, the appeal is allowed and the impugned judgment and order of the High Court dated 16th August, 2013 is set aside and the matter is remanded to the High Court for deciding the remaining issues in the appeal on merits. Madina Begum & Anr. Vs. Shiv Murti Prasad Pandey & Ors., 2016 (3) ARC 273 Supreme Court
Transfer of Property Act
Sec. 106 - Applicability of A perusal of Section 106 of the Act makes it clear that it creates a deemed monthly tenancy in those cases where there is no express contract to the contrary, which is terminable at a notice period of 15 days. The section also lays down the requirements of a valid notice to terminate the tenancy, such as that it must be in writing, signed by the person sending it and be duly delivered. Admittedly, the validity of the notice itself is not under challenge. The main contention advanced on behalf of the respondents is that the impugned judgment and order is valid in light of the second part of Section 107 of the Act, which requires that lease for a term exceeding one year can only be made by way of a registered instrument. It is also a well settled position of law that in the absence of a registered instrument, the courts are not precluded from determining the factum of tenancy from the other evidence on record as well as the conduct of the parties. Park Street Propeties (P) Ltd. V. Dipak Kumar Singh, (2016) 9 SCC 268
Trust Act 1882 Ss. 4,5 and 6 -Nature of trust deed If the will is held not to constitute an arbitration agreement despite containing an arbitration clause therein, a fortiori, the trust deed can also not be held to constitute an agreement much less an arbitration agreement despite containing an arbitration clause therein. The trust deed including the arbitration clause (Clause 20) does not satisfy the requirements of Sections 2(1)(b) and 2(l)(h) read with Section 7 of the Act and hence, the trust deed cannot be construed as an ―arbitration agreement‖ within the meaning of Section 7 of the Act. Vimal Kishor Shah V. Jayesh Dinesh Shah, (2016) 8 SCC 788
U.P. Imposition of Ceiling on Land Holdings (Amendment) Act,
Tenancy and Land Laws-Ceiling on Land-Applicability of Section 9 Section 9 itself comes into force only on 19.1.1975. For Section 9 to apply, an order has to be made determining surplus land in relation to a tenure-holder before the commencement of the Amendment Act. By Section 1(2), this Section and Section 9 both come into force at once i.e. on 17.1.1975. The expression this Section refers to Section 1(1) which in turn refers to the Act as the U.P. Imposition of Ceiling on Land Holdings (Amendment) Act, 1974. This being the case, it is clear that the Act has commenced only on 17.1.1975, even though a number of Sections shall be deemed to have come into force retrospectively i.e. on 8.6.1973. The order passed by the prescribed authority being on 13.1.1975, the first condition of Section 9 is met, namely, that this order has been passed before 17.1.1975. The original statutory scheme of 1960 which spoke of surplus fair quality land was substituted in its entirety by a completely new and different scheme by the Amendment Act of 1972 read with the Amendment Act of 1974. Both of these Acts, as has been noticed above, with certain minor exceptions, came into force on the same date, namely, 8.6.1973. The new statutory scheme would necessarily involve fair quality land being substituted by irrigated land, the ceiling area in the two cases also being entirely different. This being the case, it is important to now construe Section 9 of the 1974 Amendment Act in this backdrop. Arvind Kumar v. State of U.P., (2016) 9 SCC 221
U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act
Section 3(g) and 21(1) (a)-Release application-For married daughter for expansion of clinic for medical practice-Allowed by both Courts be low-Rejected by High Court-On ground married daughter not member of family as per Section 3(g) of the Act, etc- Being the daughter she became co-owner of the building alongwith other co-shares- being co-owner she got a legal right of residence in the building as provided under Section 3(g) of the Act, as such fulfilled the definition of ―family‖ under Section 3(g) of the Act- The need bonafide and genuine-High Court could not have upset the concurrent findings given by both Courts below- Tenant had his own shop could shift his business without suffering any comparative hardship-Rejection of release application improper-Time to vacate the premises to tenant on condition granted. (A) U.P. Building (Regulation of Letting, Rent and Eviction) Act, 1972-Section 3(g)- ―Family‖-In reference to daughter-A portion, any female, if she is having a legal right of residence in the building, is also included in the definition of ―family‖ in relation to landlord regardless of fact whether she is married or not-Explained. In view of foregoing discussion, we are unable to agree with the reasoning and the conclusion arrived at by the High Court. The impugned judgment is, therefore, not legally sustainable and is accordingly set aside. As a result, the order dated 04.03.1999 of Prescribed Authority in U.P.U.B. No. 13/1994 and order dated 24.08.2011 of the Additional District Judge, Aligarh in U.P.U.B. Appeal No. 7/99 are restored. The respondent is, however, granted three months‘ time to vacate the suit shop from the date of this order subject to furnishing of the usual undertaking in this Court to vacate the suit premises within 3 months and further, the respondent would in addition to the directions given by the Prescribed Authority also deposit all arrears of rent till date at the same rate at which he had been paying monthly rent to the appellant (if there are arrears) and would also deposit three months‘ rent in advance by way of damages for use and occupation as permitted by this Court. Let the undertaking, arrears of rent, damages for three months and compliance of direction to deposit damages by Prescribed Authority and the cost awarded by this Court be deposited within one month from the date of this order.
The appeal is accordingly allowed with cost, which is quantified at Rs.10000/-, to be paid by the respondent to the appellant. Gusher Khanam vs. Aftab Ahmad, 2016 (3) ARC 387.
Miscellaneous
Binding Precedent – Ambit and scope - When the court earlier considered and decided on the provision forming an issue in present litigation, the earlier decision would be a binding precedent. Hon‘ble Supreme Court observed that first of all, in the earlier decision Section 5(2) was considered and a view has been expressed and, therefore, it cannot be said that a revision has not been referred to or not considered. Hence, it is a binding precedent. ACC Ltd. V. State of Kerala, 2016 (6) Supreme 327.
PART -2 (HIGH COURT)
Arbitration and Conciliation Act
Sec. 37- Scope of
This first appeal under Section 37 of the Arbitration and Conciliation Act, 1996 has been filed by the State of U.P. and others against the judgment dated 30.04.2012, passed by the learned District Judge, Lucknow in Regular Suit No. 82 of 2007 (State of U.P. & others Vs. M/s. Shiva Enterprises) thereby dismissing the suit filed under Section 34 of the Arbitration and Conciliation Act, 1996 upholding the arbitral award dated 09.05.2010, passed by the learned sole Arbitrator in the matter of arbitration/dispute in arbitration petition No. 27 of 2007.
It is an admitted case between the parties that on the instructions of the appellants work was executed by the respondent and not only this, the appellants had admitted their liability to pay the amount but the same was not paid merely because the police department had not released the funds and when the matter went to the Court, the appellants disputed the liability on the pretext that a wrong Form was executed. The Arbitrator as well as the District Judge, has correctly taken the view that merely because the wrong Form was obtained, the appellants cannot dispute the liability to pay the amount.
It is further evident from the record that the learned Arbitral Tribunal had given full opportunity of hearing to the parties and had perused the documents produced before him and after giving a thoughtful consideration to the matter, the learned Arbitrator had concluded that infact the parties were at mistake regarding the Form of the contract which was signed between the parties and because of the fact that the Forms which were signed by the parties were pertaining to the supply of goods; whereas it was an admitted fact between the parties that the respondent had not supplied any goods to the appellants and infact certain works were executed which were emergent in nature and were performed at a very short notice. In these peculiar facts and circumstances of the case, the Arbitrator had given his award in favour of the respondent. This fact has also been considered by the learned District Judge while disposing of the regular suit. The learned counsel for the appellants has failed to show any such case law or to point out any such mistake which may warrant interference in the arbitral award or in the order of the District Judge.
In view of the aforesaid observations, to our view there is no mistake either in the order of the Arbitrator or in the order of the District Judge while disposing of the application under Section 34 of the Arbitration and Conciliation Act, particularly in a situation when the appellants themselves have admitted the liability to pay the amount and now they are defenceless to dispute their liability. State of U.P. and Others v. M/s Shiv Enterprises, 2026 (34) LCD 2966
Civil Procedure Code
S. 10- Applicability in view of Section 6 (2) read with Section 83 (5) and (6) of Waqf Act, 1995- Held, Waqf Act being a special enactment would prevail over general procedure prescribed under CPC
There is no dispute that the procedure as prescribed under C.P.C. is applicable to proceedings before the Wakf tribunal by virtue of Section 83(5) & (6) but the procedure prescribed under C.P.C. is of a general nature. The Wakf Act is a special enactment and the specific provisions therein or procedure prescribed in respect of the proceedings therein would prevail over the general procedure prescribed under the C.P.C.
In view of above provision, the applicability of Section 10 C.P.C. is overshadowed and is rendered meaningless in so far as the proceedings under the Act are concerned. The purpose/object behind Section 10 C.P.C. is to avoid parallel proceedings and conflicting decision in two suits of similar nature between the same parties. The said object of Section 10 C.P.C. can be achieved by consolidating or clubbing the two suits of the same nature in respect of the same property which would avoid conflicting decision and leading of evidence independently in both the suits. Mirza Saleem Beg @ Mirza Saleem v. Waqf Tribunal Rampur And 8 Others, 2016 (34) LCD 2977
Sec. 24 – Transfer of Appeal – From court of Additional District Judge, Etah to some Court of competent concurrent power to transfer of cases upon the High Court and District Judge The order passed under Section 24 C.P.C. is neither appealable nor revisable. It may be subjected to test, if necessary, under Article 227 of the Constitution of India. The aforesaid decision nowhere lays down that once a party has approached the District Judge under Section 24 C.P.C. it cannot file a fresh application before the High Court, rather it specifically lays down that the jurisdiction conferrned under Section 24 C.P.C. is concurrent and that a party filing an application under Section 24 before the District Judge may approach the High Court under the same provision. In view of the aforesaid facts and circumstances, there is no bar in moving an application under Section 24 C.P.C. before the High Court for transfer of a case by the same party after lossing in getting it transferred by the District Judge. Amit Pachauri v. Smt. Ram Beti, 2016 (133) RD 712 (Alld.HC)
Sec. 100- Second Appeal- Substantial question law- Dismissal of Appeal on merit in absence of appellant –Validity of
This second appeal has been filed under Section 100 C.P.C. against the judgment and decree dated 28.11.2013 passed in Civil Appeal No. 76 of 2011; Jiya Lal & others Vs. Ayodhya & another by which the 1st appellate court under Section 96 C.P.C. has dismissed the appeal preferred against the judgment and decree dated 18.10.2011 passed by the Civil Judge (J.D.), South, Unnao in Civil Suit No. 77 of 2010. The appeal has been admitted vide order dated 25.2.2014 on the following substantial question of law:
(a) Whether appellate court was justified in dismissing the appeal on merits in the absence of appellants on the face of Order 41 Rule 17(1) explanation?
The perusal of Order 41, Rule 17 C.P.C. clearly indicates that where on the day fixed or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called for hearing, the Court may make an order that the appeal be dismissed. The explanation to Order 41, Rule 17 (1) C.P.C. provides that nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits. The explanation to Order 41, Rule 17 (1) C.P.C. clearly makes that the appellate Court has to dismiss the appeal for non-prosecution and in default in case no one has appeared on behalf of the appellant to press the appeal on merits. Jiya Lal and others v. Ayodhya and Another, 2016 (34) 3090
O. 6 R. 17- Amendment of pleadings- Applicability of- Provisions of O. 6, R. 17 are not within powers of Tribunal but opportunity of hearing of driver of vehicle on cause cannot be compromised From a plain reading of statutory provisions, it is evident that Order VI Rule 17 is not applicable in so far as the proceedings of Motor Accident Claims Tribunal are concerned but whether such a power can be read within the ambit of inherent powers under Section 166 of the Act needs to be considered and decided by the Tribunal independently. The application for recall of order was filed on the premise of notice/opportunity and this grievance certainly does call for an interference inasmuch as, the rule of notice and hearing on a cause is a fundamental principle which cannot be compromised. The finding that amendment does not change the nature of claim could not be recorded without giving notice/opportunity and the learned Tribunal has not dealt with the objection of opportunity raised by the revisionist. In view of the above, challenge to the impugned order dated 30.05.2016 under the supervisory jurisdiction of this Court is made out and the same is hereby set aside, leaving it open to the Tribunal to consider the grievance of the revisionist afresh and decide the recall application in accordance with law within a period of not later than six weeks from the date of receipt of this order. Virendra Yadav V. Ramesh & Anr. 2016 (5) ALJ 744
O. 6, R. 17 – Proviso – Scope of – Amendment cannot be refused on only ground that the matter is old, direction for early disposal In the light of the principles of law laid down by the Hon'ble Supreme Court and this Court and also looking to the nature of the amendment of the pleadings sought to be made in the wirtten statement, Court find that the proposed amendment is legal in nature which does not cause any prejducie to the opposite party land lady. The amendment application cannot be refused only on the ground that the matter is old and there is a direction of this Court to decide the case expeditiously because the Courts are expected justice between the parties and not to go into the technicalities. Ishaq v. Smt. Champa Devi, 2016 (133) RD 121 (Alld.HC)
O. 7, R. 11- Rejection of plaint- Grounds
Order VII Rule 11 CPC provides that the plaint shall be rejected (a) where it does not disclose a cause of action; (b) where the relief claimed is undervalued, and the plaintiff, on being required by the court to correct the valuation within a time to be fixed by the court, fails to do so; (c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law; (e) where it is not filed in duplicate; and (f) where the plaintiff fails to comply with the provisions of Rule 9. Proviso to Order VII Rule 11 CPC provides that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff. Shahnaaz V. State of U.P. and others, 2016 (34) LCD 3070
O. 7, R. 11 (d) – Rejection of plaint as the suit was filed against the minor without appointing guardian on his behalf – Appeal against allowed – Legality of
Therefore, in my view, the suit against the minor could not have been dismissed under the provision of Order VII Rule 11 (d) CPC as the suit itself was not barred by any law but the provisions of Order XXXII Rule 3 CPC provides the manner in which the suit can proceed against the minor.
In such view of the matter, rejection of plaint under Order VII Rule 11 (D) CPC by the trial Court was illegal and the same was rightly set aside by the lower appellate Court. The reasons assigned for setting aside the judgment and decree of the trial Court that no affidavit in support of application (paper no. 91-C) was filed, has no relevance in view of law as applicable in the present case as the plaint could not have been rejected. It is, therefore, not necessary to go into the reasoning given by the lower appellate Court for setting aside the judgment and decree of the trial Court dated 29.3.2013. The present appeal lacks merit and is dismissed accordingly. Ravindra Singh V. Ashish Mani Tripathi, 2016 (133) RD 299 (Alld.H.C.)
O. 9, Rule 13 – Ex-parte decree – setting aside – whether petitioner is entitled to challenge after expiry of 32 yrs. - Held, ―No.‖ Sri Manjiv Shukla, learned counsel for the petitioners has thereafter submitted that in fact joining of the petitioners no.1 and 2 along with late Ram Dutt in moving the application under Order IX Rule 13, CPC on 06.04.1981 was based on wrong legal advise and it is settled law that no person can be made to suffer on account of wrong legal advise given to him. In this respect, I may only observe that even if the application dated 06.04.1981 moved by the petitioners no.1 and 2 along with late Ram Dutt under Order IX Rule 13, CPC was moved on wrong legal advise, the same would not entitle even to petitioners no.1 and 2 to challenge the decree after expiry of a period of 32 years. Once the said application was dismissed in default and if it is presumed that the application was moved on wrong legal advise, that would not lead the court to conclude that the petitioners no.1 and 2 did not have knowledge of the ex-parte decree dated 22.10.1980. I am afraid, since the validity of the said ex-parte decree dated 22.10.1980 could not be challenged on merit through an application under Order IX Rule 13, CPC before the learned trial court or the appellate court. Shirpal Singh Chauhan V. Special Judge, C.B.I. Court No. 4, Lucknow, 2016 (133) RD 66 (Alld.HC)
O.9. R. 13- Setting aside of ex-parte decree of eviction- Consideration of
The petition under Article 227 of the Constitution of India namely Civil Misc. Petition No.2023 of 2016 (Shri Panchayati Akhara Mahanirvani Vaidik Sanatan Bhartiya Dharmik Sanskriti Sansthan v. Ram Prakash Pathak & Anr.) has been filed challenging the judgment and order dated 1.2.2016 passed by the Additional District Judge, Court No.8, Varanasi in SCC Revision No.17 of 2015 (Ram Prakash Pathak v. Nagendra Upadhyay & Anr.) filed by the respondent No.1 whereby the Court below has set aside the order dated 30.5.2015 passed on the Application Paper No.4 Ga under Order IX Rule 13 C.P.C and remanded the matter back to the trial court to decide the said Application on merits after giving due opportunity of hearing to the parties concerned.
The Judge Small Causes Court allowed this application on 17.7.2013 on the premise that the request to furnish the security could be accepted till the date of disposal of the application under Order IX Rule 13 C.P.C. It has failed to consider that under Aricle 123 of the Limitation Act, 1963, the application to set aside ex-parte decree has to be moved within a period of 30 days from the knowledge of the decree. The delay, if any, in presentation of application under Order IX Rule 13 C.P.C. has to be explained in the application itself.
Moreover, as per proviso to Section 17 of the Act, 1887 the decreetal money has to be deposited by the applicant at the time of presentation of application for setting aside the ex-parte decree or in alternative the application can be moved for furnishing security for the performance of the decree. That means the applicant who is seeking an order to set aside the ex-parte decree has to deposit the decreetal money due from him in the Court within 30 days from the knowledge of the decree or move an application under the proviso to Section 17 of the Act, 1887 to furnish security for the performance of the decree.
