The Indian Law Reports’ M.P. Series
5 Years’ Digest
From 2006 to 2010
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LAW REPORTING COMMITTEE OF ILR, M.P. SERIES, 2011
PATRON
Hon’ble Shri Justice S. Rafat Alam, Chief Justice
PRESIDENT
Hon’ble Shri Justice K.K. Lahoti
MEMBERS
Shri R.D. Jain, Advocate General (Ex-Officio) Shri Rajendra Tiwari, Senior Advocate Shri P.R. Bhave, Senior Advocate Shri Rohit Arya, Senior Advocate Shri G.S. Ahluwalia, Advocate (Ex-Officio)/ Secretary Shri Ved Prakash, Principal Registrar (Judl.) (Ex-Officio)
~ Published by ~ AWDHESH KUMAR SHRIVASTAVA Principal Registrar (ILR)
~ Assisted By ~ B.B. SHUKLA, OSD D.K. MISHRA, Assistant Editor.
~ Edited By ~ G.S. AHLUWALIA, Advocate
For Law Reporting Committee High Court of M.P., Jabalpur under the Authority of the Governor of M.P. Madhya Pradesh Shasan, Bhopal
CONTENTS
Contents of Headings … 1 to 21 Comparative Table … 22 to 44 Nominal Index … 45 to 113 Personal Notes … 788 THE HIGH COURT OF MADHYA PRADESH, JABALPUR As on 31.07.2011
CHIEF JUSTICE
Hon’ble Shri Justice Syed Rafat Alam Chief Justice PUISNE JUDGES Hon’ble Shri Justice Sushil Harkauli Hon’ble Shri Justice K.K. Lahoti Hon’ble Shri Justice Ajit Singh Hon’ble Shri Justice Rajendra Menon Hon’ble Shri Justice A.K. Shrivastava Hon’ble Shri Justice S.S. Kemkar Hon’ble Shri Justice S.K. Seth Hon’ble Shri Justice Rakesh Saksena Hon’ble Shri Justice N.K. Mody Hon’ble Shri Justice U.C. Maheshwari Hon’ble Shri Justice S.K. Gangele Hon’ble Shri Justice P.K. Jaiswal Hon’ble Smt Justice S.R. Waghmare Hon’ble Shri Justice Abhay M. Naik Hon’ble Shri Justice Ravi Shankar Jha Hon’ble Shri Justice J.K. Maheshwari Hon’ble Shri Justice S.N. Aggarwal Hon’ble Smt Justice Sushma Shrivastava Hon’ble Shri Justice Suresh Chandra Sinho Hon’ble Shri Justice R.C. Mishra Hon’ble Shri Justice Sanjay Yadav Hon’ble Shri Justice Satish Chandra Sharma Hon’ble Shri Justice Prakash Shrivastava Hon’ble Shri Justice Mool Chand Garg Hon’ble Smt Justice Indrani Datta Hon’ble Shri Justice I.S. Shrivastava Hon’ble Shri Justice Alok Aradhe Hon’ble Shri Justice Brij Kishore Dube Hon’ble Shri Justice Gulab Singh Solanki Hon’ble Shri Justice Naresh Kumar Gupta Hon’ble Shri Justice Anil Kumar Sharma Hon’ble Smt Justice Vimla Jain Hon’ble Shri Justice Mohamad Anwar Siddiqui Hon’ble Shri Justice Giriraj Das Saxena Hon’ble Shri Justice Tarun Kumar Kaushal Hon’ble Shri Justice Keshav Kumar Trivedi Hon’ble Shri Justice Sheel Nagu Hon’ble Shri Justice Sujoy Paul
1 CONTENTS OF HEADINGS
CONTENTS OF HEADINGS P.No.
A Accommodation Control Act, M.P. (41 of 1961) 1 Administrative Law 23 Administrative Tribunal Act, M.P. (13 of 1985) 23 Admission (Reservation to NRI) Regulation, M.P. 2009 23 Adverse Possession 24 Advocacy 24 Advocates Act (25 of 1961) 24 Agriculture Cattle preservation Act, M.P. 1959 24 Agricultural Warehouse Act, M.P. 1947 (1 of 1948) 24 All India Bar Council (First Constitution) Rules, 1961 25 Ancient Monuments and Archaeological Sites and Remains Act, 25 M.P. (12 of 1964) Ancient Monuments and Archaeological Sites and Remains 25 Rules, M.P., 1976 Arbitration Act, Indian (10 of 1940) 25 Arbitration and Conciliation Act (26 of 1996) 27 Arms Act (54 of 1959) 33 Army Act (46 of 1950) 34 Army Rules, 1954 35 Ashaskiya Shikshan Sanstha (Adhyapakon Tatha Anya Karmchariyon Ke Vetano Ka Sanday) Adhiniyam, M.P. (20 of 35 1978) Ashaskiya Shikshan Sanstha Anudan Niyam, M.P. 2008 35 Ashaskiya Shikshan Sanstha (Institutional Fund) Rules, M.P. 35 1983 Ayurveda/Homeopathy/Unani Medical Cadre Contract Service 36 (Appointment and Conditions of Service) Rules, M.P. 2006
2 CONTENTS OF HEADINGS
Ayurvigyan Parishad Adhiniyam, M.P., 1987 (11 of 1990) 36 B Back wages 36 Bankers Books Evidence Act (18 of 1891) 37 Banking Regulation Act (10 of 1949) 37 Bar Council of India Rules 37 Benami Transaction Prohibition Act, (XLV of 1988) 38 Binding Precedent 38 Board of Secondary Education (Enrolment) Rules, 1994 38 Board of Secondary Education (M.P.) Regulations, 1965 38 Board of Secondary Education Directions for Academic Session 39 M.P., 2006-07 Building and Other Construction Workers' (Regulation of 39 Employment and Conditions of Service) Act, (27 of 1996) Building and Other Construction Workers' Welfare Cess Act (28 40 of 1996) Building and Other Construction Workers' Welfare Cess Rules, 41 1998 Burden of proof 41 C Cantonment Election Rules, 2007 41 Cantonment Electoral Rules, 2007 41 Cantonments Act (41 of 2006) 42 Ceiling on Agricultural Holdings Act, M.P. (XX of 1960) 43 Central Civil Services & Civil Posts (Upper Age Limits for Direct 44 Recruitment) Rules 1998 Central Civil Services (Classification, Control and Appeal) Rules, 44 1965 Central Excise Act (1 of 1944) 45 Central Excise and Salt Act (1 of 1944) 45
3 CONTENTS OF HEADINGS
Central Reserve Police Force Rules, 1955 45 Central Sales Tax Act (74 of 1956) 46 Change in Government 46 Chartered Accountants Act (38 of 1949) 46 Chartered Accountants Regulation, 1988 47 Chikitsa Sanstha (Niyantran) Adhiniyam, M.P., (19 of 1973) 47 Cigarettes and Other Tobacco Productions (Prohibition of Advertisement and Regulation of Trade and Commerce, 47 Production Supply and Distribution) Act, (34 of 2003) Cinemas (Regulation) Act, M.P. (17 of 1952) 48 Circular issued by Central Board of Direct Taxes 48 Civil 48 Civil Courts Act, M.P. (19 of 1958) 49 Civil Courts Rules, M.P. 1961 49 Civil Judge, Class-II (Entry Level) Examination, 2009 49 Civil Procedure Code (5 of 1908) 50 Civil Services (Classification, Control & Appeal) Rules, M.P. 117 1966 Civil Services (Conducts) Rules, M.P. 1965 123 Civil Services (General Conditions of Services) Rules, M.P. 1961 123 Civil Services (Medical Attendance) Rules, M.P. 1958 124 Civil Services (Pension) Rules, M.P. 1976 125 Civil Services (Promotion) Rules, M.P. 2002 126 Civil Services (Special Provision for Appointment of Women's) 127 Rules, M.P., 1997 Civil Wrong & Criminal Offence 127 Class III (Non-Ministerial) Forest Service Recruitment Rules, 127 M.P. 1967
4 CONTENTS OF HEADINGS Class III (Non-Ministerial) Forest Services Recruitment Rules, 127 M.P. 1999 Coal Bearing Areas (Acquisition and Development) Act (20 of 127 1957) Coal Mines Labour Welfare Fund (Repeal) Act (27 of 1986) 128 Coal Mines Provident Fund Scheme, Payment of Gratuity Act, 128 (39 of 1972) Commercial Tax Act, M.P. 1994 (5 of 1995) 128 Commission of Inquiry Act (60 of 1952) 130 Commissioner of Oath Rules, 1976 130 Common Entrance Examination, D-MAT, 2006 130 Companies Act (1 of 1956) 131 Computation of posts for promotion 132 Conduct of Election Rules, 1961 132 Confiscation of commodity challenged 132 Constitution 132 Constitution of India 133 Constitutional validity 223 Consumer Protection Act (68 of 1986) 223 Contempt of Courts Act (70 of 1971) 223 Contract Act (9 of 1872) 225 Co-operative Societies Act, M.P., 1960 (17 of 1961) 227 Cooperative Societies Rules, M.P. 1962 230 Country Spirit Rules, M.P. 1995 231 Court Fees Act (7 of 1870) 231 Court Fees (Madhya Pradesh Amendment) Act (6 of 2008) 232 Criminal Law Amendment Ordinance, 1944 233
5 CONTENTS OF HEADINGS
Criminal Practice 233 Criminal Procedure Code, 1973 (2 of 1974) 233 Criminal Trial 299 Criminalization of Politics 301 D Dakaiti Aur Vyapharan Prabhavit Kshetra Adhiniyam, M.P. (36 301 of 1981) Debts Due to Bank and Financial Institutions Act,(LI of 1993) 301 Debts Recovery Tribunal (Procedure) Rules, 1993 302 Defence of Accused 302 Delhi Special Police Establishment Act (25 of 1946) 302 Delimitation Act (33 of 2002) 302 Development Authority Services (Officer and Servants) 303 Recruitment Rules, M.P. 1987 Dharma Swatantrya Adhiniyam, M.P. (27 of 1968) 303 Doctrine of Election 303 Doctrine of merger 303 Dowry Prohibition Act (28 of 1961) 304 Drugs and Cosmetics Act (XXIII of 1940) 304 Due service of summons 305 Duty of the Government as model employer 305
E Easements Act (5 of 1882) 305 Educational Service (Collegiate Branch) Recruitment Rules, M.P. 306 1967 Educational Service (Collegiate Branch) Recruitment Rules, 306 M.P., 1990 Election Rules, 1968 306
6 CONTENTS OF HEADINGS
Election Symbols (Reservation and Allotment) Order, 1968 306 Electricity Act (36 of 2003) 307 Electricity Act, Indian (IX of 1910) 307 Electricity Duty Act, M.P. (10 of 1949) 308 Electricity Duty Rules, M.P. 1949 308 Electricity (Supply) Act (54 of 1948) 309 Electricity Supply Code, M.P. 2004 309 Employees Regulation, 1950 310 Employees' State Insurance Act (34 of 1948) 310 Entry of name in Municipal Record 311 Entry Tax Act, M.P. (52 of 1976) 311 Essential Commodities Act (10 of 1955) 312 Essential Commodities (Price Exhibition and Price Control) 315 Order, M.P. 1977 Estate Duty Act (XXXIV of 1953) 316 Evidence Act (1 of 1872) 316 Excellent Player Certificate 359 Excise Act, M.P. (I of 1872) 359 Excise Act, M.P. (2 of 1915) 359 Excise Policy 2010-2011 361 Exoneration of Insurer 361 Explosive Substances Act (6 of 1908) 362 Explosives Act, Indian (IV of 1884) 362 F Factories Act (63 of 1948) 363
7 CONTENTS OF HEADINGS
False affidavit before HC 363 Family Courts Act (66 of 1984) 363 Finance Act (32 of 1994) 365 Financial Code, M.P. (Vol. I) 365 Fisheries (Gazetted) Service Recruitment Rules, M.P. 1987 365 Flag Code of India, 2002 366 Food Stuffs (Civil Supply & Distribution) Scheme, M.P. 1991 366 Food Stuffs (Distribution Control) Order, M.P. 1960 366 Foreign Exchange Regulation Act, (XLVI of 1973) 366 Foreign Liquor Rules, M.P. 1996 367 Forest Act, Indian (XVI of 1927) 367 Forest (Conservation) Act (69 of 1980) 369 Forest Produce (Conservation of Biodiversity and Sustainable 369 Harvesting) Rules, M.P. 2005 Fundamental Rules, M.P. 369 G Gauvansh Pratishedh Adhiniyam, M.P. 2004 371 General Clauses Act (10 of 1897) 371 General Clauses Act, M.P., 1957 (30 of 1958) 372 General Licence Conditions 372 General Provident Fund Rules, M.P. 372 General Sales Tax Act, M.P. 1958 (II of 1959) 372 Geology and Mining Class-I and Class-II Service Recruitment 374 Rules, 1965 Government of India Act, ( of 1915) 374 Grah Nirman Mandal Adhiniyam, M.P. 1972 (3 of 1973) 374
8 CONTENTS OF HEADINGS Gram Panchayat (Powers and Functions of the Secretary) Rules, 374 M.P., 1999 Gramin Dak Sewak (Conduct and Employment) Rules, 2001 375 Gramodyog Adhiniyam, M.P. 1978 375 Guardians and Wards Act (8 of 1890) 375 H High Court of Madhya Pradesh Rules, 2008 376 High Court Rules and Orders, M.P., 376 Hindu Adoptions and Maintenance Act (78 of 1956) 377 Hindu Law 377 Hindu Marriage Act (25 of 1955) 378 Hindu Minority and Guardianship Act, (36 of 1956) 385 Hindu Succession Act (30 of 1956) 385 Hindu Succession (Amendment) Act, 2005 386 Homicidal death 386 Hostel Rules, 1966-67 386 Housing Board Regulations, M.P., 1977 386 I Importance of prompt execution of sentence 386 Imposing costs 387 Income Tax Act (43 of 1961) 387 Income Tax Act, 1981 392 Indian Administrative Service (Cadre) Rules, 1954 393 Industrial Disputes Act (14 of 1947) 393 Industrial Disputes (Central) Rules, 1957 396
9 CONTENTS OF HEADINGS
Industrial Employment (Standard Standing Orders) Rules, M.P. 397 1963 Industrial Relations Act, M.P. (27 of 1960) 397 Industrial Training (Gazetted) Services Recruitment Rules, M.P. 399 2008 Industries (Development and Regulation) Act ( of 1951) 399 Information Technology Act ( of 2000) 399 Insurance Act (4 of 1938) 399 Interpretation of documents 399 Interpretation of Statute 400 Intra Court Appeal 401 Irrigation Engineering Services (Gazetted) Recruitment Rules, 401 M.P., 1968, J Jail Manual 402 Jiwaji University 402 Judges (Protection) Act (LIX of 1985) 402 Judicial Discipline 403 Judicial Propriety & Decorum 403 Judicial restraint 403 Juvenile Justice Act (53 of 1986) 404 Juvenile Justice (Care and Protection of Children) Act (56 of 404 2000) Juvenile Justice (Care and Protection of Children) Rules, 2007 405 K Kashtha Chiran (Viniyam) Adhiniyam, M.P. (13 of 1984) 405 Khadi and Gramodyog Regulation, M.P. 1980 406 (Khadya Padarth) Sarvajanik Nagrik Purti Vitran Scheme, M.P. 406 1991,
10 CONTENTS OF HEADINGS
Kramonnati Policy, 407 Krishi Prayojan Ke Liye Upayog Ki Ja Rahi Dakhal Rahit Bhoomi Par Bhoomiswami Adhikaron Ka Pradan Kiya Jana 407 (Vishesh Upabandh) Adhiniyam, M.P. (30 of 1984), Krishi Upaj Mandi Adhiniyam, M.P., 1972, (XXIV of 1973) 407 Krishi Upaj Mandi (Mandi Nidhi Lekha Tatha Rajya Vipnan Sewa Ka Gathan Ki Riti Tatha Anya Vishay) Niyam, M.P. 410 1980 Krishi Upaj Mandi (Mandi Samiti Ka Nirvachan) Rules, M.P. 411 1997 Krishi Upaj Mandi (Payment of Market Fees) Rules, M.P. 1990 411 Krishi Upaj Mandi Rules, M.P. 1974, 411 L Labour Law 411 Labour Laws (Amendment) and Miscellaneous Provisions Act, 411 M.P. 2002 (26 of 2003) Land Acquisition Act (1 of 1894) 411 Land Acquisition (Companies) Rules, 1963, 418 Land Revenue Code, M.P. (20 of 1959) 418 Land Revenue Code, M.P. (20 of 1955) 424 Law of Torts 425 Legal Remembrance Manual, 427 Legal Services Authorities Act, (XXXIX of 1987) 427 Limitation 427 Limitation Act (36 of 1963) 427 Limitation Act (9 of 1908) 433 Lok Dhan (Shodhya Rashiyon Ki Vasuli) Adhiniyam, M.P. 1987 433 (1 of 1988) Lok Parisar (Bedakhali) Adhiniyam, M.P. (46 of 1974) 434
11 CONTENTS OF HEADINGS
Lok Seva (Anusuchit Jatiyon, Anusuchit Jan Jatiyon Aur Anya Pichhada Vargon Ke Liye Arakshan) Ahiniyam, M.P. (21 of 434 1994) Lok Swasthya Evam Parivar Kalyan Chikitsa Samvida Sewa 434 (Niyukti Tatha Sewa Ki Sharten) Niyam, 2002 Lokayukt Tatha Up-Lokayukt Adhiniyam, M.P. (37 of 1981) 435 Lottery (Niyantran Tatha Kar) Adhiniyam, M.P. 1973 (9 of 1974) 435 Lower Judicial Service (Recruitment and Conditions of Service) 435 Rules, M.P. 1994 M Madhya Bharat Land Revenue and Tenancy Act, Samvat 2007, 435 Madhya Pradesh Food Stuffs (Distribution) Control Order, 1960 435 Madhya Pradesh Kerosene Dealers Licensing Order, 1979 436 Madhya Pradesh Reorganisation Act (28 of 2000) 436 Madhyamik Shiksha Adhiniyam, M.P. (23 of 1965) 436 Madhyamik Shiksha Mandal (Manyata) Viniyam, 2005 436 Madhyamik Shiksha Mandal (Namankan) Viniyam, M.P. 1994 437 Madhyastham Adhikaran Adhiniyam, M.P. (XXIX of 1983) 437 Makhanlal Chaturvedi Rashtriya Patrakarita Vishwavidyalaya 440 "Association of Study Institutes" Master Plan Development Scheme 440 Maxims 440 Medical and Dental Post Graduate Course Entrance Examination 441 Rules, M.P. 2005 Medical and Dental Post Graduate Course Entrance Examination 441 Rules, 2007 Medical and Dental Post Graduate Course Entrance Examination 442 Rules, M.P. 2008 Medical and Dental Post Graduate Course Substance Examination 443 Rules M.P., 2005 Medical and Dental Post Graduate Entrance (Conduct of 443 Examination and Admission) Rules, 2008
12 CONTENTS OF HEADINGS Medical and Dental Post Graduate Course Entrance Examination 444 Rules, M.P. 2009 Medical and Dental Post Graduate Entrance Examination Rules, 444 M.P. 2010 Medical and Dental Postgraduate Entrance Examination Rules, 444 Madhya Pradesh 1999 Medical and Dental Post-Graduate Entrance Test Rules, 2005 445 Medical & Dental Post-Graduate Entrance Test, 2007 445 Medical and Dental Undergraduate Entrance Examination Rules, 445 M.P. 2006 Medical and Dental Undergraduate Entrance Examination Rules, 446 M.P. 2007 Medical Council Act (102 of 1956) 447 Medical Dental Postgraduate Entrance Examination Rules, M.P. 448 2007 Medical Education (Gazetted service) Recruitment Rules, M.P., 448 1988 Mental Health Act (14 of 1987) 448 Mental Health Act, 1994 448 Merged States (Laws) Act (59 of 1949) 449 Mesne Profits 449 Micro, Small and Medium Enterprises Development Act (27 of 449 2006) Milk and Milk Products Order, 1992 449 Mineral Concession Rules, 1960 450 Mineral Conservation and Development Rules, 1988 450 Mineral (Prevention of Illegal Mining, Transportation and 450 Storage) Rules, M.P. 2006 Mines and Mineral (Regulation & Development) Act (67 of 1957) 450 Minor Mineral Rules, M.P. 1996 452 Money Lenders Act, M.P. (8 of 1934) 452 Money Lenders Act, (XII of 1934) 452
13 CONTENTS OF HEADINGS Motor Spirit and High Speed Diesel (Prevention of Malpractices 453 in Supply and Distribution) Order, 1990 Motor Vehicles Act (4 of 1939) 453 Motor Vehicles Act (LIX of 1988) 453 Motor Vehicles Rules, Central, 1989 489 Motor Vehicles Rules, M.P., 1994, 489 Motoryan Karadhan Adhiniyam, M.P. (25 of 1991) 490 Motoryan Karadhan Sanshodhan Adhiniyam, M.P. 2004 490 Municipal Corporation Act, M.P. (XXIII of 1956) 490 Municipal Employees Recruitment and Conditions of Service 493 Rules, M.P. 1968 Municipalities Act, M.P. (37 of 1961) 494 Municipality Shiksha Karmi (Recruitment and Conditions of 499 Service) Rules, M.P. 1998 Municipality (Transfer of Immovable Property) Rules, M.P. 1996 499 Muslim Women (Protection of Rights on Divorce) Act (25 of 499 1986) Muslim Woman (Protection of Rights on Divorce) Rules, 1986 501 N Nagar Palika Nirvachan Niyam, M.P. 1994 501 Nagar Tatha Gram Nivesh Adhiniyam, M.P. (23 of 1973) 501 Nagar Tatha Gram Nivesh Vikasit Bhumiyon, Grihon, Bhavano 507 Tatha Anya Sanrachnao Ka Vyayan Niyam, 1975 Nagriya Nikay Samvida Shala Shikshak (Employment and 507 Conditions of Contract) Rules, M.P. 2005 Narcotics Drugs and Psychotropic Substances Act (61 of 1985) 507 Narcotic Drugs and Psychotropic Substance Rules, 1985 515 National Council for Teacher Education Act (73 of 1993) 516 National Family Scheme 517 National Highways Act (48 of 1956) 517
14 CONTENTS OF HEADINGS
National Highways Authority of India Act, (68 of 1988) 518 National Security Act (65 of 1980) 518 Natural Justice 523 Negotiable Instruments Act (26 of 1881) 523 Niji Vyavsayik Shikshan Sanstha (Pravesh Ka Viniyaman Avam 532 Shulk Ka Nirdharan) Adhiniyam, M.P. (21 of 2007) Non-Gazetted Class III Education Service (Non-Collegiate 534 Service) Recruitment and Promotion Rules, M.P. 1973 Notaries Act (53 of 1952) 535 Notaries Rules, 1956 536 Nuisance 536 O Official Language Act, M.P., 1957 (5 of 1958), 537 Official Languages Act (19 of 1963) 537 P Panchayat (Gram Panchayat Ke Sarpanch Tatha Up-Sarpanch, Janpad Panchayat Tatha Zila Panchayat Ke President Tatha 537 Vice-President Ke Virudh Avishwas Prastav) Niyam, M.P. 1994 Panchayat (Method of Service of Notice and Document) Rules, 537 1995 Panchayat (Resignation by Office Bearer) Rules, M.P. 1995 537 Panchayat (Upsarpanch, President and Vice President) Nirvachan 538 Niyam, 1995 Panchayat Karmi Yojna, 538 Panchayat Nirvachan Niyam, M.P., 1995 538 Panchayat Raj Evam Gram Swaraj Adhiniyam, M.P. 1993 (1 of 538 1994) Panchayat Samvida Shala Shikshak (Appointment and Conditions 548 of Service) Rules, M.P. 2001 Panchayat Samvida Shala Shikshak (Employment and Condition 548 of Contract) Rules, M.P., 2005
15 CONTENTS OF HEADINGS Panchayat Samvida Shala Shikshak (Recruitment and Conditions 549 of Contract) Rules, M.P. 2005, Panchayat Service (Discipline and Appeal) Rules, M.P. 1999 549 Panchayat Service (Recruitment and General Conditions of 550 Services) Rules, M.P. 1999 Panchayat Shiksha Karmis (Recruitment and Conditions of 550 Service) Rules, M.P. 1997 Panchayat (Appeal and Revision) Rules, M.P. 1995, 551 Panchayats (Election Petitions, Corrupt Practices and 552 Disqualification for Membership) Rules, M.P. 1995, Partnership Act (9 of 1932) 554 Passports Act (15 of 1967) 554 Patwari Selection and Examination Conduction Rules, M.P. 2008 554 Penal Code (45 of 1860) 554 Pensioner's Welfare Fund Rules, M.P. 1997 644 Persons with Disabilities (Equal Opportunities, Protection of 645 Rights and Full Participation) Act, 1995 (1 of 1996) Petroleum Rules, 2002 645 Pleadings 646 Police Regulations, M.P. 646 Policy Matters 648 Post Graduate Medical Education Regulation, 2000 648 Powers of the Courts 648 Practice and Procedure 648 Pre-Engineering & Pharmacy Test Rules 2004 649 Pre P.G. Entrance Examination for Medical & Dental Post 650 Graduate Courses, 2008 Precedent 650 Prevention of Corruption Act (2 of 1947) 651 Prevention of Corruption Act (XLIX of 1988) 652
16 CONTENTS OF HEADINGS
Prevention of Cruelty to Animals Act, (59 of 1960) 656 Prevention of Food Adulteration Act, (XXXVII of 1954) 656 Prevention of Food Adulteration Rules, 1955 661 Prevention of Food Adulteration Rules, M.P. 1962 661 Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic 662 Substances Act (46 of 1988) Prevention of Insults to National Honour Act (69 of 1971) 662 Prisoners Act (III of 1900) 662 Prisoners' Release on Probation Act, M.P. (16 of 1954) 663 Prisoners Release on Probation Rules, M.P., 1964 664 Private Medical and Dental Postgraduate Course Entrance 665 Examination Rules, M.P. 2009 Private Medical and Dental Under Graduage Entrance 665 Examination Rules, M.P. 2009 Probation of Offenders Act (20 of 1958) 665 Professional Examination Board Pre MCA and MET Rules, M.P., 665 2008 Promissory Estoppel 666 Promotion 666 Protection of Human Rights Act, 1993 (10 of 1994) 666 Protection of Women from Domestic Violence Act (43 of 2005) 666 Protection of Women from Domestic Violence Rules, 2006 668 Provisions of the Panchayats (Extension to the Scheduled Areas) 668 Act (40 of 1996) Public Distribution System Control Order, 2001 668 Public Funded Project Rules, 1997 668 Public Gambling Act (3 of 1867) 668 Public Interest Litigation 669 Public Liability Insurance Act (6 of 1991) 670
17 CONTENTS OF HEADINGS Public Premises (Eviction of Unauthorised Occupants) Act (40 of 671 1971) Public Prosecution (Gazetted) Service Recruitment Rules, M.P. 671 1991 Public Service (SC, ST & OBC) Reservation Act, M.P. (21 of 671 1994) Public Services (Promotion) Rules, M.P. 2002 671 Public Trusts Act, M.P. (30 of 1951) 672 Public Works Department Engineer-in-Chief and Chief Engineer 673 Recruitment Rules, M.P. 1983 Public Works Department Work Charged and Contingency Paid Employees Recruitment and Conditions of Service Rules, M.P. 674 1976 Q Qanoon Registry, Riyasat Gwalior Samvat 1971 674 R Railways Act, Indian (XXIV of 1989) 674 Rajiv Gandhi Prodyogiki Vishwavidyalaya Bhopal Ordinance 675 Rajya Anusuchit Jati Ayog Adhiniyam, M.P., (25 of 1995) 675 Rajya Prashasnik Adhikaran (Lambit Evam Nirakrat Avedano Ka 675 Antaran) Adhyadesh, M.P. 2003 Rajya Suraksha Adhiniyam, M.P., 1990 (4 of 1991) 675 Rani Durgawati Vishwavidyalay, 678 Recovery of Debts Due to Banks and Financial Institutions Act 678 (51 of 1993), Redressal of Public Grievances Rules, 1998 678 Reference made by Division Bench to Full Bench 678 Registration Act (16 of 1908) 679 Registration of Births and Deaths Act (18 of 1969) 680 Regularization of Ad hoc Appointment Rules, M.P. 1986 680 Regulations of Medical Council of India, 2000 680
18 CONTENTS OF HEADINGS
Reorganization Act, M.P. (XX of 2000) 680 Representation of the People Act (43 of 1951) 681 Revenue Book Circular 684 Revenue Recovery Act (1 of 1890) 685 Revision of Pay Rules M.P. 1990 685 Rewa State Registration Act (… of 1917) 685 Right to Information (Regulation of Fee and Cost) Rules, 2005 685 Right to Information Act (22 of 2005) 686 Rules of Legal Education, 2008 687 Rules of the Road Regulations, 1989 687 Rural Banks Act, 1976 687 S S.A.F. Rules, M.P. 1973 687 Sah Chikitsa Parishad Adhiniyam, M.P. 2000 688 Sahkari Bhumi Vikas Bank Adhiniyam, M.P., (28 of 1966) 688 Sahkari Krishi Aur Gramin Vikas Bank Adhiniyam, M.P., 1999 689 (20 of 2000) Sales of Goods Act, (III of 1930) 689 Samaj Ke Kamjor Vargon Ki Krishi Bhumi Hadapane Sambandhi Kuchakron Se Paritran Tatha Mukti Adhiniyam, M.P. (3 of 689 1976) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) 689 Act (33 of 1989) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) 692 Rules, 1995 Scheduled Commodities Dealers (Licensing & restriction on 693 Hoarding) Order, M.P., 1991 Scheduled Tribes and Other Traditional Forest Dwellers 693 (Recognition of Forest Rights) Act, 2006 (2 of 2007) Securitisation and Reconstruction of Financial Assets and 693 Enforcement of Security Interest Act (54 of 2002)
19 CONTENTS OF HEADINGS
Service Law 695 Service Regulations, 2001 736 Shaskiya Sevak (Adhivarshiki-Ayu) Dwitiya Sanshodhan 736 Adhiniyam, M.P. (28 of 1998) Shaskiya Sevak (Adhivarshiki-Ayu) Tritiya Sanshodhan 736 Adhyadesh, M.P. 1998, Shaskiya Sewak Adhiwarshiki Ayu Adhiniyam, M.P. (29 of 737 1967) Shaskiya Sewak Adhiwarshiki Ayu Sansodhan Adhiniyam, M.P. 737 (3 of 1998) Shram Kalyan Nidhi Adhiniyam, M.P. 1982 (36 of 1983) 737 Sick Industrial Companies (Special Provisions) Act, 1985 (1 of 737 1986) Small Scale Exemption 737 Societies Registrikaran Adhiniyam, M.P. (XLIV of 1973) 737 Specific Relief Act (47 of 1963) 738 Spot Map 744 Staff Service Rules 744 Stamp Act (2 of 1899) 745 State Administrative Service Rules, M.P. 1975 749 State Bank of India Officers Rules 750 State Bar Council of Madhya Pradesh Rules, 1963 750 State Cooperative Tribunal Regulations, 2000 750 State Mandi Board Service Regulations, 1998 750 State Municipal Service (Executive) Rules, M.P. 1973 750 States Reorganization Act (XXXVII of 1956) 750 State Re-Organization Act, M.P. (XX of 2000) 751 State Road Transport Corporation Employees Deposit Fund 751 Regulation, M.P. 1985 State Road Transport Employees Conduct, Discipline and Appeal 751 Regulations, M.P. 1975
20 CONTENTS OF HEADINGS State Warehousing Corporation Employees Pension Scheme, 751 M.P. 1996 Succession Act (39 of 1925) 752 Sugar (Control) Order, 1966 755 Sugar Dealers Licencing Order, M.P. 1963 755 Sugarcane (Regulation of Supply and Purchase) Act, M.P., 1958 755 Sugarcane (Control) Order 1966 755 Swatantrata Sangram Sainik Samman Nidhi Niyam, M.P. 1972 756 Sympathetic consideration 756 T Technical Education Polytechnic College (Teaching Cadre) 756 Service (Recruitment) Rules, M.P. 2004 Tender 756 Terminal Tax (Assessment and Collection) on the Goods 757 Exported from Madhya Pradesh Municipal Limits Rules, 1996 The Indian Audit and Accounts Department (Senior Accountant) 757 Recruitment Rules, 1998 The Security Interest (Enforcement) Rules, 2002 758 Trade Marks Act (47 of 1999) 758 Trade Unions Act (16 of 1926) 758 Transfer of Property Act (4 of 1882) 759 Transfer of Property Act Gwalior State Samvat 2001 764 Transport (Gazetted) Service Recruitment Rules, M.P. 1972 764 Transposing of parties 764 U Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 764 M.P. 2005 (14 of 2006) Uchchatar Nyayik Sewa (Bharti Tatha Sewa Sharten) Niyam, 767 1994 University Act, M.P. (22 of 1973) 768
21 CONTENTS OF HEADINGS
Unlawful Activities (Prevention) Act ( of 1967) 769 Upkar Adhiniyam, M.P., 1981 (1 of 1982) 769 Urban Land (Ceiling and Regulation) Act (33 of 1976) 769 Urban Land (Ceiling and Regulation) Repeal Act (15 of 1999) 770 V Value Added Tax Act, M.P. (20 of 2002) 770 Van Upaj Vyapar (Viniyaman) Adhiniyam, M.P. (9 of 1969) 771 Vanijyak Kar Adhiniyam, M.P. 1994 (5 of 1995) 771 Veterinary Department Contingency Paid Employees Recruitment 772 and Conditions of Service Rules, M.P. 1979 Vidhan Sabha (Regulation and Condition of Service) Rules, M.P., 772 1990 Vidyut Sudhar Adhiniyam, M.P., 2000 (4 of 2001) 773 Vinirdishta Bhrashta Acharan Nivaran Adhiniyam, M.P. 1982 773 Vishwavidyalaya Adhiniyam, M.P. (XXII of 1973) 774 W Waiver 775 Wakf Act (43 of 1995) 776 Wakf Rules, M.P. 2000 776 Warehousing Corporation Act (58 of 1962) 776 Water (Prevention and Control of Pollution) Act (6 of 1974) 777 Wild Life (Protection) Act (53 of 1972) 777 WORDS & PHRASES 778 Workmen's Compensation Act (8 of 1923) 783
1
FIVE YEARS' DIGEST OF THE INDIAN LAW REPORTS M.P. SERIES FROM 2006 to 2010 (Note: An asterisk (*) denotes Note number)
Accommodation Control Act, M.P. (41 of 1961)
- Right of pre-emption - Held - Tenant always remains tenant and does not acquire any right of pre-emption against the landlord to purchase the premise unless some express contract taken between the parties by their act : Moolchand Rajak Vs. S.P. Kapoor, I.L.R. (2010) M.P. 2582
- Sections 2(b) - Land lord - Definition - Include a person to whom rent is payable as also his agent : Firm M/s Ramgopal Kanhaiyalal Vs. Firm M/s Dinanath Gyasilal, I.L.R. (2006) M.P. 228
- Sections 2(b), 12(1) (a), 12(1) (c) - Disclaimer deleted by subsequent amendment - Yet can be taken into consideration for granting decree of eviction - Decree on ground under Section 12(1) (c) of the Act confirmed : Firm M/s Ramgopal Kanhaiyalal Vs. Firm M/s Dinanath Gyasilal, I.L.R. (2006) M.P. 228
- Sections 2(b), 12(1)(a), (c), (f), 23-J, 45 - Appellant purchased suit property in 1996 whereas respondent was inducted as tenant by seller way back in 1978 - Appellant, a widow filed a suit before civil court for eviction on the ground of arrears of rent, denial of title and bonafide requirement - Decree granted by trial court on the ground of bonafide requirement and arrears of rent and decree affirmed by District Judge - High Court set-aside decree on the ground that civil court has no jurisdiction because appellant being a widow, 'specified landlord' within the meaning of Section 23- Accommodation Control Act, M.P. (41 of 1961) 2
J of Act - Appeal before Supreme Court - Held - Definitions of 'Landlord' as contained in Section 2(b) & 23-J are different - Appellant was not a landlord within meaning of Section 23-J - Any matter which stricto sensu does not come within purview of Chapter III-A would be entertainable by civil court - Judgment passed by High Court unsustainable - Appeal allowed : Sulochana Vs. Rajinder Singh, I.L.R. (2008) M.P. 2487 (SC)
- Section 2(e) and Civil Procedure Code, 1908, Section 100 - Second appeal - Death of original tenant - Suit for eviction filed by plaintiffs against defendant - Plaintiffs and defendant are cousins with defendant being the son of deceased original tenant - Plaintiffs and defendant are thus co-tenants of the land lord Wakf Board - Plaintiffs cannot seek eviction of another co-tenant, the defendant - Decree of Courts below set aside : Akhtar Nawab Naqvi Vs. Smt. Taj Jahan Alias Amina, I.L.R. (2006) M.P. 1421
- Section 3 - Notification of exemption to public trust registered under M.P. Public Trust Act - If defendant succeeds in establishing by cogent evidence that the utilization of entire income has not been made for trust, a suit for eviction by trust under shelter of exemption of S. 3 read with notification is liable to be dismissed in absence of existence of any of the grounds enumerated u/s 12(1) of the Act : Reg. Vidhichand Dharamshala Trust Vs. Shyam Singh, I.L.R. (2010) M.P. Note *49
- Section 3(2) - Exemption - Appellant Trust is registered at Bombay and the property of Trust is also situated in M.P. - Held - Registration of Trust under the provisions of Bombay Public Trust Act, suffice the purpose and the exemption granted u/s 3(2) of M.P. Accommodation Control Act is equally applicable for the appellant Trust : Shri Bhagwatacharya Narayan Dharmarth Trust, Balaji Mandir Vs. Jai Prakash I.L.R. (2010) M.P. 2578
- Sections 3(2) & 20 - Even if a public institution who is not covered u/s 3(2) of the Act files a suit for eviction, then too, the said institution is not governed by S. 12, but is governed by S. 20 of the Act : Shri Bhagwatacharya Narayan Dharmarth Trust, Balaji Mandir Vs. Jai Prakash, I.L.R. (2010) M.P. 2578