In case such a condition is not fulfilled, there cannot be any valid presentation of the application for setting aside the ex-parte decree. If there is no valid presentation, the Court cannot assume jurisdiction. The question of entertaining application under Order IX Rule 13 C.P.C. for setting aside the ex-parte decree goes to the root of assuming the jurisdiction by the Court. The Court cannot assume jurisdiction inasmuch as in absence of compliance of such condition, there is no application in the eye of law. The object behind Section 17(1) of the Act is to protect the interest of the landlord from further harassment and to secure/ensure payment of rent and to put the unscrupulous tenant to term to deposit the rent due against him before giving the opportunity of asking for consideration of application for setting aside the ex-parte decree. In the instant case, admittedly the tenant did not move the application under proviso to Section 17 of the Act, 1887 for furnishing of security for a period of more than 30 days from the knowledge of the ex-parte decree and moreover the application under Order IX Rule 13 C.P.C. was not accompanied by a deposit in the Court of the amount due from the applicant under the decree. There is no compliance of any of the conditions provided in the proviso to Section 17 of the Act, 1887 at all before moving the application under Order IX Rule 13 C.P.C. much less the substantial compliance by the applicant-tenant. In view thereof, the order dated 1.2.2016 passed by the Revisional Court namely the Additional District Judge, Court No.8, Varanasi in S.C.C. Revision no.17 of 2015 cannot be sustained in the eye of law. The order passed by the S.C.C. Court dated 17.7.2013 on application 13 Ga passed by the Revisional Court is wholly without jurisdiction. The order dated 15.9.2014 passed by the Revisional Cout in S.C.C. Revision No.21 of 2013, accordingly, cannot be sustained. Panchayati Akhara Mahanirvani Vaidik Sanatan Bharti V. Ram Prakash Pathak And Another, 2016 (5) ALJ 602
O. 20, Rs. 4 & 5 – Scope of Order XX Rule 4, Civil Procedure Code (hereinafter referred to as the 'CPC') states that a judgment of Court shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision. It has been repeatedly held that, a decision, if given, but reasons for decision are not given, judgment would be unsustainable. Further Rule 5 Order XX, CPC states, when issues have been framed, Court shall state its findings or decision, with reasons therefore, upon each separate issue, unless findings upon any one or more of the issues is sufficient for the decision of the suit. State of U.P. through Collector, Bulandshahr v. Ishwari Prasad, 2016 (133) RD 582
O. 21, R. 32- For execution of decree of injunction, remedy for aggrieved party is to invoke forum u/o 21, R. 32, CPC-Contempt petition for this is not maintainable From the language of Order XXI Rule 32 CPC, it does not transpire that proceedings under Order XXI Rule 32 CPC cannot be invoked, once a decree of permanent injunction is satisfied. On the contrary, language is explicit, as it provides that as and when there is a wilful disobedience of a decree, it may be enforced by detention/ attachment or by both as against the party in default. The rationale is that in the event a decree-holder complains of wilful disobedience on the part of a judgment debtor, then the proceedings under Order XXI Rule 32, would involve investigation of facts and leading of evidence, as to whether there is any wilful disobedience or not and only thereafter, a finding can be arrived at as to the wilful disobedience. If so, then penal consequences of civil detention/ attachment of property or both would follow. Thus, this Court has no hesitation in holding that the remedy, if any, for the applicant is to invoke the forum under Order XXI Rule 32 CPC, the instant contempt is not maintainable and is liable to be dismissed. Mangal Das V. Akhand Pratp Singh, D.M. Kaushambi and others, 2016 (5) ALJ 758
O.21, R. 97-Execution proceeding- Objection under Order XXI, Rule 97 CPC-Objection rejected-Court below without adjudicating the rights of the parties rejected objection-Plea of- Held-the plea raised decided by executing Court by a speaking and reasoned order-Rejection proper. The intention of Order XXI Rule 97 read with Rule 101 CPC is that the question which has arisen should be decided by the executing court. In the present case, the said question has been decided by the executing court by a speaking and reasoned order and the executing court has come to the conclusion that the boundaries of the property of the petitioner and entirely different from the boundaries of the property in original suit no. 378 of 2002. Bahadur Husain @ Kalloo Vs. A.D.J. Room No. 5 Lko. & Ors., 2016 (3) ARC 624.
Os. 21and 22- Execution proceeding- of decree passed in SCC suit- Substitution on death of judgement debtor- Allowed-There is no provision prescribing time for bringing on record the heirs and legal representatives of any deceased party to the execution or for the abatement of the proceedings- No necessity for moving any application seeking condonation of delay for the purposes of substitution-Allowing proper.
In view of the aforesaid facts and circumstances, as the provisions or Rule 3 and 4 of Order XXII C.P.C. are not applicable to execution proceedings and there is no provision prescribing time for bringing on record the heirs and legal representatives of any deceased party to the execution or for the abatement of the proceedings, there was no necessity for moving any application for seeking condonation of delay for the purposes of substitution and the petitioner could have been brought on record at any time, notwithstanding the time gap between the death of the party and the filing of the application.
Accordingly, I find no merit in this petition and the same is dismissed with no order as to costs. Jamuna Prasad Vs. Thakur Ji Mahamaya Devi Virajman Temple and 3 Ors, (2016(3) ARC363
O. 26. R. 9- Appointment of Commission- In appeal filed against dismissal of suit for permanent injunction- Refusal of request of party to appoint Commissioner to make local investigation in appropriate case- Amounted to failure of exercise of jurisdiction vested in Court- Party could not be prevented from adducing best evidence if such evidence could be gathered with help of Commissioner Facts, as submitted by Sri Rama Shanker Singh, learned counsel for the petitioner, are that in the city of Lucknow there is a agricultural property recorded in the revenue record as Khasra No.222 area 0.569 hectare in village Tewaripur, Pargana Mahona, Tehsil Bakshi-Ka- Talab, District Lucknow, owned by one Smt.Satyana. On 27.5.1985, she executed sale-deed in favour of Ram Khelawan and Guddu in respect to the said property. Thereafter on 27.4.2001 Guddu transferred his half share through registered sale-deed in favour of M/s Shama Sahkari Awas Samiti Limited and on 9.6.2003 Sri Ram Khelawan transferred his half share in favour of petitioner's society/ New Meena Sahkari Awas Samiti Limited, accordingly, land was mutated by order dated 31.3.2005 passed by competent authority in favour of petitioner's society as well as M/s Shama Sahkari Awas Samiti Limited.
Sri Rama Shanker Singh, learned counsel for the petitioner further submits that said societies in pursuance of its aims and objects allotted various plots to its members. However, the petitioner's society did not allot a plot of land measuring 4400 sq. ft. over which one small room was constructed by the petitioner's society for its office use. As the defendants and their agents are trying to interfere in peaceful possession of the petitioner's society over the piece of land measuring 4400 sq. ft., at Khasra No.222, so on 18.7.2005 , so a Regular Suit No.487 of 2005 has been filed for restraining the respondents no.2 and 3
On 26.10.2015 defendants filed written statement thereafter parties led their evidence. By order dated 15.11.2010 suit filed by the petitioners was dismissed, the same was challenged by filing Regular Civil Appeal NO. 170 of 2010 .
During the pendency of appeal before opposite party no.1/ Additional District Judge, Court no.2, Lucknow on 15.2.2012, petitioner moved an application under Order 26 Rule 9 CPC supported by an affidavit for appointment of commission to which an objection has been filed by respondents/ defendants.
By order dated 21.3.2012, opposite party no.1 / Additional District Judge, Lucknow rejected the same, challenged in the present writ petition.
In the case of Haryana Waqf Board vs. Shanti Sarup and others (2008) 8 SCC 761, Hon'ble the Supreme Court held as under :-
"It is also not in dispute that even before the appellate court, the appellant Board had filed an application for appointment of a Local Commissioner for demarcation of the suit land. In our view, this aspect of the matter was not at all gone into by the High Court while dismissing the second appeal summarily. The High Court ought to have considered whether in view of the nature of dispute and in the facts of the present case, whether the Local Commissioner should be appointed for the purpose of demarcation in respect of the suit land." Accordingly, the Court cannot prevent a party from adducing the best evidence, if such evidence can be gathered with the help of a Commissioner. Refusal of the request of the party to appoint a Commissioner under Order 26 Rule 9 CPC to make a local investigation in an appropriate case amounts to failure of exercise of jurisdiction vested in it. In this view of the matter, court find that the impugned order cannot be sustained and the action on the part of appellate court, rejecting the prayer of the petitioner/ plaintiff for issue of commission most probably will produce error or defect in the decision of the case on merits. Therefore, the impugned order dated 23.2.2012 passed by opposite party no.1/ Additional District Judge, Court no.2 Lucknow liable to be set aside. New Meena Sahkari Awas Samiti V. Addl. District Judge Ors., 2016 (6) AWC 5988
O.32, R.3, O.7, R.11(d)—Suit against minor—Is not barred by law—Plaint cannot be rejected on that ground Suit against the minor by itself is not barred but the provisions of Order XXXII, Rule 3 CPC provides the manner in which the suit will proceed against the minor after the Court is satisfied about the minority and thereafter the steps to appoint guardian either on behalf of the plaintiff or even on behalf of the minor will proceed. Therefore, the suit against the minor could not have been dismissed under the provision of Order VII, Rule 11 (d) CPC as the suit itself was not barred by any law but the provisions of Order XXXII, Rule 3, CPC provides the manner in which the suit can proceed against the minor. Ravindra Singh V. Ashish Mani Tripathi, 2016 (6) ALJ 660
O. 32, R. 3(2) and (4) – Scope of
A perusal of Order XXXII, Rule 3 clearly indicate that a suit can be filed against the minor and if the Court is satisfied that where the minor is defendant, shall appoint a person to be guardian for the suit for such minor. Sub0rule (2) of Order XXXII, Rule 3 provides that an order for the appointment of a guardian for the suit may be obtained upon application in the name and on behalf of the minor or by the plaintiff. Sub-rule (3) of Order XXXII, Rule 3 provides that for appointment of guardian, an application can be made either on behalf of the minor or by the plaintiff and order can be obtained for appointment.
This provision clearly indicates that the suit against the minor is not barred and even a minor can apply for appointment of guardian who may pursue the suit before the Court on his behalf. The provision of sub-rule (4-A) of Order XXXII, Rule 3 , CPC may also be taken into account, which clearly provides that the Court may, in any case, if it thinks fit, issue notice under sub-rule (4) to the minor also. This clearly indicates that the suit against the minor by itself is not barred but the provisions of Order XXXII, Rule 3, CPC provides the manner in which the suit will proceed against the minor after the Court is satisfied about the minority and thereafter the steps to appoint guardian either on behalf of the plaintiff or even on behalf of the minor will proceed. Ravindra Singh V. Ashish Mani Tripathi, 2016 (133) RD 299 (Alld.H.C.) O. 39, R.1- Temporary injunction application-To restrain appellant/defendants from interfering in possession of plaintiff/respondent in suit for permanent injunction-T.I. granted-Plaintiffs claimed to be put in possession on basis of two unregistered sale deed- If the document is unregistered then it could not be used for showing that it created, declared, assigned or extinguish a right to immovable property-The term collateral purpose could not permit the party to establish any of these acts from the deed-Order XXXIX, Rule 2 sub-rule(2) proviso(a) CPC reveals that Temporary Injunction shall not be granted where no perpetual injunction could be granted in view of provisions of section 38 and 41 of Specific Relief Act, 1963-Grant of T.I. improper. This proposition is correct that if a document is invariably registrable and has not been registered, it will be admissible in evidence only for collateral purposes but collateral purpose has a limited scope and meaning. It cannot be used for the purpose of saying that the deed created or declared or assigned or limited or extinguish the right to immovable property. If the document is unregistered then it could not be used for showing that it created, declared, assigned or extinguish a right to immovable property. The term collateral purpose could not permit the party to establish any of these acts from the deed. A bare perusal of Order XXXIX Rule2, Sub Rule(2) proviso(a) C.P.C. reveals that temporary injunction shall not be granted where no perpetual injunction could be granted in view of provisions of Sections 38 and 41 of Specific Relief Act, 1963. Vinod Kumar and 3Others V. Sudha Land Ventures And Homes Pvt. Ltd., 2016 (3) ARC 729
O. 39 Rs. 1 and 2 –Temporary Interim injunction –Entitlement – Grounds –Prima Facie Case- Balance of convenience- Irreparable Injury- Proof –Necessity- Held, necessary for grant of interim injunction against the property in dispute
While considering the application for grant of temporary injunction under Order 39, the Court is to see that the main objective of grant of temporary injunction is to protect the rights of a party pending litigation and also to prevent future injury leaving the matter as far as possible in status quo until the suit is finally heard and the rights of the parties are finally determined. Though various principles have been laid down for the grant of temporary or interim injunction, but the Court must take into consideration three important conditions for the grant of temporary or interim injunction i.e.,
(i) Prima Facie Case ; (ii) Balance of Convenience ; and (iii) Irreparable Injury From the foregoing discussion, it is manifest that before an order of temporary or itnerim injunction is passed a party has to prove the existence of the above three important ingredients. But, ultimately it is for the Court to decide as to whether , in the facts and circumstances of the case, it is necessary to protect the property, which is the subject matter of the suit from being damaged. Smt. Sushila Suri V. Dr. Susheel Suri and others, 2016 (34) LCD 2610 O. 41, R. 2- Held, New plea cannot be permitted to be taken directly in Second Appeal
Rule-2 of Order XLI CPC provides for the grounds which may be taken in appeal. It lays down that the appellant shall, not except by leave of the Court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal. Therefore for this reason also the new plea of the rights of plaintiff-mortgagors cannot be permitted to be taken directly in second appeal. In absence of such plea before first appellate court, appellant had no right to argue on this point even before first appellate court then permitting him on such point in second appeal directly for admission of appeal may cause prejudice to rights of respondents. Heera Lal and Others V. Chhedi Lal and others, 2016 (34) LCD 2924
O. 41, R. 21- Allahabad High Court Rules, 1952- Chapter IX, Rule 17 (2) –Recall of order- Application for- High Court had remitted matter on question of limitation and had not precluded court below to consider any other issue as preliminary issue if the same could otherwise be legally treated so and decided –Validity of
This application under Order XLI Rule 21 of Code of Civil Procedure read with Chapter IX Rule 17 (2) of Allahabad High Court Rules, has been filed for setting aside the order/judgement passed by this Court on 17.8.2016 in the present first appeal. With regard to the nature of dispute involved in the First Appeal being a pure question of law, the Court proceeded to decide the same by remitting the matter back to the court below for consideration of the issue of limitation afresh by putting the parties to a notice in the light of observations made. In effect, none of the parties was put to any prejudice insofar as the rule of opportunity is concerned. The application for setting aside the ex- parte judgement is also not questioned on any such prejudice being caused but a legal question as to the very maintainability of first appeal against an order passed under Section 27 of the U.P. Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961, has been raised in the application seeking to recall/ set aside the order so passed. Smt. Shobhawati V. Sudhir and othrs, 2016 (6) AWC 6253
O.41, R.31—Non-framing of point of determination—Effect of— Mere formal non-framing of point of determination would not adversely affect judgment because it would not prejudice any legal right of appellant There is only dispute between the parties as to whether disputed sale- deed was result of fraud committed against plaintiff by defendant or not. This is not a question of law but a question of fact that can be decided on the basis of evidences, as has been held by two courts below. Thus it is clear that in every case, non-compliance of provisions of Order 41, Rule 31, CPC may not result in vitiation of judgment. If substantial compliance of this provision of Order 41, Rule 31 has been made and actually point of determination has been taken and decided, then mere formal non-framing of point of determination would not adversely affect the determination because it would not prejudice any legal right of appellant. Suresh Giri vs. Lal Guddan Giri, 2016 (6) ALJ 757
Constitution of India Art. 21- Detention of girl in Nari Niketan against her wish would violate her right vested U/s 21 of Constitution of India
A girl should be housed in Nari Niketan only as last resort in case she has no other place to live. Liberty of petitioner had been curtailed by confining her in Nari Niketan so impugned order quashed direction to respondent No. 2 to release petitioner forthwith to allow her to go as per her fee will. Mohini Gupta through her husband Dilip Sharma v. State of U.P. and others, 2016 (5) AWC 5185
Art. 227-Petition against a finding-Recorded by Appellate Court while dismissing appeal on merits-Appellate Court recorded a finding the suit property a not waqf property rather it was the property owned by ‗x‘ who succeeded this property in his personal capacity- justification of-Appellate Court committed a material illegality in recording finding on the question of waqf-If the finding allowed to sustain would cause material injustice to the person who are interested in the waqf without adjudication of the real issue in dispute-Approach of the Appellate Court absolutely misguided against settled principles of law hence set aside. Referring to the abovenoted judgments and the pronouncements of the Apex Court in Satyanarayan Laxminarayan Hegde vs. Mallikarjun Bhavanappa Trimuale, AIR 1960(SC) 137 and Hari Vishnu Kamath vs. Ahmad Ishaque, AIR 1955(SC) 233, it is submitted that an erroneous decision where the error is not being an cannot assume appellate power to correct any mistake of law. It may be an erroneous decision but cannot be corrected by the High Court in exercise of supervisory jurisdiction under Article 227 of the Constitution of India. However, where there is a question of assumption or excessive jurisdiction or refusal to exercise jurisdiction or any irregularity or illegality in the procedure or any breach of any rule of natural justice, the Court can interfere. In view of the above discussion, in the facts and circumstances of the case, it is held that the appellate court had overreached its jurisdiction in arriving at a finding that the waqf was not in existence as it was cancelled by a registered deed of cancellation executed by the waqf. This approach of the appellate court is absolutely misguided, against the settled principles of law. In order to advance the ends of justice the power under Article 227 of the Constitution of India has to be invoked/exercised in the instant case. Waqf Musammat Sharifan Biwi V. Dr. Prabhu Saran Rajvedi And Others, (2016(3) ARC 765
Court Fee Act Sec. 16 – Legal Services Authorities Act, Ss. 21 and 20(1) – C.P.C., Sec. 89 – Court fee – Refund of – One suit decided by Lod Adalat on settlement then plaintiff would be entitled for refund of court fee paid in suit In Vasudevan Vs. State of Kerala, AIR 2004 Kerala 43, Mudavangadan Abbas Vs. Kurrippurathodi Mayinkutty and others, Court has held that once the suit is decided by Lok Adalat on settlement, then the plaintiff would be entitled for refund of Court Fee paid in suit. By the impugned order Court below has illegally carved out a distinction between the case where the parties voluntary moved an application for reference of dispute to Lok Adalat and where, on possibility of settlement, could referred the matter to Lok Adalat. In view of the aforesaid discussions, the petition succeeds and is allowed. The order of Civil Judge (S.D.) dated 14.03.2016, is set aside. The application of the petitioner for refund of Court Fee paid in the suit is allowed. Smt. Sukhpali Devi v. Civil Judge (Senior Division), Moradabad, 2016 (133) RD 75 (Alld.HC)
Criminal Procedure Code Sec.154-Whether it is necessary to proof FIR in a criminal case and if not, then it is fatal for prosecution case- Held ‗No‘
In the present case an objection has also been raised on behalf of the accused/appellant that, the scribe of the first information report was not examined by the trial court which is fatal for the prosecution case, Hon‘ble Allahabad High Court held, that court does not agree with this argument because in AIR 2002 Supreme Court 1965, (Krishna Manjhi and others v. State of Bihar), it has been laid down that even if the first information report is not proved, it would not be a ground for acquittal, but the case would depend upon the evidence led by the prosecution. Thus, the prosecution has been able to prove its case beyond reasonable doubt against the accused appellant. Prem Singh v. State of U.P., 2016 (6) ALJ 354
Sec. 154-Whether FIR can be register on offence of bigamy (S. 494, IPC) - No
Hon‘ble Allahabad High Court held that, admittedly, the offence under section 494 is a non cognizable offence as mentioned in Schedule-1 of the Code of Criminal Procedure. Section 494 I.P.C. deals with substantive offence of Marrying again during life of husband or wife.....",whereas the procedure for redressal of grievance is provided under section 198 Cr.P.C. Section 198 Cr.P.C. Sub clause ( 1 ) clearly provided no Court shall take cognizance of an offence under Chapter XX of the Indian Penal Code except upon a complaint made by some person aggrieved by the offence.
In view of the provisions referred above, the FIR for the offence of Section 494 I.P.C.which is a non cognizable offence cannot legally be registered under section 154 Cr.P.C.,which clearly deals with information in cognizable cases.
The Code of Criminal Procedure distinctly provides the procedure for redressal of the offences which are defined as cognizable and non cognizable case.
In view of the provisions cited above, the court is of the opinion that the police is not competent to proceed against the petitioner on the basis of the FIR registered with it under section 494 and 120-B I.P.C., under section 154 Cr.P.C. More so Section 198 Cr.P.C. puts a legal embargo for prosecution by any other mode except by way of complaint by the affected person defined in the section itself. Vikrant Sharma and others v. State of U.P. and others, 2016 (6) ALJ 729
Criminal Trial
Chance witness- Reliability
The Hon‘ble Allahabad High Court stated that the principle of appreciation of evidence of a chance witness has been dealt by Hon'ble the Apex Court in the case of Baby and Ors. vs. Circle Inspector of Police, Adimaly in Criminal Appeal no.952 of 2010 decided on 26.7.2016 and it has been propounded that it is a well settled legal principle that the evidence of a chance witness cannot be brushed aside simply because he is a chance witness, but his presence at the place of occurrence must be satisfactorily explained by the prosecution so as to make his testimony free from doubt and thus, reliable.
From the above proposition of law, it can safely be discerned that the concept of a chance witness has been borrowed from other country. The principle is not strictu sensu and is not attracted in the context of our country. More so, the Hon'ble Apex Court has given an illustrative example of a chance witness being a natural witness in the ruling cited above. The Hon'ble Apex Court has further put a safeguard for appreciating the evidence of a chance witness. The evidence of PW 2, who is alleged to be the eye witness as well as a chance witness, is to be scrutinized and appreciated further bearing in mind the above principles of law. Drigpal Singh v. State of U.P., 2016 (97) ACC 698
Easement Act, Sec. 60 – Revocation of licence A license may be revoked by grantor of license, unless licensee executed work of permanent character acting upon licence. Construction of permanent works itself would not render a license irrevocable. Unless such construction made by lincesee in pursuance of licence granted to him. A licensee acting upon lincence, cannot execute a work of permanent construction without specific direction or acceptance of grantor of license for this purpose. Construction of permanent structure without specific direction of grantor. Would not attract provision of section 60 of Easement Act and render license irrevocable. In present case, revocation of licence does not fall within exception of section 60 of Act. Mere serving of notice of termination of licence. Sufficient to terminate licence. No factual or legal error in judgment of first Appellate Court in allowing appeal and decreeing original suit. Appeal dismissed. Chandra Kanta Jawahar Lal Public Charitable Trust v. G. Rohtagi, 2016 (133) RD 716 (Alld. HC)
Evidence Act Admission – Value of – A mere piece of evidence but not conclusive, maker is liberty to prove that they are mistaken or were untrue Supreme Court in Kishori Lal v. Chaltibai, AIR 1966 SC 405, held that admissions are mere pieces of evidence. Admissions are not conclusive, and unless they constitute estoppel, the maker is at liberty to prove that they were mistaken or were untrue. Admission of Bechai in his written statement, having been explained in his oral statement and that explanation has been accepted by that Court. Now the petitioner cannot rely on that admission again. Adya Prasad V. D.D.C., Mirzapur, 2016 (133) RD 4 (Alld.HC)
Sec. 8 - Motive – Importance of motive in the cases which are based on circumstantial evidence
Hon‘ble Division Bench held that it is true that in cases which are based on circumstantial evidence, motive assumes more importance. But its contrary is also true that absence of motive, by itself, cannot a ground to discard the entire case of the prosecution even in cases based on circumstantial evidence. On this point, reference may be made to the pronouncement of Hon'ble the Apex Court in the case of Ujjagar Singh Vs. State of Punjab reported in (2007) 13 SCC 90, wherein Hon'ble the Apex Court in paragraph no. 17 has observed as under:
"17...... It is true that in a case relating to circumstantial evidence motive does assume great importance but to say that the absence of motive would dislodge the entire prosecution story is perhaps giving this one factor an importance which is not due and (to use the cliche) the motive is in the mind of the accused and can seldom be fathomed with any degree of accuracy...... "
Reliance may also be placed in the case of Vijay Shankar Vs. State of Haryana reported in (2015) 12 SCC 644, wherein Hon'ble the Apex Court in paragraph no. 12 has observed as under:- In each and every case, it is not incumbent on the prosecution to prove the motive for the crime. Often, motive is indicated to heighten the probability of the offence that the accused was impelled by that motive to commit the offence. Proof of motive only adds to the weight and value of evidence adduced by the prosecution. If the prosecution is able to prove its case on motive, it will be a corroborative piece of evidence. But even if the prosecution has not been able to prove its case on motive that will not be a ground to throw the prosecution case nor does it corrode the credibility of prosecution case. Absence of proof of motive only demands careful scrutiny of evidence adduced by the prosecution. In the present case, absence of convincing evidence as to motive makes the court to be circumspect in the matter of assessment of evidence and this aspect was not kept in view by the High Court and the trial court." (emphasis added by us) Awadesh Kumar Awasthi v. State Of U.P., 2016 (6) ALJ 306
Sec. 32 - Dying declaration
The Hon‘ble Allahabad High Court held that a dying declaration can form sole basis of conviction, if it is free from any kind of doubt and it has been recorded in the manner as proved under the law, is reliable and gives cogent and plaussible explanation of the occurrence of the events. It may not be necessary to look for corroboration of the dying declaration, as envisaged if a dying declaration is jointly to be recorded by a Executive Magistrate with certificate of a medical doctor about the mental fitness of the declarant to make the statement. Santosh v. State of U.P., 2016 (97) ACC 218
Sec. 68- Will- Nature & Scope- Proof –Manner- Discussed Alleged will dated 11.06.2004 executed by late Sri Govind Ram Suri in favour of appellant-Smt. Sushila Suri was never acted upon and is a fictitious one, not proved by the appellant as per the provisions of Indian Evidence Act, 1872 and Indian Succession Act. In this regard, it is submitted that as per the provisions of Section 68 of Indian Evidence Act, 1872, the will is to be proved by one of the attesting witness, till date Smt. Sushila Suri has not proved the said will, so no benefit can be granted in her favour as the same is surrounded by suspicious circumstances, executed by Sri Govind Ram Suri without free will and it is an outcome of fraud and undue influence. In support of the argument reliance has been placed on the judgment given by Hon'ble the Apex Court in the case of Smt. Yashwant Kaur Vs. Smt. Amrit Kaur and Ors., 1977 (1) SCC 369. Smt. Sushila Suri v. Dr. Susheel Suri and others, 2016 (34) LCD 2610
General Clauses Act
Sec. 27- Service of notice as to termination of tenancy – When deemed to be served?
In this case, notice of demand and termination of tenancy alleged to be duly served on tenant. Letters received back with endorsement ―not met‖ there cannot be presumption that registered letter must be deemed to have been proved. No valid notice issued upon tenant. It cannot be said that tenancy validly terminated entitling landlord to have decree of ejectment. Shiv Narayan Goswami V. Jagdish Prasad Guptal (Died) & Others, 2016 (5) ALJ (NOC)20 (All.)
Indian Penal Code Ss. 307, 323- Essential Ingredients
Hon‘ble Allahabad High Court held that, it is true that merely because the injuries are simple in nature, it cannot be said the offence made out would not fall under Section 307, IPC. It would all depend upon the facts or a given case but intention has definitely to be seen.
It also emerges that the injuries of injured if any, attributed to the appellants were simple in nature and there is not iota of evidence to show that they were sufficient in the ordinary courts of nature to cause the death of the injured. However, in the facts and circumstances of the case if it is difficult to accept that knowledge or intention can be attributed to the appellants about likely death of the victim by causing the injuries. If the intention would have been to kill the injured then something more would have been done. Vivek Kumar Tiwari alias Ashu & another v. State of U.P., 2016 (6) ALJ 460
Indian Succession Act
Ss. 63 & 74 – Suit for decree of ejectment and possession Case of the plaintiff that defendant was in possession of the house as licensee. That 'R' executed a Will in favour of the plaintiff on 27.12.1973 and upon death of 'R', plaintiff became exclusive owner of the suit house. Case of defendant that 'M' executed a Will in favour of defendant and upon a death of 'M' house in suit devolved on defendant and her husband R did not inherit and rights and title in the suit house and 'R' was not competent to execute any Will deed in respect of the suit house. Admittedly suit property belonged to 'M' wife of 'R' who dies issue-less. 'M' died on 15.11.1972 and 'R' dies on 5.11.1973. Defendant failed to prove execution of the Will deed dated 8.11.1972 by 'M' in his favour in accordance with provisions of 63 and 74 of the Act. He also failed to prove her thumb impression over it. Appellant failed to show any infirmity or irregularity in the impugned judgment. Interference with the same declined. Appeal dismissed. Ram Niwas v. Ramesh Chand, 2016 (133) RD 551 (Alld.HC)
Land Acquisition Act
Sec. 17(1) – U.P. Avas Evam Vikas Parishad Adhiniyam, 1965 – Ss. 49. 28 read with 32 – Notification for taking possession – Nature of A notification for taking possession under Section 17 (1) of Land Acquisition Act, 1894 (hereinafter referred to as 'Act 1894') was issued by State Government on 30.01.1987 and possession was taken on 02.07.1988 by Collector and handed over to U.P.A.E.V.P. The issue involved in this writ petition is interpretation and effect of notification issued under Section 49 of Act 1965, and whether the land acquired and vested in the State can stand divested and restored to erstwhile owners if a scheme launched by U.P.A.E.V.P is revoked/cancelled/disbanded by State by issuing notification under Section 49 of Act 1965. In the present case, after notifications under Section 28 and 32 of Act 1965, land sought to be acquired under the aforesaid scheme was authorised to be possessed by Collector, Bareilly under Section 17 of Act 1894 vide notification dated 30.01.1987. Thereafter possession was actually taken and award was given by SLAO. Considering the entire scheme of statute it is clear that a scheme framed and is under execution can be modified, annulled and remitted for reconsideration to U.P.A.E.V.P by State but that will not have the effect of re-writing events which have already occurred and if certain interests and rights have transferred from one person to another, the same would not stand nullified. The effect of notification under Section 49 (1) would be, moreover, prospective only and not retrospective. The land once taken and divested in State and the Board, will not stand divested and notification under Section 49 cannot have such effect. Court have no hesitation on observing that once land is vested in State it shall not be divested and reverted to erstwhile owners. Hence right of owners of acquired land to claim compensation under the award already given would subsist and is enforceable in law. The view, we have taken does not make it necessary for us to quash the notification dated 14.09.2001 issued under Section 49 of Act 1965, but we make it clear, that petitioners shall be at liberty to take steps for claiming compensation by execution of award dated 19.09.1988 whereby compensation of land which was acquired by respondents is payable. The writ petition is disposed of with the aforesaid directions/observations and in the manner as above. Vibhuti Singh Yadav V. State of U.P., 2016 (133) RD 417 (Alld. H.C.)
Sec. 18 – Reference – Dismissed in default – Restoration application for recalling dismissal of default also dismissed in default Application to set aside dismissal order along with delay condonation application rejected by reference Court. Sustainability of order sufficient explanation for not filing restoration application. While deciding delay condonation application Court should take liberal view. Court must see merit of case also as judiciary is respected not on account of its power to legalize injustice on technical grounds. But because it is capable of removing injustice. Length of delay not very material if there is substance on merit. If there had been any slackness on part of applicant and that caused inconvenience to other side. That can be compensated in terms of money and delay can be condoned instead of closing door of justice for ever. Thus, court below erred in rejecting petitioner's application as barred by time. Petition allowed. Impugned order set aside. Delay condonation application as well as seeking recall of impugned order allowed. Direction issued. Naya Bans Saraswari Sahkari Grah Nirman Samiti Ltd. v. State of U.P. through its Secy. Revenue and others, 2016(133) RD 765 (Alld.HC)
Sec. 18- Acquisition of land –Determination of rate of compensation- Land of farmers acquired under subsequent notification similarly situate could not be any less valuable than are determined by court in respect of earlier Notification except for special reasons This bunch of 92 first appeals filed under Section 54 of the Land Acquisition Act, 1894 arise out of common orders of VIII Additional District Judge, Ghaziabad dated 24.3.1993 and dated 30.4.1993 passed by District Judge, Ghaziabad in reference proceedings under Section 18 of the Land Acquisition Act, 1894 eminating from the common award dated 1.2.1991 passed by the Special Land Acquisition Officer, NOIDA. Court find from the record that this bunch of appeals was decided by a Division Bench of this Court vide judgement dated 15.4.2015. The claimants' appeals were partly allowed. 20% deduction made by the Reference Court was held to be bad. The claimants were held entitled for payment of compensation at the rate of Rs. 135/- per square yard as determined by the reference court without deduction. The appeals filed by NOIDA were dismissed. The claimants not being satisfied with the judgment and order of the Division Bench, filed Special Leave to Appeal before the Apex Court which were granted and converted into civil appeals, leading being Civil Appeal Nos. 1506-1517 of 2016, Pradeep Kumar and others vs. State of U.P. and another. The apex court vide judgment and order dated 16.2.2016 allowed the appeals and remanded the matter to the High Court to re-consider the same. Court definitely of the opinion that similarly situated farmers, whose land holding in the same village, has been acquired under subsequent notifications, would be entitled to the benefit of the rate which had been determined by the High Court in respect of earlier notification. The land of the farmers acquired under the subsequent notification similarly situate, cannot be any less valuable than the one determined by the Court in respect of earlier Notification, except for special reasons. It is settled law that the compensation under the Act 1894 has to be fair and just. Fairness requires that all those similarly situate are treated similarly. Techenalities qua rate as per exemplers filed by poor farmers, who are illeterate, has to be given only such importance as may not defeat their right of fair and just compensation qua compulsory acquition of land holdings. Pradeep Kumar v. State of U.P. and another, 2016 (5) AWC 5050
Sec. 18 - Jurisdiction of court - References – Only valid reference gives jurisdiction to the court, collector has no power to make a reference where application is moved beyond the prescribed perusal If application is moved beyond the prescribed period under Section 18 of the Act, the Collector will not have power to make a reference. It is duty of the Collector to decide whether the application presented by the claimant is or is not within time. Even if a reference is wrongly made by the Collector the Court will have to determine the validity of the reference because its jurisdiction to hear a reference depends on the fact that a proper reference is made to it. If the reference is not proper, there is no jurisdiction in the Court to hear the reference. It goes on to say further that it is the duty of the court to see that the statutory conditions laid down in Section 18 have been complied with and it is not debarred from satisfying itself that the reference which it is called upon to hear is a valid reference. It is only a valid reference which gives jurisdiction to the Court and, therefore, the court has to ask itself the question whether it has jurisdiction to entertain the reference. In deciding the question of jurisdiction in a case of reference under Section 18 by the Collector to the Court, the Court is certainly not acting as a Court of appeal; it is only discharging the elementary duty of satisfying itself that a reference which it is called upon to decide is a valid and proper reference according to the provisions of the Act under which it is made. That is a basic and preliminary duty which no tribunal can possibly avoid. The Court has, therefore, jurisdiction to decide whether the reference was made beyond the period prescribed by the proviso to sub-section (2) of Section 18 of the Act and if it finds that it was so made decline to answer the reference. The question as to what would be the date of award has been set at rest. The Supreme Court in State of Punjab vs. Mst. Qaisar Jehan Begum and another7 has held that the date of award means date of knowledge of award. Full knowledge of the award does not mean a mere knowledge of the fact that an award has been made. The knowledge must relate to the essential contents of the award which may be either actual or constructive. Dhani Ram V. State of U.P., 2016 (133) RD 92 (Alld.HC)
Sec. 24 (1) (a) –Acquisition of land –Compensation – Determination of
The petitioners' father Kashmira Singh was the original tenure holder of the land in question being Khasra No. 311-M measuring 0.8350. The name of Kashmira Singh was recorded in the revenue record. Upon his death, petitioners' name was recorded in the Khatauni of 1420 Fasli to 1425 Fasli. The petitioners' land was acquired sometimes in the year 1974-75. Pursuant to Notification issued under Sections 4 and 6 of the Land Acquisition Act, objections were filed by the petitioners which was rejected. For reasons best known to the respondents the award insofar as the petitioners are concerned, was not made under Section 11 of the Land Acquisition Act. The award of the co-sharers was however made. The petitioners were forcibly dispossessed from the land in the year 2014. Being aggrieved by this forceful dispossession, the petitioners filed Civil Misc. Writ Petition No. 52791 of 2014 which was disposed of by an order dated 07.10.2014 directing the petitioners to make a representation before the Collector, Muzaffarnagar who would decide the same by a reasoned and speaking order. The petitioners made a representation which was disposed of by an order dated 18.2.2016. The Collector, in its order, admitted that the land of the petitioners has been acquired and that neither the award has been made nor compensation has been paid. It has also been indicated that compensation was kept in the revenue deposit. The Collector has further directed the Special Land Acquisition Officer, Muzaffarnagar to determine the compensation by taking the market value of the land as existed in the year 1981 which was the date when the respondents deposited the amount in respect of other land holders in the revenue deposit.
In the instant case, the notification was issued under the Act of 1894 which has now been repealed. The question that arises for consideration as to what would the appropriate date for determination of the market value of the land in question. As per impugned order, the Collector has directed the Special Land Acquisition Officer to determine the market value of the land on the date when the compensation was deposited in the revenue deposit. Prima facie this direction appears to be arbitrary. Court found that under Section 113 of the new Act, the Central Government has the power to make such provision or give such direction in case any difficulty arises for implementation of the Act. Prahlad Singh and others V. State of U.P. and others, 2016 (6) AWC 5672
S. 54 – Appeal against order of refusal to entertain the reference – Maintenability In Bhagwan Das (supra), a question came up for consideration before the Apex Court as to whether an appeal would lie under Section 54 of the Act against the order or award refusing to make a reference. It was held that the orders of Collector are merely acts of a statutory authority in exercise of statutory functions and are not adjudicatory in nature. Such orders are not awards. The Land Acquisition Collector is not a Court nor his order, an award of the Court. Section 54 of the Land Acquisition Act does not provide for appeals against the awards or orders of the Collector. Thus the order of the Collector refusing to refer a claim for making reference is not a appealable under Section 54 of the Act. Considering this principle, it may be noted that in the present case the Collector in fact did not make reference after examination of the application on the question of limitation prescribed for making it under the Act. The reference was made subject to the question of limitation which was required to be examined by the Collector himself. The Civil Court on such a reference was required to be examined further as to whether the reference was made strictly applying the terms and conditions of Section 18. Dhani Ram V. State of U.P., 2016 (133) RD 92 (Alld.HC)
Ss. 54, 5-A, 6 and 17 – Acquisition of land - Nature of ―Nazul‖ is a land vested in State for any reason whatsoever that is cession or escheat or bona vacantia, for want of owner or for any other reasons and once belong to State, it will be difficult to assume that State would acquire its own land. Examining acquisition notifications assailed in this writ petition, court found that though Collector made recommendation that land being 'Nazul'. The lease rights and other existing rights thereon of private parties need be acquired by notifications issued under sections 4 and 6 show that the same proposed to acquire land itself, details whereof are given in said notifications. In view of law laid down in the State of U.P. v. Lalji Tandon (supra) the aforesaid acquisition notifications, therefore, cannot be held valid hence are bad in law. Now court come to second question, whether there existed circumstances so as to dispense with inquiry under section 5-A by invoking provisions of section 17 of Act 1894. The only reason given is that land was required for housing scheme which was in pubic interest and construction of house was an urgent need. In this regard, Court may refer to a few dates which we have already discussed in detail above. ADA made request to Collector, Allahabad for acquisition of land on 31.7.1986. Collector took about four months time in sending recommendation to Government for acquisition vide letter dated 14.1.1987. State Government then too 7 months and more time in publishing initial notification under section 4 on 19.8.1987 and this exercise, therefore, had taken more than a year in its entirety. If a few weeks or one or two months would have been taken in making inquiry under section 5-A of Act, 1894, court did not find as to what prejudice it would have caused to respondents. When respondents could have availed luxury in completing process of request and initial notification extending to 13 months, court find it difficult to hod that there was such an urgency so as to invoke exceptional power under section 17 and dispense with inquiry under section 50-A. Time and against, it has been held that inquiry under section 5-A should not be dispensed with lightly. Considering the facts of this case as discussed above and also exposition of law, court is satisfied that there existed not such urgency so as to justify exercise of power under section 17 for dispensation with inquiry under section 5-A of Act, 1894 and impugned notifications, therefore, in so far as inquiry under section 5- A has been dispensed with are vitiated in law. Though in written submissions already filed by petitioners, they have raised three more ground namely discrimination, non- publishing of notices in newspapers having wide circulation and that purpose would not be achieved by acquisition of impugned land in dispute but during course of oral arguments advanced in Court, only these two issues have been framed, hence it is not necessary to look into other ground taken in written arguments. Sita Ram Jaiswal V. State of U.P., 2016 (133) RD 305 (Alld.H,C.)