- Section 12, Transfer of Property Act, 1882, Section 111(d) - Tenancy & determination of lease - A part of tenanted premises purchased by one of the legal heirs of tenant - Whether due to execution of sale deed, tenancy stood extinguished by merger as postulated u/s 111(d) of T.P. Act - Held - One of three legal heirs of tenant had purchased part of the property and not all the co-tenants, tenancy continues - Tenant continues to be tenant for the purpose of Act, 1961 and can be evicted only in accordance with Rent Act : Hameeda Begum (Smt.) Vs. Smt. Champa Bai Jain, I.L.R. (2009) M.P. 2328 (DB) Accommodation Control Act, M.P. (41 of 1961) 3
- Section 12 (1) - Mesne profits - Higher rate than contractual rate - Tenant found to have parted with the possession of the suit shop in favour of sub-tenant - Sub- tenant is running the business in it for last number of years - Mesne profits on higher rate than contractual rate may be awarded : Harveer Singh Vs. Shri Kishan Singh Tomar, I.L.R. (2010) M.P. 654 SYNOPSIS : Section 12 (1) (a)
1. Landlord-tenant Relationship 4. No Protection against 2. Necessary Party Eviction 3. No Ground for Eviction Decree 5. Premature Suit 6. Tender of rent
1. Landlord-tenant Relationship
- Section 12(1)(a) - Landlord-tenant relationship - Rent note creating contractual tenancy of 11 months - No rent note executed thereafter - Held - After expiry of contractual tenancy, tenant still remains as tenant and becomes statutory tenant : Rukhmanibai Smt. (dead) through LRs. Gendalal Gupta Vs. Ramdayal (dead) through LRs. Ramesh, I.L.R. (2008) M.P.3194
- Section 12(1)(a) - See - Civil Procedure Code, 1908, Order 8 Rule 3 & 5 : Santosh (Smt.) Vs. Mohd. Sharif, I.L.R. (2008) M.P. 2326
- Section 12(1)(a) & (c), Civil Procedure Code, 1908, Section 100 - Relation between landlord & tenant being finding of fact - Scope of interference in Second Appeal - Held - If there is no concurrent findings of facts of the Courts below then the relation between landlord & tenant can be interfered in a Second Appeal : Sona Bai (Smt.) Vs. Anand Kumar, I.L.R. (2010) M.P. Note *54 2. Necessary Party
- Section 12(1)(a), (c) & (f), Civil Procedure Code, 1908, Order 1 Rule 10, Order 30 - Non-joinder of necessary party - Maintainability of suit - Suit premises rented to partnership firm and the firm or its partners not impleaded as a party - Effect - Held - A decree of eviction of the premises cannot be granted in favour of the plaintiff because the tenancy is in favour of a partnership firm, which means in favour of all the partners Accommodation Control Act, M.P. (41 of 1961) 4 of the firm - Hence, the suit is not maintainable - Appeal allowed : Babulal Birla (Dead) Through LRs. Smt. Krishna Devi Vs. Ram Prakash Sharma, I.L.R. (2008) M.P. 2646
- Sections 12(1)(a), (c) & (n) - See - Civil Procedure Code, 1908, Section 10 : Rajesh Singh Vs. Manoj Kumar, I.L.R. (2009) M.P. 2906 (DB)
3. No Ground for Eviction Decree
- Section 12(1)(a) - Arrears of rent - At the time of notice appellants/tenants were not in arrears and also there is no proof of receipt of notice - The ground u/s 12(1)(a) is not available : Sajid Vs. Amtulah Bai, I.L.R. (2010) M.P. 2595
- Sections 12(1)(a), 13(1) - Arrears of Rent - Tenant disputing quantum of rent - Tenant is bound to deposit such sum only on fixing the interim rent by Court - Tenant depositing entire arrears of rent within one month from the date of fixation of interim rent by Court - Subsequently also rent was deposited regularly - No decree u/s 12(1)(a) could be passed : Bhagwati Tiwari (Smt.) Vs. Makhanlal Yadav, I.L.R. (2008) M.P. 2352
- Sections 12(1)(a), 13(1)(2) - Arrears of Rent - Respondent/Plaintiff claimed rent at the rate of Rs. 1,200 per month - Appellant/tenant claimed the rent to be Rs. 200 per month - In view of dispute provision of Section 13(1) of Act could not be invoked as same was arrested till deciding such dispute by Court - Trial Court fixed provisional rate of rent @ Rs. 200 per month - Entire arrears of rent deposited by Defendant/tenant within one month of order - No further default in paying rent committed by tenant - Tenant cannot be held the defaulter - Decree under Section 12(1)(a) set aside : Gulkhan Vs. Om Prakash Khatri, I.L.R. (2008) M.P. 98 4. No Protection against Eviction
- Sections 12(1)(a), 12(3) & 13(5) - In spite of notices and after service of summons of the Court, tenant has chosen not to deposit the rent in Court - Tenant took the risk of suffering the order of eviction - Ground u/s 12(1)(a) made out - Tenant is not entitled for protection u/s 12(3) & 13(5) as the tenant never deposited the rent as claimed by the landlord : Sunil Kulkarni (Dr.) Vs. Jagdish Singh, I.L.R. (2010) M.P. 939
- Sections 12(1)(a) & 13(1) - Eviction - Tenant failed to pay arrears of rent even after service of writ of summons - Tenant deposited part of arrears of rent when trial was coming to a close and sought condonation of delay - Rejection by trial court - Held Accommodation Control Act, M.P. (41 of 1961) 5
- Trial court rightly found that the application for condonation of delay was not bona fide - Decree of eviction u/s 12(1)(a) of Act affirmed - Appeal dismissed summarily : Sujanmal Vs. Kailash Chandra Agarwal, I.L.R. (2008) M.P. 3243
- Sections 12(1)(a) & 13(1) - Suit for eviction was filed on the ground of arrears of rent - It was the duty of tenant to deposit the rent as required u/s 13(1) of the Act - Tenant has not deposited rent as per requirement u/s 13(1) of the Act and has not filed any application for condonation of delay before trial court but filed the application before first appellate court - Held - If there were default on the part of tenant, tenant ought to have filed application forthwith before the trial court explaining the circumstances in which he could not deposit the rent - First appellate court rightly rejected the application : Subhash Chand Jawa Vs. Subhash Gupta, I.L.R. (2008) M.P. 2388
- Sections 12(1)(a) & 13(1)(3) - Arrears of rent - Appellants committed default in depositing rent as required u/s 13(1) of Act - Did not file any application for extension of time - Appellants liable to be evicted on the ground u/s 12(1)(a) of Act : Rajendra Kumar Vs. Smt. Kasturi Bai, I.L.R. (2009) M.P. 1067 5. Premature Suit
- Section 12(1)(a) - Suit for eviction - Tenant failed to deposit arrears of rent and monthly rent despite receipt of demand notice - But, suit filed within 2 months from date of receipt of notice - Held - Suit was premature - Decree u/s 12(1)(a) can not be granted : Saroja (Smt.) Vs. Supersonic Plastics Pvt. Ltd., I.L.R. (2009) M.P. 204 6. Tender of rent
- Section 12(1)(a) - Arrears of rent - When payable - Held - It is to be paid within 30 days of summons of the court or on service of notice as the case may be : Ansar Ahmed Vs. Halim @ Abdul Hakim, I.L.R. (2010) M.P. 2330 SYNOPSIS : Section 12 (1) (b)
1. Right of Sub-tenant 3. Sub-Letting - Proved 2. Sub-Letting - Onus of Proof 4. Sub-Letting - Waiver
1. Right of Sub-tenant
- Section 12(1)(b) & (f) - Right of sub-tenant to oppose eviction - Sub-tenant has no right to oppose the claim for eviction on the ground of bona fide need - He has Accommodation Control Act, M.P. (41 of 1961) 6 merely a right to oppose eviction on the ground of sub-tenancy u/s 12(1)(b) of the Act : Harveer Singh Vs. Shri Kishan Singh Tomar, I.L.R. (2010) M.P. 654 2. Sub-Letting - Onus of Proof
- Section 12(1)(b) - Sub-letting - Onus of proof - Held - Plaintiff is required to place on record certain circumstances from which an inference with regard to sub- letting can be drawn - Held - When such circumstances are proved, prima facie the burden on the plaintiff is discharged and the onus shifts on the defendant to prove by positive fact about the non-existence of alleged sub-tenant : Yashoda Devi (Smt.) Vs. Kanhaiyalal, I.L.R. (2010) M.P. Note *95 3. Sub-Letting - Proved
- Section 12(1)(b) - Sub-letting - Evidence shows that appellant and respondent No.8 are living separately and have separate business - No documentary evidence that business of appellant is business of undivided joint family - Rent was paid by appellant on behalf of respondent No.8 - Held - Courts below rightly found sub-letting by respondent No.8 to appellant - Appeal dismissed: Kantilal Vs. Smt. Surajbai, I.L.R. (2010) M.P. 1606
- Section 12(1)(b) - Sub-letting - Respondent No.8 was inducted as tenant of non-residential accommodation who sub-let the same to appellant - Non-production of rent note executed by landlord in favour of respondent No.8 - Shall have no effect because it was not the case of appellant that in the rent note appellant was also shown as tenant - Respondent No.8 did not appear in witness box to submit that rent note was executed for business of family or appellant was also shown as tenant - Decree u/s 12(1)(b) upheld - Appeal dismissed : Kantilal Vs. Smt. Surajbai, I.L.R. (2010) M.P. 1606
- Section 12(1)(b) - Suit for eviction - Rent note permitting tenant to include member of family as a partner - Word 'Family' is not synonymous to 'Joint Hindu Family' and cannot be construed so as to include brothers, son and widow, when they were residing separately in different District - Tenant having failed to establish control over business in suit premises - Tenant parted with possession - Suit decreed - Appeal dismissed : Tej Kumar Vs. Shanti Chand Jain, I.L.R. (2010) M.P. 1779
- Section 12(1)(b) - Sub-letting - Shop let out to partnership firm - 'S' inducted as partner later on - Partnership dissolved in 1986 and thereafter 'S' exclusively carrying on his business - Original partners started their own business at different places having Accommodation Control Act, M.P. (41 of 1961) 7 no control over the business of 'S' - Plaintiff entitled for decree u/s 12(1)(b) of Act - Cross-objection allowed : Danpati Addhahat Bhandar Vs. Ganshyam Das Agrawal, I.L.R. (2009) M.P. 2060
- Section 12(1)(b) - Sub-Letting - Defendant taking accommodation for carrying business in the name and style 'Mukesh Kumar Rakesh Kumar Garg' - Later on firm was registered but defendant was not a partner in said firm - No pleading by defendant that he is having legal possession or having control over suit premises - Merely because partners are father and uncle of defendant not a ground to hold that suit premises has not been sub-let - Plaintiff entitled for decree u/s 12(1)(b) : Mukesh Kumar Garg Vs. Ramchandra Motwani, I.L.R. (2008) M.P. 551 4. Sub-Letting - Waiver
- Section 12(1)(b) - Sub-Letting - Waiver - Long possession of registered partnership firm - It was not in the knowledge of plaintiff that actually who is carrying on business - Plaintiff has specifically pleaded that a week earlier it has come to his knowledge that defendant has inducted a sub-tenant - It cannot be said that plaintiff was having knowledge about possession of partnership firm for a considerable long period : Mukesh Kumar Garg Vs. Ramchandra Motwani, I.L.R. (2008) M.P. 551 SYNOPSIS : Section 12 (1) (c)
1. Disclaimer of title - Not Proved 4. No-Nuisance 2. Disclaimer of title - Proved 5. Vague allegation 3. Inconsistent user 6. Miscellaneous
1. Disclaimer of title - Not Proved
- Section 12(1)(c) - Disclaimer of title - What amounts to - Held - The essential characteristic of disclaimer of title by tenant is that it must amount to a renunciation by the tenant of his character of tenant, either by setting up a title in another or by claiming title in himself - A mere renunciation of tenancy without more, though it may operate as a surrender, cannot amount to a disclaimer : Pradeep Kumar Vs. Shivshankar, I.L.R. (2010) M.P. Note *48
- Section 12(1)(c) - Denial of title - Appellant purchased suit property from owner who had inducted respondents as tenant - Respondents never challenged the title of original landlords by whom they were inducted - No evidence that rent of any period Accommodation Control Act, M.P. (41 of 1961) 8 was paid to appellants - If derivative title was denied by tenant then such could not be treated as ground of disclaimer of title : Bhagwati Tiwari (Smt.) Vs. Makhanlal Yadav, I.L.R. (2008) M.P. 2352 2. Disclaimer of title - Proved
- Section 12(1)(c) - Tenant denying title of landlord, has also claimed ownership of third party - He also lodged a complaint against the landlord - He also alleged that landlord got to manage removal of record and manupulation in record of Government - No error in passing decree of eviction against him - Appeal dismissed : Pradeep Kumar Vs. Shivshankar, I.L.R. (2010) M.P. Note *48
- Section 12(1)(c) - Disclaimer of title - Tenant denied title of plaintiff in written statement - Held - Even if a title of landlord is disclaimed in written statement, the ground u/s 12(1)(c) is made out : Ram Kishan Soni Vs. Dr. Surendra Bahare, I.L.R. (2010) M.P. 458
- Section 12(1)(c) - Disclaimer of title - Tenant paid rent to plaintiff for 14 years after death of plaintiff's father - But denied the title of plaintiff in written statement - Held - Once the relationship of landlord and tenant is admitted or proved, tenant is estopped from denying the title of the landlord u/s 116 of Evidence Act - Denial of title by tenant not bona fide - Plaintiff entitled for decree u/s 12(1)(c) : Ram Kishan Soni Vs. Dr. Surendra Bahare, I.L.R. (2010) M.P. 458 3. Inconsistent user
- Section 12(1)(c) - Changed the user of accommodation - Trial Court passing a decree u/s 12(1)(c) and First Appellate Court affirming the findings - Held - First Appellate Court erred in substantial error of law by affirming the judgment and decree passed by the Trial Court u/s 12(1)(c) without giving any reason : Bhanwarlal (Dead) Through L.Rs. Smt. Sushilal Bai Vs. Chandra Shekhar Vashishtha, I.L.R. (2009) M.P. 3172
- Section 12(1)(c) - Suit for eviction - Tenant inducted in the tenanted premises for residential purpose - Tenant converted one entire room situated at front side of tenanted premises for STD/PCO Centre - Held - Act of tenant is inconsistent with the purpose of tenancy - Single act of the tenant is sufficient to cause his eviction provided that the act is of gravity - Judgment & decree u/s 12(1)(c) of the Act affirmed - Appeal dismissed : Sahibram Dhingra (Died) Through L.R. Narendra Dhingra Vs. Shivshankar Goyal, I.L.R. (2009) M.P. 3151 Accommodation Control Act, M.P. (41 of 1961) 9
4. No-Nuisance
- Section 12(1)(c) - Nuisance - Appellant/tenant taking new electricity connection - Held - Landlord bound to provide all necessary amenities for proper use to keep accommodation in tenanted condition - If landlord fails to provide the same then tenant has right to obtain such amenities in accordance with law - Electricity connection was given by MPSEB after considering application - Appellant/tenant had acted in accordance with procedure - Such act would not be termed as part of nuisance for passing decree under Section 12(1)(c) of Act : Gulkhan Vs. Omprakash Khatri, I.L.R. (2008) M.P. 98 5. Vague Allegation
- Section 12(1)(c) - Suit for eviction filed by NRI landlady - Tenant alleging that landlady entered into agreement to sell suit accommodation with him - Tenant failed to prove agreement - Held - The act of tenant in claiming an agreement to sell in his favour and failed to prove, itself adversely affects the interest of landlady - Trial court erred in dismissing suit for eviction u/s 12(1)(c) - Appeal allowed : Saroja (Smt.) Vs. Supersonic Plastics Pvt. Ltd., I.L.R. (2009) M.P. 204
- Section 12(1)(d) - Suit for eviction alleging that accommodation has not been used without reasonable cause by appellants - Evidence shows that appellants were not allowed by respondents to carry on their business in the suit accommodation - Held - Courts below were not justified in not considering the reasonable cause of appellants in not running the business in the suit accommodation due to mala fide of respondents who restrained appellants to run the business - Suit for eviction dismissed - Appeal allowed : Mazhar Khan Vs. Shyamkishore, I.L.R. (2010) M.P. 1435 6. Miscellaneous
- Sections 12(1)(c), 12(1)(f) & 12(1)(g) - See - Civil Procedure Code, 1908, Section 100 : Sameer Kumar Pal Vs. Sheikh Akbar, I.L.R. (2010) M.P. 2271 (SC) SYNOPSIS : Section 12 (1) (e) & (f)
1. Bona fide need - Not Proved 6. Landlord to decide the 2. Bona fide need - Proved suitability of 3. Bona fide need does not end accommodation due to adhoc arrangement 7. No express pleadings of Alternative Accommodation Accommodation Control Act, M.P. (41 of 1961) 10
4. Inexperience or Want of is required if covered by issue funds - Not relevant 8. Provisions applied to 5. Landlord obliged to explain composite tenancy about the non-suitability of 9. Miscellaneous alternative accommodation
1. Bona fide need - Not Proved
- Section 12(1)(e) - Bonafide requirement - Plaintiff admitted that she has purchased adjoining house and has got vacated from tenant - She is living all alone in her house - Appellant failed to prove bonafide requirement - Appeal dismissed : Bhagwati Tiwari (Smt.) Vs. Makhanlal Yadav, I.L.R. (2008) M.P. 2352
- Section 12(1)(e) - Bonafide requirement - Respondent/Plaintiff pleaded that his family comprises of 13 members - Any account of available accommodation not disclosed - Held - In matter of bonafide requirement landlord is duty bound to put forth account of available accommodations in possession of him - In the lack of such pleadings alleged need could not be considered as bonafide and genuine - Plaintiff having 6 vacant rooms in tenanted premises and is residing in another house - If his need was genuine and bonafide he could have started use of vacant rooms - His need could not be termed as bonafide or genuine - Decree under Section 12(1)(e) set aside - Appeal allowed : Gulkhan Vs. Omprakash Khatri, I.L.R. (2008) M.P. 98
- Section 12(1)(f) - Bona fide requirement - Eviction sought on basis of bona fide requirement of plaintiffs "B" & "D" - "B" died during pendency of suit and after obtaining vacant possession of another shop - Ownership of "D" not established - Held - Alleged need is not proved/covered u/s 12(1)(f) of the Act : Satya Prakash Vs. Bhagwan Das, I.L.R. (2010) M.P. 2603
- Section 12(1)(f) - Bona fide need of a shop - During pendency of appeal, plaintiff acquired vacant possession of identical adjacent shop - After remand, plaintiff pleaded that adjacent shop is too small for his business - Trial Court gave a finding that the adjacent shop is equal in size & dimension and the alleged need ceased to be bona fide - Lower Appellate Court granted a decree that landlord needs both shops for his business - Held - Lower Appellate Court's judgment is beyond pleadings & proof and is based on surmises & conjecture - Appeal allowed : Ikrar Mohammad Vs. Isub Khan, I.L.R. (2010) M.P. 447 Accommodation Control Act, M.P. (41 of 1961) 11
2. Bona fide need - Proved
- Section 12(1)(e) - Landlady, a NRI doctor required suit property to settle in India - Landlady did not come in witness box but her power of attorney was examined - Held - Landlady herself was not required to prove bonafide - Long persuasion of 18 years for getting the possession of suit accommodation itself shows that landlady requires suit accommodation bonafidely - There is no justification in denying decree of eviction - Appeal allowed : Saroja (Smt.) Vs. Supersonic Plastics Pvt. Ltd., I.L.R. (2009) M.P. 204
- Section 12(1)(e) - Bona fide Requirement - Appellant besides his wife having 2 major sons and 4 major daughters - Space available on first floor insufficient - They have to share bedroom and there is hardly any privacy - Appellant having no other alternative suitable accommodation in city - Bonafide requirement of appellant established - Appeal allowed : Ramchandra Vs. Kamladevi, I.L.R. (2008) M.P. 568
- Section 12(1)(e) - Bonafide Requirement - Respondent/Landlord wants to shift to city for getting better medical treatment for his aged grand mother and providing better educational facilities to children - Held - Once Bonafide need is established neither tenant nor Court can dictate terms to landlord or act as rationing authority - Appellate Court rightly granted decree on the ground of Bonafide requirement : Raj Singh Vs. Anil Kumar, I.L.R. (2008) M.P. 292
- Sections 12(1)(e) & (f) - Suit house required by plaintiff for his own need - Plaintiff residing with his parents but due to dispute between his wife and mother require separate house - Held - Mother examined as witness and categorically stated about the dispute - No need for examination of wife - Merely because plaintiff is residing with his parents during pendency of suit, bonafide need for separate residence will not extinguish - Appeal dismissed : Babulal Gupta (Dr.) Vs. Anoop Padliya, I.L.R. (2009) M.P. 1367
- Section 12(1)(f) - Bona fide need - Plaintiff was born and brought up at Indore - Plaintiff shifted to Bhilai because of his job - He retired from service - He requires the suit accommodation for starting of Computer Classes - Evidence unrebutted - Though in cross-examination plaintiff admitted that he is still in occupation of the house allotted by his employer at Bhilai - It cannot be said that plaintiff is making a false claim of bona fide need just to evict the tenant : Sunil Kulkarni (Dr.) Vs. Jagdish Singh, I.L.R. (2010) M.P. 939
- Section 12(1)(f) - Bona fide requirement - Landlord residing in other town - Can he seek eviction on the ground of bona fide requirement - Held - The landlord, who is residing out side the town of disputed premises on proving his/her bona fide genuine Accommodation Control Act, M.P. (41 of 1961) 12 requirement to start the business in such town is entitled to get decree of eviction against the tenant : Ashok Kumar Vs. Smt. Meena, I.L.R. (2010) M.P. Note *24
- Section 12(1)(f) - See - Civil Procedure Code, 1908, Section 100 : Ashok Kumar Vs. Smt. Meena, I.L.R. (2010) M.P. Note *24
- Section 12(1)(f) - Plaintiff filed a suit for bona fide need of his son - Prior to the institution of suit, suit shop was allotted to the son in partition - After death of plaintiff, son is brought on record in place of plaintiff - Bona fide need is found proved and decree of eviction on ground u/s 12(1)(f) passed - Held - Decree cannot be interfered with at the instance of sub-tenant that the original plaintiff was not competent to represent the estate at the time of institution of suit : Harveer Singh Vs. Shri Kishan Singh Tomar, I.L.R. (2010) M.P. 654
- Section 12(1)(f) - Suit for eviction - Earlier suit on the ground of bona fide need compromised - Tenant continued with enhanced rent - Reason for compromise explained - Such enhancement is no ground to negate the bona fide need, if established in subsequent round of litigation : Tej Kumar Vs. Shanti Chand Jain, I.L.R. (2010) M.P. 1779 3. Bona fide need does not end due to adhoc arrangement
- Section 12(1)(f) - Alternative accommodation - Plaintiff allowed his son to start business in a small shop which was unsuitable for wholesale business of plaintiff - Held - Permitting his own son to start business was a natural act of plaintiff in which no fault can be found - It is not a case that the plaintiff let out the shop to some other person : Danpati Addhahat Bhandar Vs. Ganshyam Das Agrawal, I.L.R. (2009) M.P. 2060
- Section 12(1)(f) - Alternative accommodation - Alternative accommodation should be reasonably suitable non-residential accommodation - First floor cannot be said to be an alternative suitable accommodation in connection with the shop situated on the ground floor - A shop on the first floor cannot attract the same number of customers and earn the same business as the shop on ground floor would do : Sunil Kulkarni (Dr.) Vs. Jagdish Singh, I.L.R. (2010) M.P. 939
- Sections 12(1)(f) & (h) - Suit for eviction - Non-residential accommodation required for major son and rebuilding - During pendency, son started business on the rear side of suit shop whose approach from a narrow lane - Held - Need of plaintiff has not come to an end as place of business is not suitable - Decree of eviction affirmed - Appeal dismissed : Vijay Kumar Sen Vs. Govind Prasad, I.L.R. (2009) M.P. 2369 Accommodation Control Act, M.P. (41 of 1961) 13
4. Inexperience or Want of funds - Not relevant
- Section 12(1)(f) - Bona fide requirement - Inexperience and want of funds are not relevant consideration for refusing eviction : Ansar Ahmed Vs. Halim @ Abdul Hakim, I.L.R. (2010) M.P. 2330
- Section 12(1)(f) - Bona fide need - Plaintiff needed the suit premises for providing facilities of Coloured Doppler and TMT - Defendant's plea that the plaintiff cannot handle the TMT and Doppler Test as he is not an expert in that branch - Held - Plaintiff can hire the services of expert for conducting the test of TMT and Coloured Doppler - Plaintiff's need genuine - Entitled for decree u/s 12(1)(f) : Ram Kishan Soni Vs. Dr. Surendra Bahare, I.L.R. (2010) M.P. 458 5. Landlord obliged to explain about the non-suitability of alternate accommodation
- Section 12(1)(f) - Alternate accommodation available - Duty of plaintiff - During pendency of suit, plaintiff got vacant possession of two shops of the same house situated near to the shop in dispute - Plaintiff is obliged to discharge his duty to explain by way of pleadings in the suit about non-suitability of the available alternate accommodation either it was available with him on the date of filing the suit or the same was got vacated during pendency of the suit - Plaintiff has failed to put forth such account in the pleadings - Plaintiff could not get the decree for eviction on the ground of bona fide requirement : Gayatri (Smt.) Vs. Ashish Kumar, I.L.R. (2010) M.P. 1156 6. Landlord to decide the suitability of accommodation
- Section 12(1)(f) - Bona fide requirement - Tenant disputing bona fide requirement on the ground other shops are also available though occupied by other tenants - Permissibility - Held - Court, as rationing authority, cannot insist or direct the plaintiff to get the eviction of some other shop as such the plaintiff is a sole Judge to decide that which shop or premises is suitable and convenient for his/her alleged need : Ashok Kumar Vs. Smt. Meena, I.L.R. (2010) M.P. Note *24
- Section 12(1)(f) - Bona fide requirement - Plaintiff required entire building for establishing modern hospital - Requirement of son not satisfied with the part of accommodation which had fallan vacant - No accommodation available with him sufficient for the purposes of establishing hospital - Once bona fide requirement is proved by plaintiff, it is not open for Courts to decide sufficiency or insufficiency of accommodation : Sujata Sarkar (Smt.) Vs. Anil Kumar Duttani, I.L.R. (2009) M.P. 1374 Accommodation Control Act, M.P. (41 of 1961) 14
- Section 12(1)(f) - Bona fide requirement of shop - Availability of alternative suitable accommodation - Eviction can not be denied on the ground that alternative suitable accommodation shall become available if landlord undertakes extensive reconstruction of premises vacated by another tenant - In the matter of choosing out of more than one accommodation available to the landlord his subjective choice shall be respected - Landlord has no alternative suitable accommodation - Judgment & decree of eviction passed by first appellate court affirmed - Appeal dismissed : Namamal Vs. Prakashchand Jain, I.L.R. (2009) M.P. 837
- Section 12(l)(f) - Bonafide, Requirement for non residential purposes - Reasonably suitable accommodation - Respondent/Landlord filed suit for eviction on the ground that he requires suit premises for starting business of manufacturing and sale of ready-made garments - Suitability of suit premises challenged by tenant on the ground that suit premises is situated in Transport Nagar - Held - Requirement of reasonably suitable accommodation has been engrafted if alternative accommodation is available - Plaintiff not having any alternative accommodation - He cannot be non suited on the ground that accommodation in question is not reasonably suitable for his proposed business - Appeal dismissed : Ram Chandra Dixit Vs. Arvind Kumar Jain, I.L.R. (2007) M.P. 1780 7. No express pleadings of Alternative Accommodation is required if covered by issue
- Section 12(1)(f) - Bona fide requirement for non residential purpose - Pleadings - Landlord having alternative residential accommodation not expressly pleaded in the plaint - Effect - Held - If a plea is covered by issue by implication then mere fact that the plea was not expressly taken in pleading would not necessary disentitle a party from relying upon it if it is satisfactorily proved by evidence : Hiralal Vs. Mangilal, I.L.R. (2010) M.P. 1960
- Section 12(1)(f) - Bona fide requirement - Absence of pleading of non-availability of alternative accommodation - Sufficient evidence on record that plaintiff does not possess any other alternative suitable accommodation - Held - Absence of pleading would not be fatal - Appeal allowed : Sujata Sarkar (Smt.) Vs. Anil Kumar Duttani, I.L.R. (2009) M.P. 1374
- Section 12(1)(f) - Bona fide requirement - Pleadings - No mention in plaint regarding godowns and shop vacated by other tenant - However, landlord stated and specifically established that said accommodations are not suitable for starting hotel for his son - Held - Even if pleadings are vague or lacking but if both parties have understood the issue involved and in that respect have placed material before Court and no prejudice is caused to any of them, no fault can be found with such absence of pleading : Rajendra Kumar Vs. Smt. Kasturi Bai, I.L.R. (2009) M.P. 1067 Accommodation Control Act, M.P. (41 of 1961) 15
- Section 12(1)(f) - Bona fide requirement - Pleading of alternate accommodation in plaint - Not necessary as landlord was not owner of alleged alternate accommodation at the time of institution of suit - Judgment of court below set-aside and suit for eviction decreed - Appeal allowed : Harvilas through L.Rs. Smt. Premlata Vs. M/s. Sharma Motor Transport Co., I.L.R. (2008) M.P. 3189 8. Provisions applied to composite tenancy
- Sections 12(1)(e) & (f) - Suit for eviction and arrears of rent - Plaintiff alleged that suit house was let out for residential purpose but tenant started using it for non- residential purpose - Suit house required for plaintiff's own residential and non-residential need - Defendant pleaded that house was let out for residential and non-residential purposes - Decree passed on the ground of bonafide requirement for residential and non-residential purposes - Appeal - Held - Through evidence, it is established that house was let out and required for both purposes - Even if the plaintiff's case was that the suit house was rented for residential purpose, decree could have been passed as plaintiff has been successful in proving his need for residential purpose also - Plaintiff became entitled to seek eviction from the entire house - Judgment and decree of trial court upheld - Appeal dismissed : Babulal Gupta (Dr.) Vs. Anoop Padliya, I.L.R. (2009) M.P. 1367 9. Miscellaneous Accommodation held by family member