Limitation Act
Section 5—Restoration application—Delay in filing—Application cannot be decided on merits unless delay is condoned In the instant case, Court find substance in the submissions of learned counsel for the petitioner as once the application under Section 5 of Limitation Act was filed, the restoration application could be decided on merit unless the delay was condoned and the application filed under Section 5 of Limitation Act was allowed or the finding was recorded to the effect that there was no need of filing Section 5 application and the application was within time. Here in this case, admittedly, the recall application was barred by time and it was accompanied with an application for condonation of delay, therefore, unless the delay was condoned, the recall application could not have been decided. Sunil Kumar vs. State of U.P., 2016 (6) ALJ 626
Art. 64—Adverse possession—Declaration of tile on basis of adverse possession—Cannot be claimed by trespasser A trespasser cannot get relief available to owner, against real owner, on the basis of adverse possession. In case of long continuous adverse possession, the owner may be deprived of his legal right to get back his possession from the trespasser because his such right to get such remedy would be time barred. In such circumstances, right of ownership would exist and continue, but his remedy may be barred by law of limitation. In other words long uninterrupted adverse possession of a trespasser may bar the remedy to owner if he seeks it against trespasser after the lapse of period of limitation. In such situation also his right exists but remedy is barred by law of limitation. The unauthorized possessor of any property may have good title against all the other persons but not against the true owner. Therefore, in any case if the trespasser is in wrongful possession, he cannot succeed in the legal proceedings for the relief of declaration or recognition of title in garb of permanent injunction against real owner. Plea of acquiring any right or title of trespasser on basis of adverse possession, against the true owner, can be raised only in defence as defendant. In the instant case, plaintiff-respondents have claimed their right on disputes property as owner, on basis of plea of long adverse possession, which they have failed to prove. Therefore their original suit and the first appeal was rightly dismissed. U.P. Awas Evam Vikas Parishad vs. Prem Prakash Sharma, 2016 (6) ALJ (NOC) 54 (All)
Practice & Procedure
Judgment/Order –Mentioning of wrong provision – Validity of
Consolidation Commissioner has noted that impugned order was passed exercising powers under Section 48 (3) of the Act, as the report of joint committee was forwarded by Deputy Director of Consolidation to Consolidation Commissioner. In fact, he canceled Provisional Consolidation Scheme framed under Section 19-A of the Act. Provisional Consolidation Scheme can be canceled by Consolidation Officer and Settlement Officer Consolidation under Section 21 (4), while deciding chak objections and appeals. It has to be confirmed by Settlement Officer Consolidation under Section 23 (1) of the Act, which necessarily includes power to cancel it. Section 23 (1) does not contemplate for opportunity of hearing to the chak holders. Powers under Section 23 (1) of the Act can be exercised by Consolidation Commissioner also in view of Section 44-A of the Act as held by this Court in Jaga Vs. Deputy Director of Consolidation, 1984 RD 176. Consolidation Commissioner, after considering the complaint of respondent-2 and report of joint committee found that gross illegality had been committed in framing Provisional Consolidation Scheme. Due to mentioning wrong provision, the order can not held as illegal, as Consolidation Commissioner has otherwise jurisdiction to pass the order. Ram Dawar Yadav and others v. Chakbandi Ayukt and another, 2016 (34) LCD 3074
Instructions/Guidelines- Object & Scope-Held, the instruction/ guidelines have been framed with a view to implement the rules in a just and fair manner
The instructions/guidelines have been framed with a view to implement the rules in a fair and just manner and also with a view to mark promotion process workable by implementing the rules. The guidelines/ instruction consisted of several situations and they are supporting and having been issued in pursuance to the rules and as such they are liable to be adhered by the opposite parties. Jagnaysk Singh Gautam v. Union of India and others, 2016 (34) LCD 2714
Provincial Small Cause Courts Act
Ss. 15, 17—Civil P.C., O. 14, R. 1—Proceedings before Small Causes Court—Nature of The settlement of issues or the points of determination prior to the judgment and making them known to the parties expressly would frustrate the purpose of summary trial and make it a trial of regular civil suit. Accordingly, neither the settlement of issues nor the formulation of the points of determination prior to writing & pronouncement of the judgment is mandatory in a small cause suit of a summary nature. Heera Kak Chaurasiya vs. Pradeep Kumar Chaudhary, 2016 (6) ALJ 268
Sec. 17- Object & Scope The object behind Section 17 (1) of the Act is to protect the interest of the landlord from further harassment and to secure/ensure payment of rent and to put the unscrupulous tenant to term to deposit the rent due against him before giving the opportunity of asking for consideration of application for setting aside the ex-parte decree. Sri Panchayati Akhara Mahnirvani Vaidik Snatan Bharti v. Ram Prakash Pathak and another, 2016 (34) LCD 2738
Sec. 25-Recall application-Against order striking off defence- Rejected-The recall application apart from assigning reason for his absence does not state that he was unable to instruct his counsel-It does not assign any reason for the non-appearance of the Counsel-Rejection proper. The said application apart from assigning reason for his absence does not state that he was unable to instruct his counsel. It does not assign any reason for the non-appearance of the counsel. There is no reason or material on record that why the counsel could not file the written statement despite time allowed for the purpose several times in past. Jaideep Bajpai Vs. Sanjeev Kumar Pandey and Another, (2016(3) ARC 572
Sec. 25- ‗Case decided‘- Meaning of- Refusal to allow amendment would not came within meaning of ‗Case decided‖ u/s 25
As far as the plea regarding the maintainability of the present petition is concerned, this Court is of the view that in the instant case, the refusal of amendment would not fall within the meaning of "case decided" under section 25 of the Provincial Small Causes Court Act. The lis between the parties namely the landlord -tenant relationship is still to be decided by the Court below on the basis of evidence of the parties. The Court below has examined the plea of the parties only to reach a conclusion as to whether amendments are necessary or malafide. Any observation made by it regarding merits of the averments in the written statement is not going to affect the rival claim of the parties in the suit.
For all the above noted reasons, this Court is not inclined to interfere in the rejection order of the amendment application passed by the trial Court. Abdul Ahmad V. Haq Nawaz Ahmad, 2016 (5) ALJ 750
Registration Act
Registration –Remained on paper and accepted after it was withdrawn- Letter of withdrawal was duly served- Validity of- Registration can be accepted so long as it is not withdrawn.
Petitioner, who was an Assistant Accountant in U.P. Forest Corporation, submitted resignation on 28th October, 1986. Regional Manager, who was the competent authority, has unconditionally accepted resignation on 30th December, 1998, which is under challenge in the present writ petition. Petitioner contends that he had already withdrawn his resignation on 28.2.1996, which was acknowledged by the Corporation vide letter dated 7.9.1998, and therefore, resignation could not be accepted, once it stood withdrawn. So far as legal proposition with regard to resignation and its acceptance are concerned, the same is settled. Clause 23 of the U.P. Forest Corporation General Service Regulation, 1985, which has been extracted above, provides that resignation will not become effective till it is accepted by the competent authority. The resignation submitted by petitioner on 28.10.1986 remained on paper, and was not accepted till it was withdrawn on 28.2.1996. It is not in dispute that letter dated 28.2.1996 was duly served. Once the resignation was withdrawn by petitioner prior to its acceptance by the competent authority, it was not open for the respondents to have accepted the same, vide order impugned dated 30th December, 1998. This is particularly so, as the offer on part of petitioner to sever the contract of employment was not subsisting on the date when it was accepted. The acceptance of resignation, therefore, was incompetent. Even otherwise, law is settled that resignation can be accepted, so long as it is not withdrawn. Dinesh Prasad Chaurasia V. Managing Director, U.P. Forest Corporation and others, 2016(5) AWC 5415
Ss. 17 and 49- Unregistered tenancy/ Lease deed- Admissibility of in evidence- Unregistered tenancy/ Lease deed which was bases of suit was indivisible in evidence.
In this case, following substantial question of law was framed in the present appeal:-
"Whether basis of Original Suit, namely, the unregistered tenancy/lease deed dated 29.4.2001, was inadmissible in evidence and the judgement of the first appellate court relying on it is erroneous and perverse, if so, its effect?" So both the courts below have fallen in error in relying on the agreement dated 29.4.2001 and deciding the case on its basis. Agreement is unregistered. So plaintiff cannot base its case upon this unregistered agreement. Consequently, appellate court committed illegality in decreeing the suit on the basis of the misinterpretation of the clauses of agreement which could not be read in evidence at all. In the light of the above, this Court answers the substantial question of law in this way that unregistered tenancy/lease deed dated 29.4.2001 which was basis of the original suit was inadmissible in evidence and the judgement of the first appellate court relying on it, is erroneous and perverse and is liable to be set aside. Ved Prakash V. Kanhaiya Lal, 2016 (5) AWC 5190
Service Law
Compassionate Appointment- Object & Scope
It is also a well settled law that the appointment on compassionate ground is not a vested right and a person cannot claim appointment as a matter of right, but it is the exception under the service jurisprudence and under Article 16 of the Constitution where the said exception has been carved out in regard to compassionate and humanitarian ground. The main object of the appointment on compassionate ground is to provide some succour to the family members who are suddenly without any source of livelihood.
What relief can be granted to the petitioner at this distance of time. The petitioner has moved this writ petition without any delay way back in the year 2000. At the time of moving of the writ petition the respondents were granted time to file counter affidavit, however, for the sixteen years no counter affidavit has been filed and this writ petition is lying dormant thus there is no fault on the part of the petitioner.
The Supreme Court in the case of Jahuri Sah and others v. Dwarika Prasad Jhunjhunwala and others1 has held that if there is no specific denial, the averments made in the writ petition shall be accepted as correct. Vinita Sharma v. State of U.P. and Others, 2016 (34) LCD 2662
Compassionate Appointment-Cancellation-Ground of This appeal is filed against the final judgment and order dated 20.12.2013 of the High Court of Judicature at Patna in L.P.A. No. 758 of 2013 whereby the Division Bench of the High Court dismissed the appeal filed by the appellant herein against the order dated 08.11.2010 of the learned Single Judge of the High Court in C.W.J.C. No. 5713 of 2006 in which it was held that the appellant being the brother of the deceased was not entitled to claim compassionate appointment. His services were, therefore, terminated on this ground. Keeping in view the peculiar undisputed facts of the case and having regard to the totality of the circumstances, we are of the considered view that the State was not justified in terminating the appellant's services. In other words, the ground on which the appellant's services were terminated by the State after a period of 15 years of appellant's appointment does not appear to be well founded. This we say for the following reasons: Firstly, the appellant and wife of the deceased at the time of seeking compassionate appointment did not conceal any fact and nor filed any false or incorrect document/declaration. On the other hand, both of them disclosed their true family relations and conditions prevailing in the deceased family on affidavit. Secondly, the appellant, who is the brother of the deceased, undertook to maintain the family of the deceased in the event of his securing the compassionate appointment and he accordingly also gave such undertaking to the State. In these circumstances, we are of the view that there was no justification on the part of the State to woke up after the lapse of 15 years and terminate the services of the appellant on such ground. In any case, we are of the view that whether it was a conscious decision of the State to give appointment to the appellant as we have held above or a case of mistake on the part of the State in giving appointment to the appellant which now as per the State was contrary to the policy as held by the learned Single Judge, the State by their own conduct having condoned their lapse due to passage of time of 15 years, it was too late on the part of the State to have raised such ground for cancelling the appellant‘s appointment and terminating his services. It was more so because the appellant was not responsible for making any false declaration and nor he suppressed any material fact for securing the appointment. The State was, therefore, not entitled to take advantage of their own mistake if they felt it to be so. The position would have been different if the appellant had committed some kind of fraud or manipulation or suppression of material fact for securing the appointment. As mentioned above such was not the case of the State. In the light of foregoing discussion, we allow the appeal, set aside the impugned orders and in consequence allow the writ petition filed by the appellant (writ petitioner) and quash the appellant's termination order dated 23.06.2005 Md. Zamil Ahmed v. The State of Bihar and others, 2016 (34) LCD 3085
Excess payment made to a Government Employee - Recovery- Permissibility of By means of this writ petition the petitioner has come up to this Court challenging the orders dated 23.3.2011 and 1.4.2011 for recovery of a sum of Rs. 1,90,982/-. The said recovery has been initiated on account of wrong fixation of pay of the petitioner. According to the learned counsel for the petitioner and also from the pleadings filed by the parties before this Court, it does not appear that the petitioner in any way manipulated the aforesaid error for his own benefit. If any mistake has been committed, the same has been committed by the Department through their own negligence and no motive can be attributed to the petitioner for such mistake. However, the fact remains that it is a wrong disbursement of public money which has benefited the petitioner and now the question is whether the same is recoverable or not? Learned counsel for the petitioner has relied upon a decision of the Hon'ble Supreme Court in the case of State of Punjab and others Vs. Rafiq Masih (White Washer) reported in 2015(4) SCC 334. The Supreme Court while discussing the earlier judgements delivered on the question has laid down the para meters under which no recovery can be made from the employees belonging to Class III and Class IV or Group-C and Group-D Service and recovery from the retired employees or the employees due to retire within one year of the order of recovery. In the present case, the petitioner appears to be a Group-D Employee and has already retired from service in 2009 and the recovery order has been issued on 23.3.2011, i.e., after his retirement. According to the learned counsel for the petitioner, the amount of Rs. 1,90,000/- and odd is to be recovered from the gratuity payable to the petitioner and after retirement the petitioner claims that he is not in such financial health where he can afford the deduction of about Rs. 2,00,000/- (Two Lacs) from his gratuity. Considering the aforesaid facts and circumstances of the case and also the para meters laid down by the Hon'ble Supreme Court in cases of this kind, the impugned orders cannot be sustained and are, accordingly, quashed. Veer Pal Singh v. State of U.P. and others, 2016 (34) LCD 2940
Constitution of India, Art. 16- Withholding of Pension –When proper?
In this case, Aggrieved by the impugned order dated 23rd July, 2013 passed by the Superintendent of Police, Fatehgarh, District Farrukhabad withholding the regular pension of the petitioner, who is a retired Constable in Civil Police, the present writ petition has been filed. The regular pension of the petitioner has been withheld on the ground that a Case Crime No. 28 of 2009 under sections 224/223 IPC, P.S. Fatehgarh is pending against him and thus, regular pension cannot be granted till conclusion of the criminal case, which is a judicial proceeding. Since, undisputedly the petitioner was found guilty of misconduct and major punishment was awarded to him under Rule-8 of the Act 1991 and Judicial proceedings in a criminal case is still pending against him and as such, court did not find any infirmity in the impugned order. S.P. Hargovind Singh v. State of U.P. and others, 2016 (5) ALJ 512
Constitution of India, Art. 311- Procedural lapses in disciplinary enquiry- Effect of- Respondent held entitled to be reinstated with all consequential benefits
Respondent while posted as Revenue Inspector has entered names of some persons in revenue record on basis of gift deed and made entries to provide undue advantage t0o persons concerned. Direction issued to Disciplinary Authority to initiates enquiry de novo. As per said Rules, enquiry officer had to fix date, time and place for such enquiry. But no such efforts made in second round of enquiry as per directions issued by Tribunal. Hence, resp9ondent held entitled to be reinstated with all consequential benefits. State of U.P. and others v. Karan Singh and another, 2016 (5) ALJ (NOC) 3 (All.)
Constitution of India Art. 311- De novo enquiry- When can be order Court has observed that it can be ordered only for technical ground or procedural lapse on part of enquiry officer in conducting enquiry. De novo enquiry ordered by Disciplinary Authority on same charges, on ground of disagreement with earlier enquiry report, without assigning any reason for such disagreement was improper. Dr. Atul Darbari v. State of U.P. and another, 2016 (5) ALJ 505
Employment- Compassionate appointment – Denial of- On ground that family of deceased/employee was receiving pension and had already received terminal benefits- Legality of
Petitioner's father, namely, Om Ratan, who was a Class IV employee in Union Bank of India, Kanpur, died in harness on 14.2.1997 during service. Petitioner, who is the eldest son moved an application seeking appointment on compassionate grounds along with No Objection Certificate of his mother and younger brother. When no action was taken by the authorities of the Bank for quite long time on the said application, the petitioner knocked the door of this court by filing the instant writ petition.
This Court while entertaining the writ petition on 23.9.2002 directed the opposite parties to scrutinize the petitioner's representation for his appointment under Dying-in Harness Rules and decide the same by virtue of a reasoned order in accordance with the Rules.
Thus, it can be easily summed up that the whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post, much less a post held by the deceased. Mere death of an employee in harness does not entitle his family to such source of livelihood.
As regard the discrimination, I find force in the submissions advanced by the learned Counsel for the Bank that while the family of the petitioner was receiving pension whereas late Sri Govid Kumar was not a pension optee and as such his family was not receiving monthly pension. Therefore, it is wrong to say that the petitioner has been discriminated in the matter of giving compassionate appointment. The justification given by the Bank for non-consideration of the petitioner's appointment on compassionate grounds on the ground that the other cases relate to non pensionable category appears to be reasonable and sound. The compassionate appointment sought by the petitioner was rightly denied by the Bank on the ground that there was no financial hardship being faced by the deceased's family as they had received money, which was substantial at the relevant time, after the death of petitioner's father and the family was also receiving monthly pension.
In the circumstances of the case, court is of the view that there is no infirmity in the impugned order dated 17.10.2002 passed by opposite party no.4 and the writ petition lacks merit which is hereby dismissed. Brijesh Kumar v. Union Bank of India and others, 2016 (6) AWC 6013
Services- Appointments- Uttar Pradesh Prosecuting Officers service Rules, 1991- Rule 3 (1)- Making appointments to posts more than those advertised –Effect of – Only the number of vacancies that are advertised can be filled up –If the advertisement gives liberty to the Government to vary the number of posts, such power cannot be exercised for filling up future vacancies The recruitment to posts of Assistant Prosecuting Officers is governed by the Uttar Pradesh Prosecuting Officers Service Rules, 1991. Rule 3 (l) defines ‗year of recruitment‘ as a period of 12 months commencing from the 1st day of July of calendar year. The requisition made by the First Respondent to the Second Respondent on 17.11.2008 was for selection of 38 Assistant Prosecuting Officers. The year of recruitment for conducting selection would be between 1st July, 2008 and 30th June, 2009. As stated earlier, only 38 posts were notified in the advertisement. As per the advertisement the Government could vary the number of posts to be filled up. Such power could have been exercised by the Government only to the extent of posts that arose between 1st July, 2008 and 30th June, 2009. The Second Respondent filed a counter in this Court in which it was stated that the advertisement issued on 19.09.2009 was for 38 posts and that it was only on 06.01.2011 that the Government intimated 36 additional posts to be filled up. The letter dated 25.08.2009 of the Chief Secretary, State of Uttarakhand was relied upon by the Appellants to contend that additional vacancies were created and they were available to be filled up. It is clear from the pleadings and the various documents filed by the Appellants that no additional posts were created between 1st July, 2008 and 30th June, 2009. It is significant that the Rules refer to the recruitment year. It is a well-accepted principle of service law that only the number of vacancies that are advertised can be filled up.