- Section 12 (1) (e) and Civil Procedure Code, 1908, Section 100 - Second appeal - Suit for eviction on ground of bonafide need - Accommodation acquired or held by any member of the family cannot be termed as alternate accommodation for landlord : Basant Kumar Jain Vs. Gulab Chand Goyal, I.L.R. (2006) M.P. 745 Amendment of Plaint in Appeal
- Section 12(1)(f) - Civil Procedure Code, 1908, Order 6 Rule 17 - Amendment of Plaint in Appeal - Plaintiff obtaining vacant possession of adjoining shop in execution of decree during pendency of suit - Unsuitability of alternative accommodation not pleaded in plaint although it was raised in written statement - Plaintiff filed application for amendment of plaint in appeal - Held - To avoid multiplicity of litigation - Application allowed on cost of Rs. 10,000 - Matter remanded back to Trial Court - Appeal allowed : Banarsi Devi Jain Vs. M.P. Transport Company, I.L.R. (2008) M.P. 555
Amendment of subsequent event - Permitted
- Section 12(1)(f), Civil Procedure Code, 1908, Order 6 Rule 17 - Amendment after commencement of trial - Permissibility - Suit for eviction at the stage of defendant Accommodation Control Act, M.P. (41 of 1961) 16 evidence - Plaintiff executed lease deed of adjacent shop - Immediately thereafter defendant sought amendment in written statement - Held - Subsequent event has occurred after commencement of trial and application for amendment filed with due diligence - Trial Court erred in exercising its jurisdiction in rejecting application - Petition allowed : Kamla Bai (Smt.) Vs. Smt. Preeti Raizada, I.L.R. (2010) M.P. 603 (DB)
Bona fide need for new business
- Section 12(1)(f) - Bona fide requirement - Plaintiff's son wants to do business at Shajapur in his own shop - His parents and sisters are residing at Shajapur - He is also having ancestral property at Shajapur - Even if it is assumed that the plaintiff's son doing some business at Mumbai, it can not be said that the need of plaintiff is not bona fide - Appeal dismissed : Sajid Vs. Amtulah Bai, I.L.R. (2010) M.P. 2595
Bona fide need of Landlord - of his own
- Section 12(1)(f) - Bona fide need of Landlord - Of his own - Whether landlord can seek eviction of tenant on the ground of Bonafide requirement of grand son - Referred to Larger Bench : Badrilal Vs. Sitabai, I.L.R. (2008) M.P. Note *3
Change in nature of business does not affect the bona fide need
- Section 12(1)(f) - Bona fide requirement - Suit was filed in the year 1976 for bona fide requirement for starting wholesale business of grain - Subsequently by amendment, nature of business was shown as Khali, Chuni, Bhusa and Kirana - Held - It cannot be said that there was some mala fide on the part of plaintiff or was not entitled to change the nature of business which was initially pleaded by him - Appeal dismissed : Danpati Addhahat Bhandar Vs. Ganshyam Das Agrawal, I.L.R. (2009) M.P. 2060
Frivolous amendment application filed in first appeal
- Section 12(1)(f) - See - Civil Procedure Code 1908, Order 6 Rule 17 : Subhash Chand Jawa Vs. Subhash Gupta, I.L.R. (2008) M.P. 2388
Income is irrelevant to start his own business
- Section 12 (1)(f) - Combined income of appellant and his wife is sufficient for upkeep - Therefore, need of appellant to start his own business is not genuine - Finding is based upon conjectures and surmises : Anil Kumar @ Om Prakash Vs. Ramesh Chand, I.L.R. (2008) M.P. 843 Accommodation Control Act, M.P. (41 of 1961) 17
Ownership on the basis of Will
- Section 12(1)(f) - Bona fide need - Plaintiff claiming ownership on the basis of Will - Defendant's plea that in absence of examination of attesting witnesses, due execution of the Will has not been proved - Held - In eviction suit, the question of title, if disputed, may incidently be gone into - Tenant paying rent to plaintiff for 14 years after death of plaintiff's father - Even in absence of examination of attesting witnesses of the Will, it cannot be said that plaintiff has failed to prove his ownership - Therefore, not open to tenant to question the validity of Will : Ram Kishan Soni Vs. Dr. Surendra Bahare, I.L.R. (2010) M.P. 458
Previous demand for enhanced rent and bonafide need
- Section 12 (1)(f) - Previous demand for enhanced rent would not destroy the subsequent requirement of the suit shop without taking into consideration the present need - Courts should consider bonafide need on institution of suit : Anil Kumar @ Om Prakash Vs. Ramesh Chand, I.L.R. (2008) M.P. 843
Requirement for two sons - Examined only one son
- Section 12(1)(f) - Suit for eviction on ground of bona fide requirement of two sons - Examination of one son only - Held - It is not the law that each and every person for whose requirement suit is filed has to be examined - Judgment of court below set- aside - Suit decreed - Appeal allowed : Harvilas through L.Rs. Smt. Premlata Vs. M/s. Sharma Motor Transport Co., I.L.R. (2008) M.P. 3189
Res judicata
- Section 12(1)(f), Civil Procedure Code, 1908, Section 11 - Res judicata - Earlier suit was dismissed on ground that premises was let out for non residential purposes, cannot be evicted for residential purposes - Subsequent suit filed on ground for starting business - Suit & First Appeal dismissed on ground that subsequent suit is barred by Res Judicata - Held - Matter in subsequent suit was not directly and substantially in issue which was in the former suit - Subsequent suit not barred by Res Judicata - Matter sent back to Trial Court to decide suit on merit : Mithilesh Kumari Vs. Pashu Chikitsa Sahayak Shalya Prabhari, Niwari, I.L.R. (2008) M.P. 1196 SYNOPSIS : Section 12 (1) (h)
1. Acquired Accommodation 2. Right of Re-entry stands in the name of wife Accommodation Control Act, M.P. (41 of 1961) 18
1. Acquired Accommodation stands in the name of wife
- Section 12(1)(i) - Acquired suitable accommodation for residential purpose - Tenant alleging that the acquired property is in dilapidated condition - Held - Tenant admitted that he is residing with his family in the purchased house it consists of nine rooms plus latrine & bathroom having electrical and water fittings - Tenant acquired a suitable accommodation for his residence - Merely because First Appellate Court has mentioned that tenant is also residing in the house purchased in the name of his wife, would in itself is not a ground to hold that the tenant is not residing in his own house - Decree affirmed - Appeal dismissed : Bhanwarlal (Dead) Through L.Rs. Smt. Sushilal Bai Vs. Chandra Shekhar Vashishtha, I.L.R. (2009) M.P. 3172
- Section 12(1)(i) - Acquisition of accommodation suitable for residence of tenant - Alternative accommodation in the name of wife of tenant - No evidence to show that tenant cannot live in the said accommodation - Landlord/respondent entitled for decree of eviction under Section 12(1)(i) also - Cross-objection filed by respondent allowed : Raj Singh Vs. Anil Kumar, I.L.R. (2008) M.P. 292 2. Right of Re-entry
- Section 12(1)(h) - Decree u/s 12(1)(h) was passed and no time limit was stipulated for raising the construction - Premises demolished but new construction not raised - Trial Court directed delivery of the possession of vacant land but lower appellate Court reversed it - Held - Since the accommodation has been demolished, therefore, in execution the possession of open land upon which the suit accommodation was constructed was given to the appellants - Since tenancy subsists and appellants were having a right of re- entry u/s 18(3) of Act - Judgment of the lower appellate Court set aside : Tulsidas Hemnani (Died) Through L.Rs. Shamlal Vs. Madan Lal, I.L.R. (2010) M.P. 1613 SYNOPSIS : Section 13
1. Delay in depositing rent 3. Time Barred rent 2. Mesne profit higher than contractual rate
1. Delay in depositing rent Accommodation Control Act, M.P. (41 of 1961) 19
- Section 13(1) - Condonation of delay in depositing rent - Application for condonation of delay cannot be entertained after lapse of long period of time of committing default : Rajendra Kumar Vs. Smt. Kasturi Bai, I.L.R. (2009) M.P. 1067
- Section 13(6), Civil Procedure Code, 1908, Order 47 Rule 1 - Delay in deposit of rent - Trial Court after condonation directed tenant to deposit all arrears of rent within one month -Tenant deposited arrears of rent and rent in advance but failed to produce receipts in Court within time - Order striking of defense passed - Application for review filed along with rent receipts also rejected - Held - Tenant was not in arrears of rent and he had deposited all the arrears of rent in compliance of order and thereafter in accordance with provision as contained u/s 13(1) of the Act - Trial Court erred in rejecting application for review - Petition allowed : Ganesh Prasad Vs. Asadulla Usmani, I.L.R. (2010) M.P. 2528 (DB) 2. Mesne profit higher than contractual rate
- Section 13(1) - Mesne profit higher than contractual rate - Permissibility - Appeal or revision preferred by a tenant against order or decree of eviction passed under the Act - It is open to the appellate or revisional Court to stay the execution of the order or the decree on terms including a direction to pay monthly rent at a rate higher than the contractual rent : National Garage (M/s.) Vs. Rajvardhan Singhai, I.L.R. (2010) M.P. 467 3. Time Barred rent
- Section 13(1) - Suit for eviction on ground of arrears of rent - Leave to defend - Time barred rent - Not required to be deposited : Firm M/s Ramgopal Kanhaiyalal Vs. Firm M/s Dinanath Gyasilal, I.L.R. (2006) M.P. 228 SYNOPSIS : Section 23-A
1. Bona fide need can be 5. Landlord / Owner proved by legal representatives 6. Nature of Business is 2. Contract contrary to the Act relevant not the old age is void - Eviction application to examine bona fide need maintainable 7. To live conveniently and 3. Co-owner is not the necessary comfortably with married party daughter - Bona fide need 4. Income from other sources does proved not affect the bona fide need Accommodation Control Act, M.P. (41 of 1961) 20
1. Bona fide need can be proved by legal representatives - Sections 23-A, 23-E - Revision - Application for Eviction - Original applicant a retired handicapped person - Death during proceedings before RCA - Validity of legal representatives continuing proceedings - Legal representatives can be substituted and proceedings can continue - Bonafide requirement for residence proved by legal representative - Tenant liable to be evicted - Revision dismissed : Mrs. D. Calladhan Vs. A.S.RAJ, I.L.R. (2006) M.P. 1427 2. Contract contrary to the Act is void - Eviction application maintainable - Section 23-A - Perpetual Lease Deed - Application for eviction opposed on the ground that lease was till the pleasure of tenant - Held - There is non-obstante clause which is having meaning to nullify any contract to contrary - Even if any agreement contrary to section is executed between landlord and tenant the same would not have any sanctity - Application for eviction maintainable : Shyama bai Vs. Murlidhar, I.L.R. (2008) M.P. 1790 3. Co-owner is not the necessary party - Section 23-A(b) - A widow, who is a co-owner and landlady of the premises can in her own right initiate proceedings for eviction u/s 23-A(b), without joining other co-owners / co-landlords as party to the proceedings, on being the owner of the property for commencing business of any of her major sons, even when her major sons, who are also the co-owners/co-landlords have not been joined as party to the proceedings and it would not affect the locus of the landlady or the maintainability of the proceedings - The consent of the other co-owners for instituting the proceedings for eviction of the tenant would not be required and the bona fide requirement to evict the tenant could be established without even suggesting for the consent of co-owner about the institution of the eviction proceedings : Pista Devi Goyal (Smt.) Vs. Brij Mohan Garg, I.L.R. (2010) M.P. Note *32
- Section 23-A(b) - The presence and/or absence of other co-owners would be of no use or rather it would be inconsequential for all the purposes, because it would not alter the nature of claim preferred by the widow landlady and would not take away the proceedings beyond of the scope of S.23-A(b) : Pista Devi Goyal (Smt.) Vs. Brij Mohan Garg, I.L.R. (2010) M.P. Note *32 4. Income from other sources does not affect the bona fide need
- Section 23-A - Bonafide Requirement - Income of applicant - Applicant receiving income from family pension and rent - Bonafide requirement cannot be dismissed merely Accommodation Control Act, M.P. (41 of 1961) 21 on the ground that she is receiving some income which is sufficient to satisfy her daily need : Shyama Bai Vs. Murlidhar, I.L.R. (2008) M.P. 1790 5. Landlord / Owner
- Section 23-A - Owner - Tenant admitting that suit shop is of applicant - Ownership of applicant stood proved. Shyama bai Vs. Murlidhar, I.L.R. (2008) M.P. 1790
- Sections 23A & 23J - Landlord - What amounts to - Premises were given on rent by the predecessor in title and not the present landlord who is a retired government servant - Plea raised that such person is not covered under the definition of landlord u/ s 23J of the Act - Held - Every retired government servant is a landlord within the meaning of S. 23J of the Act - The provision can not be read to add qualifiers to it : Ramkishore Vs. Gyanchand Jain, I.L.R. (2010) M.P. 1481 6. Nature of Business is relevant not the old age to examine bona fide need
- Section 23-A - Bonafide requirement - Application filed for eviction from non- residential premises for opening a cosmetic shop along with her married daughter - Applicant aged about 70 years - Old age ipso facto would not mean that need is not bonafide - Nature of business is required to be seen - No experience is required for doing this type of business - Even if it is held that her business would fail in absence of experience it cannot be a ground to hold that need of applicant is not bonafide : Shyama bai Vs. Murlidhar, I.L.R. (2008) M.P. 1790 7. To live conveniently and comfortably with married daughter - Bona fide need proved
- Sections 23-A (a), 23-E - Revision - Landlady living with married daughter due to her ill health and old age - Eviction of tenant sought on this ground is not based on bona fide need of married daughter but based on right to live conveniently and comfortably in the company of her daughter - No factual or legal infirmity in impugned order - Revision dismissed : Smt. Mona Shrivastava Vs. Smt. Pan Bai Raikwar, I.L.R. (2006) M.P. 123
● - Sections 23-C, 23-D - Question whether tenant can be permitted to file written statement or application for grant of leave to defend is sufficient and no further opportunity to file written statement be granted - Held - R.C.A. to commence hearing immediately after grant of leave - Filing of written statement is not mandate of legislature - There is no provision under Section 23-D to grant time to tenant to file written statement after grant of leave to defend - Rent Controlling Authority to decide application for eviction Accommodation Control Act, M.P. (41 of 1961) 22 considering grounds on which leave to defend is granted after recording evidence - Reference answered accordingly : Smt. Paramjeet Kaur Bamba Vs. Smt. Jasbir Kaur Wadhwa, I.L.R. (2007) M.P. 1265 (DB)
- Section 23-J - Plaintiff was a landlord of a special category as mentioned u/s 23-J - Plaintiff has filed the suit u/s 12(1)(a) & (f) before Civil Court - Suit cannot be dismissed for want of jurisdiction - Reasons mentioned : Sunil Kulkarni (Dr.) Vs. Jagdish Singh, I.L.R. (2010) M.P. 939
- Section 35, Civil Procedure Code, 1908, Order 47 Rule 1 - Review - In absence of any specific provision for execution of order, provisions of C.P.C would be applicable - Application for review maintainable : Ashish Sahu Vs. Sushila Devi Chouhan, I.L.R. (2008) M.P. 1278
- Section 35 (New S. 35 has been substituted for the old one by M.P.A.C. (Amendment Act, 1983) - Rent Controlling Authority to exercise powers of Civil Court for execution of orders - Provides a complete forum in respect of execution of orders passed by RCA - All questions falling within the purview of Section 47 of CPC are to be dealt with only by RCA and none else : Ashish Sahu Vs. Sushila Devi Chouhan, I.L.R. (2008) M.P. 1278
- Sections 37, 45 - Jurisdiction of Civil Court - Defendant carried out repair works after obtaining order from Rent Controlling Authority - Civil Court has no jurisdiction to direct deduction of repairing expenses from the rent, as it is barred by virtue of Section 45 : Banarsi Devi Jain Vs. M.P. Transport Company, I.L.R. (2008) M.P. 555
- Section 43(3), Criminal Procedure Code, 1973, Section 200 - Complaint - Letting out tenanted premises to sub-tenant without permission of landlord is prohibited u/s 14 of Act - Tenant liable to face penalty u/s 43(3) of Act for doing any act of subletting in contravention of S. 14 of Act - Merely because time was granted by HC in Second Appeal to vacate premises would not mean that there is no material to register the complaint - Magistrate acted illegally by not registering the case - Revision allowed : Manisha Lalwani (Smt.) Vs. Dr. D.V. Paul, I.L.R. (2009) M.P. 2721
- Section 43(3) - Provision is applicable only against tenant and not against the sub-tenant : Manisha Lalwani (Smt.) Vs. Dr. D.V. Paul, I.L.R. (2009) M.P. 2721
- Section 45 - See - Civil Procedure Code 1908, Section 9 : Sulochana Vs. Rajinder Singh, I.L.R. (2008) M.P. 2487 (SC) Admission (Reservation to NRI) Regulation, M.P. 2009 23
Administrative Law
- Policy decision - Scope of judicial review - Held - The policy decision is in the domain of the executive authority of the State and the Court should not embark on the unchartered ocean of public policy and should not question the efficacy unless it does not offend any provision of the statute or the Constitution of India : Barwani Sugar Vs. Union of India, I.L.R. (2010) M.P. Note *40
- Exercise of discretion by Administrative Authority - When discretion is to be exercised by an authority then it would be free to exercise the discretion as it likes but that does not mean that such authority can exercise the discretion in illegal, unjudicious or arbitrary manner - Arbitrariness runs contrary to the justice, principles of equity and equality - If on the given set of facts, the discretion is exercised in favour of one party then on the same facts, an authority cannot refuse to exercise the discretion in favour of the other party : Managing Director M.P. State Mining Corporation Ltd. Vs. M/s. Narmada Enterprises, I.L.R. (2008) M.P. 2956 (DB) Administrative Tribunal Act, M.P. (13 of 1985)
- Section 3(q) & 14 - See - Constitution, Articles 14, 16, 21, 226, 227, 257, 323-A, 323-B : Vinay Shukla Vs. State of M.P., I.L.R. (2008) M.P. 2898
- Section 11(d) - Compensation - Petitioner was Vice-Chairman at the time of abolition of SAT - State Government worked out compensation equivalent to 25% of basic salary for period for which Vice-Chairman of tribunal would have continued had tribunal not been abolished - Held - Section 11(d) and explanation provide that Vice- Chairman will not be eligible for any employment either under Government of India or State Government including employment under local or other authorities within territory of India or under the control of the Government of India or under any corporation or society owned or controlled by Government - Petitioner accepted the office with the expectation that loss on account of disqualification would be adequately compensated by basic salary he will get during the period of his tenure as Vice-Chairman - Reasonable and adequate compensation would be loss of basic salary that he has suffered for the remaining period of his tenure as Vice-Chairman - Petition allowed : N.L. Shrivastava Vs. State of M.P., I.L.R. (2009) M.P. 999 (DB)
- Section 21 - See -Constitution, Article 14, 16 & 226: Nandkishore Narolia Vs. State of M.P., I.L.R. (2008) M.P. 2591 Admission (Reservation to NRI) Regulation, M.P. 2009
- Regulation 3 & 5 - See - Niji Vyavsayik Shikshan Sanstha (Pravesh Ka Viniyaman Avam Shulk Ka Nirdharan) Adhiniyam, M.P., 2007 : Lalit Tongia Vs. State of M.P., I.L.R. (2010) M.P. Note *81 (DB) Agricultural Warehouse Act, M.P. 1947 (1 of 1948), 24
Adverse Possession
Adverse Possession - In order to establish plea of adverse possession, the defendant ought to have proved his possession and must state that dispossession of rightful owner was actual, exclusive, hostile and continued over the statutory period : Jaswant Singh Vs. Smt. Dayamani, I.L.R. (2008) M.P. 2080 Advocacy
- Advocacy - General principles and legal ethics summarized : Balaram Vs. State of M.P., I.L.R. (2010) M.P. 2438 Advocates Act (25 of 1961)
- Rules of 1963 and Service Rules of 1975 - Prior general law stands repealed by a subsequent particular law - Rules of 1963 are general rules - Whereas Service Rules of 1975 are particular rules regarding service conditions of staff of Bar Council - These particular rules having been made later than the general rules of 1963 - Will have the effect of repealing Chapter II of the rules 1963, which earlier provided for conditions of service of staff of Bar Council : Mohd. Riyaz Vs. State Bar Council, I.L.R. (2008) M.P. 503 (DB)
- Service Rules of 1975 - Rule 5 - Age of retirement of Secretary of Bar Council - Rule 5 provided age of retirement 58 years for "staff" - Staff not defined in rules - Have the same meaning as it has in Section 11 of Act i.e. staff include Secretary of Bar Council - Therefore his age of retirement is 58 years : Mohd. Riyaz Vs. State Bar Council, I.L.R. (2008) M.P. 503 (DB)
- Service Rules of 1975 - Rule 31 - Wherever rules are silent on any matter, rules in that regard applicable to the "employees" of High Court in the same "cadre" shall be applicable : Mohd. Riyaz Vs. State Bar Council, I.L.R. (2008) M.P. 503 (DB) Agriculture Cattle Preservation Act, M.P., 1959
- Sections 4 and 6 - See - Criminal Procedure Code, 1973, Sections 451 & 457 : Mohammad Ajeem Khan Vs. State of M.P., I.L.R. (2010) M.P. 1187 Agricultural Warehouse Act, M.P. 1947 (1 of 1948)
- Section 3, Krishi Upaj Mandi Adhiniyam, M.P. 1972, Sections 31 & 32 - Licence for carrying on business or for operating in market area - The two Acts are totally Arbitration Act, Indian (10 of 1940) 25 different and operate in different areas - One Act provides for storing and proper supervision & control and other Act provides for better regulation of buying and selling of agricultural produce - Licence holder under Act of 1947 would not be protected from the clutches of Ss. 31 & 32 of Act of 1972 - Notice of Mandi Samiti to petitioner for getting licence u/s 32 of the Act of 1972 held valid - Appeal dismissed : Jai Baba Devpuri Warehouse, Morena (M/s) Vs. State of M.P., I.L.R. (2010) M.P. 335 (DB)
- Sections 4 & 6 - See - Criminal Procedure Code, 1973, Sections 451 & 457 : Mohammad Ajeem Khan Vs. State of M.P., I.L.R. (2010) M.P. 1187 All India Bar Council (First Constitution) Rules, 1961
- Rule 13 - Unlawful and void transaction - During pendency of litigation, counsel for a party purchased suit property by a registered sale deed - Held - Transaction was in violation of Rule 13 and thus was forbidden by law, unlawful and void : Amar Singh Vs. Balmukund, I.L.R. (2010) M.P. 1427 Ancient Monuments and Archaeological Sites and Remains Act, M.P. (12 of 1964)
- Sections 2(a), 2(c), 3 - See - Constitution, Article 226 : Mohammad Rafik Bhutto Vs. State of M.P., I.L.R. (2008) M.P. 2274 (DB) Ancient Monuments and Archaeological Sites and Remains Rules, M.P., 1976
- Rule 10 - See - Constitution, Article 226 : Mohammad Rafik Bhutto Vs. State of M.P., I.L.R. (2008) M.P. 2274 (DB) Arbitration Act, Indian (10 of 1940)
- Section 2(a) & 20 - Arbitration Agreement - Dispute referred to one man committee - Committee authorized Chief Engineer to hear the dispute on his behalf and decision of committee was described as report and placed before the MPEB for final decision - Held - Arbitration clause contained in the agreement is found to have neither substituted nor replaced by the correspondence - In terms of agreement, the dispute intended to be referred should be determined in quasi judicial manner - Member of committee was not appointed as arbitrator - Dispute was not decided by committee in a quasi judicial manner - Reference of dispute to arbitration in terms of agreement by trial Court valid - Appeal dismissed : M.P. Electricity Board, Rampur, Jabalpur Vs. Bhandari Builders Pvt. Ltd., I.L.R. (2009) M.P. 1726 Arbitration Act, Indian (10 of 1940) 26
- Sections 14(2), 33, Limitation Act Indian 1963, Article 119 - Objection to Arbitration Award -Limitation - Period of limitation of 30 days shall begin from the date when the contents of award are made known to the parties and not from the receipt of notice intimating filing of award - Arbitrator filing award in sealed cover before the Court - Notice issued by Court as to show cause why judgment and decree be not passed in terms of award - Sealed Cover opened by the Court before the parties - Period of limitation of 30 days would start from the date when sealed cover was opened making the contents of award known to the parties - Objection filed by State held to be within limitation : State of Madhya Pradesh Vs. Kastwar Construction Co., I.L.R. (2007) M.P . 245
- Sections 16, 28 - Extension of time - Matter referred to arbitrators and they entered upon reference - Completed arbitration and passed award on 8-3-1982 - Respondents even after expiry of period prescribed for giving award, appeared, took part in proceedings before arbitrators and never objected to arbitration proceedings - Trial Court refused to make award Rule of Court and held the same to be ineffective and void - Held - Arbitration Proceedings should not be unduly prolonged - As parties were taking part willingly in the proceedings before arbitrator without a demur and had all along been willing to extend time - It is a fit case for extension of time - Accordingly time extended for giving award and award dated 8-3-1982 deemed to be given in time : Ashok Vs. K.K. Saxena, I.L.R. (2008) M.P. 285
- Section 30 - Arbitrator - Misconduct - Award challenged on the ground that appellant not afforded proper opportunity of hearing in violation of principles of Natural Justice by the Arbitrator and thus he committed misconduct by ignoring the terms of the contract - Held - Arbitrator in his award recorded finding on the basis of documents filed by parties - Appellant failed to point out as to how Arbitrator misconducted - Reason assigned by the Arbitrator and the view taken by the Arbitrator is a possible view - Appeal dismissed : State of M.P. Vs. M/s Shukla Construction Company, I.L.R. (2009) M.P. 1717
- Section 30(a) - Misconduct - Tender for leasing out Canning Unit at Bhopal was floated - Offer by appellant was accepted - Appellant did not pay rent and raised certain disputes - Six Arbitrators were changed one after the other - First Three arbitrators were to be changed - Fourth arbitrator submitted resignation - Fifth arbitrator expressed his inability to continue - Award was passed by Sixth Arbitrator - Court had fixed fee of arbitrator at Rs. 10,000 - Respondent filed application for decision on counter claim also and was ready to pay fee fixed by arbitrator - Arbitrator fixed fee of Rs. 11,000 payable in equal proportion by both parties -Appellant refused to pay - Entire additional fee was paid by respondent - Held - There was no secret deliberation made by arbitrator with any of parties - Although proper course was to seek Court's order Arbitration and Conciliation Act (26 of 1996) 27 with respect to the fee payable on counter claim - However, it cannot be said to be misconduct effecting merit of decision - It was irregularity committed by arbitrator but award cannot be set aside : M.P. Fruit Product Vs. M.P. State Agro Industries Development Corporation Ltd., Bhopal, I.L.R. (2007) M.P. 1656 (DB)
- Sections 30 & 33 - Grounds for setting-aside award - Scope of interference in regard to award is limited - Court does not sit in appeal over findings of arbitrator - In absence of any allegation of misconduct, an award can be interfered only when there is an error apparent on face of the award or if there is any apparent inconsistency in award : S. Pal & Company Vs. State of M.P., I.L.R. (2010) M.P. 1256 (SC)
- Sections 30, 39 - Arbitration Award - Award challenged before the High Court on the ground that it is non-speaking - Arbitration Clause not providing for a speaking award - Award cannot be set aside unless and until it is beyond jurisdiction - Interference of Court not permissible in case of non-speaking award - Appeal dismissed : State of Madhya Pradesh Vs. International Construction Company, I.L.R. (2007) M.P. 115 (DB)
- Section 39 (1) (vi) - Sales of Goods Act, 1930, Section 64-A - Subsequent variation of rate of tax - Intimation given for modification in terms of purchase order - Dispute arose and bills withheld - Material available with supplier - Inaction on part of appellant to settle the dispute - Respondent entitled to be compensated : Hindustan Copper Ltd. Vs. M/s United Forgings, I.L.R. (2006) M.P. 252(DB) Arbitration and Conciliation Act (26 of 1996)
- Section 2(e) - Court - Only a principal civil court of original jurisdiction and a High Court which exercises ordinary original civil jurisdiction falls within the purview of Court - Chief Justice or his nominee exercising power u/s 11(6) do not fall in the category of Court : Lalit Oswal Vs. A.K. Trivedi, I.L.R. (2009) M.P. 1825
- Sections 2(1)(e) & 42 - Intention of Legislature in enacting Sections 2(1)(e) and 42 of the Act is that once a Judge who is empowered to function as principal civil court of original jurisdiction - He should alone decide the matter and subsequent proceedings arising out of the said agreement and not that the District Judge alone is empowered to hear the case : Pratap Singh Hardia (Dr.) Vs. Sanjay Chawrekar, I.L.R. (2009) M.P. 450 (DB)
- Sections 2(1)(e), 42, 34, Civil Courts Act, M.P., 1958, Sections 7, 8 & 15 - In Madhya Pradesh, Additional District Judge is also Principal Civil Court of original jurisdiction - Hence, competent to hear application u/s 34 of the Arbitration and Conciliation Act : Pratap Singh Hardia (Dr.) Vs. Sanjay Chawrekar, I.L.R. (2009) M.P. 450 (DB) Arbitration and Conciliation Act (26 of 1996) 28
- Section 8 - Power to refer parties to arbitration where there is an arbitration agreement - Meaning - Held - The section contemplates seeking reference to an arbitral tribunal, for which the dispute has to be between the parties to the arbitral agreement and the dispute should be with regard to execution of the agreement, wherein the arbitration agreement is incorporated : H.L. Taneja (Deceased) Through L.Rs. Vs. Jitendra Mohan Khungar, I.L.R. (2010) M.P. Note *27
- Section 8 - See - Civil Procedure Code 1908, Section 115 : Charanjit Kaur (Smt.) Vs. S.R. Cable, I.L.R. (2008) M.P. 2445
- Section 9, Madhyastham Adhikaran Adhiniyam, M.P. 1983, Section 7(1) - Scope - The 1983 Act and the 1996 Act can be harmonised by holding that the 1983 Act only applies where there is no arbitration clause but it stands impliedly repealed by the 1996 Act where there is an arbitration clause - Dispute relating to works contract and agreement contains arbitration clause - Application u/s 9 of 1996 Act was maintainable : Va Tech Escher Wyass Flovel Ltd. Vs. M.P.S.E. Board, I.L.R. (2010) M.P. 769 (SC)
- Section 9 - Scope - The Act only applies where there is an arbitration clause, but it does not apply where there is none - The Act covers all kind of disputes including the dispute relating to works contract : Va Tech Escher Wyass Flovel Ltd. Vs. M.P.S.E. Board, I.L.R. (2010) M.P. 769 (SC) SYNOPSIS : Section 11
1. Appointment of arbitrator 3. Department's right to appoint against arbitration clause not arbitrator - When ? justify except for valid reasons 4. Dispute not arbitrable 2. Appointment of arbitrator 5. Territorial Jurisdiction when barred by Res judicata Agreed by the parties
1. Appointment of arbitrator against arbitration clause not justify except for valid reasons
- Section 11 - Appointment of arbitrator - Contract for construction of commercial building accepted by respondent no. 1 - Some dispute arose between parties, therefore, as per provision of Clause 29 of agreement - Respondent no.1 made request to petitioner to refer the dispute to arbitrator - Authority under agreement failed to act as an Arbitrator within stipulated period therefore, respondent no.1 unilaterally appointed respondent Arbitration and Conciliation Act (26 of 1996) 29 no.2 as arbitrator - Held - If parties agreed upon for procedure for appointment of arbitrator there would be no occasion to appoint arbitrator under Section 11 of the Act, 1996 - Agreement contains arbitration clause for appointment of Dy. Housing Commissioner and further to Add. Housing Commissioner on dispute arrived at between parties - No provision for appointment of respondent no.2 as arbitrator - Appointment of respondent no.2 as arbitrator null and void being contravention of provisions of Act, 1996 - Petition allowed : M.P. Housing Board Vs. Sohanlal Chourasia, I.L.R. (2008) M.P. 48
- Section 11 - Appointment of arbitrator - Respondent entered into contract with appellant for construction of Road - Contract containing arbitration clause that dispute may be referred to Arbitration Board to be constituted by Corporation and party invoking arbitration will be required to furnish security deposit - Respondent filed application for appointment of arbitrator before High Court under Section 11(6) - High Court initially directed appellant to invoke arbitration clause - Subsequently sole arbitrator appointed by High Court- Held - Arbitration Clause provided for furnishing Security Deposit - Respondent has not furnished security deposit after the appellant was directed to invoke arbitration clause - Obligation of appellant to constitute arbitration board could not arise because of failure of respondent to furnish security deposit - Appointment of sole arbitrator by High Court not justified on account of non furnishing of security deposit - As sole arbitrator had already commenced arbitration proceedings respondent directed to furnish security deposit as determined by Corporation within 6 weeks - Appellant to constitute Arbitration Board within 3 months - Arbitration Board shall proceed from the stage sole arbitrator has already reached - Appeal allowed : Municipal Corporation, Jabalpur Vs. M/s Rajesh Construction Co., I.L.R. (2007) M.P. 845 (SC)
- Section 11(3)(6) - Appointment of Arbitrator - Without taking to recourse to the procedure already agreed to between the parties in the agreement, application directly filed before Court for appointment of an Arbitrator - Held - To take recourse to the procedure contemplated in the agreement itself, is a general rule - Appointing an independent Arbitrator is an exception to be resorted to for valid reasons - No valid and justifiable reason for deviating from the general rule is pointed out - It is not proper to appoint an independent Arbitrator as the same would be contrary to the well settled principle laid down by the Supreme Court in the case of Northern Railway Administration [(2008) 10 SCC 240] - Application is disposed of granting liberty to the parties to proceed further in the matter in accordance with the provisions of agreement : Vidhyawati Construction Co. (M/s.) Vs. Union of India, I.L.R. (2010) M.P. 283
- Section 11(3)(6) - Department officer - Appointed as Arbitrator - No material is adduce to show that a department officer will not act independently - Mere vague allegation unsupported by any cogent material, cannot be a ground for deviating from Arbitration and Conciliation Act (26 of 1996) 30 the general principles laid down by the Supreme Court in the case of Northern Railway Administration : Vidhyawati Construction Co. (M/s.) Vs. Union of India, I.L.R. (2010) M.P. 283
- Section 11(5) - See - Consumer Protection Act 1986, Section 12 : Oriental Insurance Co. Ltd. Vs. Anjali Gupta (Ku.), I.L.R. (2008) M.P. 2075
- Section 11(6) - Appointment of an Arbitrator - Objection on ground of (i) The existence of the remedy of adjudication to the petitioner under the M.P. Madhyastham Adhikaran Adhiniyam, 1983, (ii) Certain concealment of fact by the petitioner before entering into agreement, (iii) Merit of the dispute and justification of the respondents in terminating the agreement - Held - Since (i) There is provision in agreement for resolution of dispute by appointing an arbitrator, (ii) Contract is basically terminated for the breach of agreement and non-performance of the contract and not only on the ground of concealment of facts, (iii) It is beyond the jurisdiction of High Court to go into the said area on merit of the dispute in these proceedings - All the objections are unsustainable - Petition allowed : ITI Limited Vs. State of M.P., I.L.R. (2010) M.P. 2399
- Section 11(6) - Even if the Court is to exercise the jurisdiction and is to appoint Arbitrator, the Arbitrator named in the agreement, is to be given preference and under normal circumstance he has to be appointed as Arbitrator - The arbitrator appointed by respondent during Court proceeding, approved by the Court and permitted to proceed and decide the dispute : Sigma Construction (M/s.) Vs. Bharat Heavy Electricals Ltd., I.L.R. (2010) M.P. Note *70 2. Appointment of arbitrator when barred by Res judicata
- Section 11, Civil Procedure Code, 1908, Section 11 - Res judicata - Application filed u/s 11 of Act for appointment of arbitrator - Application dismissed by ADJ - Order not challenged before higher forum - Fresh application filed u/s 11 of Act before High Court for appointment of arbitrator - Held - At the relevant time, ADJ was having jurisdiction to decide the matter - Order of ADJ ought to have been challenged before higher forum - Once applicant has invoked the jurisdiction of competent Court and application was dismissed - Subsequent application cannot be entertained merely on ground that now the jurisdiction lies with High Court - Subsequent application barred by principle of Res judicata in the light of Supreme Court's judgment in S.B.P. & Co.'s case - Application dismissed : Chandreshwar Jha (M/s) Vs. Northern Coalfields Ltd., I.L.R. (2008) M.P. 2136 3. Department's right to appoint arbitrator - When ?
- Section 11(6) - Appointment of Arbitrator - Applicant served request for appointment of arbitrator upon the department - No action taken for several months by Arbitration and Conciliation Act (26 of 1996) 31 department - Applicant filed application u/s 11(6) before Court - Held - Department's right to appoint arbitrator under the terms of the agreement ceased on filing of application u/s 11(6) - Subsequent appointment of arbitrator by the Department is without jurisdiction - Arbitrator appointed by the Court : M.J. Engineering Works (P) Ltd. Vs. Bharat Heavy Electrical Ltd., Bhopal, I.L.R. (2009) M.P. 580 4. Dispute not arbitrable
- Section 11(6) - Arbitration clause - Excepted matter - By invoking clause of agreement, S.E. imposed penalty on contractor due to delay of execution of work - Request for appointment of Arbitrator - Held - Clause 2 of agreement provides a detailed process and machinery for adjudication of dispute with regard to compensation for delay in execution of contract - Arbitration clause excludes excepted matter like adjudication under clause 2 from it's purview - Dispute not arbitrable being excepted matter - Application dismissed : Pawan Kumar Jain Vs. Union of India, I.L.R. (2009) M.P. 2464 5. Territorial Jurisdiction Agreed by the parties
- Section 11 (6) - Appointment of arbitrator - By agreement parties agreed that out of many only Courts in Delhi/New Delhi shall have jurisdiction - Agreement not against public policy or in contravention of Section 28 of Contract Act, 1872 - Application required to be filed before Hon. Chief Justice of Delhi High Court : Progressive Career Academy Pvt. Ltd. Jabalpur Vs. Fitjee Ltd., New Delhi, I.L.R. (2006) M.P. 134
● - Sections 12, 13 and 37 - Appeal - Appointment of arbitrator - Arbitrator happened to be an advocate of appellant at one point of the time will not be a case of bias or misconduct - Interest should not exceed 6% p.a. - Award modified and directed to be made a rule of the Court : M/s. G.S. Gyani & Company Vs. M/s Oriental Electric & Engineering Company Calcutta, I.L.R. (2006) M.P. 80 (DB)
- Sections 12, 14 & 15 - Appeal - Any person aggrieved by failure to challenge made u/s 12, is required to wait till award is pronounced and can challenge the rejection of his challenge only after the final award is made u/s 13(4) : Lalit Oswal Vs. A.K. Trivedi, I.L.R. (2009) M.P. 1825
- Sections 16, 34, 37 - Territorial Jurisdiction - Arbitrator is under an obligation to decide the plea of jurisdiction - Appellant carrying on business at Nagpur and order was also placed at Nagpur - Objection regarding territorial jurisdiction not decided by Arbitral Tribunal and also by Court - Held - Whole action of Arbitral Tribunal without jurisdiction - Award set-aside - Appellant directed to appear before Arbitral Tribunal - Appeal Arbitration and Conciliation Act (26 of 1996) 32 allowed : Lords Wear Pvt. Ltd., Nagpur Vs. M/s Anandkumar Devendra Kumar, I.L.R. (2008) M.P. 1771
- Sections 21 & 43 - Arbitration Tribunal decline to pass award in favour of appellant and held claim to be time barred - Application u/s 34 dismissed - Held - Arbitral proceedings in respect of a particular dispute would commence on the date on which a request for that dispute to be referred to Arbitration is made - Determining factor in computing the limitation is the date when notice was received by the respondent No.1 & 2 raising the arbitral dispute - Appeal allowed : Prashant Kumar Sahu Vs. M/s. Optel Telecommunications Ltd., I.L.R. (2008) M.P. 1753 (DB)
- Section 25(a) - Termination of arbitration proceedings in default - Petitioner despite several opportunities failed to submit statement of claims before Arbitral Tribunal - Held - Termination of proceeding by Arbitral Tribunal valid - Petition dismissed : Balmukund Pandey Vs. V.K. Singh, I.L.R. (2009) M.P. 2179
- Sections 28, 34, 35 & 37 - Award - Challenge of award - The appellant No.1 entering into an agreement with respondent No.1 for lifting of sand from various places/ mines for the period 24.05.2003 to 23.05.2006 - Clause 16 of the agreement provided that in special circumstances, M.D. is entitled to extend the period of lease and it would be imperative upon him to increase the proportionate quantity and amount of instalment - Period of lease was not extended by M.D. without assigning any reason - A dispute was raised before arbitrator - Arbitrator in award extended the further period of 15 to 17 months - Civil court affirmed the award - In appeal award challenged on the ground that the arbitrator exceeded in his jurisdiction by extending the period of contract - Held - Clause 19 of the agreement provided that in case of any dispute between the parties, the matter could be decided either by the M.D. or by a person nominated by him under the Act - At this stage, the appellants would not be allowed to say that the question referred to the arbitrator could not be decided by him and he committed an error in excess of the jurisdiction conferred upon him - Appeal dismissed : Managing Director M.P. State Mining Corporation Ltd. Vs. M/s. Narmada Enterprises, I.L.R. (2008) M.P. 2956 (DB)
- Sections 34 & 36 - Applicability of the Act - Respondent awarded contract but was not able to complete it within stipulated period and thus a dispute arose - Sole Arbitrator passed an award in favour of respondent - Petitioners challenged the award u/s 34 of the Act before the District Court Gwalior - Application for setting aside the Award dismissed - Respondent filed application u/s 36 for enforcement of the award - Held - As the petitioner has filed an application u/s 34 of the Act for setting aside the award and the respondent filed an application u/s 36 for enforcement of the award the Arms Act (54 of 1959) 33 parties have themselves accepted the applicability of the Act by their own conduct - Petition dismissed : Union of India Vs. M/s. N.J. Devani Builders Pvt. Ltd., I.L.R. (2008) M.P. 1692
- Sections 34, 37, Civil Procedure Code, 1908, Section 11 Explanation (iv) - Constructive Res Judicata - Agreement took place between parties on 21-11-98 - Respondent was to procure Soyabean for appellant - Some dispute arose during the subsistence of contract and same was referred to Sole Arbitrator -Dispute was resolved by award dated 25-10-99 - Another dispute was submitted by respondent before Sole Arbitrator on 24-6-2002 contending that during subsistence of same contract he had purchased gunny bags worth Rs. 2,75,000/- for packing of Soyabean - Appellant raised objection of constructive Res Judicata - Held - Gunny bags were purchased by respondent for appellant on 20-11-1998 - Earlier Reference was made to Sole Arbitrator in month of March 1999 - Dispute referred by successive application to arbitrator was in existence, but same was not referred to arbitrator - Procedure provided under Civil Procedure Code is applicable - Successive Claim was not-entertainable as same was hit by provision of constructive Res Judicata - Appeal Allowed : M.P. State Civil Supplies Corporation Ltd. Vs. Marain Agarwal, I.L.R. (2007) M.P. 1785
- Section 41 - Bank Guarantee - Invocation - Permissibility - To grant injunction powers of the Court - Held - Court cannot issue injunction u/s 41 of the Act r/w Order 39 Rule 1 & 2 CPC restraining the principal from invoking and encashing the guarantee except in cases of fraud or apprehension of irretrievable injustice to the contractor : B.C. Biyani, Projects Pvt. Ltd. (M/s.) Vs. Ssangyong Engineering Constructions Company Ltd., I.L.R. (2010) M.P. 506 (DB) Arms Act (54 of 1959)
- Sections 22, 37 - Search and Seizure - Search for arms concealed in house of premises for any unlawful purpose would be illegal if Magistrate did not order it - Search to be carried out in accordance with corresponding provisions in Criminal Procedure Code - Act of raiding residences of appellant and other inmates without recording the reason to believe that arms and ammunitions were hidden therein was not justifiable : Wahid Khan Vs. State of M.P., I.L.R. (2007) M.P. 1808 SYNOPSIS : Section 25
1. Effect of non production of arms in the court 3. Sanction 2. Notification not produced - Acquitted
1. Effect of non production of arms in the court Army Act (46 of 1950) 34
- Section 25(1-B)(b) - Acquisition or possession of arms of specified description in contravention of Section 4 - Knife seized from the possession of appellant not produced before Trial Court and not marked as an article - Oral evidence regarding its size and specification not sufficient - Appellant acquitted - Appeal allowed : Kale Babu Vs. State of M.P., I.L.R. (2008) M.P. Note *44
- Section 25(1-B)(b) - Possession of arms of specified description - Applicant was having Khukri type knife in his hand and was intimidating public - Nothing on record that blade of knife was more than 6" long or 2" wide - Held - Courts below erred in holding that applicant was found in possession of knife having blade of prohibited dimensions as specified in notification issued u/s 4 - Applicant acquitted - Revision allowed : Lavkesh Reddy Vs. State of M.P., I.L.R. (2008) M.P. Note *56 2. Notification not produced - Acquitted
- Sections 4, 25(1-B)(b) - Licence for acquisition and possession of arms - Applicant found in possession of knife - No notification issued u/s. 4 prohibiting acquisition, possession or carrying of arms of such class or description in the specified area brought on record - Applicant cannot be convicted - Revision allowed : Shakir @ Govinda Vs. State of M.P., I.L.R. (2008) M.P. Note *68 3. Sanction
- Section 25 - Sanction to prosecute - Accused acquitted on the ground that D.M., Bhopal was not proper authority to sanction prosecution - Crime committed at Bhopal, recovery of firearms made in Raisen - Held - D.M., Bhopal had jurisdiction to grant permission to prosecute - Approach of trial Court not only perverse but discloses either lack of knowledge or ulterior motive - Acquittal set aside : State of Madhya Pradesh Vs. Mukhtyar Malik, I.L.R. (2007) M.P. 647 (DB)
- Sections 39 & 25 (1)(a) - Sanction - Country made revolver seized - Weapon was incapable of firing - Was not sent to D.M. along with record - Sanction not valid - Applicant acquitted for want of valid sanction : Raees Khan Vs. State of M.P., I.L.R. (2008) M.P. Note *37 Army Act (46 of 1950)
- Sections 27, 84 & 87 - See - Service Law : Subodh Shukla Vs. Union of India, I.L.R. (2009) M.P. 359 Ashaskiya Shikshan Sanstha (Institutional Fund) Rules, M.P. 1983 35
Army Rules, 1954
- Rules 22, 23 & 26 - See - Service Law : Subodh Shukla Vs. Union of India, I.L.R. (2009) M.P. 359 Ashaskiya Shikshan Sanstha (Adhyapakon Tatha Anya Karmchariyon Ke Vetano Ka Sanday) Adhiniyam, M.P. (20 of 1978)
- Sections 1(4) & 2(e) - Can an educational institution be compelled to receive grant-in-aid - Held - No, the petitioner institution cannot be forced to receive the grant- in-aid - As it is not receiving any grant from the State Government since April 2007, it does not fall within the definition of an "institution" as provided u/s 2(e) of the Adhiniyam and is, consequently, excluded from the applicability of the Adhiniyam, in view of S. 1(4) thereof : Ayodhya Prasad Narmada Prasad Uchchatter Madhyamik Shala Vs. State of M.P., I.L.R. (2010) M.P. 105
- Section 5 - Private aided educational institute getting grant-in-aid - State Govt. issued circular that provident fund with regard to employees of aided institution with effect from 1.8.1982 would be the responsibility of the Management and not of the State Govt. - Circular challenged on the ground that it is ultra vires the provision contained in the Section 5 of Adhiniyam - Held - Denying the liability by the State Government to pay provident fund of the employees is clearly in contravention with the mandatory provisions of Section 5(2) of the Act - Circular declared as ultra vires of the Act and quashed - Petition allowed : Shri Kamla Nehru Balika Uchchatar Madhyamik Vidyalaya Vs. State of M.P., I.L.R. (2008) M.P. 1656 Ashaskiya Shikshan Sanstha Anudan Niyam, M.P. 2008
- Rule 8 - See - Ashaskiya Shikshan Sanstha (Institutional Fund) Rules, M.P. 1983, Rule 5(3) : Ayodhya Prasad Narmada Prasad Uchchatter Madhyamik Shala Vs. State of M.P., I.L.R. (2010) M.P. 105 Ashaskiya Shikshan Sanstha (Institutional Fund) Rules, M.P. 1983
- Rule 5(3), Ashaskiya Shikshan Sanstha Anudan Niyam, M.P. 2008, Rule 8 - DEO appointed to operate the account of petitioner institute singally - Order challenged - Held - Upon repeal of the Rules, 1983 by the Niyam, 2008, the State authorities could not have passed any order under the repealed Rule 5(3) conferring power on the DEO to operate the account of the petitioner institution singally by the impugned order dated 22.10.2008 and those proceedings stood repealed and were not saved by Rule 8 of the Back wages 36
Rules, 2008 : Ayodhya Prasad Narmada Prasad Uchchatter Madhyamik Shala Vs. State of M.P., I.L.R. (2010) M.P. 105 Ayurveda/Homeopathy/Unani Medical Cadre Contract Service (Appointment and Conditions of Service) Rules, M.P. 2006
- Rule 5 - Appointment of Medical Officers - Scrutiny for interview on the basis of marks obtained in Graduate level - Held - Valid - Rule 5 provides minimum qualification as Bachelor degree - It further provides that in case large number of applications are received, the selection committee will reserve the right to reduce the number of candidates three times the available post on the basis of eligible candidates - Assessment of merit of eligible candidates would only be possible by considering the marks obtained in Graduate level and not by considering the marks of some of the candidates who had obtained Post Graduate degree or diploma - Petition dismissed : Sunil Kumar Mishra (Dr.) Vs. State of M.P., I.L.R. (2009) M.P. 1675 (DB) Ayurvigyan Parishad Adhiniyam, M.P., 1987 (11 of 1990)
- Section 24 - See - Criminal Procedure Code, 1973, Section 482 : Gordhan Vs. State of M.P., I.L.R. (2009) M.P. 894 Back wages
- 25% back wages awarded by the Industrial Court - Held - Initially, petitioner approached before High Court and the matter traveled in LPA - Employees approached the Labour Court, later on in second round, there was delay and also considering the period for which the services were rendered - It would not be proper to direct the payment of back wages as financial crunch is being admittedly faced by the Corporation - Award partly set-aside : Commissioner, Municipal Corporation, Katni Vs. Laxmi Narayan Jaiswal, I.L.R. (2009) M.P. 994 (DB)
- Award of back wages is not automatic and the Courts are required to examine the facts and circumstances of the case - Petitioner willing to work but not permitted to work - Held - Petitioner entitled to arrears of salary and allowances w.e.f.01.12.2005 : Mahesh Kumar Swarnakar Vs. State of M.P., I.L.R. (2008) M.P. 2038
- No averment in the application filed u/s 31(3) of MPIR Act and no issue was framed by Labour Court that employees were not gainfully employed else where - Held - Mere bald statement of the employees cannot be accepted - Labour Court and Industrial Court have exercised the discretion not to award the back wages Bar Council of India Rules 37 due to aforesaid lacuna - In the facts and circumstances, back wages have been rightly declined by the Labour Court : M.P. Urja Vikas Nigam Ltd. Vs. Santosh Kumar Dubey, I.L.R. (2009) M.P. 1928 (DB)
- There is no rule of thumb that in every case where the termination of service in violation of Section 25-F of the Act, entire back wages should be awarded - A regular service of permanent character can not be compared to short or intermittent daily wage employment though it may be for 240 days in a calendar year - Workman engaged in 1992 on daily wage basis and his services were terminated in 1999 - Award has been passed by Labour Court in 2005 - High Court held that workman will be entitled 25% back wages from the date of termination of his services up to date of award and after date of award will be entitled full back wages : Madhya Pradesh Rajya Beej Evam Farm Vikas Nigam Vs. Ashok Kumar, I.L.R. (2008) M.P. 474 Bankers Books Evidence Act (18 of 1891)
- Sections 2(8), 4 - Mode of proof of entries in Banker's Book - Manager of Plaintiff Bank proved statement of account - Nothing could be extracted in cross examination of the witness to create doubt in respect of maintenance of account as provided under the Act - Nothing irregular shown by appellant that loan accounts were not maintained properly - No discrepancy in respect of maintenance of account : Kalinidi Mohan Vs. Bank of Maharashtra, I.L.R. (2008) M.P. 316 (DB) Banking Regulation Act (10 of 1949)
- (As inserted by Banking Law (amendment) Act 1984) - Section 21A - Rate of interest - Agreement provides that bank shall be entitled to change rates of interest from time to time - Section 21A of Act, provides that rates of interest charged by banking companies not to be subject to scrutiny by Courts - Contention that interest being excessive and de hors the term of agreement, without substance - Appeal dismissed : Kalinidi Mohan Vs. Bank of Maharashtra, I.L.R. (2008) M.P. 316 (DB) Bar Council of India Rules
- Part IV, Chapter II, Rule 7 - Admission in LL.B. Course - University has prescribed admission guidelines as requirement of 40% marks in case of entrance test is conducted and 45% marks in case entrance test is not conducted - Such Guidelines are in contravention of rule 7 - Rules are framed under the Advocates Act, which have the statutory force - Petitioner got admission in LL.B. course as per guideline prescribed by University - University realizing the mistake cancelled admission of petitioner within 15 days - Order is not illegal - Petition dismissed : Prakash Sharma Vs. Rani Durgawati Vishwavidyalaya, Jabalpur, I.L.R. (2010) M.P. 1097 (DB) Board of Secondary Education (M.P.) Regulations, 1965 38
- Rule 13 - See - Civil Procedure Code, 1908, Order 3 Rule 1: Rajendra Nagrath Vs. Col. V.L. Vohra, I.L.R. (2009) M.P. 1004 (DB) Benami Transaction Prohibition Act, (XLV of 1988)
- Section 4 - Prohibition of right to recover property held benami - Not retrospective in operation - Suit filed for declaration of bhumiswami right, possession and mesne profits in 1972 - Plaintiff claimed that property was purchased benami in the name of minor son - Suit filed much before coming into force of Benami Transaction Prohibition Act, 1988 - Suit not barred under Section 4 - Property purchased benami for defrauding creditors so that property may not get attached against debt - Plaintiff not entitled for possession : Smt. Kamlesh Vs. Devendra Bahadur, I.L.R. (2006) M.P. 1653 Binding Precedent
- What is - Every judgment must be read as applicable to particular facts proved or assumed to be proved - Judgment of Division Bench in W.A. No. 433/2006 holding that town development scheme embraces also a scheme which does not implement the provision of development plan - Whether is a binding precedent - Held - Question whether a town development scheme can be made for an area without the development plan for the area was not argued nor was considered by reference to different relevant provisions of the Adhiniyam - In not a binding precedent : M/s Pure Industrial Cock & Chemicals Ltd. Vs. State of M. P., I.L.R. (2007) M.P. 360 (DB) Board of Secondary Education (Enrolment) Rules, 1994
- Rules 3, 5, 6 & 8 - See - Board of Secondary Education (Madhya Pradesh) Regulation, 1965, Regulation 128 & 129 : Devmata Educational & Welfare Association Samiti, Birsinghpur Pali Vs. State of M.P., I.L.R. (2009) M.P. 3282 (DB) Board of Secondary Education (M.P.) Regulations, 1965
- Regulation 97, Proviso - See - Madhyamik Shiksha Adhiniyam, M.P., 1965, Section 28(4) : Firoz Khan Vs. Secretary, Board of Secondary Education, I.L.R. (2009) M.P. 2848 (DB)
- Regulation 128 & 129, Board of Secondary Education (Enrolment) Rules, 1994, Rules 3, 5, 6 & 8 - Examination - 31 students of class X not permitted to appear in examination for the reason their applications for enrolment were submitted in the Board after prescribed date - Held - Object of the Rules and Regulations is to ensure that regular students infact were admitted in the school in class IX and intended to take the class X examinations of the Board after two years of the study in class IX and class Building and Other Construction Workers' (Regulation of Employment and Conditions 39 of Service) Act, (27 of 1996)
X - Hence, if these conditions are satisfied but the applications for enrolment are sent beyond the time prescribed, such applications, if rejected, would lead to injustice and hardship to such students - Petition allowed : Devmata Educational & Welfare Association Samiti, Birsinghpur Pali Vs. State of M.P., I.L.R. (2009) M.P. 3282 (DB) Board of Secondary Education Directions for Academic Session M.P., 2006-07,
- Clause 2 - Admission - Regular student - In earlier petition, High Court had merely directed to admit the petitioner in the school as a special case - Board accepted examination form of the petitioner and allowed to appear in the examination as a regular student, but withheld the result/mark-list - Held - The school as well as the Board having treated the petitioner at their own as a regular student cannot be permitted to deny the status of regular student - More so, for the reason that petitioner did not earn any disqualification even under clause 2 of directions issued by the Board for academic session 2006-07 - Petitioner is entitled to the status of regular student and his result is liable to be declared with the status of regular student - Petition allowed : Anand Kumar Chouksey Vs. M.P. Board of Middle Education, I.L.R. (2009) M.P. 127 Building and Other Construction Workers' (Regulation of Employment and Conditions of Service) Act, (27 of 1996)
- Section 2(1)(d) - See - Building and Other Construction Workers' Welfare Cess Act, 1996, Section 2(d) : Gannon Dunkerley & Co. Ltd. Vs. State of M.P., I.L.R. (2009) M.P. 1280
- Sections 2(1)(d) & 2(1)(i)(iii) - See - Building and Other Construction Workers' Welfare Cess Act, 1996, Sections 3, 4 & 5 : Gannon Dunkerley & Co. Ltd. Vs. State of M.P., I.L.R. (2009) M.P. 1280
- Section 2(1)(i), Building and Other Construction Workers' Welfare Cess Rules, 1998, Rule 4(3) - Whether company liable to pay cess - Held - Government or public sector undertaking are bound to deduct or cause to be deducted the cess payable at the notified rates from the bills paid for such works and in the context of rule 4(3), the Company is liable to realize the cess from the bills of the contractors and account for the same : Gannon Dunkerley & Co. Ltd. Vs. State of M.P., I.L.R. (2009) M.P. 1280