Court has examined the possibility of granting relief to the Appellants by taking into account the facts and circumstances of this case. The Appellants participated in the selection which was initially for 38 posts which later increased to 74 posts. They could not be appointed due to the judgment of the High Court which directed the selection to be only for 38 posts. In view of there being no fault on the part of the Appellants, court examined whether we could exercise our judicial discretion to direct their appointments. Court realise that any such direction given by us for their appointments would be contrary to the Rules. Judicial discretion can be exercised by a Court only when there are two or more possible lawful solutions. In any event, Courts cannot give any direction contrary to the Statute or Rules made thereunder in exercise of judicial discretion.
As court has held that the selection pursuant to the advertisement dated 19.09.2009 should be confined only to posts that were advertised, the additional posts that were created after the expiry of the recruitment year shall be filled up by issuance of an advertisement afresh. In view of the shortage of Assistant Prosecuting Officers in the State of Uttarakhand, Court direct the authorities to expedite the process of selection. Anurag Kumar Singh & Ors. v. State of Uttarakhand & Ors. 2016 (9) SCALE 639
Employment- Dismissal for remaining absent from duty and misappropriation of fund - No date, time or place was fixed by enquiry officer to hold oral enquiry- Validity of – Mandatory for enquiry Officer to hold oral enquiry by fixing date, time and place by giving notice to charged employee as well as departmental presenting officier
In the present case, it is the admitted fact that no date, time or place was fixed by the Enquiry Officer to hold the oral enquiry. It is also fairly conceded by Mr. Rakesh Kumar, learned counsel for the opposite parties, on the basis of available records that Enquiry Officer had relied on certain documents to come to conclusion that charges levelled against the petitioner stand proved, however, the enquiry proceedings to consider these documents were not held in the presence of petitioner.
The Court is of the considered view that in case the delinquent employee has denied the charges, it is mandatory for the Enquiry Officer to hold the oral enquiry by fixing date, time and place by giving notice to the charged employee as well as the departmental Presenting Officer. The enquiry proceedings shall be held the presence of the delinquent employee as well as the Presenting Officer and the documents relied in support of the charges shall be supplied to the delinquent employee or he shall be given an opportunity to peruse the same. In case the delinquent employee is not cooperating in the enquiry, an order to that effect shall be passed by the Enquiry Officer and thereafter ex-parte enquiry may be proceeded. The said procedure is required to be followed as it is necessary in terms of the principles of natural justice to provide proper and adequate opportunity of defence to the delinquent employee. Even in case the Rules do not provide the said procedure, it does not mean that the same is not required to be followed. The principles of natural justice are inculcated in all the relevant rules relating to service jurisprudence and they are required to be followed without exception. Suresh Chandra Misra v. U.P. Cooperative Union Ltd. Lucknow And Others, 2016 (5) AWC 4988 Adverse entry if not communicated to Government servant - Effect of - Such non communication would not make adverse entry illegal or barred by time-
Once adverse report was communicated, same became operative and could not be quashed on ground that it was not communicated within stipulated period.
The respondent No.1 was a Senior Cane Development Inspector and was awarded an adverse entry on 10.1.1994 for the year 1991. Similarly, by an order dated 17.5.1995, adverse entries for 1986-87 and 1987-88 were awarded pursuant to an action taken in disciplinary proceedings. The respondent preferred a representation against the adverse entries, which was rejected by an order dated 6.7.1996. The said respondent, being aggrieved, filed a claim application for the quashing of the orders dated 10.1.1994, 17.5.1996 and 6.7.1996. The Tribunal by an order dated 28.1.2015 allowed the claim application on the short ground that the adverse entries were not communicated to the respondent No.1 and reference was not decided within the stipulated period as provided under Rules 4 and 5 of the U.P. Government Servants (Disposal of Representation against Adverse Annual Confidential Reports and Allied Matters), Rules, 1995 (hereinafter referred to as the "Rules") and, accordingly, the Tribunal quashed the adverse entries with a further direction to the Department that the adverse entries would not be considered for promotion, crossing the Efficiency Bar and other service matters. The State Government, being aggrieved by the said decision, has filed the present writ petition. In our opinion, the order of the Tribunal is erroneous and has misread Rule 5 of the Rules. Rule 5 only provides that if an adverse entry is not communicated within the stipulated period or a representation against an adverse entry is not disposed of within the stipulated period then such adverse report will not come in the way for the purpose of promotion, crossing of the Efficiency Bar and other service matters. The reason is not far to see. If an entry is not communicated, the Government Servant cannot be penalized for non-consideration of his promotion and other service matters. Such non-communication will not make the adverse entry illegal or barred by time. All Rule 5 of the Rules provides that such adverse report will not be taken into consideration, if the Government Servant is being considered for promotion, crossing of Efficiency Bar, etc. Court opinion, that once the adverse report is communicated, the same becomes operative and cannot be quashed on the ground that it was not communicated within the stipulated period. Similarly, if the representation against an adverse entry is not decided within the stipulated period, it does not mean that the representation has to be allowed and the adverse entry is required to be quashed. State of U.P. and others V. Subh Kumar Singh Gautam and another, 2016 (5) AWC 5401
Stamp Act
Sec. 47- A- Stamp duty- Payment of –While determining market value potential of land as on date of sale alone can be taken into account and not what potential it may have in distant future
The sole question involved in the instant writ petition is whether the stamp duty is payable on the property as it stands on the date of execution of deed or demand for additional stamp duty can be created on the presumption of future or intended change of use to which the property may be put to by the vendee.
The legal position which emerges out from the various important cases is that the market value of the land cannot be determined with reference to the use of the land to which buyer intends to put it. The market value is what a general buyer may offer and what the seller may reasonably expect. In determining the market value, the potential of the land as on the date of sale alone can be taken into account and not what potential it may have in the distant future. Any subsequent improvement or change in the nature or user of the land, which may result into enhancement of the market value of the property, is not to be taken into account and it is only the value of the property on the date of execution of the document that is to be considered for the purpose of determination of proper stamp duty payable on the instrument.
Having considered the submissions made by the learned Counsel for the parties and the materials placed before this Court, it appears that the authority had proceeded to determine the value on the presumption that though the land is agricultural land but it has not been purchased for the said purpose. The said presumption does not appear to be sound and reasonable.
This being so, there is no hesitation to hold that the respondent no.2 did not possess any cogent material on record to show that the instrument in question is deficiently stamped or undervalued in any manner. In view of the above discussion, the impugned orders dated 21.3.2003 passed by the Collector (Stamps)/Sub Divisional Officer and the order dated 20.12.2005 passed by the Commissioner in appeal are quashed by issuing a writ of certiorari. Any amount deposited by the petitioner shall be refunded to him within a period of two month from the date of production of certified copy of the order. Abdul Rasheed V. Ayukta, Lucknow Division and another, 2016 (6) AWC 5868
Sec. 47A (U.P. Amendment)—Review of order—No power of review has been conferred on authority by statute. Through this writ petition, prayer has been made to issue a writ of certiorari quashing the order dated 9.9.2016 passed by the Additional Collector (Finance and Revenue) Hapur by which the earlier order dated 23.5.2016 passed in Case No. D2016117300171 (State Vs. Sunil Kumar) has been set aside and 14.9.2016 has been fixed for hearing and evidence. While assailing the aforesaid order, learned counsel for the petitioner has made following submissions :- (i) The order impugned is patently illegal for the reason that the recall application itself was not maintainable as the counsel for the applicant seeking recall was heard, therefore the order was not exparte order. (ii) Along with the recall application, an application under Section 5 of Limitation Act 1908 was filed on 29.7.2016 but without disposing of the application filed under Section 5 of the Limitation Act, the application seeking recall of the order dated 23.5.2016 has been allowed illegally. (iii) Since no ground was taken in the application that on 23.5.2016, the counsel for the applicant has not argued the case, therefore the recall could not be sought and in absence of such assertion, recall application could not be allowed. I find substance in the submissions of learned counsel for the petitioner as once the application under Section 5 of Limitation Act was filed, the restoration application could not be decided on merit unless the delay was condoned and the application filed under Section 5 of Limitation Act was allowed or the finding was recorded to the effect that there was no need of filing Section 5 application and the application was within time. Here in this case, admittedly, the recall application was barred by time and it was accompanied with an application for condonation of delay, therefore, unless the delay was condoned, the recall application could not have been decided. Sunil Kumar vs. State of U.P., 2016 (6) ALJ 626
STATUTORY PROVISIONS
English translation of Stamp Evam Registration Anubhag -2, Noti. No. 22/2016/ 426(1)/ 94- S.R. -2-2016.700(378) – 14, dated July 27, 2016, published in the U.P. Gazette, Extra., Part 4, Section (kha), dated 27th July, 2016, p. 1
In exercise of the powers under clause (a) of sub-section (1) of Section 9 of the Indian Stamp Act, 1899 (Act No. 2 of 1899) as amended in its application to Uttar Pradesh, the Governor is pleased to remit with effect from the date of publication of this notification in Gazette, stamp duty chargeable on the lease deed executed between the State Government and the Maitreya Project Trust in district Kushinagar. English translation of Nayay Anubhag -1, (Uchach Nyayalaya), Noti. No. Sa.-513/ VII- Nyaya -1 – 2016 -157 – 2008, dated August 24, 2016, published in the U.P. Gazette, Extra., Part 4, Section (ka), dated 24th August, 2016, p. 2.
Whereas Vigilance Bureau Cell established in the High Court of Judicature at Allahabad to investigate the complaints received against the Judicial Officers, to collect intelligence and to do other works. The above works require secrecy and precautions at investigation stage. Giving of any information with respect to the investigation undertaken by the said cell under the Right to Information Act, 2005 would adversely affect the process of inquiry / Investigation of Vigilance Inquiry;
And, whereas, Vigilance Bureau Cell functions under the Control of the Chief Justice of the High Court of Judicature at Allahabad.
Now, therefore, in exercise of the powers conferred under sub- section (4) of Section 24 of the Right to Information Act, 2005 (Act no. 22 of 2005), the Governor is pleased to specify that the provisions of the said Act shall not apply to the Vigilance Bureau Cell established under the High Court of Judicature at Allahabad.
English translation of Stamp Evam Registration Anubhag -2, Noti. No. 807/XCIV/S.R.-2- 2016-700 (53)-15, dated August 11, 2016, published in the U.P. Gazette, Extra., Part 4, Section (Kha), dated 11th August, 2016, pp. 3-4. In exercise of the powers under Sections 10, 74 and 75 of the Indian Stamp Act, 1899 (Act No. 2 of 1899) and Section 78 of the Registration Act, 1908 (Act no. 16 of 1908), the Governor is pleased to make the following rules, with a view to providing facility to general public, to pay Stamp Duty and Registration fees through E- Payment –
1. Short title, extent and commencement- (1) These rules may be called the Uttar Pradesh Payment of Stamp Duty, Registration Fees through E-payment Rules, 2016.
(2) They shall extend to the whole of Uttar Pradesh
(3) They shall come into force with effect from the date of their publication in the Gazette.
2. Definition- (1) In these rules, unless the context otherwise requires-
(a) ―e-payment receipt‖ means a receipt, which is generated after payment of stamp duty or Registration Fees or other charges in Government treasury through e- payment system in U.P. Rajkosh by the party to the instrument, having a unique receipt number; (b) ―Payer‖ means any person paying stamp duty or Registration Fees or other charges, for an instrument, to which he is a party, through e-payment system; (c) ―e-payment system‖ means a system used by the Stamp and Registration Department for online receiving and accounting of Stamp Duty, Registration Fees and other charges through e-payment system; (d) ―receipt Identification Number‖ means the unique receipt number marked in the e-payment receipt, generated through e-payment system; (e) ―Sub-Registrar‖ shall mean the Sub-Registrar appointed under Section 6 of Registration Act, 1908; (f) ―Treasury‖ means a Treasury in the State of Uttar Pradesh and includes a Sub-Treasury; (g) ―U.P. Rajkosh‖ means a system used by the Government Treasury for online receiving and accounting of e-payments made in the Government Treasury. (2) Words and Expression used in these rules not defined shall have the meanings assigned to them in the Indian Stamp Act, 1899 and the Registration Act, 1908 in their application to Uttar Pradesh.
(3) Procedure for e-payment of Stamp duty, Registration fees or other charges.- The procedure of e-payment of stamp duty, registration fees or other charges shall be as under:-
(a) Any person desiring to register his document or utilize any services of the Registration Department under the provisions on the Registration Act, 1908 through e-payment may make such payment on the departmental website in such format as may be prescribed. After payment of required duty or fees and deposition of money in the Government treasury, e-payment receipt would be generated, through e-payment system; (b) Presentation of document before sub-registrar – The e- payment receipt with relevant document to be registered may be presented in the concerned office of the Sub-Registrar; (c) Duties of Sub- Registrar regarding verification of e-payment receipt- On presentation of a document for registration, the Sub – Registrar shall verify the details and authenticity of the e- payment receipt through e-payment system and shall proceed to lock the e-payment receipt through e-payment system, before registration of such document, so that the e-payment receipt may not be used for any other document; (d) Generation of e- payment certificate – After locking of e- payment receipt by the Sub – Registrar, a certificate may be generated through e-payment system. The Sub – Registrar shall, print the said certificate on separate papers, in two copies and take signatures thereon, of the parties of the document. The Sub – Registrar shjall also sign the said copies and after registration of the document, return the document to the party, enclosing one of these copies with the original document and shall attach other copy with the copy of the document kept in the Sub – Registrar Office. 4. Refund of the amount paid through e-payment:
(a) The payer may apply for refund of the amount of e-payment made under these rules, in the prescribed format through e- payment system. (b) The application shall be forwarded to the office of the concerned Sub-Registrar. The Sub –Registrar, after verification of details of the e-payment made by the applicant, shall forward it to the Assistant Commissioner Stamp of the District. The assistant Commissioner Stamp shall complete the procedure of the disposal of such application under provisions of the Indian Stamp Act, 1899. Supreme Court of India, dated April 8, 2016, published in the Gazette of India, Part 1, Section 1, daed 21st May, 2016, pp.415- 417, No. 21.
In exercise of powers conferred by clause (ii) of Gender Sensitisation and Sexual Harassment of Women at Supreme Court (prevention, Prohibition and redressal) Guidelines, 2015 framed in terms of Regulations 14(1) of the Gender Sensitisation and Sexual Harassment of Women at Supreme Court of India (Prevention, Prohibition and Redressal) Regulations, 2013, the Gender Sensitisation and Internal Complaints Committee hereby appoints, the date of notification of Guidelines on the official website of the Supreme Court of India as the date on which provisions of the said Guidelines shall come into force.
Gender Sensitization and Sexual Harassment of Women at Supreme Court (Prevention, Prohibition and Redressal) Guidelines, 2015
In exercise of the powers conferred by Regulation 14(1) of the Gender Sensitization and Sexual Harassment of Women at the Supreme court of India (Prevention, Prohibition and Redressal) Regulations 2013 the GSICC hereby frames the following Guidelines for conductiong an Inquiry by the International Sub-Committee:
i. These Guidelines may be called ―Gender Sensitization and Sexual Harassment of Women at Supreme Court (Prevention, Prohibition and Redressal) Guidelines, 2015‖. ii. These Guidelines shall come into force on the date of their notification by the GSICC on the official website of the Supreme Court of India. I. Constitution of the Internal Sub-Committee: The Internal Sub-committee constituted by the GSICC under Regulation 9 shall conduct a fact finding inquiry, which shall comprise of three members, with a majority being women, and one outside /external member. As per Regulation 4(4), the outside /external member appointed under Clause 4(2)(f) shall be paid a fee of Rs. 3000 per sitting, from the allocated funds for holding the proceedings of the Internal Sub- Committee. Such fee or allowances shall be subject to any revision that may be made by the GSICC from time to time. The External Member appointed shall be entitled to an allowance of thee thousand rupees (Rs. 3000) per sitting for holding the proceedings of the Internal Sub-Committee. II. Receipt of Written Complaint with supportive documents and statement of witnesses. i. The aggrieved women will be required to file her written Complaint either personally, or through a Volunteer as per Regulation 8, be accompanied by all supporting material, evidence, statements, and transcripts. The Complaint must be addressed to the GSICC, and submitted to the Member –Secretary of the GSICC. ii. The aggrieved woman shall submit a lit of witnesses, along with their affirmed statements, and contact details whom she desires to produce in support of her case before the Internal Sub-Committee. III. Notice to the Respondent and Submission of Respondent in writing. i. That within 7 days of the receipt of a complaint from an aggrieved woman, the Member Secretary shall serve the same along with enclosures on the Respondent. ii. The Respondent will be called upon the place his written response along with the supporting material, and list of witnesses, within a period not exceeding 7 working days from the date of receipt of the complaint. IV. Reasonable Opportunity for the Complainant and the Respondent to present their case: If the aggrieved woman desires to produce any additional material or statement of any witness, which could not be submitted along with the Complaint, the Internal Sub-Committee will permit the aggrieved woman to do so, within such extended time as it deems appropriate. V. Inquiry i. The Internal Sub-Committee will provide an opportunity to both parties and their respective witnesses, for an oral hearing. The hearings will be duly video-graphed. ii. The Member Secretary shall give three days (72 hours) advance notice to the aggrieved woman, the Respondent, and their respective witnesses before a hearing is convened. The notice can be served on the Complainant/ Volunteer or Respondent by personal service, email or facsimile message. iii. If the aggrieved woman desires to be accompanied by a Volunteer, she shall communicate the name of such person to the Member Secretary. Such a person shall have only observer status. iv. All persons participating in the inquiry proceedings conducted by the Internal Sub-Committee, shall observe secrecy and confidentiality of the proceedings. Any violation of confidentiality of these proceedings by any party can result in penalty being imposed by the GSICC which it may consider appropriate. v. The aggrieved woman and the respondent shall be responsible for producing their witnesses before the Internal Sub-Committee on the date of hearing. However, if the Internal Sub-Committee is satisfied that the absence of either of the parties or their witnesses is on valid grounds, the Internal Sub- Committee may give an opportunity for further hearing. vi. The Internal Sub-Committee may call any person to appear as a witness, if it is of the opinion that it is so required for the conduct of the inquiry. vii. The Internal Sub-Committee will ensure that the Respondent and the aggrieved woman are not placed face to face, or placed in a situation where they may be face to face (e.g. they shall not be called at the same time and be made to wait in the same place), keeping strictly in view the need to protect the aggrieved woman from undergoing any trauma and / or safety problems. viii. The internal Sub-Committee shall have the poer to summon or call for any documents pertaining to the Complaint, which it may consider to be relevant, including any earlier Complaint that may have been filed against the Respondent. ix. The Internal Sub-Committee will not be precluded from taking cognizance of any new fact, or evidence which may arise, during the pendency of the inquiry proceedings, relating to the Complaint. x. The Internal Sub-Committee shall have the right to summon the aggrieved woman, the Respondent, and / or any witnesses for the purpose of recording any supplementary testimony and / or clarifications, if considered necessary. xi. The Member Secretary may permit inspection of the original documents filed, after prior intimation of three days by any of the parties. The considered parties will not be permitted to take the original documents outside the office of the Member – Secretary. xii. The aggrieved woman, or the Respondent, may submit a list of interrogatories. The Internal Sub – Committee shall have the right o disallow any questions that it has reason to believe to be irrelevant, mischievous, or gender –insensitive. VI. Internal Sub-Committee may Proceed Ex-parte or Recommend Termination of Proceedings: The Internal Sub- Committee shall have the right to proceed ex-parte if the circumstances so warrant. In the event of the respondent refusing to appear before the Internal Sub-Committee for three consecutive hearings, without valid justifiable ground, the Internal Sub-Committee shall proceed ex-parte against the Respondent on the basis of the material available before it. Provided that prior to the termination of the proceedings, or proceeding ex-parte, the parties would be intimated of the same by the written communication.