- Sections 2(1)(i), 44, 47, Criminal Procedure Code, 1973, Section 482 - Quashing of Complaint - Complaint filed against applicants who are Chairman & Managing Director, Executive Director, General Manager, AGM (Project), Project Manager posted Building and Other Construction Workers' Welfare Cess Act (28 of 1996) 40 in different Corporations - Work contract was awarded to contractor for different construction works - Employee employed by Contractor died while working - Criminal liability - Held - Employers include owner as well as Contractor - It is true that Corporations did not perform work and contractor was carrying out work - Corporations are covered by word employers - Complaint cannot be quashed : C.P. Jain Vs. The Inspector, Building And Other Construction Workers, Satna, I.L.R. (2007) M.P. 818
- Section 47, Criminal Procedure Code, 1973, Section 482 - Criminal liability - Offence by companies - Designation of applicants suggest that they are incharge and responsible for conduct of business of company - Applicants prima facie vicariously liable for the offence - However, if Trial Court finds that applicants or any one of them are not in charge and responsible for business of Company it shall be at liberty to pass appropriate orders : C. P. Jain Vs. The Inspector, Building and other Construction Workers, Satna, I.L.R. (2007) M.P. 818 Building and Other Construction Workers' Welfare Cess Act (28 of 1996)
- Section 2(d), Building and Other Construction Workers' (Regulation of Employment and Conditions of Service) Act, 1996, Section 2(1)(d) - Whether applicability of Factories Act would exclude the contractors from applicability of Construction Workers' Act, 1996 and Cess Act, 1996 - Held - Merely because the provisions of Factories Act has been made applicable besides other labour laws would not exclude the applicability of Construction Workers Act, 1996 & Cess Act, 1996 : Gannon Dunkerley & Co. Ltd. Vs. State of M.P., I.L.R. (2009) M.P. 1280
- Sections 3, 4 & 5, Building and Other Construction Workers' Welfare Cess Rules, 1998, Rule 6, Building and Other Construction Workers' (Regulation of Employment and Conditions of Service) Act, 1996, Sections 2(1)(d) & 2(1)(i)(iii) - Levy and collection of cess - Whether contractor is an employer who would be required to pay cess - Held - Contractors who carries out the work of building or other construction work is an employer for the purpose of the Construction Workers Act, 1996 and the Cess Act, 1996 : Gannon Dunkerley & Co. Ltd. Vs. State of M.P., I.L.R. (2009) M.P. 1280
- Section 5 - Determination of cess to access tax - Held - Rate at which cess is levied is 1% of the cost of construction incurred by an employer and thus there exist no ambiguity in the determination of cess : Gannon Dunkerley & Co. Ltd. Vs. State of M.P., I.L.R. (2009) M.P. 1280 Cantonment Electoral Rules, 2007 41
Building and Other Construction Workers' Welfare Cess Rules, 1998
- Rule 4(3) - See - Building and Other Construction Workers' (Regulation of Employment and Conditions of Service) Act, 1996), Section 2(1)(i) : Gannon Dunkerley & Co. Ltd. Vs. State of M.P., I.L.R. (2009) M.P. 1280
- Rule 6 - See - Building and Other Construction Workers' Welfare Cess Act (28 of 1996), Sections 3, 4 & 5 : Gannon Dunkerley & Co. Ltd. Vs. State of M.P., I.L.R. (2009) M.P. 1280 Burden of proof
- And onus of proof - Distinction - Held - Burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts : Rajshree Minerals Vs. Karamvir Singh, I.L.R. (2010) M.P. 1441
- In criminal case - Prosecution is required to prove its case beyond all reasonable doubt and has to stand on its own leg - Can't take benefit of weakness of defence - Blood present on the trouser and Shirt of appellants - it is the burden of prosecution to prove that the blood is human blood and how it connects the appellants with crime - Trial Court wrongly shifts the burden on appellants/accused : Dashrath Vs. State of M.P., I.L.R. (2008) M.P. 360 (DB) Cantonment Election Rules, 2007
- Rules 5 and 6(a), (b) - Constitutional validity of Rule 6(b) challenged - Rule 6(b) provides that no reservation shall be made for women candidate where there is only one ward reserved for SC/ST - One-third Seats out of seats reserved for SC/ST Category are reserved for women - In case of one seat, it is not possible to reserve one third seat for women - It cannot be said that women are being deprived of staking their claim - Provision enacted in rule 6(b) cannot be said to be illegal or arbitrary : Archana Dhaman Vs. Union of India, I.L.R. (2008) M.P. 753 (DB)
- Rule 7 - Rotation of Seats reserved for women - When there is only one seat, it is not possible to reserve seats on the basis of horizontal reservation - Rule 6(b) not ultra-vires : Archana Dhaman Vs. Union of India, I.L.R. (2008) M.P. 753 (DB) Cantonment Electoral Rules, 2007
- Rules 12, 13 & 28, Constitution, Article 226 - Locus standi - Petitioner did not raise any objection to any entry in preliminary electoral roll - Held - He cannot raise contention that even persons making flying visit or casually staying have been included Cantonments Act (41 of 2006) 42 in final electoral rolls : Manu Bhai Tripathi Vs. Union of India, I.L.R. (2009) M.P. 1225 (DB)
- Rule 13 - Objections - Limitation - Rule 13(1) provides that objection to an entry in electoral roll has to be made within a period of 20 days from the date of publication - Rule 13(7) expressly excludes the provision of Section 5 of Limitation Act - Application filed by petitioner beyond period of 20 days for correction of name of his father could not be entertained : Ramesh Chouksey Vs. Union of India, I.L.R. (2008) M.P. 1887 (DB)
- Rule 20 - See - Cantonments Act, 2006, Section 15 : Azmatullah Vs. Union of India, I.L.R. (2009) M.P. 1311
- Rule 20 - See - Cantonments Act, 2006, Section 15(1) : Jitendra Yadav Vs. Union of India, I.L.R. (2009) M.P. 771 (DB)
- Rule 28(1) - Qualification of electorals - Resident and Resided - A person is resident of a particular place only if he maintains a house or portion of house - A person can physically reside in a particular place without maintaining a house or a portion of house - Section 28(1) does not use the word resident - Held - Once a person has temporarily resided in cantonment for a period of six months immediately preceding the qualifying date and is not otherwise disqualified is entitled to be enrolled as electoral - Persons making flying visit are not entitled to be included in electoral rolls : Manu Bhai Tripathi Vs. Union of India, I.L.R. (2009) M.P. 1225 (DB) Cantonments Act (41 of 2006)
- Section 15, Cantonment Electoral Rules, 2007, Rule 20 - Notification for election of Cantonment Board - On recommendations of Presidents of Cantonment Board, Central Government twice changed date of election of Board on the ground of assembly election - Held - Central Government while issuing the notification for change of date of election of Board had valid and justifiable reasons for postponing date of election : Azmatullah Vs. Union of India, I.L.R. (2009) M.P. 1311
- Section 15(1), Cantonment Electoral Rules, 2007, Rule 20 - Postponement of Election to Cantonment Board - Rule 20 provides that elections shall not be postponed by more than 40 days - Preamble of Act show that Act has been made to impart greater democratization in cantonment area - If elections are postponed contrary to provision in proviso to Rule 20, the Court may direct holding of elections within 40 days - However, the elections scheduled to be held after 40 days from the original date of election cannot be declared as null and void : Jitendra Yadav Vs. Union of India, I.L.R. (2009) M.P. 771 (DB) Ceiling on Agricultural Holdings Act, M.P. (XX of 1960) 43
- Section 29(1) - Qualification for being a member of Board - Name of appellant entered in electoral roll - However, his father's name wrongly mentioned - Held - If appellant files his nomination paper, Returning officer will have to apply his mind to aforesaid provision and take a decision thereon - Since nomination paper was not filed, it was premature for Single Judge to express any opinion on merits of claim of the appellant - Observations of Single Judge that returning officer cannot consider nomination of appellant are deleted - Appeal disposed of : Ramesh Chouksey Vs. Union of India, I.L.R. (2008) M.P. 1887 (DB)
- Section 31 - Rule to be framed for reservation of SC/ST and women - Constitutional validity challenged being excessive delegation - Held - Rule is required to be framed on the basis of guidelines provided for such categories of persons as constitutionally envisaged - It cannot be said that any unbridled power has been conferred by virtue of Section 31 - Section 31 not ultra vires of Article 14 : Archana Dhaman Vs. Union of India, I.L.R. (2008) M.P. 753 (DB) Ceiling on Agricultural Holdings Act, M.P. (XX of 1960)
- Section 2(k), M.P. Akrishik Jot Uchchatam Seema Adhiniyam, 1981 - Section 2(c) - Reference to Larger Bench to consider correctness of decision passed in State of M.P. V. Board of Revenue, Gwalior - Case under Act of 1960 instituted against petitioners and draft statement was published - Petitioners raised objections in regard to certain land as the said land was not agricultural land and trees standing on the said land - Competent Authority after spot inspection declared the said land as agricultural land and declared it to be surplus - Held - Once it is held that land was held in Bhumiswami rights for agricultural purposes provisions of Adhiniyam, 1981 are not applicable - No finding either by authorities including learned Single Judge hearing writ petition that petitioners held Bhumiswami rights in respect of forest land - Unless clear finding is recorded that lands in question were held not for agricultural purposes Court cannot render decision that provisions of Act, 1960 are not applicable - Matter to be placed before Learned Single Judge for decision on merits : Smt. Hirakumari Wife of Thakur Jaipal Singh Vs. State of Madhya Pradesh, I.L.R. (2007) M.P. 1124 (FB)
- Section 4(1) - Transfers or partitions made after publication of Bill but before commencement of Act - Sale deed executed between 1.1.71 to 7.3.74 - Civil Court cannot examine the question that whether the sale deed was executed to defeat the provisions of Act - Only competent authority can examine such question : Bhivji through LRs. Vs. Rajesh, I.L.R. (2008) M.P. 1199 Central Civil Services (Classification, Control and Appeal) Rules, 1965 44
Central Civil Services & Civil Posts (Upper Age Limits for Direct Recruitment) Rules 1998
- Respondent applied for the post of cook and furnished date of birth as 17.3.1978 - Found within age limits and was selected - School record shows date of birth 17.3.1977 - Though selected but appellant declined to appoint him as cook on ground of false declaration of age - Respondent's O.A. allowed by CAT holding that he is entitled to relaxation in age under the rules - High Court also has not consider the plea of non applicability of rules - S.C. held as there was no pleading and reference about the rules before CAT or H.C. - Therefore Orders of CAT and H.C. are unsustainable and are quashed : Union of India Vs. Ramesh Singh Rajput, I.L.R. (2008) M.P. 197 (SC) Central Civil Services (Classification, Control and Appeal) Rules, 1965
- Rule 10(2) and (3) - Departmental Enquiry - Departmental Enquiry initiated against the appellant on the charge that he secured appointment by submitting fake service card - Disciplinary Authority, being not satisfied with the enquiry report remitted the matter back to Enquiry Officer to submit specific report - Enquiry Officer without holding further enquiry and without giving further opportunity opined that service card was fake - Order of removal from service passed - Order quashed by Central Administrative Tribunal - Order of Tribunal set aside by High Court - Disciplinary Authority having differed with finding of Enquiry Officer should have recorded its own findings and not have remanded the matter to the enquiry officer for fresh finding - Disciplinary Authority being statutory authority has to act within statute - Requirement of Section 10 not followed by disciplinary authority - Punishment proposed was vague - Matter remanded back to disciplinary authority for fresh decision - Special Leave Petition allowed : Mathura Prasad Vs. Union of India, I.L.R. (2007) M.P. 295 (SC)
- Rules 10(6) & 10(7) [Inserted by amendment w.e.f. 02.06.2004] - Suspension - Review of suspension order - As per sub-rule (6), order of suspension would not survive after period of 90 days unless it is extended after review - Respondent suspended on 10.08.2002 - Case of respondent reviewed on 20.10.2004 - Held - As per amended rules, as review committee was not constituted and review had not been conducted within 90 days - Subsequent review could not revive the order which had already become invalid - Appeal dismissed : Union of India Vs. Dipak Mali, I.L.R. (2010) M.P. 547 (SC)
- Rule 27 - Second marriage by an employee - Disciplinary proceedings - Punishment of compulsory retirement by appellate Authority - Scope of judicial review - Unless the punishment imposed by the Disciplinary Authority or Appellate Authority Central Reserve Police Force Rules, 1955 45 shocks the conscience of the court, there is no scope for interference - Order of High Court set-aside : Union of India Vs. K.G. Soni, I.L.R. (2006) M.P. 1357 (SC) Central Excise Act (1 of 1944)
- Section 2(f) - See - Finance Act, 1994, Section 65(76b) [As amended by Finance Act, 2005] : Maa Sharda Wine Traders (M/s), Garhakota, Sagar Vs. Union of India, I.L.R. (2009) M.P. 1568 (FB) Central Excise and Salt Act (1 of 1944)
- Section 5A(1) - Small Scale Exemption - General Exemption No.1 (Notification No.1/93-C.E., dated 28.02.1993 as amended) Clause 4 - Exemption to manufacturer for first clearances of duty and concessional duty on subsequent clearances - Appellant's small scale industry unit was assigned trade name on the basis of agreement dated 11.01.1994 - Commissioner, Central Excise, after decision of tribunal, acted upon the provision of agreement and granted exemption for period 19.04.1996 to 29.02.2000 - Appellants have also claimed exemption for period 19.04.1995 to 18.04.1996 - Plea of department that assignment was not registered - Held - Assignment need not to be registered - Department once acted upon the agreement of assignment of trade name for period subsequent to 18.04.1996, can not take contrary stand - Tribunal erred in holding that appellants were not entitled to be considered for exemption for period 19.04.1995 to 18.04.1996 - Direction to the tribunal that consider the case of appellant in the light of provisions made in exemption notification and discussion contained in the order : Jepika Paints Vs. Union of India, I.L.R. (2008) M.P. 2625
- Section 5A(1) - Small Scale Exemption - General Exemption No.1 (Notification No.1/93-C.E., dated 28.02.1993 as amended) Clause 4 - In the notification itself, Explanation-IX mentions that brand name or trade name shall mean a brand name or trade name whether registered or not - Thus, reference to brand name or trade name in clause 4 of the notification is not to the registered brand name or trade name : Jepika Paints Vs. Union of India, I.L.R. (2008) M.P. 2625 Central Reserve Police Force Rules, 1955
- Rule 27 - Disciplinary Proceedings - Misconduct and negligence/remissness in discharge of duty in capacity as member of the Force - Disciplinary authority imposing punishment of removal from service - Interference in punishment by High Court terming the same as shockingly disproportionate without assigning any reason - Reflects no application of mind - Matter remitted back to High Court for re-hearing on the question of quantum of punishment : Union of India Vs. Dwarka Prasad Tiwari, I.L.R. (2006) M.P. 1475 (SC) Chartered Accountants Act (38 of 1949) 46
Central Sales Tax Act (74 of 1956)
- Section 3 - Inter-State sale - What amounts to - Held - The sale would be inter- state sale in case there is stipulation express or implied in the agreement of sale or the movement of goods is incidental and must be the necessary consequence of sale or purchase - It must be a case of cause and effect; cause being sale & purchase and effect being movement of the goods from one State to another - The sale and movement of goods must be a part of same transaction : M.M. Traders Vs. State of M.P., I.L.R. (2010) M.P. Note *62 (DB) Change in Government
- Effect - Merely because there had been a change in the political scenario does not mean that an unauthorized act can be legalized and new body coming shall have no power to check the action to correct the unauthorized act of the earlier body : Sushil Kumar Kanungo Vs. M.P. Rajya Sahkari Bank Maryadit, I.L.R. (2008) M.P. 2238 Chartered Accountants Act (38 of 1949)
- Sections 2(d), 24, 24A, 26 & 28, Criminal Procedure Code, 1973, Sections 4, 5 & 190 - Applicant lodged the report against accused alleging that he without being registered Chartered Accountant, was practicing before Income Tax and Sales Tax department as a representative of assessee, preparing reports and issuing certificates as Chartered Accountant - Police took cognizance, registered crime and filed charge sheet - Magistrate framed charges - Revisional court allowed the revision and remanded the case - Revision before High Court - Held - Prima facie case against accused u/ss. 24, 24A & 26 of the Act is made out - Since specific provisions are made for breach of provisions of Act, the accused can be prosecuted under specific provisions of the Act and not under provisions of I.P.C. - U/s 2(d) of the Act, complaint does not include police report - U/s 28 of the Act, Chartered Accountant's Institute or under order of council or by Central Government can file complaint - Filing of complaint under the Act by the police not proper - Revision dismissed : Institute of Chartered Accountants of India Vs. Vimal Kumar Surana, I.L.R. (2009) M.P. 1477
- Section 22-A(2), Second Schedule Part I Clause 4 & 5, Chartered Accountants Regulation, 1988, Regulation 12(11)(i) - Misconduct - Speaking order - While taking a decision by Council on a complaint regarding professional misconduct, the principle of recording of reasons for arriving at a finding of guilt shall also equally apply to a case where a member is not found to be guilty - High Court while exercising revisional jurisdiction has power u/s 22A(2) of the Act to reverse or modify the order or pass any other order, as it deemed fit in the circumstances of the case : Ratilal Lad Vs. Rasik Lal, I.L.R. (2009) M.P. 1798 Cigarettes and Other Tobacco Productions (Prohibition of Advertisement and 47 Regulation of Trade and Commerce, Production Supply and Distribution) Act, (34 of 2003)
Chartered Accountants Regulation, 1988
- Regulation 12(11)(i) - See - Chartered Accountants Act, 1949, Section 22- A(2), Second Schedule Part I Clause 4 & 5 : Ratilal Lad Vs. Rasik Lal, I.L.R. (2009) M.P. 1798 Chikitsa Sanstha (Niyantran) Adhiniyam, M.P., (19 of 1973)
- Section 10, Disabilities Act, Section 2(i), 39, M.P. Medical And Dental Undergraduate Entrance Examination Rules, 2006, 2.6, 3, 5.1 - Reservation of seat for visually handicapped candidate - Petitioner having no vision in right eye and having vision of 6/7 in left eye - Claimed reservation under the category reserved for handicapped persons - Petition allowed by learned Single Judge - Writ Appeal filed by Medical Council - Held - Disability defined under Rule 2(i) of Disabilities Act includes blindness and low vision - Purposive interpretation has to be given to the word disability - 3% reservation would not cover all categories of disabled candidates in all courses - Persons with visual disability have not been made entitled as per guidelines issued by Medical Council - Decision of Medical Council do not run counter to provisions of Act and Rules - Expert opinion passed on the basis of practical wisdom cannot be marginalized - Visually handicapped persons cannot be brought into categories of handicapped persons for medical course - Writ Appeal allowed : Medical Council of India Vs. Nitin Mantri; I.L.R. (2007) M.P. 1065 (DB)
- Section 10, Medical and Dental Post Graduate Course Entrance Examination Rules, M.P. 2005, Rule 21(4), Post Graduate Medical Education Regulation, 2000, Regulation 10(3) - Transfer from one college to another college or transfer/migration from one course to another - Permissibility - Held - Once Medical Council of India (MCI) has framed the regulations putting an absolute ban on migration/transfer of the student/students undergoing any post graduate course/degree/diploma then Regulation 10(3) would cause an eclipse on the right of the student/students seeking transfer/ migration under Rule 21(4) - Rule 21(4) can be used and utilized in favour of a student only with prior recommendation of State Government and approval of MCI - MCI by making rules has statutorily refused the approval in general - In absence of any order of approval, the transfer/migration cannot be permitted by university or any authority - With this clarification appeal disposed of : Medical Council of India Vs. Dr. Teena Khatri, I.L.R. (2008) M.P. 2799 (DB) Cigarettes and Other Tobacco Productions (Prohibition of Advertisement and Regulation of Trade and Commerce, Production Supply and Distribution) Act, (34 of 2003) Civil 48
- Section 7(5) - Restrictions on trade and commerce in, and production, supply and distribution of cigarettes and other tobacco products - Section 7(5) of Act, 2003 provides that every package of cigarette or tobacoo product must contain nicotine and tar contents along with maximum permissible limits thereof - Object of Act, 2003 is to create general awareness of ill effects of tobacco products - Object will be frustrated unless provisions of Section 7(5) are enforced by U.O.I. as early as possible : Avinash Vs. Union of India, I.L.R. (2008) M.P. 1725 (DB) Cinemas (Regulation) Act, M.P. (17 of 1952)
- Section 6(1) - State Government has issued order of suspending exhibition of film Jodha-Akbar U/s 6(1) of Act in the whole State after considering the report of Additional Commissioner (Excise) and Report of I.G. Police - High Court found that reports which were placed before the Government show that in some places there has been some agitation and opposition to exhibition of the film but the agitation and opposition are not of such a serious nature as to form an opinion that exhibition of the film likely to cause breach of peace in the entire State - Order of State Government quashed - However, on the basis of fresh material and after keeping in mind the observations made in the judgment - Government may pass fresh order : UTV Software Communication Vs. State of M.P., I.L.R. (2008) M.P. 544 (DB) Circular issued by Central Board of Direct Taxes
- Binding on Tax Authorities - CBDT vide instruction dated 28-10-1992 fix the monetary limit for preferring appeal or reference before the High Court at Rs. 50,000/ - - Tax involved for Rs. 15,984/- - In the light of circular Appeal is not maintainable : Deputy Commissioner of Income Tax Vs. Suniti Singh, Bhopal, I.L.R. (2008) M.P. 594 (DB) Civil
- Practice & Procedure - Trial Court decreed the suit for redemption - First Appellate Court affirmed decree - High Court had not considered the decree on merits but reversed decree on ground of non-joinder of parties - Held - Suit does not suffer from infirmity of non-joinder of parties - Findings of Courts below on merits not challenged before Supreme Court - Therefore it was not deemed necessary to remit the case back to High Court - Appeal allowed - Judgment and decree of High Court set aside and that of Courts below are restored : Mohd. Hussain (dead) by LRs Vs. Occhavlal, I.L.R. (2008) M.P. 647 (SC) Civil Judge, Class-II (Entry Level) Examination, 2009 49
Civil Courts Act, M.P. (19 of 1958)
- (as amended w.e.f. 15-4-1983), Sections 3, 6, 7, 13, 14, 15, 18 & 19 - Office of District Judge and Additional District Judge - Although Courts of District Judge and Addl. District Judge have been classified as two separate classes of Court but they belong to one and same cadre - A.D.J. and D.J. exercise almost same judicial powers - District Judge has superintendence & control of all Civil Courts and power to distribute business - In absence of D.J., senior most A.D.J. can exercise such powers - W.e.f. 15-4-1983 office of D.J. and office of A.D.J. have been equated in all respects with regard to powers, functions and duties : N.K. Saxena Vs. State of M.P., I.L.R. (2008) M.P. 1144 (DB)
- Sections 7, 8 & 15 - See - Arbitration and Conciliation Act, 1996, Sections 2(1)(e), 42, 34 : Pratap Singh Hardia (Dr.) Vs. Sanjay Chawrekar, I.L.R. (2009) M.P. 450 (DB) Civil Courts Rules, M.P. 1961
- Rule 110-A & 110-B - See - Civil Procedure Code 1908, Section 151 & Order 8 Rule 1 : Girwar Singh Vs. Jhanak Singh, I.L.R. (2010) M.P. 442
- Rule 147(4) - Recording of evidence - Statement of the plaintiff could not be completed as during the cross-examination he was asked a question which annoyed him and he left the Court room - Defendant filed an application for rejecting his statement - Held - When a witness was examined by the trial Court after oath, such evidence cannot be rejected ordinarily - Witness can be summoned for further cross-examination - Witness left the Court and the explanation submitted by the witness was found satisfactory by the trial Court - Statement of the witness which was not completed cannot be rejected which was incomplete as it was not signed by the Presiding Judge - Presiding Judge has to sign the complete statement : Yogendra Kumar Vs. Pavan Kumar Jain, I.L.R. (2010) M.P. 1732 (DB)
- Rule 372 - Rule 372 provides that which cases can be registered as M.J.C. - There is no such enabling provision under the Rules for registration of application simplicitor - Application u/s 94 CPC cannot be registered as M.J.C. under the Rules : Surendra Rathore Vs. Vishwanath Bhasin, I.L.R. (2009) M.P. 1697 (DB) Civil Judge, Class-II (Entry Level) Examination, 2009
- Civil Judge, Class-II (Entry Level) Examination, 2009 - See - Civil Services (Special Provision for Appointment of Women's) Rules, M.P., 1997 : Sheela Gaur (Smt.) Vs. State of M.P., I.L.R. (2010) M.P. 1745 (DB) Civil Procedure Code (5 of 1908) 50
Civil Procedure Code (5 of 1908)
- Transfer of case - Permissibility - Held - It is a cardinal principle of law that unless the nature of the two suits pending between identical set of parties are not similar then the two cases either diverse in nature or pending amongst different set of litigation could not be tried together merely on account of commonness of the suit property : Tulsiram Vs. Gambhir Singh, I.L.R. (2010) M.P. 1987
- Transfer of case - Power of the Court - Held - The power of the Court to transfer the suit is certainly wide in terms of S. 24 of CPC which empowers the District Court and the High Court to transfer the suit or appeal for their trial or disposal to any Court subordinate to it and competent to try and dispose of the same, but the Court exercise this power only in such circumstance where it become imperative for the Court to exercise the power for meeting the ends of justice : Tulsiram Vs. Gambhir Singh, I.L.R. (2010) M.P. 1987
- Sections 2(2) & 47 - [As stood prior to amendment came into force w.e.f. 01.02.1977), Sections 2(2) & 47 - Prior to amendment, determination of any question u/ s 47 of CPC was having force of a decree as prior to amendment defined u/s 2(2) CPC : Sheikh Hameed Vs. Sheikh Majhar, I.L.R. (2008) M.P. 2947
- Section 2(11) - In an eviction proceeding when a legatee under a Will intends to represent the interest of the estate of the deceased testator - He will be a L.R. within the meaning of S. 2(11) of the Code - It is not necessary to decide whether the Will, on the basis of which substitution is sought for, is a suspicious one or that the parties must send the case back to the Probate Court for a decision : Suresh Kumar Bansal Vs. Krishna Bansal, I.L.R. (2010) M.P. 1021 (SC)
- Section 2(11) - Legal Representative - Probate - Decree of eviction passed in favour of Smt. Gouri Bahu who died during pendency of appeal - Applicant claiming herself to be legal representative on the basis of will - Executing court accepting the objection hold that applicant would be free to execute decree after obtaining the probate certificate - Held - Property is situated within State of M.P. - Obtaining of probate not necessary - Applicant has a right to execute decree as property has been devolved on the applicant - Revision allowed : Gouri Bahu (Smt.) Through L.R. Smt. Shashi Devi Vs. Gopaldas, I.L.R. (2008) M.P. 3037
- Section 2(11) & Order 22 Rule 5 - Substitution of heirs/L.Rs. - Eviction suit - Landlord/plaintiff died - His widow filed application for substitution as heir and L.R. of the plaintiff - Brother of plaintiff also sought substitution as heir and L.R. on the basis of a Will executed by the plaintiff - Trial Court allowed the application filed by the wife but rejected the application filed by the brother of plaintiff on the ground that execution of Civil Procedure Code (5 of 1908) 51
Will was suspicious - Order was upheld by the High Court - Held - The proper course to follow is to bring all the heirs and L.Rs. of the plaintiff on record including the L.Rs. who are claiming on the basis of the Will of the plaintiff so that all the L.Rs. namely, brother of the plaintiff and the natural heirs and L.Rs. of the plaintiff can represent the estate of the deceased for the ultimate benefit of the real L.Rs : Suresh Kumar Bansal Vs. Krishna Bansal, I.L.R. (2010) M.P. 1021 (SC)
- Section 9, Land Revenue Code, M.P. 1959, Sections 57(2) & 257 - Dispute pertains to ancestral land and the plaintiffs are in possession of the said land and in the records as Jagir Bhumi of their ancestor since 1907-08 as owners/Bhumiswami - Determination of question of Bhumiswami rights lies within the province of the Civil Court : State of M.P. through Collector, Dhar Vs. Ratan Das, I.L.R. (2010) M.P. 2336
- Section 9 - Possession - In the oldest Khasra entry of the year 1943-44 name of plaintiff not mentioned - In the Khasra entry of the year 1953-54 name of plaintiff not mentioned in column 8 as cultivator occupying land - Nature of land shown as Khadan (mine) - No document to prove title - Plaintiff did not have possession of land - Appeal dismissed : Babulal Sharma Vs. State of M.P., I.L.R. (2009) M.P. 2483 (SC)
- Section 9 - Challenge as to validity of sale deed - In life time of owner of property, his probable heirs do not have any right or title in his property - Owner sold his property and never challenged such transaction in his life time - Appellant had no authority to challenge the same : Bipta Bai (Smt.) Vs. Smt. Shipra Bai, I.L.R. (2009) M.P. 1402
- Section 9, Sahkari Bhumi Vikas Bank Adhiniyam, M.P. 1966, Sections 27, 64 & 82 - Bar of jurisdiction of Courts - Appellant purchased land after obtaining NOC from Bank - Land was auctioned for recovery of dues from other persons without issuing notice to appellant - Held - Even if jurisdiction of civil court is excluded, the civil court has jurisdiction to examine into cases where the provisions of the Act were complied with or the statutory tribunal had not acted in conformity with fundamental principles of judicial procedure - Civil suit as framed and filed was maintainable - Matter remitted back : Sitaram Vs. Cooperative Bhumi Vikas (Land Mortgage) Bank Ltd., Khandwa, I.L.R. (2009) M.P. 1707
- Section 9, Land Acquisition Act, 1894, Sections 18 & 29 - Revision against dismissal of application under Order 7 Rule 11 CPC - Acquisition of lands allotted to plaintiff in family settlement - Part of compensation received by defendant wrongly or by misrepresentation - Suit for declaration that he is entitled for that compensation and amount be paid to him - Maintainability of suit - Held - Plaintiff has neither challenged the acquisition nor the award - In civil suit he is required to prove his title to the land and Civil Procedure Code (5 of 1908) 52 that payment of compensation to defendant is without authority of law - Jurisdiction of civil suit not excluded - Revision dismissed : Lalji Vs. Sitaram, I.L.R. (2009) M.P. 1166
- Section 9, Accommodation Control Act, M.P. 1961, Section 45 - Jurisdiction of Civil Court - Provisions regarding exclusion of jurisdiction of civil court are to be strictly construed - The jurisdiction of civil court can be excluded only if the matter comes within the purview of Section 45 of the Act of Chapter-III : Sulochana Vs. Rajinder Singh, I.L.R. (2008) M.P. 2487 (SC)
- Section 10, Accommodation Control Act, M.P. 1961, Sections 12(1)(a), (c) & (n) - Stay of suit - Applicability - Earlier suit for declaration of title and subsequent suit for ejectment u/s 12(1)(a), (c) & (n) of Act for same property - Application u/s 10 CPC filed for staying the subsequent suit that in both the suits issue about ownership of the suit property was common - Held - S. 10 would apply only if there is identity of matter in issue in both the suits, meaning thereby, that the whole of subject matter in both the proceedings is identical - Since for getting a decree of eviction on the grounds u/s 12(1)(a), (c) & (n) of Act ownership of the suit property is not required to be proved - Trial Court rightly refused to stay the subsequent suit : Rajesh Singh Vs. Manoj Kumar, I.L.R. (2009) M.P. 2906 (DB)
- Section 10 - Stay of suit - Applicability - The fundamental test to attract S. 10 is whether on final decision being reached in the previous suit, such decision would operate as res judicata in the subsequent suit - S. 10 applies only in cases where whole of the subject matter in both the suits is identical : Rajesh Singh Vs. Manoj Kumar, I.L.R. (2009) M.P. 2906 (DB)
- Section 10 - Stay of suit - Applicability - The key words in S. 10 are "the matter in issue directly and substantially in issue" in the previously instituted suit - Words "directly & substantially in issue" are used in contra-distinction to the word "identically or collaterally in issue" : Rajesh Singh Vs. Manoj Kumar, I.L.R. (2009) M.P. 2906 (DB)
- Section 10 - Stay of civil suit - Petitioner filed suit and also lodged FIR against respondent - FIR quashed by HC - Petitioner filed SLP before SC - Petitioner filed application u/s 10 CPC for staying the suit which was dismissed - Held - The only relevant consideration here is the likelihood of embarrassment - Pendency of SLP is not sufficient ground to stay suit - Embarrassment in civil suit may be to the respondent/ defendant but not to petitioner/plaintiff who himself filed suit and has already pleaded material facts in plaint - Application rightly rejected - Petition dismissed : Vandana Tiwari (Smt.) Vs. Ajay Pande, I.L.R. (2009) M.P. 2540 (DB) Civil Procedure Code (5 of 1908) 53
- Section 10 - Stay of suit - Maintainability of application - Landlord earlier filed a suit for eviction and arrears of rent in the year 2004 - Tenant filed a counterclaim for the interest on security amount - Subsequently, the suit was withdrawn and only counterclaim remained - Second suit filed by the landlord for eviction and arrears of rent in the year 2006 - In second suit an objection has been raised by the tenant that the second suit is liable to be stayed in view of Section 10 CPC - The court below rejected the application - Held - The two suits are on different footings and in the earlier suit the matter in relation to the subsequent suit is not the matter "substantially in issue" - Court below rightly rejected the application - Petition dismissed : Shashi Pandey (Smt.) Vs. B.K. Choubey, I.L.R. (2008) M.P. 3123
- Sections 10 & 151 - Stay of suit - Pendency of civil case and criminal case on the same subject matter - Whether civil suit can be stayed even after recording of plaintiff's almost evidence - Yes : Ved Prakash Vs. Guru Granth Saheb Sthan Meerghat Town Vanaras Sarvrahi, I.L.R. (2009) M.P. 752 (DB)
- Section 11 - [As stood prior to amendment came into force w.e.f. 01.02.1977), Section 11 - Prior to amendment, an adjudication or determination of any question u/s 47 of CPC determining rights of the parties was a decree between parties - Such order has attained finality and is having effect of res judicata between the parties - Held - Suit filed by plaintiffs was barred u/s 11 of CPC - They were not entitled to file a fresh suit for adjudication of questions which were already decided u/s 47 of CPC : Sheikh Hameed Vs. Sheikh Majhar, I.L.R. (2008) M.P. 2947
- Section 102 - As amended by Act 22 of 2002 w.e.f. 01.07.2002), Section 102 - Second appeal - Right to appeal is always accrued by the parties on the very date of initiation of suit, claim or the proceeding in the trial court - This vested right of appeal can be taken away only by a subsequent enactment - Second appeal was filed on 14.02.1994 and was admitted on 22.07.1994 long before introducing the new provision of S. 102 CPC - Bar created u/s 102 CPC is not applicable to the present appeal although the valuation of this appeal is below Rs.25000 : Western Coalfields Ltd. Vs. Pradeep Kumar Soni, I.L.R. (2009) M.P. 2047
- Order 21 Rules 99, 100, 101 & 103 - [As stood prior to amendment came into force w.e.f. 01.02.1977), Order 21 Rules 99, 100, 101 & 103 - Objectors' objections u/O 21 Rules 99, 100 & 101 CPC were dismissed by the trial court on 16.10.1975 - After dismissal of the objections objectors ought to have filed a suit as required u/O 21 Rule 103 CPC and limitation of one year was provided under Article 98 of Limitation Act, 1963 - Order 21 Rule 103 CPC was amended and a new rule was substituted w.e.f. 01.02.1977 - Now rule specifically provides that order deciding an application under Rule 98 or Rule 100 of Order 21 shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree, meaning thereby Civil Procedure Code (5 of 1908) 54 that an order u/O 21 Rules 98 & 100 CPC has been given effect to as of decree and no fresh suit is maintainable : Sheikh Hameed Vs. Sheikh Majhar, I.L.R. (2008) M.P. 2947 SYNOPSIS : Section 11
1. Correctness of findings on 5. Res judicata - Conditions Res judicata in second appeal 6. Res judicata - Proof 2. Fresh cause of action or 7. Subsequent application interpretation of Temporary injunction of law in previous suit - 8. Substitution of legal heirs - Res Judicata will not apply Res judicata 3. Matter attained finality - 9. Waiver of Res Judicata Operates as Res judicata 10. Miscellaneous 4. Pecuniary jurisdiction and Res judicata
1. Correctness of findings on Res judicata in second appeal
- Sections 11 and 100 - Second appeal - Findings on res-judicata and its correctness - Are substantial questions of law - Second appeal required to be admitted : Indramani Pd. Shukla Vs. Shakuntala; I.L.R. (2006) M.P. 651 (SC) 2. Fresh cause of action or interpretation of law in previous suit - Res Judicata will not apply
- Section 11 - Res judicata - Where there is a fresh cause of action, interpretation of law in previous suit cannot operate as res judicata - A statutory direction cannot be overridden or defeated by a previous judgment between parties : Hameeda Begum (Smt.) Vs. Smt. Champa Bai Jain, I.L.R. (2009) M.P. 2328 (DB) 3. Matter attained finality - Operates as Res judicata
- Section 11 - Res judicata - In earlier suit by Trust question of title, execution of gift deed was directly in issue and Courts decided the said issue against the Trust - In the present suit, plaintiffs are claiming title through Trust without impleading Trust - Held - If issues now can not be raised by the Trust then any person claiming under Trust now can not file suit - Suit barred by principles of res judicata - Suit dismissed - Petition Civil Procedure Code (5 of 1908) 55 allowed : Shyama Prasad Datta Vs. Arun Kumar Vasudeo, I.L.R. (2010) M.P. 1588 (DB)
- Section 11 - Res judicata - Lower appellate Court in a suit for declaration & permanent injunction held that the plaintiffs therein are entitled for 1/5th share of the suit property - Said finding of the appellate Court attained finality - Respondents brought a suit for partition in respect of the same suit property - Trial Court rejected the suit as barred by principle of res judicata but the lower appellate Court set aside the judgment & decree of the trial Court and remitted the suit for decision on merits - Held - Lower appellate Court overstepped its power under Order 41 Rules 23 & 23A CPC and thus the judgment & decree passed by it set aside : Basant Kumar Vs. Smt. Premwati Bai, I.L.R. (2010) M.P. 1618
- Section 11, Succession Act, 1925, Section 372 - Rejection of application for grant of Succession Certificate - Revision filed - Earlier, applicant's claim petition u/s 166 of Motor Vehicle Act was dismissed on the ground that the relationship of deceased with the applicant not proved - Held - Decision of M.A.C.T. would not operate as res judicata because M.A.C.T. had not exclusive jurisdiction to decide question of grant of Succession Certificate : Bhagwandas Yadav Vs. Rohit Tiwari, I.L.R. (2010) M.P. Note *11
- Section 11 - See - Arbitration and Conciliation Act 1996, Section 11 : Chandreshwar Jha (M/s) Vs. Northern Coalfields Ltd., I.L.R. (2008) M.P. 2136
- Section 11 - Res-Judicata - Suit filed by plaintiff/appellant for declaration, possession and damages on the ground that will executed in favour of defendant was annulled by subsequent will executed in his favour - Wills executed in favour of plaintiff and defendant already considered in previous suits and dispute was regarding same properties - Will made in favour of defendant was registered whereas will made in favour of plaintiff was unregistered - Defendant in settled possession of property and will executed in favour of plaintiff was never acted upon - Judgments passed in previous suits operate as res-judicata - Appeal dismissed : Indramani Prasad Shukla Vs. Shakuntala, I.L.R. (2008) M.P. 846 4. Pecuniary jurisdiction and Res judicata
- Sections 11 & 12 - Explanation VIII - Rejection of plaint on the ground of res judicata - Question whether judgment and decree rendered in earlier suit having lesser pecuniary jurisdiction would operate as res judicata in a subsequent suit, pending in the Court with higher pecuniary jurisdiction - Held, prior to inclusion of Explanation VIII, for the applicability of the principle of res judicata, the pecuniary jurisdiction of the Court dealing with earlier suit was required to be the same as the Court dealing with Civil Procedure Code (5 of 1908) 56 subsequent suit-with incorporation of Explanation VIII, the principle of res judicata shall apply even though the subsequent suit is pending in court with higher pecuniary jurisdiction : Poonamchand Vs. Murti Madanmohanji, I.L.R. (2007) M.P. 533
5. Res judicata - Conditions
- Section 11 - Res judicata - Conditions - Law discussed : Hameeda Begum (Smt.) Vs. Smt. Champa Bai Jain, I.L.R. (2009) M.P. 2328 (DB)
- Section 11 - Matter in subsequent suit was not directly and substantially in issue which was in the former suit - Subsequent suit not barred by Res Judicata - See - Accommodation Control Act, M.P. 1961, Section 12(1)(f) : Mithilesh Kumari Vs. Pashu Chikitsa Sahayak Shalya Prabhari, Niwari, I.L.R. (2008) M.P. 1196 6. Res judicata - Proof
- Section 11 - Res judicata - In order to prove question of res judicata, not only earlier decision but pleadings of earlier case and issues framed by such court requires to be proved - Any order passed by any authority on merits in any proceeding which is not entertainable or maintainable could not be treated as enforceable order - Any finding on merits in non-entertainable proceedings did not have effect of res judicata : Bhagwati Tiwari (Smt.) Vs. Makhanlal Yadav, I.L.R. (2008) M.P. 2352 7. Subsequent application of Temporary injunction
- Section 11, Order 39 Rule 1 and 2 - Maintainability of subsequent application of Temporary injunction - 1st application for temporary injunction rejected on the ground that the suit being old, the same be disposed off on merits - 2nd application for temporary injunction is maintainable and not barred by res judicata as earlier application was not decided on merits - Case remanded back for consideration of application in accordance with law : Kashi Bai Wd/O Hira Lal (Dead) Through L.R. Pinkal Gupta Vs. Sundarlal Vaidh, I.L.R. (2006) M.P. 1509 8. Substitution of legal heirs - Res judicata
- Section 11, Order 22 - Res judicata - Substitution of legal heirs or legal representative - Held - Substitution under Order 22 of CPC is only for the purpose of empowering the Court to proceed with the case and nothing more - It does not operate as res judicata in a subsequent suit instituted for establishing title : Than Singh Vs. Majboot Singh, I.L.R. (2010) M.P. Note *23 Civil Procedure Code (5 of 1908) 57
9. Waiver of Res Judicata
- Section 11 - Res judicata - First order of transfer from Municipal Council to DUDA quashed by High Court - In subsequent writ petition challenging the order of transfer from Municipal Council to DUDA it was directed that Transfer Grievances Cell shall reconsider the case of petitioner - Held - Petitioner ought to have insisted for quashment of the subsequent transfer order - Instead petitioner subjected himself to the decision of State Government - Petitioner deemed to have waived the plea of res judicata : S.B. Singh Vs. State of M.P., I.L.R. (2009) M.P. 1266 10. Miscellaneous
Matter in Appeal - Res Judicata not applicable
- Section 11 - Res judicata - Principle of res judicata will not apply when the entire matter was still in appeal and the matter had not attained finality : Hameeda Begum (Smt.) Vs. Smt. Champa Bai Jain, I.L.R. (2009) M.P. 2328 (DB)
Suit barred under some law
- Section 11, Order 7 Rule 11 - If on the given facts the suit appears to be barred under some law that is on application of principles of res judicata then the Court would be entitled to dismisse the suit applying the provisions contained under Order 7 Rule 11(c) : Shyama Prasad Datta Vs. Arun Kumar Vasudeo, I.L.R. (2010) M.P. 1588 (DB) SYNOPSIS : Section 20
1. Part of cause of action 3. Suit on Trade Marks Act 2. Suit for damages
1. Part of cause of action
- Section 20 - Cause of action - Part of cause of action - Jurisdiction - Held - U/s 20(c) a suit can also be instituted at a place where the cause of action, wholly or in part, arises - Part of cause of action has arisen within the territorial jurisdiction of Gwalior Bench -Writ petition maintainable at Gwalior : Vishnu Agrawal Vs. State of M.P., I.L.R. (2009) M.P. 1615 (DB) Civil Procedure Code (5 of 1908) 58
2. Suit for damages
- Sections 20 - Suit for damages - Jurisdiction - Transportation of imported goods - Loss due to negligence - Tenders invited, opened, finalised and work order issued at Jabalpur - Court at Jabalpur has jurisdiction : Nav Bharat Corporation, Bombay Vs. M.P.E.B. Jabalpur, I.L.R. (2006) M.P. 600 (DB)
- Sections 20, 96 Order 7 Rule 15, Contract Act, Indian, Sections 191, 192 and Limitation Act, 1963, Article 55 - First appeal - Suit for damages - Jurisdiction - Transportation of imported goods - Loss due to negligence - Tenders invited, opened, finalised and work order issued at Jabalpur - Court at Jabalpur has jurisdiction - Verification of pleading - Authority to verify plaint & pleadings not denied in written statement - No other reason to disbelieve authority - Plaint held duly verified - Agent or sub-agent - Appointment of - Should be by approval of principal - Merely a letter sent by plaintiff does not give rise to presumption that said company is agent or sub-agent of plaintiff - Suit within 3 years of information about non-delivery of goods - Within limitation - Suit rightly decreed by Trial Court : Nav Bharat Corporation, Bombay Vs. Madhya Pradesh Electricity Board, Jabalpur, I.L.R. (2006) M.P. 600 (DB) 3. Suit on Trade Marks Act
- Section 20, Trade Marks Act, 1999, Section 134 - Territorial jurisdiction - Articles in large number found within jurisdiction of trial court - Section 138 does not override provision of Code - Cause of action having arisen within jurisdiction - Held - The trial court did not suffer from lack of jurisdiction - Suit was maintainable : Rasiklal Manikchand Dhariwal, And Dhariwal Industries Ltd. Vs. M/s. M.S.S. Food Products, I.L.R. (2008) M.P. 3225 (DB)
● - Section 23(3) Hindu Marriage Act, 1955 Section 21-A - Matrimonial suit-Inter state transfer - High Court can transfer suit pending in subordinate court to a court subordinate to another High Court - Wife's convenience has to be looked at - Wife having small child - Parents are old and infirm Prayer to transfer cannot be rejected merely because husband deposited travelling expenses : Smt. Lakshmi Nagdev Vs. Jitendra Kumar Nagdev, I.L.R. (2006) M.P. 1230
- Section 24 - Transfer of matrimonial case - In the matter of difficulties and convenience, the women requires more consideration in comparison of men : Jyoti Bangde (Smt.) Vs. Sanjay Bangde, I.L.R. (2010) M.P. 2425
- Section 24 - General power of transfer and withdrawal - Wife having a young child of 1½ years of age staying with old ailing parents aged about 80 years - She filed application for transfer of case on the said ground that she is not able to attend the Civil Procedure Code (5 of 1908) 59
Court in Jabalpur - Held - Applicant is residing with her infant baby aged near about 1½ years with her father who is 80 years old and there is no any other in the family who can come with her to Jabalpur for contesting the case - Such averments are not specifically denied by the husband in the reply - Petition transferred to Bhopal : Rekha (Smt.) @ Richa Dewani Vs. Kailash Dewani, I.L.R. (2010) M.P. 1680
- Section 24 - Application for transfer of case on the ground that lower appellate Court had already given findings and there would be probability that same findings will be maintained despite remand - In the order of remand, the High Court set-aside the judgment on the basis of consent of parties - Held - Direction of the High Court to decide all the issues warrants hearing from the judge who has not prejudged the issues - Prayer for transfer of case on judicial side cannot be accepted - However, High Court directed case may be transferred on administrative basis : Vishnu Goyal Vs. Smt. Jyoti Sharma, I.L.R. (2010) M.P. 269
- Section 24 - Transfer of Case - Husband filed suit for judicial seperation at Bhopal whereas wife resides at Indore - Transfer of case from Bhopal to Indore sought on the ground that her parents on account of physical problems of old age not in a position to accompany with her for defending the case at Bhopal - She is not in a position to afford traveling and other expenses - Husband gave undertaking to pay travel and other expenses - Held - No evidence filed in support of health condition of her parents - Application dismissed with direction to husband to pay traveling and other expenses in advance to wife : Radhika Bava Vs. Shailesh Bava, I.L.R. (2008) M.P. Note *48
- Section 34 - Grant of Pendente lite Interest - No Rate of Interest specified - Permissibility - Held - Where there exists no evidence about the mutually agreed rate of interest, or contractual interest or the rate at which the Nationalized Bank charge interest, on the commercial transactions, the Court can conveniently award pendente lite interest up to a maximum of 6% per annum : UCO Bank Vs. M/s. Shankar Enterprises, I.L.R. (2010) M.P. 2157
- Section 34 - Grant of Pendente lite Interest - Principles to be followed - Held - The issue of interest pendente lite would certainly be governed by the peculiar facts and circumstances of the case - The Court would be justified in exercising its discretion to award pendente lite interest, at a rate found reasonable, in the discretion of the Court : UCO Bank Vs. M/s. Shankar Enterprises, I.L.R. (2010) M.P. 2157
- Section 34 - Interest - Rate of Interest - Held - The Legislature has provided that the Court may order payment of interest at such rate as the Court deems reasonable to be made on the 'principal sum adjudged' from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum, for any period prior to Civil Procedure Code (5 of 1908) 60 the institution of the suit, with further interest at such rate not exceeding 6% per annum and the Proviso appended to Section 34 meet such exigencies, when the rate of interest is specified or not specified in an agreement : UCO Bank Vs. M/s. Shankar Enterprises, I.L.R. (2010) M.P. 2157
- Section 34 - See - Money Lenders Act, M.P. 1934, Section 7 : Narayan (Deceased) Through L.Rs. Vs. Sobhagmal Rakhabchand, I.L.R. (2009) M.P. Note *6
- Section 34, Constitution, Article 227 - Interest - Trial court awarded interest at rate of 18% p.a. from the date of institution of suit till realisation without recording a finding that the loan transaction was a commercial transaction - Held - Trial court has no jurisdiction to award interest at the rate of 18% p.a. after judgment and decree upto realisation of amount - Upto that extent decree passed by trial court is a nullity -Objection can be raised at the stage of execution and also proceeding under Article 227 of the Constitution - If decree is nullity upto that extent cannot be executed - Petition allowed : Chitrarekha (Smt.) Vs. Virendra Kumar Sharma, I.L.R. (2008) M.P. 2611
- Section 34 - Scope - If a loan is for commercial transaction, appellant is entitled to contractual rate of interest and the court cannot limit rate of interest to 6% p.a. - Held - Appellant is entitled to interest at the rate of contractual rate of interest i.e. 15% p.a. from the date of decree till realization : State Bank of India Vs. M/s. Siddharth Hotel, I.L.R. (2008) M.P. Note *61
- Section 34, Order 34 Rule 11 - Grant of Pendente lite Interest - Trial court granting 5% Interest pendente lite - Held Permissibility - The Scheme of the payment of interest as reflected in Section 34 and Order 34 of CPC provide for payment of 6% interest as the outer limit for the rate of interest - It could not be said that the Trial Court had erred in awarding 5% rate of interest on the principal sum for the period of the suit : UCO Bank Vs. M/s. Shankar Enterprises, I.L.R. (2010) M.P. 2157
- Section 47 - Scope - Identity of judgment debtor disputed - A decree was passed against respondent No.2 in a recovery suit filed by the appellant - At the stage of execution proceedings, respondent No.1 has filed objection stating that he was not the proprietor of respondent No.2 and hence not liable to honour the decree - Held - The issue could be adjudicated u/s 47 notwithstanding the fact that respondent No.1 was not a party in the suit, wherein the decree in question was passed : Century Textiles Industries Ltd. (M/s) Vs. Deepak Jain, I.L.R. (2009) M.P. 3241 (SC)
- Sections 47,115, Order 21 Rule 2 and Order 23 Rule 3 - Eviction suit decreed - Compromise between parties at appellate stage - Appeal dismissed in terms of compromise - However, provision of Order 21, Rule 2 CPC not complied with and Civil Procedure Code (5 of 1908) 61 certificate of decree holder not obtained and the adjustment not certified by Court - 'Conscious Waiver' on the part of decree holder to execute the decree not proved - Decree remains executable - Order of High Court regarding decree being inexecutable is indefensible and set aside : Padma Ben Banushali Vs. Yogendra Rathore, I.L.R. (2006) M.P. 1235 (SC)
- Section 51 and Order 21 Rule 37, Rule 40(1) - Order of detention in prison without holding enquiry as contemplated under Order 21 Rule 40(1) or without complying conditions laid down in proviso of Section 51 are unsustainable - Held - No enquiry has been conducted - Impugned order set aside - Petition allowed : Anil Rathi Vs. M/s Mahalaxmi Film Distributors, I.L.R. (2006) M.P. 1632
- Section 80 - Notice - Object is to enable the State to avoid unwanted litigation - State has not raised the plea of dismissal of suit for want of notice, in W.S, and contested suit on merits - No issue was framed in this regard - Trial Court ought not to have dismissed the suit : Gowardhan Singh Vs. State of M.P., I.L.R. (2008) M.P. 1183
- Section 80(2) - See - Krishi Upaj Mandi Adhiniyam, M.P. 1973, Section 67 : Krishi Upaj Mandi Samiti, Banapur Vs. Chandra Shekhar Raghuvanshi, I.L.R. (2009) M.P. 3019
- Section 94 - Power u/s 94 is not in derogation to the other provision of CPC, it is supplemental - It empowers the Court to grant temporary injunction in order to prevent the ends of justice from being defeated, if it is so prescribed : Surendra Rathore Vs. Vishwanath Bhasin, I.L.R. (2009) M.P. 1697 (DB)
- Sections 94 & 151 - Application u/s 94 r/w Section 151 CPC for grant of injunction filed without filing the suit and waiting for amicable settlement out of Court - Rejection - Held - There is no power under CPC, even inherent power cannot be exercised by the Court to grant injunction particularly in view of the fact that there is no legal impediment in filing the suit - Merely on the ground that some talks are going on between the parties, would not clothe the applicant with right to invoke Section 94 r/w Section 151 CPC to claim interim injunction - Application not maintainable - Petition dismissed : Surendra Rathore Vs. Vishwanath Bhasin, I.L.R. (2009) M.P. 1697 (DB)
- Sections 94, 151, Order 39 Rules 1 & 2 - Grant of injunction - Duty of the Court - Held - The Court while passing an order in favour of a party shall not be ignorant of the rights of the opposite party and shall equally carry an obligation that its order though, shall grant protection to the applicant but the efforts shall be made in special circumstances to achieve it simultaneously by taking care of the opposite party - Court shall always make an effort that while granting an order of injunction, the Civil Procedure Code (5 of 1908) 62 opposite party may not be put to unnecessary loss : Tilak Pradhan Vs. Smt. Ranjana Pradhan, I.L.R. (2010) M.P. Note *39 (DB)
- Section 96 - Suit for seeking relief to declare sale deeds and Will executed by mother to be void - Alleged that deeds were got executed on the pretext of loan transaction when executant was old and suffering from cancer - Suit decreed - Appeal filed - Held - The deeds were registered and read over to executant at the time of execution - Payment of consideration also proved by witness - Executant became widow around 35 years prior to execution of deeds and managed her land and worldly affairs - She executed two sale deeds and kept some property with her for bad days - This itself demonstrates that she was well aware of worldly affairs and was in good mental condition - Through evidence it is proved that plaintiff neglected and was not taking care of executant prior to and even after suffering of her from ailment of cancer - Execution of sale deed and Will duly proved - Judgment and decree of trial Court set- aside - Appeal allowed : Sumersingh Vs. Smt. Hemkuwarbai, I.L.R. (2009) M.P. 824
- Section 96 - See - Limitation Act 1963, Section 5 : International Association of Lions Clubs Vs. Dr. Jagjit Singh Khanna, I.L.R. (2008) M.P. 2342
- Section 96 - Appreciation of Evidence - Findings of Trial Court based on proper appreciation of evidence could not be interfered in appeal in routine manner unless the same appears to be contrary to available record : Shankar Lal Pandey Vs. Tarachand Kulparia, I.L.R. (2008) M.P. 824
- Section 96, and Land Revenue Code M.P. 1959, Sections 110, 115 - Correction of Revenue Entry -Deletion of names of co-owners from revenue record without any semblance of procedure adopted for mutation - Defendant filed application for deletion of name of plaintiff and others on the ground that they have relinquished their share - Patwari admitted that application was not singned by plaintiff and his mother in his presence - No notice issued to plaintiff and mother before deletion of their names - Suit for partition decreed, plaintiff being declared to have right in ½ share of property - Appeal on the ground that plaintiff had relinquished his share and that partition had already taken place - Relinquishment sought to be proved on the basis of deletion of name of plaintiff - No right accrued in favour of defendant due to deletion of names of other co-owners - Appeal dismissed : Rangilal Vs. Smt. Manorama Soni, I.L.R. (2007) M.P. 391
- Section 96, Electricity Rules 26, 29, 44 and 45 - Suit for compensation - Negligence and Strict Liability - Suit filed for compensation against M.P.E.B. and a neighbour as deceased had died because of electric shock - Deceased while coming out of house came in touch with live electric wire - Neighbour indulged in pilferage of electricity and wire used for siphoning electricity had fallen down and deceased came in contact with Civil Procedure Code (5 of 1908) 63 it - Suit dismissed as plaintiff had failed to prove negligence of defendants - Held - M.P.E.B. failed to take action on the complaint regarding illegal siphoning of electricity - It is the duty of M.P.E.B. to conduct periodical inspection of lines and to take all safety measures to prevent accident - M.P.E.B. has utterly failed to discharge its statutory obligations - Cannot claim exemption from paying damages in case of death arising out of accident due to electric shock - Compensation of Rs. 2 lacs with simple interest @ 6% per annum from the date of filing of suit - Appeal allowed : Jagdish Vs. Naresh Soni, I.L.R. (2007) M.P. 640 (DB)
- Section 96 - Hindu Succession Act, 1956, Section 22 - Preferential right of property - Transfer of Property by co-heir - Voidable at the option of another co-heir - Sale against the right of co-heir constitutes an infringement of the right conferred under Section 22 (1) - Burden on purchaser to prove that co-heir had waived his preferential right : Vishwanath Gupta Vs. Virendra Nath Agrawal, I.L.R. (2007) M.P. 630