VII. Completion of Inquiry: The Internal Sub-Committee shall take all necessary steps to conduct and complete the fact finding inquiry within a period of 90 days of the constitution Internal Sub-Committee as per Regulation 9(3). VIII. Recommendation to the GSICC i. After the fact finding inquiry is concluded by the Internal Sub-Committee, it shall submit a report containing reasons for its findings to the GSICC. In the event, that the Internal Sub-Committee concludes that the allegations against the Respondent have been proved, it shall recommend to the GSICC to take appropriate action for gender discrimination and/or sexual harassment. ii. If however, the Internal Sub-Committee finds no merit in the Complaint, it shall recommend to the GSICC that no action is required to be taken, and recommend closure of the Complaint. IX. Protection of Identity and Confidentiality of Proceedings and Records: Notwithstanding anything contained in the Right to Information Act, 2005, the contents of the Complaint made under Regulation 8, the identity and address of the aggrieved woman, Respondent, and witnesses, and any other information relating to the Inquiry proceedings, recommendations of the Internal Sub- Committee, shall be keplt confidential. X. Action for false or malicious Complaint or false evidence: Where the Internal Sub-Committee arrieves at the conclusion that the allegation against the Respondent is malicious, or the aggrieved woman, or any other person making the Complaint on her behalf, has made the Complaint knowing it to be false, or the aggrieved woman or any other person making the Complaint has produced any forged or any misleading document, the Internal Sub- committee may make sub recommendations to the GSICC to take appropriate action, to deter the filing of false and frivolous complaint.
Ministry of Finance (Department of Revenue), Noti. No. G. S. R. 1004 (E), dated October 25, 2016,published in the Gazette of India, Extra., Part II, Section 3(i), dated 25th October, 2016, pp. 7- 11, No. 743 [Notification No. 99/2016/F. No. 149/144/2015-TPL (Part-II)]
In exercise of the powers conferred by Section 68 of the Prohibition of Benami Property Transactions Act, 1988 (45 of 1988), the Central Government hereby makes the following rules, namely-
1. Short title and commencement. – (1) These rules may be called the Prohibition of Benami Property Transactions Rules, 2016.
(2) They shall come into force on the 1st day of November, 2016.
2. Definitions:- (1) In these rules, unless the context othersie requires,-
(a) ―Act‖ means the Prohibition of Benami Propergty Transactions Act, 1988 (45 of 1988); (b) ―Chapter‖ means a Chapter of the Act; (c) ―Form‖ means a Form appended to these rules; and (d) ―Section‖ means a section of the Act (2) Words and expressions used and not defined in these rules but defined in the Act, the Indian Trusts Act, 1882 (2 of 1882), the Indian Succession Act, 1925 (39 of 1925), the Indian Partnership Act, 1932 (9 of 1932), the Income Tax Act, 1961 (43 of 1961), Depositories Act, 1996 (22 of 1996), the Prevention of Money-Laundering Act, 2002 (15 of 2003), the Limited Liability Partnership Act, 2008 ( 6 of 2008) and the Companies Act, 2013 (18 of 2013) or the rules made under those Acts, shall have the same meanings respectively assigned dto them in those Acts and rules. 3.Etermination of Price in certain cases.- (1) For the purposes of sub-clause (ii) of clause (16) of the Section 2 of the Act, the price shall be determined in the following manner namely-
(a) The price of unquoted equity shares shall be the higher of,- (I) Its cost of acquisition (II) The fair market value of such equity shares determined, on the date of transaction, by a merchant banker or an accountant as per the Discounted Free Cash Flow method; and (III) The value, on the date of transaction, of such equity shares as determined in the following manner, namely- The fare market value of unquoted equity shares = (A+B-L)x (PV)/(PE) where,
A=book value of all the assets (other than bullion, jewellery, precious stone, artistic work, shares, securities and immovable property) as reduced by,- (i) any amount of income – tax paid if anhy, less the amount of income tax refund claimed,if any, and (ii) any amount shown as asset including the unamortised amount of deferred expenditure which does not represent the value of any asset;
B= the price that the bullion, jewellery, precious stone, artistic work, shares, securities and immovable property would ordinarily fetch on sale in the open market on the date of transaction;
L=book value of liabilities, but not including the following, namely- (i) the paid-up capital in respect of equity shares; (ii) the amount set apart for payment of dividends on preference shares and equity shares; (iii) reserves and surplus, by whatever name called, even if the resulting figure is negative, other than those set apart towards depreciation; (iv) any amount representing provision for taxation, other than amount of income tax paid, if any, less the amount of income tax claimed as refund, if any, to the extent of excess over the tax payable with reference to the book profits in accordance with the law applicable thereto; (v) any amount representing provisions made for meeting liabilities, other than ascertained liabilities; (vi) any amount representing contingent liabilities other than arrears of dividends payable in respect of cumulative preference shares; PE= total amount of paid up equity share capital as shown in the balance-sheet;
PV= the paid up value of such equity shares;
4. Furnishing of Information – For the purpose of sub- section (2) of Section 21, the income tax authority referred to in sub-section (1) of the Section 285-BA of Income Tax Act, 1961 (43 of 1961) or such other authority or agency which is prescribed under sub – section (1) of section 285-BA of that Act to the Initiating officer or such authority or agency authorised by the Initiating Officer on or before fifteen days from the end of the month in which said statement is received. 5. Provisional attachment – For the purposes of sub- section (3) of Section 24, the Initiating Officer shall provisionally attach any property in the manner provided in the Second Schedule of Income tax Act, 1961 (43 of 1961)d. 6. Confiscation of property under second provisio of sub-section (1) of Section 27. – (1) Where an order of confiscation of property under sub-section (1) of Section 27 has been made, the Adjudicating Authority shall send a copy of the order to the Authorised officer. (2) Where an order referred to in sub-rule (1) has been received by the Authorised Officer in respect of any immovable property, he shall
(i) forthwith issue notice to the authority of the Central Government or a State Government, as case may be, having jurisdiction for the purposes of registration of such immovable property, intimating about the confiscation of the property; (ii) arrange to place copy of the notice at some conspicuous part of the immovable property for the benefit of general public mentioning clearly therein, in English and in vernacular language, that the property has been confiscated under the Act and vests absolutely in the Central Government; (iii) arrange to make a proclamation for the confiscation of immovable property at some place on or near such property by beat of drum or other customary mode. (3) Where an order referred to in sub-rule (1) has been received by the Authorised Officer in respect of any movable property, he shall, -
(i) forthwith issue a notice to the authority or person having the custody of such movable property informing him about the confiscation of such property; or (ii) sell the property, if the property is liable to speedy and natural decay or the expenses for maintenance is likely to exceed its value, with the leave of the concerned Adjudication Authority, and deposit the sale proceeds in the nearest Government Treasury or branch of the State Bank of India or its subsidiaries or in any nationalized bank in fixed deposit and retain the receipt thereof; Provided that where the owner of the property furnishes the fixed deposit receipt of State Bank of India or its subsidiaries or a nationalized bank equivalent to the value of property in the name of Administrator, the authorized officer may accept and retain such fixed deposit receipt as security:
Provided further that where the movable property is a mode of conveyance of any description, the authorized officer, after obtaining its valuation report from the Motor Licensing Authority or any other authority, as the case may be, may accept and retain the fixed deposit receipt of State Bank of India or its subsidiaries or a nationalized bank, equivalent to the value of the movable property as security in the name of Administrator;
(iii) cause to deposit the property consisting of cash, Government or other securities or bullion or jewellery or other valuables in a locker in the name of the Administrator or in the form of fixed deposit, as the case may be, in State Bank of India or its subsidiaries or in any nationalized bank and retain the receipt thereof; (iv) cause to get the property in the form of shares, debentures, units of Mutual Fund or instruments to be transferred in favour of Administrator. (v) Issue a direction to the bank or financial institution, as the case may be, to transfer and credit the money to the account of the Administrator, where the property is in the form of money lying in a bank or a financial institution. Explanation.- For the purposes of this rule, an ―Authorized Officer‖ means an Income Tax Officer who is authorized by the Adjudicating Authority in this behalf.
7. Receipt of confiscated property under sub-section (I) of Section 28.- The Administrator shall, at the time of receiving the confiscated property, ensure proper identification of such property with reference to its particulars mentioned in the order made under sub- section (1) of Section 27. 8. Management of confiscated property under sub- section (1) of Section 28.- Where the property confiscated is of such a nature that its removal from the place of attachment is impracticable or its removal involves expenditure out of proportion to the value of the property, the Administrator shall arrange for the proper maintenance and custody of the property at the place of its attachment. (2) If the property confiscated consists of cash, Government or other securities, bullion, jewellery or other valuables, the Administrator shall cause to deposit them for safe custody in the nearest Government Treasury or a branch of the Reserve Bank of India or the State Bank of India or its subsidiaries or in any authorized bank. (3) The Administrator shall maintain a register containing the details in Form No. 1 annexed to these rules for recording entries in respect of movable property, such as cash, Government or other securities, bullion, jewellery or other valuables. (4) The Administrator shall obtain a receipt from the Treasury or the bank, as the case may be, against the deposit of moveable properties stated in sub-rule (2). (5) The Administrator shall maintain a register containing the details in Form No.2 annexed to these rules for recording entires in respect of property other than the properties referred to in sub-rule (2).
9. Disposal of confiscated property under sub-section (3) of Section 28. – Where the Central Government directs that the property vested in it under sub-section (3) of Section 27 be disposed of, then, the administrator shall arrange to dispose of the property in the manner provided in the second Schedule to the Income Tax act, 1961 (43 of 1961). 10. Appeal to the Appellate Tribunal.- (1) An appeal to the appellate tribunal under sub-section (1) of Section 46 of the act shall be filed in Form No. 3 annexed to these rules. (2) At the time of filing, every appeal shall be accompanied by a fee of ten thousand rupees. (3) The appeal shall set forth concisely and under distinct head the grounds of objection to the order appealed against and such grounds shall be numbered consecutively; and shall specify the address of service at which notice or other processes of the Appellate Tribunal may be served on the appellant and the date on which the order appealed against was served on the appellant. (4) Where the appeal is preferred after the expiry of the period of forty- five days referred to in sub-section (1) of section 46, it shall be accompanied by a petition, in quadruplicate, duly verified and supported by the documents, if any, relied upon by the appellant, showing cause as to how the appellant had been prevented from preferring the appeal within the period of forty-five days.
FORM 1 [ See Rule 8(3)] MANAGEMENT OF CONFISCATED PROPERTY REGISTER (MOVABLE) Order Number: Date of receipt of properties: Description of properties (quantity, amount, estimated value): Name(s) and address (es) of the benamidar and beneficial owner, if his identity is known: Name and address of the Treasury or Bank where the properties are deposited for safe custody: Date and time of deposit of confiscated properties in the Treasury or bank: Receip number with date of the receipt obtained from the Treasury or bank: Remarks of the Administrator: (Signature of the Administrator) Name of the Administrator Dae: (Seal)
FORM 3 [ See Rule 10(1)]
From……………………………………………………………… (mention name and address of the appellant here) To, The Registrar, Appellate Tribunal (Address) Sir, The above named appellant, begs to prefer this appeal under section 46 of the Prohibition of benami property Transactions Act, 1988 against order Number…………..date…….. passed by the Adjudicating Authority (address of Adjudicating Authority) under the said Act on the following facts and grounds. FACTGS (Mention briefly the facts of the case here. Enclose copy of the order passed by the or Adjudicating Authority and copies of other relevant documents, if any.) GROUNDS (Mention here the grounds on which appeal is preferred.) PRAYER In the light of what is stated above, the appellant prays for the following relief:- RELIEF SOUGHT (Specify the relief sought)
DECLARATION The fee payable for this appeal as mentioned in sub-rule (2) of Rule 10 has been deposited in the form of demand draft with the Registrar, Appellate Tribunal, ………….(Address)………….. vide receipt number……………. Date……………. Verified today the…………………….day of……………
(Signature of the Appellant) (Name of the Appellant) List of documents: Place: Date:
Transfer of Property Act
Ss. 54 & 58 – Mortgage deed executed for the purpose of securing the payment of money Rs. 150/- Advanced and specifically provides for redemption
On the IIIrd question of law raised by appellants at the time of final hearing, court found that since the impugned deed of mortgage has been executed for the purpose of securing the payment of money Rs. 150/- advanced and specifically provides for redemption, it does not come within the definition of sale under section 54 of Transfer of Property Act. Consequently, the Learned Counsel for the defendants- appellants has failed to show as to how the impugned mortgaged deed is hit by provisions of section 58 of Transfer of Property Act and amounts to a sale-deed.
Section 83 of Transfer for Property Act gives an option to the mortgagor to deposit the amount payable on redemption of mortgage and does not bar the institution of suit, for non deposit of such amount. The deposit of amount payable on redemption has not been made a pre-requisite condition to enabling the mortgagor to file the suit and Court found that it will not be correct to say that due to non deposit of amount in the account of mortgagee, the suit for redemption of mortgaged property was barred by provisions of section 83 of the Transfer of the Property Act. Sukhan (Dead) through L.Rs. And others v. Brijveer Singh and others, 2016 (133) RD 319 (Alld.H.C.)
U.P. Consolidation of Holdings Act
Sec. 6 (1) – Consolidation operations- Prayer for quashing notification – Consideration of
The petitioners, by means of this writ petition, seek a writ of certiorari for quashing a notification issued by the Consolidation Commissioner under Section 6 (1) of the UP Consolidation of Holdings Act, 1953 (herein after referred to as the 'Act, 1953'), cancelling consolidation operations in Village Rajwari, Pargana Katehar, Tehsil and District Varanasi, issued.
Quashing of the order dated 18.9.2013, passed by the Deputy Director of Consolidation, abating a Revision No. 6671603/895/1052 (Rajendra Singh and another vs. Rama Shankar and others) on the ground that consolidation operations have been cancelled and, therefore, the revision cannot proceed, is also prayed for. It has also been urged that the notification is colourable exercise of power. Besides, the notification is arbitrary as it does not disclose any reason for issuing it. It has also been submitted that the power under Section 6 (1) of the Act, 1953, is arbitrary as no time limit has been prescribed in the Act, for exercising this power.
As regards, the submission that the impugned notification suffers from the vice of excessive delegation, it would be relevant to note that both the power to bring the unit under consolidation operations by the issuance of under Section 4 (2) of the Act as also the power to cancel the notification under Section 6 (1) of the Act, 1953, has been delegated to the Consolidation Commissioner.
Insofar as, the submission that Section 6 (1) is arbitrary, the same, in my considered opinion, is not liable to be accepted because sub- section 2 of this section saves all orders, which have attained finality and, therefore, it cannot be said that a litigant is deprived of the fruits of his litigation. Only orders, which have not attained finality, cease to have any value, once, the village or unit ceases to be under consolidation operations on issuance of a notification under Section 6 (1) of the Act.
The contention that once consolidation operations have been cancelled, a litigant is deprived of a forum for adjudication of disputes, is also, without substance. All disputes are required to be settled in the manner and before the forum provided for in various statutes. Once, a unit comes under consolidation operations such disputes are to be raised before the forum provided under UP Consolidation of Holdings Act, 1953. The forums earlier available, revive and can be invoked, once the consolidation operations come to a close be it by means of a notification under Section 6 (1) of the Act, 1953 or by means of a notification under Section 52 closing the consolidation operations. Therefore, it cannot be said that a litigant is deprived of a forum for resolution of pending disputes upon a notification under Section 6 (1) of the Act, being issued. Court also find the submission made that no specific procedure has been prescribed for issuing notification under Sections 6 and 4 of the Act, 1953, to be without force. In view of the foregoing discussion, the writ petition is found to be devoid of merits and is, accordingly, dismissed. Rama Shanker Singh and others v. State of U.P. and others, 2016 (6) AWC 6437
Sec. 9 A –Evidence Act, 1972- Ss. 45 and 114 (G) -Applicability of Ss. 45 and 114 in title proceedings under Consolidation of Holding Act
This petition has been filed against the order of Deputy Director of Consolidation, dated 01.07.2006 passed in title proceeding under U.P. Consolidation of Holdings Act, 1953.
The respondents based their title on sale deed dated 09.10.1967, allegedly executed by Sachchan in their favour. The petitioner denied execution of sale deed by Sachchan and stated that after death of Sachchan sale deed was manufactured. Burden was upon the respondents to prove due execution of the sale deed. They did not file original sale deed. Akshaiber (DW-3), father of the respondents stated that the respondents, who were 12 years and 9 years old at the time of sale deed, himself negotiated and finalized deal for sale deed. At the time of sale deed, They did not went to the office of Sub-Registrar for execution/registration of sale deed. Original sale deed was lost, in the way of Salempur but no information relating to its missing was given to police. Sudeen (DW-1), marginal witness, in his statement recorded on 08.02.1977 has stated that sale deed was executed one year prior to his statement. Jeeut (DW-2), the other marginal witness was resident of about 4 k.m. away from village Bagahi and he was not knowing either to Sachchan or Suresh and Subhas, who were minors at that time. His being marginal witness is not a natural conduct. On the basis of these evidence, appellate court found that due execution of sale deed was not proved by the respondents. From aforesaid facts it is clear that the respondents have not produced best evidence in their possession as such adverse inference is liable to be drawn against them under Section 114 Illustration (g) of Evidence Act, 1872. Deal of sale deed was negotiated and finalized by minors of 12 and 9 years old, which is also not a natural conduct. Explanation as required under Section 65 (f) of Evidence Act, 1872, to adduce secondary evidence, was not given. Statement of marginal witnesses were not reliable to prove due execution of sale deed. Deputy Director of Consolidation illegally reversed the findings of appellate court without considering aforesaid circumstances in cursory manner, only relying upon expert evidence.
The respondents failed to prove due execution of sale deed dated 09.10.1967 by Sachchan. Findings of Consolidation Officer and Assistant Settlement Officer Consolidation in respect has been illegally set aside by Deputy Director of Consolidation, relying upon inadmissible evidence and ignoring relevant evidence. In view of aforesaid discussions, writ petition succeeds and is allowed. Order of Deputy Director of Consolidation dated 01.07.2006 is set aside. Harish Chand v. Additional Collector (Finance and Revenue)/D.D.C. and others, 2016 (6) AWC 5743
Ss. 11 and 48- Consolidation proceedings- Order recording name of respondents No. 4 and 5 in place of father of petitioners- Appeal against allowed directing Consolidation Officer to decide matter afresh- Revision against remand order held to be maintainable – Legality of- Remand order should not have been passed as a matter of routine-
Through this writ petition prayer has been made to issue writ of certiorari quashing the order dated 20.6.2006 passed by Deputy Director of Consolidation (in short DDC) in revision no. 102 (Ram Pyare Vs. Ganesh and others) and order dated 2.12.78 passed by Assistant Consolidation Officer, Judwariya.
Vide order dated 20.6.2006 DDC has allowed revision by setting aside the order dated 19.8.2004 passed by Assistant Settlement Officer of Consolidation in Appeal No. 157 (Ganesh vs. Ram Pyare) by which the matter was remitted before the Consolidation Officer after setting aside the order dated 2.12.78 passed by Assistant Consolidation Officer for taking fresh decision. Appellate authority instead of remanding the same should have decided case on merit itself in case entire material was available before it- No error found in impugned order passed by revisional authority opining that Assistant Settlement Officer, Consolidation was competent to decide entire matter instead of remanding the same. Shiv Ram v. State of U.P. and others, 2016 (6) AWC 5565
Ss. 19-A and 23 (1) – Scope –Provisional Consolidation Scheme- Cancellation- Jurisdiction of - Commissioner, Consolidation noted to have passed order for cancellation of Scheme in exercise of power under Section 48 (3) of the Act, 1953 on the report submitted by the Joint Committee of Consolidation Authorities against the complaint of illegalities committed in preparation and conduct of the Scheme- Validity of
The writ petition has been filed against the order of Consolidation Commissioner, U.P. dated 12.05.2009, canceling Provisional Consolidation Scheme of village Udhpur Gelhuwa, tahsil Badlapur, district Jaunpur and directing Settlement Officer Consolidation to frame Provisional Consolidation Scheme afresh in the village under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act) and for mandamus directing consolidation authorities not to interfere in possession of the petitioners over their chaks as allotted to them during consolidation proceeding.
The counsel for the petitioners submitted that impugned order has been passed in exercise of powers under Section 48 (3) of the Act. There is a statutory delegation of power of Director of Consolidation under Rule 111 of the Rules, 1954 to Joint/Deputy/Assistant Director of Consolidation of consolidation district, for the purposes of Section 48 of the Act. Without withdrawing powers already delegated, Consolidation Commissioner U.P. had no jurisdiction to pass impugned order. Section 48 (1) and (3) mandatorily require to give opportunity of hearing and examine record of subordinate authorities before passing any order. In the present case, joint committee submitted its report without spot inspection and without giving opportunity of hearing to the chak holders of the village, thus there was no valid reference under Section 48 (3) of the Act. Consolidation Commissioner U.P. also passed the impugned order without giving opportunity of hearing to the chak holders and without examining the record prepared during consolidation, as such correct facts could not be considered.
Jurisdiction under Section 48 of the Act is conferred upon Director of Consolidation U.P. which includes Additional Director of Consolidation U.P. and Joint Director of Consolidation U.P. By virtue of notification dated December 23, 1958 "Consolidation Commissioner" is "Ex-officio Director of Consolidation" therefore he can exercise all powers of Director of Consolidation under the Act. Under various notifications as mentioned above as well as in view of Section 3 (4-A) of the Act, District Deputy Director of Consolidation, Deputy Director of Consolidation, Assistant Director of Consolidation and Additional District Magistrate of consolidation district were also conferred powers of Director of Consolidation U.P. under Section 48 of the Act. There is nothing either under the Act or the Rules and various notification, which excludes the powers of Director of Consolidation U.P. As such all the aforesaid authorities can concurrently exercise powers under Section 48 of the Act. Aforesaid notifications do not amount to delegation of powers within the meaning of Section 44 (i) of the Act. It only confer powers to various authorities as provides under Section 44 (ii) of the Act. Statute prevails over Rules and Notifications which are subsidiary legislation. Ram Dawar Yadav and others v. Chakbandi Ayukt and another, 2016 (34) LCD 3074
Sec. 20 – Scope of Objection regarding allotment of chak. Petitioners filed objection against allotment of chak claiming chak on plot No. 581 which allowed. Thereafter they filed an application claiming that they have filed another objection which was not traceable. Record keeper made a report that such object was registered in Goswara Register. Petitioners filed appeal before S.O.C. Claiming chak over plot No. 984/2 and another appeal to delete valuation of plot Nos. 628/5, 618/6, 628/9. Demand if deletion of valuation was denied. Against which a revision was filed which was dismissed, feeling aggrieved the writ petition was filed. Held, other co-shares of the petitioners were allotted chak on the plots in question as such the deletion of valuation would cause prejudice to them. Petitioners have not disclosed the entire facts which justified the allotment of chaks to the petitioners on plot No. 628/5. Petitioners have not stated that how many plots were on road side and what area on road side was allotted to them. In the circumstances no relief can be granted to the petitioners. Dismissed. Ram Dhani v. Deputy Director of Consolidation, Distt. Varanasi, 2016 (133) RD 685 (Alld.HC)
Sec. 48 – Power under – Supervisory in nature – Direction of consolidation has administrative and judicial control over all the subordinate authorities – Discussed Powers under Section 48 of the Act is supervisory in nature through which Director of Consolidation has administrative and judicial control over all the sub-ordinate authorities. For the purposes of judicial powers, Deputy Director of Consolidation etc. of consolidation district are co-ordinate authority but for administrative purpose they are subordinate authorities. Consolidation Commissioner has noted that impugned order was passed exercising powers under Section 48 (3) of the Act, as the report of joint committee was forwarded by Deputy Director of Consolidation to Consolidation Commissioner. In fact, he canceled Provisional Consolidation Scheme framed under Section 19-A of the Act. Provisional Consolidation Scheme can be canceled by Consolidation Officer and Settlement Officer Consolidation under Section 21 (4), while deciding chak objections and appeals. It has to be confirmed by Settlement Officer Consolidation under Section 23 (1) of the Act, which necessarily includes power to cancel it. Section 23 (1) does not contemplate for opportunity of hearing to the chak holders. Powers under Section 23 (1) of the Act can be exercised by Consolidation Commissioner also in view of Section 44-A of the Act as held by this Court in Jaga Vs. Deputy Director of Consolidation, 1984 RD 176. Consolidation Commissioner, after considering the complaint of respondent-2 and report of joint committee found that gross illegality had been committed in framing Provisional Consolidation Scheme. Due to mentioning wrong provision, the order cannot held as illegal, as Consolidation Commissioner has otherwise jurisdiction to pass the order. Ram Dawar Yadav v. Chakbandi Aykut, U.P., Lucknow, 2016 (133) RD 503 (Alld. HC)
Sec. 52 – Scope of – Demarcation of chak, chak road and Nali – Possession over confirmed chak – Before notification under Sec. 52 of the Act A proceeding for adjudication of the right of the tenure hold. If after demarcation and possession over confirmed chak, any encroachment is made either upon chak of any chak holder or upon chak road and chak nali then it is within the jurisdiction of the consolidation authorities to re-demarcate the chaks and allot boundary marks of the chaks. Aggrieved person should not wait for notification under section 52 of the Act and then take remedy before the Revenue Court. Application for demarcation of chak and fixation of its Bovary marks is maintainable. Neshat Aroz V. Collector/Distt. D.D.C.. Jaunpur, 2016 (133) RD 674 (Alld.HC)
U.P. Imposition of Ceiling on Land Holdings Act
Ss. 10(2) and 12- Surplus Land- Determination of
Determination of the surplus land by the prescribed Authority where an objection is filed- (1) Where an objection has been filed under sub- section (2) of section 10 or under sub-section (2) of Section 11, or because of any appellate order under Section 13, the Prescribed Authority shall, after affording the parties reasonable opportunity of being heard and of producing evidence, decide the objections after recording his reasons, and determine the surplus land.
(2) Subject to any appellate order under Section 13, the order of the prescribed Authority under sub-section (1) shall be final and conclusive and be not questioned in any court of law. Arvind Kumar v. State of U.P. and Others, 2016 (34) LLCD 2557
U.P. Land Revenue Act Sec. 40-A – Scope of – Does not bar a suit in a competent court for relief on the basis of right in a holding Upon a consideration of the submissions made, the first point, which arises for consideration is whether a suit under Section 229B of the UP ZA and LR Act, is a title suit. The contention of learned counsel for the petitioner is that this suit is not a title suit contemplated under Section 40-A of the UP Land Revenue Act. The said Section 40-A is extracted below: "Section 40-A. Saving as to title suits.- No order passed under Section 33, Section 35, Section 39, Section 40, Section 41 or Section 54 shall bar any suit in a competent Court for relief on the basis of a right in a holding." Smt. Premlata Sing v. State of U.P., 2016 (133) RD 810 (Alld.HC)
Ss. 210 and 219 – Revision under Sec. 219 instead of appeal under Sec. 210 of the Act against order passed under Sec. 34 of the Act – Revision is maintainable – Same is akin to an appeal – Continuation of the proceedings A mutation order under Section 34 of the U.P. Land Revenue Act is amenable to an appeal under Section 210 of the said Act. Section 219 which provides for a revision states that a revision lies against orders which are not appealable or against orders which are appealable but no appeal has actually been filed. These revisional jurisdiction can be invoked in place of appellate jurisdiction and therefore, in cases where a revision is filed instead of an appeal, in view of the provisions contained in the second part of Section 219, the same is akin to an appeal and must be held to be continuation of the proceedings. For the reasons given above, this revision has rightly been held to be maintainable and I do not find any illegality in the said order. The writ petition is therefore, liable to be dismissed. Lakshmi Prasad v. Commissioner (Judicial), Varanasi Region, Varanasi, 2016 (133) RD 798 (Alld.HC)
U.P. Public Premises (Eviction of Unauthorized Occupants) Act, Section 3-Ejectment order of petitioners-Disputed premises belong to and owned by Zila Panchayat, Bulandshahr-Objection of petitioners City Magistrate has no jurisdiction to Act as prescribed Authority under the Act-Consideration of -In view of notification of 1998 DM/ADM, City Magistrate or Sub-Divisional Officer have no power to Act as Prescribed Authority under the Act-No notification which annuals the above notification- Proceeding for eviction of petitioners without jurisdiction hence quashed. In view of the above notification of 1998 it transpires that after 1998 only the Labour Commissioner, U.P./Additional Labour Commissioner/Joint Labour Commisioner, U.P./ Deputy Labour Commissioner/Assistant Labour Commissioner (Housing) and Regional Deputy Labour Commissioner alone are empowered to act as prescribed Authority in respect of all public premises within their jurisdiction and no one else. Therefore, the District Magistrate/Additional District Magistrate, City Magistrates or the Sub-Divisional Officer have no power to act as Prescribed Authority under the Act. There is no other notification which annuls the above notification. Thus, in my opinion, the proceedings for eviction of the petitioners from the disputed premises before the City Magistrate are wholly without jurisdiction and invalid. Consequently, any order(s) passed by the City Magistrate in exercise of the powers of the Prescribed Authority under the Act would also be nonest and null & void. Accordingly, the impugned orders dated 20.2.2016, 18.3.2016 and 18.3.2016 passed by the City Magistrate, Bulandshahr as Prescribed Authority under the Act in all the three writ petitioners are hereby quashed and a writ of certiorari is issued to the above effect. All consequential orders thereof are also held to be meaningless, null and void. Deepika Singh (Smt.) Vs. Zila Panchayat, Bulandshahr And Another, (2016 (3) ARC 824).
U.P. Revenue Code
Sec. 67- U.P. Revenue Code Rules, 2016- Rule 67- Encroachment on public pond- Removal of Consideration
Through this writ petition, following prayers have been made. A. Issue a writ order or direction in the nature of mandamus commanding or directing the respondents no. 2 and 3 keep clear the Arazi no. 396/0.0930 hectare recorded as Public Pond and inspect the ncroachment/construction made by the respondents no. 4 to 8 and take legal action against them.
B. Issue a writ order or direction in the nature of mandamus directing and prohibiting the respondents no. 4 to 8 not to raise and encroach upon the public pond. C. Issue a writ order or direction in the nature of mandamus commanding or directing the respondents no. 2 to 3 to take strict action in accordance with law against the respondents no. 4 to 8 and also stop the second installment or remaining balance in the scheme of Ram Manohar Lohiya Avas Yojna.
D. Issue any such other and further orders as this Hon'ble Court may deem fit and proper under the circumstances of the case.
E. Award the cost of the writ petition through out in favour of the petitioners. In substance, the petitioners appear to be aggrieved by encroachment over the pond on the Plot No. 396 measuring about 0.0930 hectare situated in Village Jamaluddinpur by respondents no. 4 to 8 by raising construction under Dr. Ram Manohar Lohiya Awas Yojana. Prayer has also been made for issuing a writ of mandmaus commanding the respondents no. 4 to 8 not to raise the construction and encroach upon the public pond. Further prayer has been made for issuing a writ of mandamus directing the respondents no. 2 and 3 to take strict action in accordance with law against the respondents no. 4 to 8.
Here in this case too, encroachment over the pond has neither been intimated by the Land Management Committee of the village nor by the Lekhpal and the petitioner if filed an application informing the authority regarding such encroachment, the application of the petitioner, in my considered opinion, shall be covered under the umbrella of the world 'otherwise' used Section 67 (2) & Rule 67 of the Rules. In view of the fact that under the Code, it is the Assistant Collector who has been empowered to pass an order for removal of such encroachment and ensuring removal of such encroachment, the application by an individual private person has to be made to the Assistant Collector but if the application has been made other than the Assistant Collector, to the Commissioner or the Collector or the Deputy Collector or any other authority, in view of the law laid down by this Court in the case of Rama Shankar (supra) the authority concerned i.e. the Commissioner or the Collector or the Deputy Collector or any other authority, after receipt of such information regarding encroachment has to immediately transmit the application to the Assistant Collector of the concerned tehsil and after receipt of the application either from the office of the Commissioner or the Collector or the Deputy Collector or any other authority, the Assistant Collector thereafter is obliged to proceed in accordance with law and take suitable decision in accordance with the provisions contained under Rule 67 of the Rules. I find it appropriate to reproduce paragraph 13 of the judgment in the case of Rama Shankar (supra) which talks about the receipt of such complaint by various authorities and their duty after receipt of such complaints.
In the case in hand, the grievance of the petitioner is that in spite of various representations/complaints made to the District Magistrate and the Commissioner of the concerned Division, no action has been taken and, therefore, he has been compelled to file this writ petition.
Here in this case as would appear from the record that the petitioner has filed application before the Sub-Divisional Officer Shahganj District Jaunpur. The Sub-Divisional Officer Jaunpur is directed to send the application filed by the petitioner before the Assistant Collector of concerned Tehsil within two weeks from the date of receipt of certified copy of this order and in addition to that, the petitioner is also given liberty to file a fresh application before the Assistant collector of the concerned Tehsil and in case, such application is filed or otherwise received, the Assistant Collector of the concerned Tehsil is directed to take appropriate decision on the petitioner's application in accordance with law expeditiously. Bhola Nath and another v. State of U.P. and others, 2016 (6) AWC 6363
U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act
Sec. 21 (1) (a) – Release application – On personal need – Consideration of
The release application under section 21(1)(a) of U.P. Act No. 13 of 1972 was filed by three brothers namely Nand Kishore, Sundar Lal, Jagdish Saran all sons of Tara Chand residents of Maarwariganj, Bareilly, for release of a godown situated in Marwariganj, Bareilly on the ground of their personal need. The need set up was for three sons of applicant no.1, 2 and 3 namely Sri Vishnu Kumar, Narendra Kumar, Dheeraj Kumar. It was categorically stated in the release application that sons of the applicants had completed their education but they could not settle in their carreer and they want to establish a new venture for the sale of Empty Tin Cans. As a larger area was required for storage of tin cans, the godown in question was needed. It was stated that for running the business proposed by three younger members of the joint family, only an office space is available with the landlords.
It was also recorded that the properties which were in possession of the landlord were not suitable for the business of Tin Can proposed by them. Three adult members of the family were competent to start their business.
On comparative hardship, it was recorded that the disputed accommodation was a godown. Placing reliance upon the judgment of this Court in Ram Gulam Gupta Vs. Additional District Judge, Kanpur and others, it was held by the lower Appellate Court that the godown can be shifted easily at any other place as no goodwill was attached to the building/place. It was also recorded that looking to the pleadings of the parties the tenant would not suffer any hardship in case, he was asked to leave the godown.
For all above noted reasons, this Court does not find any infirmity in the findings recorded by the appellate Court below and further is of the opinion that the landlords have established their bonafide need for the godown in question and in case the release application is rejected, the landlord would be deprived of starting a new venture which would cause more hardship to him in comparison to the tenant.
It is noted that the appellate Court has granted thirty days time to the applicant/petitioner to vacate the disputed accommodation and handover its possession. A condition was also put that the landlord would pay an amount of Rs.8000/- towards two years of rent to the tenant as a consequence of release of the commercial accommodation. The tenant was required to handover vacant peaceful possession of the disputed accommodation to the landlords. As learned counsel for the petitioner did not make a submission for extension of time and as such no further time is being granted to the petitioner. Consequently, the petitioner has to handover peaceful vacant possession of the disputed accommodation namely the godown in question to the landlords within a period of thirty days. Rajendra Prasad V. Narendra Mittal and others, 2016 (6) AWC 5950
Sec. 21 (1) (a) – Constitution of India- Article 227- Eviction – Application for- On ground of bona fide need
This petition filed under Article 227 of the Constitution of India impeaches the validity of the judgment and order dated 12.02.2013, passed by the prescribed authority, whereby the application moved by respondent no.3 under Section 21(1)(a) of U.P. Urban Buildings (Regulation of Letting Rent and Eviction) Act, 1972 (hereinafter referred to as 'the U.P. Act No.13 of 1972') for eviction has been allowed.
The petitioner also challenges the order dated 08.03.2016, passed by the appellate court, whereby the Rent Appeal preferred by the petitioner against the order of the prescribed authority, has also been dismissed.
While hearing the petition under Article 227 of the Constitution of India in a matter where finding of facts are concluded by both the courts below, this Court can interfere unless, of course, any apparent perversity in the findings can be pointed out. Having perused the judgment and order passed by the prescribed authority as well as the appellate court, it cannot be said that the findings suffer from perversity to the extent that the same may be warranted to be interfered with in these proceedings under Article 227 of the Constitution of India.
In the result, the petition deserves to be dismissed, which is hereby dismissed. Asad Ali v. Special Judge, E.C. Act/ District Judge and others, 2016 (6) AWC 6488
Sec. 21(1) (a)-Release application-For residential as well as for business-Allowed by Court below-No notice required under Section 21(1)(a) of the Act served and presumption of service of notice drawn by Court below not correct-Plea of-held-Merely because the postal receipt does not make a mention of house number, rather it only makes a mention of Mohalla where house is situated, it cannot be said that notice not served-Plea raised not acceptable-Application rightly allowed. This Court has perused the record of learned lower courts below. Paper No. B-24/46 is copy of the notice dated 26.09.2007, which is available on the record of the trial court. Paper n. C-25/2 is the postal receipt dated 26.09.2007, which is addressed to the petitioner. On the basis of the aforesaid documents which are available on record of learned trial court. it is clear that notice dated 26.09.2007 was served on the petitioner. Submission of learned counsel for the petitioner at this juncture is that Paper No. C-25/2, which is the postal receipt does, not contain any address and as such, it cannot be presumed that notice was sent to the petitioner on his correct address. In this regard, it may only be observed that paper No. B-24/46 which a copy of the notice contains address of the petitioner as 41/210, Ram Ratan Bajpai Road, Narhi, Lucknow. Merely because the postal receipt does not make a mention of the house number, rather it only makes a mention of the Mohalla where the house is situated, it cannot be said that notice was not served to the petitioner at his correct address. The postal receipts these dates are issued by an electronic machine and possibility of not mentioning the house number while issuing receipt cannot be denied. The notice which is no record mentions correct address of the petitioner and as such the plea being raised by the learned counsel for the petitioner in this regard is not acceptable. It is also noticeable that in the affidavit which is in the shape of evidence filed by the respondent no. 3 before the Orescrubed Authority against amended paras of Written Statement, it was categorically mentioned that after purchase of house in question, respondent nos. 3 and 4 have served the mandatory notice of six months on 26.09.2007 on the petitioner and the copy of the said notice has also been filed as evidence and that it is only after expiry of period of mandatory notice of six months that respondent no. 3 and 4 had preferred application/petition under section 21(1)(a) of the Act. The said averments have been made in para 4 of the affidavit of respondent no. 3 which is paper no. B-44. The record of court below does not reveal that said averment was ever denied or rebutted by the petitioner. Looking into overall facts and circumstances of the case and also in view of the discussions made and reasons given hereinabove, in the result, the petition fails, which is hereby dismissed. Suresh Kumar Mishra V. Court of Addl. District Judge (Cbi-Iv) Lucknow & 3 Others, (2016(3) ARC 805 Sec. 21 (1) (a), third provision Clause (ii) –Release- Application for- Release application to that effect held to be barred by Clause (ii) to third provision of Section 21 (1) of Act- further, held that notwithstanding any objection to the release application by tenant same on face of it was not maintainable insofar as it sought release of residential portion for business purposes –validity of
The respondent/landlords applied for release of the above portion under Section 21(1)(a) of the U.P. Act No.13 of 1972. The said release application after contest by the tenant has been allowed by the courts below. Aggrieved by release of the portion in question, the petitioner/tenant has invoked writ jurisdiction of this Court.