- Section 96, Partition Act, 1893 - Section 4 - Suit for declaration and permanent injunction dismissed by trial Court on the ground that sale-deed executed by coparceners in favour of appellant was null and void because there was no partition - Validity of sale without obtaining consent of coparceners challenged - Held - Parties are governed by Mitakashara Law as administered in Bombay School - Consent of coparceners not necessary for alienating share - Sale-deed executed in favour of appellant to the extent of share of vendor are valid - However, as appellant was not put in possession of property, he must file suit for partition and seek possession : Mohammad Nisar Vs. Rajesh Kumar, I.L.R. (2007) M.P. 623
- Section 96 - Appeal - Suit for declaration - Adoption - Proof of - Adoption took place 60 years before filing of suit - Even slight evidence and conduct of parties sufficient to prove adoption - Adopted son always treated as such for long years - Marriage took place in that capacity - No cross-examination on behalf of defendant - Adoption proved - Adverse possession - Plea of - Cannot be raised against a minor : Dinesh Kumar Vs. Kaushal Chand Jain, I.L.R. (2006) M.P. 828
- Section 96 - Indian Contract Act, 1872, Section 128 - Transfer of Property Act, 1882, - Section 58(f), the Limitation Act, 1908, Section 55, Registration Act, Section 17 (1)(b) - Appeal against judgment and preliminary decree ordering appellant to pay in his capacity as co-guarantor - Liability of appellant as Guarantor challenged on the ground that the questioned document is not mortgaged deed but is an agreement to create mortgage in future which is not enforceable for want of registration - Mortgage by depositing of title deed does not require any written instrument - Oral transaction of equitable mortgage already concluded by depositing of title deed - Document in question is only deposit memorandum of title deeds and not contract in writing - Document does not require registration - Appellant is liable : Ravishankar Tiwari Vs. Allahabad Bank, Hoshangabad, I.L.R. (2006) M.P. 1529 (DB) Civil Procedure Code (5 of 1908) 64
- Section 96 and Limitation Act, Indian, 1963, Article 64,65 - Suit for possession - Defense plea of possession by virtue of part performance of oral agreement as also adverse possession - For part performance written contract is sine qua non - In absence of written contract benefit of part performance cannot be taken - Parties are real brothers - Possession with consent - Plea of adverse possession not open : Ram Gopal Through His Lrs Smt. Savitri Vs. Ramniwas, I.L.R. (2006) M.P. 1306
- Section 96 and Limitation Act, 1963, Article 65 - Suit for possession and mesne-profit - Defendent pleading perfection of title bassed on adverse possession - Parties being co-owners, defendent should have proved "ouster" - Plaintiff's suit wrongly dismissed as barred by limitation - Impugned judgment set aside -Suit decreed : Shivkumar Tiwari Vs. Rambai, I.L.R. (2006) M.P. 1300
- Section 96, Specific Relief Act, 1963 Section 16 - First Appeal - Suit by Co- Operative Society for specific performance - Failed to prove that it had fund to purchase land - Society is distinct entity than an individual - Money of its President cannot be treated to be fund of society - Delay in filing the suit - After repeal of ceiling Act price of land escalated - It would be inequituous to order specific performance - Decree of Trial Court set aside - Refund of consideration ordered : Leeladhar Yadav Vs. Siddhartha Housing Cooperative Society Ltd,. Garha, I.L.R. (2006) M.P. 562 (DB)
- Section 96 and Specific Relief Act 1963, Section 16(c) - First Appeal - Suit for specific performance of sale - Generally speaking under Section 55 of the Indian Contract Act 1872, time is not the essence of contract in case of immovable properties - Defendants tried to delay execution of sale deed - Specific performance in favour of plaintiff cannot be denied even if price of property might have gone high during this period : Harvansh Singh Vs. Bhagwan Das, I.L.R. (2006) M.P. 54 (DB)
- Section 96 and Trade & Merchandise Mark Act, 1959, Section 29 - Appeal - Passing of action - Registration is not relevant - What is essential is that the user of Mark must be prior in time - Phonetically 'tiger' and 'tarzan' differ but monogram 'tiger' and 'lion' appear similar - Deceptively similar trade mark - Trial Court rightly granted permanent injunction : Manoj Kumar Vs. Ashok Kumar Jain, I.L.R. (2006) M.P. 1310
- Section 96 Order 8 Rule 6-A and Limitation Act, 1963, Section 3(2)(b) - Counter Claim - Subsequent amendment in counter claim seeking recovery of money - Computation of limitation - Statutorily prescribed as the date on which counter claim is filed in the Court - Doctrine of relation back does not get attracted : Kanhaiyalal S/o Vishwambherdayal Agrawal Vs. Muktilal S/o Rameshwardas Naredi, I.L.R. (2006) M.P. 1026 (DB) Civil Procedure Code (5 of 1908) 65
- Section 96(2) and Order 9 Rule 13 - Application for setting aside ex parte judment and decree - Remedy of appeal can be availed simulataneously - Appeal filed after 10 years lack of advise - In absence of pleadings and evidence cannot be considered to condone deley of 10 years : Narmada Club Registered Society Vs. P.K. Tare; I.L.R. (2006) M.P. 737
- Section 97 - Appeal from final decree where no appeal from preliminary decree - Meaning - Held - Provisions of S. 97 attained finality to a preliminary decree in respect of the matters decided by it - A party aggrieved by a preliminary decree does not appeal from it then he is precluded from disputing its correctness in an appeal from the final decree : Ishaque Mohammad Vs. Smt. Saini Begum, I.L.R. (2010) M.P. 1465
- Section 97 - Appeal from Final Decree where no appeal from Preliminary Decree - Meaning - Held - When no appeal is preferred against the Preliminary Decree, the party is precluded from disputing the correctness of the Preliminary Decree, but this fetter could not be pressed into service to demonstrate that after expiration of the period of limitation of preferring an appeal, the plaintiff would not be required to obtain a Final Decree : Kasturi Devi Jain (Smt.) Vs. Union Bank of India, I.L.R. (2010) M.P. Note *17 SYNOPSIS : Section 100
1. Concurrent findings of fact 7. Scope 2. Delay 8. State can be added as party 3. Document filed at appellate stage at any stage 4. Error on the face of record 9. Substantial question of law 5. Finding of Fact 10. Time barred relief 6. Misreading of evidence 11. Miscellaneous
1. Concurrent findings of fact
- Section 100, Accommodation Control Act, M.P. 1961, Sections 12(1)(c), 12(1)(f) & 12(1)(g) - Concurrent findings of fact in a case cannot be reversed in second appeal by weaving out an entirely new case without pleadings or basis - Judgment & order of trial Court as affirmed by first appellate Court is restored - Appeal allowed : Sameer Kumar Pal Vs. Sheikh Akbar, I.L.R. (2010) M.P. 2271 (SC) Civil Procedure Code (5 of 1908) 66
- Section 100, Accommodation Control Act, M.P. 1961, Section 12(1)(f) - Concurrent findings of fact - Interference - Permissibility - Held - The concurrent findings on the ground of bona fide genuine requirement enumerated u/s 12(1)(e) & (f) of the Act, being based on appreciation of evidence is finding of facts, the same could not be interfered u/s 100 of CPC : Ashok Kumar Vs. Smt. Meena, I.L.R. (2010) M.P. Note *24
- Section 100 - Scope of interference - Concurrent findings of the courts below on the question of adverse possession based on appreciation of evidence being finding of fact could not be interfered : Gaya Prasad Vs. Pradumn Prasad, I.L.R. (2010) M.P. 2343
- Section 100 - Concurrent finding of fact - If erroneous could be interfered - Held - Concurrent findings of fact based on evidence even the same are erroneous could not be interfered u/s 100 CPC at the stage of second appeal unless the same are involved any substantial question of law : Ram Manohar Patel Vs. Ram Prasad Patel, I.L.R. (2010) M.P. 1461
- Section 100 - Concurrent finding of fact in respect of adverse possession - Held - Question of adverse possession being finding of fact could not be interfered in a second appeal : Ram Manohar Patel Vs. Ram Prasad Patel, I.L.R. (2010) M.P. 1461
- Section 100 - Concurrent finding of fact in respect of possession - Held - The concurrent finding with respect of possession of the property based on appreciation of evidence being finding of fact could not be interfered in a second appeal : Ram Manohar Patel Vs. Ram Prasad Patel, I.L.R. (2010) M.P. 1461
- Section 100 - Second Appeal - Finding of fact in respect of adverse possession - Scope of interference - Held - Concurrent finding of fact of Courts below on the question of adverse possession based on appreciation of evidence is a finding of fact and could not be interfered in second appeal : Sitara (Smt) Vs. Hemchand, I.L.R. (2010) M.P. 1786
- Section 100 - Second Appeal - Finding of fact - Scope of interference - Held - Concurrent finding of fact of Courts below based on appreciation of evidence is a finding of fact and could not be interfered in second appeal : Sitara (Smt) Vs. Hemchand, I.L.R. (2010) M.P. 1786
- Section 100 - Concurrent findings of fact whether can be interfered in second appeal - Held - No - It is settled proposition of law that the concurrent findings on the question of relationship between the parties as landlord and tenant being finding of fact Civil Procedure Code (5 of 1908) 67 could not be interfered at the stage of second appeal u/s 100 CPC : Ram Vishal @ Vishali Kachhwaha Vs. Dwarka Prasad Jaiswal, I.L.R. (2009) M.P. 3390 2. Delay
- Section 100, Order 41, Rule 1, (3-A) and Limitation Act indian, 1963, Section 5 - Condonation of delay in filing appeal - Court should keep in mind the judgment impugned, extent of property involved and stake of the parties - Inconvenience caused to respondents can be compensated by awarding appropriate Costs - Delay condoned - Matter remitted back to the Lower appellate Court : Asharam Vs. Smt. Gangabai, I.L.R. (2006) M.P. 49 3. Document filed at appellate stage
- Section 100 and Money Lenders Act, 1934, Sections 7, 11-H - Suit for recovery - Plaintiff money lender - Suit could not proceed until the Court is satisfied that he held valid registration or was not required to have registration - Certificate of registration filed at appellate stage - Opportunity to rebut the same should be given - Case remanded : Nandram Lodhi Vs. Badri Prasad, I.L.R. (2006) M.P. 246 4. Error on the face of record
- Section 100, Order 6, Rule 17, Order 41, Rule 27 - Second appeal - Suit for declaration and possession - Deity in possession of part of the Suit property within knowledge of plaintiff on the date of Suit - Deity not joined as party - No effective decree could be passed in its absence - Judgment and decree set aside and case remitted to Trial Court : Ramrato Baba Vs. Smt. Bismilla Usmani, I.L.R. (2006) M.P. 62 5. Finding of Fact
- Section 100 - Second Appeal - Suit for partition and possession alleging that suit property was purchased by father from retiral benefits - Dismissal of suit by trial Court and appellate Court - Held - Burden of proof to establish source of consideration amount was on plaintiff - High Court overlooked the onus of proof - Finding recorded by trial Court and lower appellate Court that plaintiff failed to prove that suit property was purchased from retiral benefits of father was pure finding of fact - High Court erred in reversing the same merely because it felt that different view was possible - Judgment of High Court set-aside - Appeal allowed : Jane Merry @ Jaya Merry Vs. Merlyn, I.L.R. (2010) M.P. 1505 (SC)
- Section 100 - See - Accommodation Control Act, M.P., 1961, Section 12(1)(a) & (c) : Sona Bai (Smt.) Vs. Anand Kumar, I.L.R. (2010) M.P. Note *54 Civil Procedure Code (5 of 1908) 68
6. Misreading of evidence
- Section 100 - Substantial Question of Law - Finding of fact - Based upon misreading of evidence or suffers from any legal infirmity or perverse - High Court can set aside such finding in Second Appeal : Ramchandra Vs. Kamladevi, I.L.R. (2008) M.P. 568
- Section 100 - Lower Courts concurrently erred in not appreciating oral & documentary evidence - High Court at liberty to re-appreciate evidence and record its own conclusion : Ramlal Vs. Phagua, I.L.R. (2006) M.P. 1 (SC)
- Section 100 - Substantial Question of Law - Perverse Finding - What is - Where finding of fact is based on misreading of evidence or suffers from legal infirmity which materially prejudice case of one party - It would be open for Court to set aside such finding and take a different view : Anil Kumar @ Om Prakash Vs. Ramesh Chand, I.L.R. (2008) M.P. 843 7. Scope
- Section 100 - Scope for interference - Findings are based upon proper appreciation of evidence therefore they are binding on High Court - Court below did not consider any inadmissible evidence and as such, there is no scope for interference with such findings - Appeal dismissed summarily : Amar Singh Vs. Shiv Narayan, I.L.R. (2008) M.P. 3246
- Section 100 - Scope of interference in second appeal - Both the courts below have concurrently held that agreement declaring that land has been mortgaged was executed by the defendants - It is finding of fact - There is no material to hold that it is a perverse finding - Cannot be interefered in second appeal : Gendalal (Since Dead) through L.Rs. Sajjanbai Etc. Vs. Pannalal (Since Dead) through L.Rs. Lilabai Etc., I.L.R. (2008) M.P. 3207
- Section 100 and Accommodation Control Act, 1961, Sections 2(b), 12(1) (a), 12(1) (c) and 13(1) - Suit for eviction on ground of arrears of rent - Leave to defend - Time barred rent - Not required to be deposited - Land lord - Definition - Include a person to whom rent is payable as also his agent - Oral authorisation - Not proved by entering witness box - Adverse inference is liable to be drawn - Authorisation not held to be established - Disclaimer - Deleted by subsequent amendment - Yet can be taken into consideration for granting decree of eviction - Decree on ground under Section 12(1) (c) of the Act confirmed : Firm M/s Ramgopal Kanhaiyalal Vs. Firm M/s Dinanath Gyasilal, I.L.R. (2006) M.P. 228 Civil Procedure Code (5 of 1908) 69
- Section 100, and Specific Relief Act, 1963, Section 41(4) - Suit for injunction - Encroachment admitted by plaintiff in revenue court - Unlawful possession cannot be protected by perpetual injunction : State of Madhya Pradesh Vs. Ismail Khan, I.L.R. (2006) M.P. 1156
- Section 100, Order 20 Rule 12 - Second appeal - Suit for possession and mesne profits - Courts have power to award mesne profit on higher rate - But after inquiry & with sufficient reason : Basodi Alias Munshilal Vs. Smt. Meera Bai, I.L.R. (2006) M.P. 391 8. State can be added as party at any stage
- Section 100, Order 1 Rule 3B (M.P. Amendment Act No. 29 of 1984) - Any right over agriculture land - State is necessary party - Can be added at any stage - Any suit between two parties relating to any right over agricultural land even without any relief against the State - The State of M.P. necessary party - But a plaintiff cannot be non-suited on that ground - State can be added as party at any stage on which the objection is taken : Sitaram Vs. Radheshyam, I.L.R. (2008) M.P. 2631 9. Substantial question of law
- Section 100 - Substantial question of law - "Whether the lower appellate court erred in law in reversing the judgment & decree passed by the Trial Court" - Held - Framed question of law could not be treated to be substantial question of law u/s 100 : Bipta Bai (Smt.) Vs. Smt. Shipra Bai, I.L.R. (2009) M.P. 1402
- Section 100 - Finding of both the courts that plaintiffs were minor at the time of execution of sale deed is the finding of fact and such a finding cannot be disturbed in second appeal without formulating the substantial question of law : Gendalal (Since Dead) through L.Rs. Sajjanbai Etc. Vs. Pannalal (Since Dead) through L.Rs. Lilabai Etc., I.L.R. (2008) M.P. 3207
- Section 100 - Substantial Question of Law - Admission of plaintiff - That name of plaintiff not mutated in revenue record - And plaintiff was dispossessed by Collector in the year 1987 - Does not raise any substantial question of law - Matter remitted back to High Court for framing proper question of law : Mahant Ram Khilawan Das Vs. State of M.P., I.L.R. (2008) M.P. 997 (SC)
- Section 100 - Substantial Question of law - High Court cannot substitute the findings of the Courts below with its own findings unless there is total absence of consideration of material evidence : Mahant Ram Khilawan Das Vs. State of M.P., I.L.R. (2008) M.P. 997 (SC) Civil Procedure Code (5 of 1908) 70
- Section 100(4) - Substantial question of law - If a relief is granted to a party which was not the case of either of the parties, contrary to record and under violation of existing laws then such question is not a question of fact but purely a substantial question of law covered u/s 100(4) of CPC : Phula Bai (Smt.) Vs. Krishna, I.L.R. (2009) M.P. 1721 10. Time barred relief
- Sections 100, 105 and Limitation Act 1963, Articles 58, 64, 65 - Suit for declaration and possession - Time barred amendment cannot be allowed - If allowed inspite Trial Court has no authority to decree a suit on a prayer which is time barred : Rameshwar Prasad Vs. Smt. Shanti Devi, I.L.R. (2006) M.P. 594 11. Miscellaneous Arrears of rent tendered - No cause of action
- Section 100, Accommodation Control Act, MB, 1955, Section 4(a) and Accommodation Control Act, MP, 1961, Section 12(1)(a), 12(1) (f) - Eviction Suit - Second Appeal - Arrears of rent - Demand Notice by land lord - Entire amount tendered by tenant on Service of notice - No cause of action - Decree cannot be passed on ground of arrears of rent - Bonafide need - Non-residential accommodation - Requirement for Trust Manager's Office - Not a business purpose - Ground for eviction not made out : Dr. Gopal Das Vs. Rajesh, I.L.R. (2006) M.P. 374 Compromise
- Section 100 and Order 23 Rule 3 - Application for Compromise during pendency of first appeal - Once a Court finds compromise lawful it has to pass a decree in terms of compromise : Diviya Vs. Pyrelal; I.L.R. (2006) M.P. 1176 Eviction Suit and Court fees
- Section 100, Accommodation Control Act, M.P. 1961, Section, 12 (1) (a), 12(i) (c) and 12(1) (e) and Court Fees Act 1870, Section 7 (XI) - Eviction Suit - Also on ground of illegal possession an adjacent land - No need to pay Court fees separately - Adverse possession - Tenacy proved from plaintiff's account book - Defendants cannot claim adverse possession : Pandharinath Vs. Smt. Rukminibai, I.L.R. (2006) M.P. 73 In gift, Delivery of possession may be either actual or constructive
- Section 100 - Registration Act 1908, Section 17 - Suit filed by plaintiff/appellant for injunction restraining the defendants from interfering with the possession and alienating Civil Procedure Code (5 of 1908) 71 the suit property - Counter claim filed by the defendant claiming ownership of suit property on account of oral and subsequently written gift-deed - Trial court and appellate Court decreeing the counter claim - Second Appeal against the judgment of appellate court - Appellant contending that no possession of property was taken by the donor - Delivery of possession although essential condition of gift but physical delivery not compulsory and it may be either actual or constructive - The real test of delivery is whether donor or donee reaps the benefits - Property already been enjoyed by respondent - In such case mere declaration of gift was sufficient - Gift is valid - Second appeal dismissed : Riyaz Khan Vs. Smt. Rashida Begum, I.L.R. (2006) M.P. 1648
Refund of earnest money
- Section 100 - Second appeal - Suit for refund of earnest money - Contract provides for forfeiture of earnest money on failure to perform work - Plaintiff himself admitted that he has requested for refund of earnest money on account of failure to perform work - Held - Plaintiff is not entitled for refund of earnest money in view of his admission and terms of contract - Appeal allowed - Suit dismissed : Western Coalfields Ltd. Vs. Pradeep Kumar Soni, I.L.R. (2009) M.P. 2047
Relationship of landlord-tenant
- Sections 100, 100(5), Order 41, Rule 22, and Accommodation Control Act, M.P., 1961, Sections 12(1) (a), 12(1) (f), 12(1) (g), 12(4), 13 and Transfer of Property Act, 1882, Section 109 - Second appeal - Suit for eviction - Previous landlord transferred property by sale - Transferee also becomes owner in relation to tenant - Relationship of landlord-tenant established - Suit for eviction maintainable even without quit notice - One year period would be counted from the date of transfer and not from date of quit notice : Badamilal Soni Vs. Mufajjal, I.L.R. (2006) M.P. 578
Suit for declaration of sale-deed void
- Section 100 - Suit to declare sale deed executed by father void as executed without consideration and legal necessity - Defendant pleaded partition - Held - Variation in pleading and evidence in regard to time of partition - After alleged partition one sale deed jointly executed - Partition by metes and bounds not established - Appellate Court erred in revising findings of trial Court - Appeal allowed : Ramawtar Vs. Mangilal (Deceased) Through L.Rs., I.L.R. (2009) M.P. 2360
Suit for injunction
- Section 100 - Suit for mandatory and permanent injunction that there exists a 'Gali' between two houses and defendant be restrained from closing it as the easementary Civil Procedure Code (5 of 1908) 72 rights of the plaintiff were adversely affected - The trial court dismissed the suit and lower appellate court dismissed the appeal - Second appeal filed - Held - Admittedly, plaintiff has neither proved that he is the owner of the aforesaid 'Gali', nor has proved or established his easementary right over the same - To prove the latter it is necessary to establish that it was exercised on some one else's property and not as an incident of his own ownership of that property - Appeal dismissed : Girdharilal Vs. Balchand, I.L.R. (2008) M.P. 2636 SYNOPSIS : Section 115
1. Limitation 4. Purpose 2. Maintainability 5. Revision, not the Writ Petition 3. Power exercised under Maintainable Writ Petition though 6. Miscellaneous revision is maintainable
1. Limitation
- Section 115 and Limitation Act, 1963 Articles 14, 112 - M.P. Rajya Pashudhan Avam Kukut Vikas Nigam is a State within the meaning of Article 12 of Constitution - Suit by - May be said to be on behalf of the Government of Madhya Pradesh - Article 112 of Limitation Act, 1963 rightly applied : Central Bank of India, Through Regional Manager Vs. Madhya Pradesh Rajya Pashudhan Avam Kukut Vikas Nigam Through Its Executive Officer, I.L.R. (2006) M.P. 126 2. Maintainability
- Section 115 - See - Constitution, Article 226 & 227 : Kalam Scooter Service Vs. Shri Shri 1008 Jagat Guru Shankaracharya Swami Swaroopanand Ji Maharaj, I.L.R. (2009) M.P. 41 (DB) 3. Power exercised underWrit Petition though revision is maintainable
- Section 115 - See - Constitution, Article 227 : Shyama Prasad Datta Vs. Arun Kumar Vasudeo, I.L.R. (2010) M.P. 1588 (DB) Civil Procedure Code (5 of 1908) 73
4. Purpose
- Section 115(1), Constitution, Article 227 - Revision - Other proceedings - Meaning - Explained - Held - Term "other proceedings" cannot be read in a narrow compass and has to be given a very wide meaning - Word "proceedings" cannot be confined to a civil proceedings alone - It has the comprehensive meaning so as to include within it all matters coming up for judicial adjudication : Johra Bi Vs. Jageshwar, I.L.R. (2010) M.P. 160 (DB) 5. Revision, not the Writ Petition Maintainable
- Section 115(1), Constitution, Article 227 - Revision - Maintainability of Writ Petition or Revision - Held - All the writ petitions in which revision would lie and not writ petition directed to be converted to a revision instead of dismissing them as not maintainable : Johra Bi Vs. Jageshwar, I.L.R. (2010) M.P. 160 (DB)
- Section 115(1) & Order 7 Rule 11, Constitution, Article 227 - Revision - 7 Maintainability of Writ Petition or Revision - Held - A prayer was made to dismiss the suit as not maintainable on the ground that separate suit was not maintainable beside the objection with respect to court fees, etc. was also taken - Considering the nature of objection taken, the revision petition would be maintainable not the writ petition : Johra Bi Vs. Jageshwar, I.L.R. (2010) M.P. 160 (DB)
- Section 115(1) & Order 7 Rule 11, Constitution, Article 227 - Revision - Maintainability of Writ Petition or Revision - Held - Dismissal of the suit was sought on the ground that there was non-joinder of the necessary party, beside suit was not properly valued, considering the nature of objection taken in rejection of plaint, the revision would maintainable not the writ petition : Johra Bi Vs. Jageshwar, I.L.R. (2010) M.P. 160 (DB)
- Section 115(1) & Order 7 Rule 11(b), (c), Constitution, Article 227 - Revision - Maintainability of Writ Petition or Revision - Held - Under Order 7 Rule 11 CPC order may be final at once and order would be order revisable - Once exigencies are provided in Order 7 Rule 11(b) & (c) are completed, revision would be maintainable not the writ petition - Each case has to be decided whether suit or other proceeding would have been finally disposed of in favour of the party applying for the revision : Johra Bi Vs. Jageshwar, I.L.R. (2010) M.P. 160 (DB)
- Section 115(1) & Order 9 Rule 9, Constitution, Article 227 - Revision - Maintainability of Writ Petition or Revision - Held - An application under Order 9 Rule 9 CPC has been dismissed, appeal stands dismissed, revision would be maintainable - It would mean proceeding in S. 115(1) CPC - Writ petition cannot be said to be maintainable : Johra Bi Vs. Jageshwar, I.L.R. (2010) M.P. 160 (DB) Civil Procedure Code (5 of 1908) 74
- Section 115(1) & Order 9 Rule 13, Constitution, Article 227 - Revision - Maintainability of Writ Petition or Revision - Held - An application under Order 9 Rule 13 CPC was rejected by the trial Court against which miscellaneous appeals were preferred, thus, revision would be maintainable against the appellate orders which have been passed not the writ petition : Johra Bi Vs. Jageshwar, I.L.R. (2010) M.P. 160 (DB)
- Section 115, Specific Relief Act, 1963, Section 6(3) - Writ petition challenging final decision in case u/s 6 of the Specific Relief Act - Held - Writ petition not maintainable - Revision would be maintainable against final decision as no appeal is provided u/s 6 of Specific Relief Act - Petition dismissed : Doma Vs. Saya Bai, I.L.R. (2009) M.P. Note *30 (DB) 6. Miscellaneous
Revision by way of an exception
- Section 115 - See - Specific Relief Act, 1963, Section 6 : Ramniwas Sharma Vs. Smt. Jasoda Bai, I.L.R. (2010) M.P. 691
Transfer of suit
- Sections 115 proviso & 24 - Finally disposed of the suit or proceedings - Revision against order rejecting application for transfer of suit - Order, if had been passed in favour of applicant, would have disposed of proceeding for transfer - Revision maintainable : Vishnu Goyal Vs. Smt. Jyoti Sharma, I.L.R. (2010) M.P. 269
Auction sale by executing Court
- Section 115, Order 21, Rule 64 and Order 34 - Revision - Auction sale by executing Court - Property worthmore than decretal amount - Objection as to non- compliance of Order 21 Rule 64 - Can very well be agitated even if not pressed earlier and non-compliance would vitiate the auction in case it is applicable - Mortgage suit - Order 34 alone is applicable - Auction sale of whole of the mortgaged property - Not vitiated by any error of law : Suraj Singh Vs. Union Bank of India, I.L.R. (2006) M.P. 767
Order passed in the interest of justice
- Section 115 - Powers of High Court - Held - If the order passed by the Trial Court is in the interest of justice, the High Court can refuse to interfere u/s 115 of CPC even if the order suffers from material irregularity or illegality, unless grave injustice or Civil Procedure Code (5 of 1908) 75 hardship would result from failure to do so : Bansidhar Goyanka Vs. Alok Kumar, I.L.R. (2010) M.P. Note *59
Referring dispute to arbitration
- Section 115, Arbitration and Conciliation Act, 1996, Section 8 - Arbitration Clause - Applicant filed suit for declaration & injunction - Counterclaim by defendant - Applicant permitted to withdraw suit - Counterclaim entertained as suit - On first date of that suit objection for referring dispute to arbitration filed - Rejection - Objection qualifies the expression "the first statement on the substance of dispute" of Section 8 of the Act - Held - Rejection of objection not sustainable - Dispute referred to arbitration - Revision allowed : Charanjit Kaur (Smt.) Vs. S.R. Cable, I.L.R. (2008) M.P. 2445
Specific performance of agreement
- Section 115, Specific Relief Act, 1963, Section 28 - Agreement for sale of immovable property - Award of arbitrator directing execution of sale deed - Rejection of application for rescission of contract - Revision - There was no unreasonable delay on part of non-applicant No.1 to approach court for enforcing award - Delay attributed to applicants themselves - Held - The rise in price relating to immovable property agreed to be conveyed to non-applicant No.1 would not be relevant to deny relief of specific performance - No ground for interference in order of trial court made out - Revision dismissed : Mohanlal Garg Vs. M/s. Chaudhary Builders Pvt. Ltd, I.L.R. (2008) M.P. 2720
● - Section 148 - Enlargement of time - Appellant did get a bank draft prepared and dispatched to the address of the respondent - This may not have been a strict compliance with the direction issued by the High Court regarding the deposit before the Trial Court but this certainly establishes the bonafides of the appellant, which is a weighty consideration while examining the request for extension of time - Appellant has made out a case for extension : D.V. Paul Vs. Manisha Lalwani, I.L.R. (2010) M.P. Note *78 (DB)
- Section 148 - Enlargement of time - When any period or time is granted by the Court for doing any act, the Court has the discretion from time to time to enlarge such period even if the time originally fixed or granted by the Court has expired : D.V. Paul Vs. Manisha Lalwani, I.L.R. (2010) M.P. Note *78 (DB) Civil Procedure Code (5 of 1908) 76
SYNOPSIS : Section 151
1. Closing of right to submit 5. Sale cannot be challenged written statement despite 6. To prevent abuse of process demand of documents by the of the Court defendant is illegal 7. What amounts to discharge, 2. Collection of evidence variance or setting aside of the through Court not permitted order of temporary injunction? 3. Consolidation of suits 8. When compromise decree can 4. In the Ends of Justice be challenged ?