The pleadings of the release application further reveal that the case of the landlords is that they have no other place to do any business except for the portion in dispute. They are living with their family with Smt. Urmila Tandon in a house 33 Lookerganj, Allahabad. The landlord No.1 is doing computer business and his establishment is registered with the Labour Department. He requires the premises in dispute for his bonafide need to expand/start his computer business which will require a Computer Operator, an Accountant, three Salesman and an Assistant.
The aforesaid provision only debars the tenant from raising objection against the release application but it does not debars the court from considering the maintainability of the release application on the pleadings made in the release application itself. Thus, notwithstanding any objection to the release application by the tenant the release application on the face of it was not maintainable in so far as it seeks the release of a residential portion for business purposes.
Accordingly, the judgments and orders dated 30.5.2014 passed by the Additional District Judge, Court No.10, Allahabad and dated 10.1.2013 passed by the Prescribed Authority, Allahabad in so far as they direct for release of the residential portion of the House No.18/15 Hastings Road, Tandon Quarters, Allahabad for commercial purposes is quashed and the release of the shop alone which forms part of the tenanted portion is maintained. Rajesh Kumar Gupta v. Deepak Tandon and another, 2016 (6) AWC 5725
U.P.Z.A. & L.R. Act
Sec. 122B-- Uttar Pradesh Zamindari Abolition and Land Reform Rules, Rr. 115C and 115E—Uttar Pradesh Revenue Code, S. 67— Uttar Pradesh Revenue Code Rules, S. 67—Encroachment over public pond by raising construction—Removal of—Only Assistant Collector empowered to remove encroachment In this case, encroachment over the pond has neither been intimated by the Land Management Committee of the village nor by the Lekhpal and the petitioner if filed an application informing the authority regarding such encroachment, the application of the petitioner, in Court‘s considered opinion, shall be covered under the umbrella of the word ‗otherwise‘ used Section 67 (2) & Rule 67 of the Rules. The intention of the legislature is very much clear on the point that firstly it is the duty of the Gaon Sabha/Land Management Committee and the local authority and the Lekhpal of the concerned area to make inspection of the site in each fasli while preparing the khasra and if any encroachment is found to be there, the same has to be reported to the Assistant collector who happens to be the competent authority under Section 67 of the Code or Section 122-B of the Act and on their failure, the competent authority was also given additional power to ensure removal of such encroachment if it comes to the knowledge of the encroachment over the gaon sabha land or the land belonging to the local authority from any other source. In view of the fact that under the code, it is the Assistant Collector who has been empowered to pass an order for removal of such encroachment and ensuring removal of such encroachment, the application by an individual private person has to be made to the Assistant Collector but if the application has been made other than the Assistant Collector, to the Commissioner or the Collector of the Deputy Collector or any other authority, in view of the law laid down by this Court in the case of Rama Shankar (2013 (1) ALJ 31) the authority concerned i.e. the Commissioner or the Collector or the Deputy Collector or any other authority, after receipt of such information regarding encroachment has to immediately transmit the application to the Assistant Collector of the concerned tehsil and after receipt of the application either from the office of the Commissioner or the Collector or the Deputy Collector thereafter is obliged to proceed in accordance with law and take suitable decision in accordance with the provisions contained under Rule 67 of the Rules. Bhole Nath vs. State of U.P., 2016 (6) ALJ 129
Sec. 122-B-4(f)- Restoration application - Any order passed on restoration application seeking recall of order was not revisable The brief facts of this case are that in a proceeding under section 122B (4F) of U.P. Zamindari Abolition and Land Reforms Act, 1950 (in short the Act) the Sub Divisional Officer has passed an order dated 10.10.1998 for recording the name of respondent no. 6 as Bhumidhar with non transferable right over plot no. 547 situated in village Bansdeeha upon which it is alleged that the respondent no. 6 had been in possession prior to 1985.
The petitioner herein claiming himself to be lease holder on the aforesaid plot, has filed restoration application seeking recall the order dated 10.10.1998 before the Sub Divisional officer on 28.7.2004. The restoration application was allowed on 31.5.2005 by Sub Divisional Officer and order dated 10.10.1998 was recalled. Aggrieved by the order dated 31.5.2005 the respondent no. 6 has filed revision No. 511/886/G (Dwarika Vs. Ganga Raman) before the Additional Commissioner, Gorakhpur Division, Gorakhpur which, in turn, was heard and allowed by the Additional Commissioner (Admn.) vide order dated 29.10.2011 on the ground that the petitioner had no right to file restoration application.
It is contended by learned counsel for the petitioner that against the order, allowing restoration application seeking recall of the order, passed under section 122B (4F) of the Act revision was not maintainable.
Division Bench of this court in the case of Shushila and another vs. State of U.P. and others being Special Appeal No. 479 of 2015 decided on 29.9.2015 has held that an order passed under section 122B (4F) of the Act is not revisable. In view of the fact that the order passed under section 122B(4F) itself is not revisable therefore any order passed on the restoration application seeking recall of the order passed under section 122B (4F) is also not revisable therefore in my opinion the order passed by the Revisional court, against the order allowing restoration application, is without jurisdiction. Ganga Raman Sharma V. State of U.P. and others, 2016 (5) AWC 5023
Sec. 131-B – Temporary Injunction – Refused in a suit for permanent injunction – Appeal against – Dismissed – Legality of
Till date sale-deed has not been calncelled. Revenue entries are also in favour of the petitioner. Learned Counsel for the respondent has argued that respondent No. 1 took permission of the D.M. To sell his land to Ramvriksha and firstly he did not execute the in sale deed in favour of the petitioner and secondly even if sale-deed was executed it was illegal because no permission had been sought. Both petitioner as well as respondent No. 1 are scheduled caste. The property is not covered by section 131-B of U.P.Z.A.L.R. Act. Accordingly, permission was not necessary.
Accordingly, in court's opinion prima facie the petitioner has made out a case for grant of temporary injunction. Writ petition is accordingly allowed impugned order are set aside, petitioner's temporary injunction application is allowed in the following manner :-
It is directed that until decision of the suit respondents shall not interfere in the possession of the petitioner. Petitioner is also restrained from alienating the property in dispute or changing its nature till the decision of the suit. All the four suits shall be consolidated and decided together. It is stated that in OS No. 47 of 1999 filed by respondent No. 1 Lal Chand. He (Lal Chand) has filed application for dismissal of the suit as withdrawn. If such an application is pending then the suit shall be dismissed as withdrawn. Respondents No. 2 to 5 are sons of Lal Chand. The suits must be decided very expeditiously. Absolutely, no unnecessary adjournment shall be granted to the plaintiff as he has been granted temporary injunction. If any adjournment is granted to the plaintiff then is shall be on heavy cost which shall not be less than Rs. 300/- per adjournment payable before the next date failing which suit shall be dismissed for non-prosecution. However, if defendants-respondents seek more than two adjournments then this direction shall stand automatically vacated/recalled. Bechan v. Lal Chand, 2016 (133) RD 645 (Alld.HC)
Sec. 166 – Attractibility of So far as the argument that sale-deed is affected by section 166 of the Act, is concerned, it has been found that sale-deed was in respect of bhumidhari holding, therefore, section 166 is not attracted. Otherwise also on the basis of plea of Section 166 of the Act, the petitioners will not get any benefit of land as the land will vest in State of U.P. Therefore this Court is not inclined to interfere in the matter. Amarjeet v. Board of Revenue, Allahabad, 2016 (133) RD 8 (Alld.HC)
Rs. 176 and 176-A – Asami Pata-Asami patta shall not be for a period exceeding five years – Sub divisional officer is empowered to determine the asami lease at any time Besides, from a perusal of the order passed by the Sub Divisional Magistrate, it is clear that it has been passed in exercise of powers conferred by Rule 176-A of the U.P. Zamindari Abolition and Land Reforms Rules which provides that an asami lease shall not be for a period exceeding five years and that it is lawful, for the Assistant Collector (Incharge) of the sub division, namely, the Sub Divisional Officer to determine, at any time, a lease in favour of an asami. Chandan Prasad V. State of U.P., 2016 (133) RD 648 (Alld.HC)
Wakf Act
Ss. 32 (2) (g), 27- Appointment of Muttawalli of Mosque - Power of, to be exercised by wafk Board and cannot be delegated U/s 27 of Act
From a perusal of the facts, the main issue raised by the learned Counsel for the petitioner is that the powers that have to be exercised by the Board under Section 32 (2) (g) of the 1995 Act cannot be delegated under Section 27. It is therefore submitted that the impugned order appointing the respondent No.3 as Mutawalli of the Mosque Arif Mian is in excess of such powers and that's why the Chairman who has exercised this power unauthorizedly, has avoided the use of the word 'appointment' as Mutawalli and has rather 'recognized' the respondent No.3 as Mutawalli. On a consideration of the aforesaid submissions, court is clearly of the opinion that the contention of Sri Khan to the effect that a declaration in respect of the customary right of a person to claim himself to be Sajjada Nashin of the Dargah was not within the powers of the Chairman and make such a declaration. If a party wants to seek such declaration, it has to approach the appropriate forum. Shah Ammar Ahmad @Shah Nayyar Ahmad v. U.P. Sunni Central Waqf Board & Ors., 2016 (5) ALJ 535
Words and Phrases
Assignment - Meaning of
Means transfer from one person to another the whole or part of an existing right or interest in intangible property presently owned by the assignor – Right or interest itself is not extinguished – Assignment of benefit of the contract is permissible where the consideration has been executed – Contracts where mutual obligations remain unenforced and whole consideration is not executed cannot be assigned – In such case original contractee cannot be discharged and he cannot create privity or quasi privity with a substituted person – Instantly, mutual obligations arising out of AGREEMENT – I remain to be enforced original contractree, i.e., American company cannot claim to have been discharged from obligations under agreement II, creating only an agency retaining its rights to enforce obligations under agreement I – Agreement II not an assignment.
1902 2 K.B. 660; (1903) AC 414 – Relied upon (b) Agreement – Novation – No agreement between American company and respondent company prior to Agreement II – There cannot be any novation of Agreement I by American company – Obligations under Agreement I owed by American company to appellant not discharged by Agreement II – Hence, respondent not stepping into shows of American company. (1882( 7 App. Cas. 345 – Relief upon. Sasan Power Limited V. North American coal Corporation India Private Limited, 2016 (6) Supreme 481
Word ―entertained‖, under S. 8(2) of Arbitration and Conciliation Act—Refers to consideration of application and not to initiation of proceedings The word ‗entertained‘ has specific meaning In P. Ramanatha Aiyar‘s Advanced Law Lexicon word ‗entertained‘ has been defined as: "1. To bear in mind or consider, esp.,to give judicial consideration to" 2. To amuse or please. 3. To receive (a person) as a guest or provide hospitality to (a person). The expression ‗entertain‘ means to ‗admit a thing for consideration‘ and when a suit or proceeding is not thrown out in limine but the Court receives it for consideration and disposal according to law it must be regarded as entertaining the suit or proceeding, no matter whatever the ultimate decision might be.‖ The Black‘s Law Dictionary also defines this word ‗entertain‘ as follows‖ ―To bear in mind or consider; esp., to give judicial consideration to
Miscellaneous
Constitution of India, Art 32- PIL- Moral values- Seeking mandamus for inclusion of moral values science as compulsory subject in syllabus of school education from class I to XII- Scope of jurisdication of Hon‘ble Supreme Court to issue mandamus
These are vexed issues to which more than one solution may appear just. That is exactly the reason why a resolution of such matters must rest with those who have the responsibility to teach and govern over matters of education. Every good that is perceived to be in the interest of society cannot be mandated by the court. Nor is the judicial process an answer to every social ill which a public interest petitioner perceives. A matter such as the present to which a solution does not rest in a legal or constitutional framework is incapable of being dealt with in terms of judicially manageable standards.
In any event, we have adverted at some length to the response which has been filed by CBSE, which has also been adopted by the Union of India, as reflective of its position. The issue whether an alternative approach would better subserve the concern for providing value based education is not a matter for the court to evaluate.
For these reasons, we find no merit in the Writ Petition. The Petition shall accordingly stand dismissed. Mrs. Santosh Singh v. Union of India and anothrs, 2016 (5) AWC 5396
Legal Quiz
Q. 1
2
Ans. 2
Service of summonses
CL No. 1581 Dated 19th May, 1904
All summonses intended for service on an officer serving under the Government of India shall be forwarded through the head of his department so as to admit of suitable arrangements being made for the conduct of public business during the absence of the officer concerned.
APPENDIX 1
PERSONS EXEMPTED FROM PERSONAL APPEARANCE
Section 133(1) of Act No. V of 1908
The following is the list of persons in the Uttar Pradesh who have been exempted from personal appearance in Civil Court under Section 133 (1) of the Code of Civil Procedure: [Omitted in view of the amended Sec 133 (1) –Ed.)
Persons exempted from personal appearance in Court
Exemption of certain women from personal appearance (S. 132 CPC)- 1- Women who according to the customs and manners of the country, ought not to be compelled to appear in public shall be exempt from personal appearance in Court. 2- Nothing herein contained shall be deemed to exempt such women from arrest in execution of civil process in any case in which the arrest of women is not prohibited by this code. Other persons Exempted (S. 133 CPC) 1- The following persons shall be entitled to exemption from personal appearance in Court namely (i) The President of India; (ii) The Vice- President of India; (iii) The Speaker of the House of the People; (iv) The Ministers of the Union; (v) The Judges of the Supreme Court; (vi) The Governors of States and the administrators of Union Territories; (vii) The Speakers of the State Legislative Assemblies; (viii) The Chairman of the State Legislative Councils; (ix) The ministers of States; (x) The Judges of the High Court‘s; and (xi) The persons to whom section 87B applies.] 2[***] 2- Where any person 3[***] claims the privilege of such exemption, and it is consequently necessary to examine him by commission, he shall pay the costs of that commission, unless the party requiring his evidence pays such costs. Q. 2 IV&
― ‖
Ans.
Rule 610- Inspection of Subordinate Courts by District Judge- ―Every District Judge shall inspect his subordinate courts and officers and also his own offices at least once a year.
…………… A report of such inspection shall be sent to the High Court.‖
Rule 611- Inspection by Judicial Officers of their offices- Every Judicial Officer shall inspect his office effectively in every branch at least four times a year about once in every quarter.
………………. Report of such inspections shall be sent to the District Judge.
Q. 3 Protection of Children from Sexual offences Act charge sheet
Section 29 ds Prosecution
Ans. 2012 (The Protection of Children From Sexual Offences Act, 2012) (Penetrative Sexual Assault) (Penetrative Sexual Assault) (Aggravated Penetrative Sexual Assault)
(Aggravated Penetrative Sexual Assault)
(Sexual Assault) (Sexual Assault)
1-
‖
― 2012‖
Q. 4 Complaint Case esa Accused U/s 245 (2) Cr.PC
Ans.
Q. 5
Ans.
It is contextually relevant to notice that Special Courts created under certain other enactments have been specially empowered to take cognizance of the offence without the accused being committed to it for trial, (e.g. Section 36-A(l)(d) of the Narcotics Drugs and Psychotropic Substances Act). It is significant that there is no similar provision in the Scheduled Castes Scheduled Tribes (Prevention of Atrocities) Act 1989.
"193. Cognizance of offences by Courts of Session. - Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code." So the first aspect to be considered is whether the Special Court is a Court of Session. Chapter II of the Code deals with "Constitution of Criminal Courts and Offices". Section 6, which falls thereunder says that "there shall be, in every State,the following classes of Criminal Courts, namely : (i) Courts of session;'' (The other classes of criminal courts enumerated thereunder are not relevant in this case and hence omitted.) Section 14 of the Act says that "for the purpose of providing for speedy trial, the State Government shall, with the concurrence of the Chief Justice of the High Court, by notification in the Official Gazette, specify for each district a Court of Session to be a Special Court to try the offences under this Act". So it is for trial of the offences under the Act that a particular Court of Session in each district is sought to be specified as a Special Court. Though the word "trial" is not defined either in the Code or in the Act it is clearly distinguishable from inquiry. The word "inquiry" is defined in Section 2(g) of the Code as. "every inquiry, other than trial, conducted under this Code by a magistrate or court". So the trial is distinct from inquiry and inquiry must always be a forerunner to the trial. The Act contemplates only the trial to be conducted by the Special Court. The added reason for specifying a Court of Session as special Court is to ensure speed for such trial. "Special Court" is defined in the Act as "a Court of Session specified as a Special Court in Section 14", [vide S.2(l)(d)] Thus the Court of Session is specified to conduct a trial and no other court can conduct the trial of offences under the Act. Why the Parliament provided that only a Court of session can be specified as a Special Court? Evidently the legislature wanted the Special Court to be Court of Session. Hence the particular Court of Session, even after being specified as a Special Court, would continue to be essentially a Court of Session and designation of it as a Special Court would not denude it of its character or even powers as a Court of Session. The trial in such a court can be conducted only in the manner provided in Chapter XVIII of the Code which contains a fasciculus of provisions for "Trial before a Court of Session". …………………………………………….. Hence we have no doubt that a Special Court under this Act is essentially a Court of Session and it can take cognizance of the offence when the case is committed to it by the magistrate in accordance with the provisions of the Code. In other words, a complaint or a charge sheet cannot straightway be laid before the Special Court under the Act.
―14. (1) For the purpose of providing for speedy trial, the State Government shall, with the concurrence of the Chief Justice of the High Court, by notification in the Official Gazette, establish an Exclusive Special Court for one or more Districts: Provided that in Districts where less number of cases under this Act is recorded, the State Government shall, with the concurrence of the Chief Justice of the High Court, by notification in the Official Gazette, specify for such Districts, the Court of Session to be a Special Court to try the offences under this Act: Provided further that the Courts so established or specified shall have power to directly take cognizance of offences under this Act. (2) It shall be the duty of the State Government to establish adequate number of Courts to ensure that cases under this Act are disposed of within a period of two months, as far as possible. (3) In every trial in the Special Court or the Exclusive Special Court, the proceedings shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the Special Court or the Exclusive Special Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded in writing: Provided that when the trial relates to an offence under this Act, the trial shall, as far as possible, be completed within a period of two months from the date of filing of the charge sheet.‖