1. Closing of right to submit written statement despite demand of documents by the defendant is illegal
- Section 151 & Order 8 Rule 1, Civil Courts Rules, M.P. 1961, Rule 110-A & 110-B - Defendant's right to file written statement closed for want of not filing it within prescribed period of 90 days - However after the right to file written statement was closed, requisite document were supplied to the defendant by the plaintiff - Held - Rule 110-A of M.P. Civil Court Rules obliges the Court to pass proper order for supply of documents which are demanded by the defendant after appearance on account of having been filed with the plaint - Trial Court's order closing thereby right to submit written statement despite demand of documents by the defendant is illegal : Girwar Singh Vs. Jhanak Singh, I.L.R. (2010) M.P. 442 2. Collection of evidence through Court not permitted
- Section 151, Order 26 Rule 4 - See - Evidence Act, 1872, Section 102 : Kunji Lal Lodhi Vs. Smt. Lata Bai Lodhi, I.L.R. (2009) M.P. 956 3. Consolidation of suits
- Section 151 - Consolidation of suits - Trial Court ordered for consolidation of two suits one at stage of evidence whereas other at primary stage - Held - Application for consolidation not filed promptly after order of High Court - Grounds in the suits are different and cannot be said that the judgments in both shall have to be conflicting with each other - Due to order of consolidation, evidence already recorded in one suit will be washed out and there shall be a de novo trial of suit for no infirmity, legal or procedural - Trial Court failed to exercise the discretion judicially - Order set-aside - Petition allowed : Parwati Bai Vs. Kriparam, I.L.R. (2009) M.P. 3296 (DB) Civil Procedure Code (5 of 1908) 77
- Section 151 - Consolidation of two suits - Petitioner filed suit seeking relief of declaration and permanent injunction to the effect that agreement to sell executed by him has lost its efficacy due to non compliance of conditions of said agreement - Respondent filed a suit for specific performance of Contract on the basis of same agreement - Held - Both suits are based on same agreement between same parties and in respect of same land - Merely because different issues have been framed it cannot be said that both the suits are so distinct that they cannot be tried together - Consolidation of suits can be ordered to save parties from multiplicity of proceedings, delay and expenses - Order passed by the Trial Court proper - Petition dismissed : Manakchand Ruthia Vs. Rajendra Kumar Agrawal, I.L.R. (2008) M.P. 77 4. In the Ends of Justice
- Section 151 - Inherent powers can be exercised to grant relief in case the case does not fall under any of the rules prescribed : Surendra Rathore Vs. Vishwanath Bhasin, I.L.R. (2009) M.P. 1697 (DB)
- Section 151, Order 1 Rule 10, Order 22 Rule 10, Transfer of Property Act, 1882, Section 52 - Impleadment - Proposed respondents filed application under O.1 rule 10 for their substitution as they have purchased disputed property from deceased respondent - Proposed respondents had also filed separate civil suits against appellant seeking declaration and perpetual injunction which was decreed and appeal by appellant is pending - Legal representatives of deceased respondent also not taking any interest to defend appeal - Held - Although in view of provision of Section 52 of Transfer of Property Act proposed respondents are not necessary party - However legal representatives of deceased respondent are not taking interest to defend appeal - After acquiring rights by assignment they have right to join the appeal for protecting their rights till the extent of the deceased respondent - As application for joining them as respondents has been filed at very belated stage cost of Rs. 5000 imposed on each of proposed respondent to be payable to appellant - Application allowed : Prahlad Singh Vs. Jammna Bai, I.L.R. (2008) M.P. 107
- Section 151, Order 7 Rule 7 - See - Hindu Marriage Act, 1955, Section 27 : Manish Nema Vs. Sandhya Nema, I.L.R. (2009) M.P. 2057 (DB) 5. Sale cannot be challenged
- Section 151, Order 21 Rule 64, 66, 67, 83, 90, 92, Order 34 Rule 5 - Auction of mortgaged property for realisation of the decree amount - Proclamation of sale made on a particular date but sale taking on some other day for which separate proclamation not made - After auction the sale certificate issued in favour of respondent No.5 - Action challenged in for setting-aside the sale - Held - Order is governed by Order 34 Civil Procedure Code (5 of 1908) 78 and its rules of CPC and that itself is a code to deal with the decree passed in mortgage suit - In the entire scheme of Order 34 of CPC, there is no provision like Order 21 Rule 64, 66, 67 and 69 of CPC - Therefore, objection filed by appellant before executing court u/O 21 Rule 92 was not entertainable and executing court has not committed any error in dismissing the same - Appeal dismissed : Mohd. Aleem Vs. Bank of India, I.L.R. (2008) M.P. 2942 6. To prevent abuse of process of the Court
- Section 151 - Inherent powers - Plaintiff submitted application for temporary injunction that the defendant was collecting material on suit land with intend to construct municipal park - Application was dismissed by the trial Court on the defendant's representing that construction was being made on their own land - After recording evidence, trial Court found that park has been illegally and unauthorizedly constructed on suit land - A decree for injunction as well as for removal of construction granted against the defendant - First appeal dismissed - Second appeal filed - Held - In such a situation Court has ample power to restore the position as it existed on the date of suit because no one can be permitted to take undue advantage of the court proceedings by making wrong submissions - Appeal dismissed : Nagarpalika Parishad, Shivpuri Vs. Mohan Singh Sisodiya, I.L.R. (2009) M.P. 3395 7. What amounts to discharge, variance or setting aside of the order of temporary injunction?
- Section 151, Order 39 Rule 4 - Order of injunction may be discharged, varied or set aside - What amounts to - Plaintiff claiming 1/3rd share in the suit property - Order of temporary injunction restraining the defendant from alienation has attained finality - One of defendants being patient of heart disease, diabetes and blood-pressure required substantial money for medical treatment and survival - Held - In such a situation, S. 151 CPC may be invoked and plaintiff may be directed to choose the best 1/3rd for protection of his interest so as to enable him to reap the fruits of the decree in case of success - This will not amount to discharge, variance or setting aside of the order of temporary injunction because the same is protected in letter and spirit : Tilak Pradhan Vs. Smt. Ranjana Pradhan, I.L.R. (2010) M.P. Note *39 (DB) 8. When compromise decree can be challenged ?
- Section 151, Order 23 Rule 3 - Decree obtained fraudulently - Aggrieved party can file civil suit or appeal or application in the same court to assail it : Gulam Husain Vs. Arshad Iqbal, I.L.R. (2009) M.P. 1642 (DB) Civil Procedure Code (5 of 1908) 79
- Section 151, Order 23 Rule 3 - When one cannot challenge compromise decree u/s 151 CPC - Compromise decree directing specific performance of agreement to sell the land - Decree challenged by way of application u/s 151 CPC on the ground that petitioners have purchased the land vide registered sale deed and are in possession of land but not impleaded as party in the suit - Application rejected - Held - Prima facie from sale deed it appears that under the sale deed the amount of loan was secured - Petitioners did not take step for getting their names mutated for a period of 29 to 30 years - Untill & unless it is proved that it was not executed as collateral security for loan it cannot be said that fraud has been played in obtaining compromise decree - It would be appropriate to relegate petitioners to file a civil suit : Gulam Husain Vs. Arshad Iqbal, I.L.R. (2009) M.P. 1642 (DB)
● - Section 152 - Scope - A decree was passed against respondent No.2 - At the stage of execution proceedings, respondent No.1 has filed objection stating that he was not the proprietor of respondent No.2 and hence not liable to honour the decree - Held - High Court was not right in holding that the only course available to the appellant was to seek amendment of the decree u/s S. 152 - S. 152 makes it clear that the power of Court under the said provision is limited to rectification of clerical and arithmatical errors arising from any accidental slip or omission - There cannot be reconsideration of the merits of the matter : Century Textiles Industries Ltd. (M/s) Vs. Deepak Jain, I.L.R. (2009) M.P. 3241 (SC)
- Section 152 - A decree for specific performance does not contain a direction for delivery of possession - Such direction can be issued even by Executing Court : Abdul Hameed Vs. Shahjahan Begum, I.L.R. (2008) M.P. Note *1
- Section 152 - Amendment of judgments, decrees or orders - A decree for specific performance of contract to execute sale deed passed in favour of plaintiffs - No decree for possession was passed in spite of specific relief claim by the plaintiffs - It is a accidental slip or omission in decree - Can be amended in exercise of power U/s 152 : Abdul Hameed Vs. Shahjahan Begum, I.L.R. (2008) M.P. Note *1
- Section 152 - Review - Clerical or Arithmetical error-1103/14 mentioned as House No. in plaint - Whereas in judgment passed by Additional District Judge House No. mentioned is 113/14 - Application for review rejected by Court below - Held - Accidental Slip or omission can be corrected at any time by Court either at its own motion or on application of party - It is gathered from plaint that house number 1103/14 is mentioned - It was incumbent upon the Court below to correct the said error - Correct No. of House is held to be 1103/14 - Revision allowed : Smt. Sarojini Mahule Vs. Kailash Chandra Vishwakarma, I.L.R. (2007) M.P. 1456 Civil Procedure Code (5 of 1908) 80
- Order 1 Rules 3 & 9 - Non impleadment of parties - Maintainability - Suit for redemption of mortgage - Two married daughters of one of mortgages (Nandram) not impleaded - Trial Court found that married daughters had no interest so in their absence suit decreed - First Appellate Court affirmed the judgment of Trial Court - But High Court allowed Second Appeal on ground of non-joinder of necessary parties i.e. two married daughters - Held - Estate of late Nandram, one of mortgages was sufficiently and in a bonafide manner represented by his two sons (defendants) - There was no fraud or collusion between them and plaintiffs - Accordingly decree that would be passed against both sons of Nandram, as heirs and LRs of Nandram also binds the estate even though two married daughters who may be interested in the estate were not brought on record : Mohd. Hussain (dead) by LRs Vs. Occhavlal, I.L.R. (2008) M.P. 647 (SC)
- Order 1 Rule 3-B - Necessary party to suit - Suit in respect of agricultural land but State of M.P. not impleaded as party and trial Court and first appellate Court passed judgment & decree - State of M.P. impleaded as party in second appeal - Held - No interim or final prayer made against the State of M.P. - Courts below did not commit an error in entertaining the suit in absence of State of M.P. : Sitara (Smt.) Vs. Hemchand, I.L.R. (2010) M.P. 1786 - Order 1 Rule 8 & Order 23 Rule 3 - Compromise in representative suit - Suit for injunction filed in representative capacity - During pendency, suit compromised by some plaintiffs - Compromise signed by counsel and not by all plaintiffs - Trial Court rejected application to record compromise - Held - Compromise signed by counsel was valid as nobody raised objection even after publication of notice in newspaper - Trial Court has exercised jurisdiction vested in it improperly and acted illegally or with material irregularity - Order set-aside - Revision allowed : Indian Oil Corporation Ltd. Vs. Ramesh, I.L.R. (2008) M.P. Note *66 SYNOPSIS : Order 1, Rule 10
1. All the partners of the 3. No interest in property firm are necessary party 4. Second Appeal 2. Applications under 5. Subsequent application for Order 22 Rule 4, 9 & 11 withdrawn impleadment of same party - Applicantion under Order 1 Rule 10 not maintainable
1. All the partners of the firm are necessary party
- Order 1 Rule 10, Order 30 - See - Accommodation Control Act, M.P. 1961, Section 12(1)(a), (c) & (f) : Babulal Birla (Dead) Through LRs. Smt. Krishna Devi Vs. Ram Prakash Sharma, I.L.R. (2008) M.P. 2646 Civil Procedure Code (5 of 1908) 81
2. Applications under Order 22 Rule 4, 9 & 11 withdrawn - Applicantion under Order 1 Rule 10 not maintainable
- Order 1 Rule 10, Order 22 Rule 4, 9 - Substitution of Legal Heirs - Application under Order 22 Rule 4, 9 along with application under Section 5 of Limitation Act and setting aside abatement filed - Applications subsequently withdrawn with liberty to file application under Order 1 Rule 10 if law permits - Held - After withdrawal of applications filed under Order 22 Rule 4, 9 & 11, appellant has no authority to bring such heirs on record under Order 1 Rule 10 r/w Order 22 Rule 10 - Application under Order 1 Rule 10 dismissed - Appeal stands abated against dead defendant/respondent : Anoop Choudhary Vs. Smt. Usha Bhargava, I.L.R. (2008) M.P. 1763 3. No interest in property
- Order 1 Rule 10, Transfer of Property Act, 1882, Sections 53A & 54 - Suit for eviction - Application for impleading as defendant on the strength of oral agreement of sale - Rejection - Writ Petition - Held - To claim plea of part performance, written contract is essential - The contract for sale of immovable property by itself does not create any interest or charge in property - No interest created in property - Petitioner not entitled to be impleaded as party - Petition dismissed : Govind Prasad Dubey Vs. Chandra Mohan Agnihotri, I.L.R. (2009) M.P. 2228 (DB) 4. Second Appeal
- Order 1 Rule 10 - Application for impleadment during pendency of Second Appeal - Suit for declaration of title of pond against State - Applicants claiming customary rights to take water from pond - Separate suit filed by applicants is also pending - Application for impleadment already rejected by the trial Court and rejection order of trial Court attained finality - Held - Applicants claiming independent right and issue raised is foreign to present controversy in appeal - Application can not be allowed, hence rejected : State of M.P. Through Collector, Dhar Vs. Vinayak Rao, I.L.R. (2010) M.P. 2154
- Order 1 Rule 10, Order 41 Rule 20 - Application under Order 1 Rule 10 CPC filed in second appeal after a period of 15 years from the date of filing of the appeal - No application u/s 5 of Limitation Act has been filed alongwith the application for condonation of delay - Application rejected as not maintainable : Shanti (Smt.) Vs. Lakshman, I.L.R. (2009) M.P. 471
- Order 1 Rule 10, Order 41 Rule 20 - Impleadment of necessary party - Two plaintiffs and one defendant, who were parties before the first appellate court, have not been impleaded as party in second appeal - Order 1 Rule 10 cannot be made applicable Civil Procedure Code (5 of 1908) 82 and only recourse to Order 41 Rule 20 could be taken by appellant : Shanti (Smt.) Vs. Lakshman, I.L.R. (2009) M.P. 471
- Order 1 Rule 10, Order 41 Rule 20 - Impleadment of necessary party - Two plaintiffs and one defendant, who were parties before the first appellate court have not been impleaded as party in second appeal - Such parties who were contesting the matter before the trial court and first appellate court were necessary parties in second appeal - Because of non-impleading of these necessary parties second appeal cannot proceed - Appeal dismissed without deciding the substantial questions of law : Shanti (Smt.) Vs. Lakshman, I.L.R. (2009) M.P. 471 5. Subsequent application for impleadment of same party
- Order 1 Rule 10 - Impleadment of party - Defendant / Petitioner raised the objection about non-joinder of necessary party and issue framed on that basis was decided in favour of plaintiff - Subsequent application by plaintiff for impleadment of same party - Held - The prayer could not be allowed without considering the effect of earlier order deciding the preliminary issue : Mankunwarbai Vs. Vinod Kumar, I.L.R. (2010) M.P. Note *83 (DB)
● - Order 2 Rule 2(3) - Effect of grant of leave to file the suit for any relief so omitted - Trial Court dismissed the suit but leave was granted to file a fresh suit for damages - In appeal, High Court held that plaintiff may file a suit against defendants for damages in which the defendants would be debarred from raising the plea of limitation - Fresh suit was filed for damages - Defendants have taken the plea of limitation - Held - Previous decision has attained finality in which permission was granted to file fresh suit - The previous judgment & decree gives a right to plaintiff to maintain the suit and debars the defendant to raise the plea of limitation : Hindustan Motors Ltd. (M/s.) Vs. D.R. Motors (M/s.), I.L.R. (2010) M.P. 215 (DB)
- Order 3 Rule 1, Bar Council of India Rules, Rule 13 - Counsel on behalf of plaintiff has been cited as witness - His affidavit also filed in support of him - Held - The factum of Will is a material fact in case, whether it is disputed or not is a different thing - The Will has been reduced in writing by the counsel, consequently he may be aware of several facts, consequently, he should not continue as a counsel in the case : Rajendra Nagrath Vs. Col. V.L. Vohra, I.L.R. (2009) M.P. 1004 (DB)
- Order 3 Rules 1 & 2 - Evidence of power of attorney - Defendant did not step into witness box - Held - All acts were done for defendant by her attorney - No independent act was done by the defendant - Deposition of attorney can very well be considered : Anokhilal Vs. Seema Chordia (Ku.), I.L.R. (2009) M.P. 1060 Civil Procedure Code (5 of 1908) 83
- Order 3 Rule 2 - Power of attorney - Power of attorney holder of the plaintiff may appear and depose only about the facts which are within his knowledge and he cannot appear on behalf of plaintiff to depose about the facts which are exclusively within the personal knowledge of plaintiff : Sahibram Dhingra (Died) Through L.R. Narendra Dhingra Vs. Shivshankar Goyal, I.L.R. (2009) M.P. 3151
- Order 3 Rule 4 - Advocate witness - Whether Counsel can subsequently appear as a witness - Held - Advocate accepting, brief and conducting matter knowing full well that he is likely to be cited as witness on material point - He cannot subsequently withdraw from suit and appear as witness : Jhanak Vs. Santosh @ Monu, I.L.R. (2008) M.P. 310 (DB)
- Order 5 Rule 2 & 20 - Ex parte decree - Summons not accompanied by copy of plaint - Copy of summons not affixed on conspicuous place in court house - Held - Mandatory provisions under Order 5 Rule 2 & 20 not complied - Summons not duly served upon the appellant - Ex parte decree set-aside - Appeal allowed : Jamshed Bahadur Vs. Smt. Rashida Bee, I.L.R. (2009) M.P. 1094
- Order 5 Rule 15, Motor Vehicles Rules, M.P. 1994, Rule 240 - Where service may be on an adult member of defendant's family - Process Server served the notice of non-applicant on her major son who was not residing with her - Not valid service within the meaning of Order 5 Rule 15 of Code - Ex parte award set-aside with the direction to decide claim case on merits - Appeal allowed : Sumitra Bai Vs. Shyam Lal Sen, I.L.R. (2009) M.P. 495
- Order 5 Rule 17 & Proviso [Added by M.P.H.C.] - Service of notice - Refusal to accept summon/notice - Held - Refusal to accept summon/notice may be treated as service by virtue of proviso added in Order 5 Rule 17 in the State of M.P. when issued against special process - In case of ordinary process, affixation is to be made despite refusal : Shivraj Singh Chauhan Vs. Rajendra Kumar, I.L.R. (2010) M.P. 247
- Order 6 Rule 2 & Section 151, Specific Relief Act, 1963, Section 34 - Without any prayer or pleading - Decree of possession passed - Permissibility - Suit for declaration & perpetual injunction decreed - Lower appellate Court in exercise of power conferred u/s 151 CPC passed additional decree of possession - Held - In absence of pleading or prayer, decree for possession could not be granted by invoking the provision u/s 151 CPC : Kanaklata Vs. Subhadra, I.L.R. (2010) M.P. 433
- Order 6 Rule 2, Easements Act, 1882, Section 13(a) - Pleading - Suit for perpetual injunction that plaintiff is the exclusive owner of the wall adjoining with the defendants house - Trial Court held that the wall is a common wall - Lower appellate Court held that defendant No.4 had acquired an easement right of necessity of such wall - Held - Civil Procedure Code (5 of 1908) 84
No case of easement right was put forth by defendant No.4 before the Court below - In absence of pleadings even if evidence is adduced on record then such evidence cannot be looked into for giving relief to either of the parties - Finding given by the lower appellate Court set-aside - Appeal allowed : Phula Bai (Smt.) Vs. Krishna, I.L.R. (2009) M.P. 1721
- Order 6 Rule 2 - Pleading - Tenant's contention that there was a absence of precise pleading regarding non-payment of arrears of rent despite service of demand notice - Eviction decree on the ground of Section 12(1)(a) cannot be passed - Held - It is clear from plaint averments that tenant failed to pay or tender arrears of rent despite service of demand notice - Thus, parties were alive to the controversy and accordingly conducted their case - Trial court had framed issues also in this regard - Finding of trial court in respect of non-payment of arrears of rent affirmed - Appeal dismissed summarily : Sujanmal Vs. Kailash Chandra Agarwal, I.L.R. (2008) M.P. 3243
- Order 6 Rule 2 - Variance between pleading and proof - A case can not be based on grounds outside plea of parties - Case which is pleaded that has to be found - Appellate Court can not make out a new case which is not pleaded - The case of deriving title in suit property on account of partition is totally lacking from pleadings - Decision can not be passed outside the pleadings - Pleadings in plaint, plaintiff has acquired Bhumiswami right by adverse possession - To prove this pleading no evidence has been laid by plaintiff - Judgment and decree passed by First Appellate Court set aside and that of Trial Court restored : Ramrani Vs. Durga Bai, I.L.R. (2008) M.P. Note *25
- Order 6 Rule 4 - Executing court held that the eviction decree is tainted with fraud and is unexecutable - Alleging fraud has grave consequences and when relied upon as a cause of action or defence, fraud must be specifically alleged with all material particulars - Objectors knew about the execution and registration of the sale deed but they did not take any steps to challenge the sale deed - There is no foundation in the pleadings or evidence to sustain the charge of fraud - Executing court acted beyond jurisdiction - Revision allowed : Ratan Kumar Banjara Vs. Kantabai, I.L.R. (2009) M.P. 251
- Order 6 Rule 4 - Pleadings - Burden of proof - The burden of establishing that the forum of choice is a forum non-convenience or the proceedings therein are oppressive or vexatious would be on the party so contending to aver and prove the same : State Bank of India Vs. Bank of Ireland, I.L.R. (2010) M.P. 924
- Order 6 Rule 7 & Order 20 Rule 4 - Pleadings & Proof - Civil litigation proceeds on pleadings of parties and proof thereof except the facts and law which may be taken judicial note of - Decision of a case cannot be based on grounds outside the pleadings of the parties : Ikrar Mohammad Vs. Isub Khan, I.L.R. (2010) M.P. 447 Civil Procedure Code (5 of 1908) 85
- [As amended], Order 6 Rule 15(4) - Verification of pleadings - Written statement containing admissions duly signed and verified by the defendants and equally duly attested by the advocate - Not accompanied by affidavit - Application pointing out such defect was not filed in the trial Court - Defendant not objecting but allowed the trial Court to proceed with such written statement - Held - Written statement not invalid : Sunil Kumar Vs. Dr. Om Prakash Garg, I.L.R. (2010) M.P. 960 SYNOPSIS : Order 6, Rule 17
1. Against rejection of amendment 5. Amendment-Likely to oust (application) and dismissal of suit jurisdiction of the Court - No appeal lie 6. Commencement of Trial 2. Amendment to explain facts - 7. Futile or Frivolous Allowed amendment 3. Amendment of W.S. - Principles 8. New case - Amendment 4. Amendment of Writ Petition disallowed when allowed 9. Subsequent events
1. Against rejection of amendment (application) and dismissal of suit - No appeal lie
- Order 6 Rule 17, Constitution of India. Article 227 - Order rejecting application under Order 6 Rule 17 and consequently dismissing suit is not appealable order - Appeal before First Appellate Court was not maintainable - However, High Court under Aritcle 227 of Constitution of India can invoke its power to set right the error and prevent gross injustice : Amar Singh Vs. Pooran, I.L.R. (2007) M.P. 521 2. Amendment to explain facts - Allowed
- Order 6 Rule 17 - Petition challenging the order of amendment permitting plaintiff to amend relief clause by inserting relief of vacant possession of plot after demolition of construction - Held - The amendment necessary for the just decision of this case - By inserting amendment, nature of the suit is not changed - On the contrary, relief clause has become very specific by allowing such amendment - Petition dismissed with costs : Ratna Shrivastav (Smt.) Vs. Mr. M.M. Bhargava, I.L.R. (2010) M.P. 2132 (DB)
- Order 6, Rule 17 - A party to the lis has right to move application until case is decided - By amendment plaintiff seeking introduction of averments as to readiness and Civil Procedure Code (5 of 1908) 86 willingness to perform his part of contract - Could be allowed even at appellate stage in a suit for specific performance - No error committed by trial court in allowing the application: D.K. Sheorey. Vs. Anup Kumar Jain, I.L.R. (2006) M.P. 1283
- Order 6 Rule 17, Order 13 Rule 2 - Application for amendment and for production of document - By way of applications facts pleaded sought to be further explained - Do not cause injustice as it does not take away any legal right accrued to the petitioner - Discretion exercised is in accordance with law - No interference called for: Kishorilal Vs. Balkishan, I.L.R. (2006) M.P. 197 3. Amendment of W.S. - Principles
- Order 6 Rule 17 - Principles - Amendment of plaint & amendment of written statement are not necessarily governed by exactly the same principles though some general principles are common to both but the rule that the plaintiff cannot be allowed to amend the pleadings so as to alter materially or substitute his cause of action of the nature of his claim as necessarily no counter part in law related to written statement - The courts are inclined to be more liberal in allowing the amendment of the written statement than of plaint and question of prejudice is less likely to operate on the same rigour in the former than the latter : Sushil Kumar Kanungo Vs. M.P. Rajya Sahkari Bank Maryadit, I.L.R. (2008) M.P. 2238 4. Amendment of Writ Petition when allowed
- Order 6 Rule 17 - See - Constitution, Article 226 : Reshma Philip Vs. State of M.P., I.L.R. (2008) M.P. 1366 (DB) 5. Amendment-Likely to oust jurisdiction of the Court
- Order 6 rule 17 - Amendment - Likely to result in ouster of jurisdiction of Court - Proper course is to allow amendment and then return amended plaint for presentation before proper Court : Krishna Kumar Khandelwal Vs. Mangal Prasad, I.L.R. (2006) M.P. 973 (DB) 6. Commencement of Trial
- Order 6 Rule 17 - Amendment - Once the trial is commenced, no application for amendment can be allowed unless the Court comes to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial : Mankunwarbai Vs. Vinod Kumar, I.L.R. (2010) M.P. Note *83 (DB)
- Order 6 Rule 17 - Amendment of pleadings - Permissibility - Plaintiff had not filed evidence on affidavit and filed application for amendment - Held - Proviso to Civil Procedure Code (5 of 1908) 87
Order 6 Rule 17 CPC will not come into play, if the trial, is not commenced : Jaspreet Kaur (Smt.) Vs. Ramkrishna, I.L.R. (2010) M.P. 1939 (DB) 7. Futile or Frivolous amendment
- Order 6 Rule 17 - Amendment - After casting of issues and recording of some evidence - Amendment application moved that in view of arbitration clause, the matter was required to be referred to arbitration for final decision - Rejection - Held - If the amendment is an infructuous amendment or futile, the same has to be looked into by the Court before granting such application - Objections relating to arbitration clause and reference are to be raised on the first available opportunity - If application for amendment is allowed, even thereafter, objection of maintainability could not be raised - No error in rejecting application - Petition dismissed : M.P. Rajya Tilhan Utpadak Sahkari Sangh Vs. Mahaveer Pd. Mishra, I.L.R. (2009) M.P. Note *26 (DB)
- Order 6 Rule 17, Accommodation Control Act, M.P., 1961, Section 12(1)(f) - Trial court passed the decree against tenant on the ground of Section 12(1)(f) of the Act - Tenant filed application under Order 6 Rule 17 CPC before First Appellate Court that landlord purchased shop in the name of his brother, in which landlord was carrying on business and necessity, if any, had came to an end - First Appellate Court considering the merits of the application rejected it - Held - Merely an application was filed alleging certain facts against the landlord by itself was not sufficient to set-aside the judgment & decree and remand the case - First Appellate Court after considering the registered sale deed and licence issued by Municipal Corporation found that application was frivolous and grounds stated in the application needs not to be enquired into - No error found in order : Subhash Chand Jawa Vs. Subhash Gupta, I.L.R. (2008) M.P. 2388 8. New case - Amendment disallowed
- Order 6 Rule 17 & Order 41 Rule 27 - Plaintiffs intending to probe an enquiry as regards the sale deed for proving the title - Held - When the relationship between landlord and tenant has been proved on the basis of documents and receipts - An extensive enquiry in respect of title in favour of a person other than a person named in the sale deed cannot be permitted - Eviction suit cannot be permitted to be converted into a title suit - Applications rightly dismissed : Satya Prakash Vs. Bhagwan Das, I.L.R. (2010) M.P. 2603
- Order 6 Rule 17, Representation of the People Act, 1951, Section 87 - Amendment in the election petition - Permissibility - Held - The election petition can not be allowed to be amended, under Order 6 Rule 17 CPC r/w S. 87 of the Act, by inserting a new claim that had already become barred by limitation on the date of the Civil Procedure Code (5 of 1908) 88 corresponding application : Rampal Singh Vs. Devendra Patel, I.L.R. (2009) M.P. 2915
- Order 6 Rule 17 - Amendment of Plaint - Suit filed for eviction under Section 12(1)(a) and (c) - By amendment relief for declaration of title and possession sought - Held - By amendment a new case or new cause of action cannot be allowed to be settle - Plaintiff cannot be allowed to convert his original claim into one of different character - Application for amendment rejected : Krishnarao Kavdikar (dead) through his LRs. Ullas Kavdikar Vs. Smt. Sadhna Khanvalkar, I.L.R. (2008) M.P. 1207 9. Subsequent events
- Order 6 Rule 17 - See - Accommodation Control Act, M.P., 1961, Section 12(1)(f) : Kamla Bai (Smt.) Vs. Smt. Preeti Raizada, I.L.R. (2010) M.P. 603 (DB)
- Order 6 Rule 17 - Amendment of pleadings - Defendants filed an application seeking amendment in W.S. by bringing on record an order passed by Additional Commissioner and filing of another appeal - Application disallowed - Held - Defendants want to bring on record the subsequent events which in fact are undisputed - Such facts are required to be brought on record to do complete justice to the parties - Plaintiffs cannot be allowed to take advantage of their own doings by saying that such facts are not required to be brought on record : Ravindra Prakash Vs. State of M.P., I.L.R. (2009) M.P. 3144 (DB) SYNOPSIS : Order 7, Rule 11
1. Effect of discontinuance 4. Mohammedan Law of suit on counter claim 5. Scope 2. Legal Notice 6. Valuation of suit property 3. Maintainability of suit 7. Want of cause of Action
1. Effect of discontinuance of suit on counter claim
- Order 7 Rule 11(d) & Order 8 Rule 6-D - Rejection of plaint - Effect of discontinuance of suit - Civil suit dismissed for want of prosecution - Application under Order 7 Rule 11(d) for rejection of counter claim made - Trial Court rejected the application - Held - Counter claim filed by defendants setting up his claim against plaintiffs and co-defendants - If the suit is discontinued subsequently for one reason or the other, the counter claim does not come to an end and it can be proceeded with - Counter claim Civil Procedure Code (5 of 1908) 89 does not appeared to be barred by any law - No jurisdictional error or illegality or material irregularity found in order - Revision dismissed : Om Prakash Malviya Vs. Shambhunath Singh, I.L.R. (2009) M.P. 3449 2. Legal Notice
- Order 7, Rule 11, Co-operative Societies Act, M.P., 1961, Section 94 - Legal Notice to Registrar Co-operative Societies - Trial Court dismissed the suit for want of notice under Section 94 to Registrar Co-operative Societies - Held - Trial Court ignored the plaint averment that legal notice was served on 17.6.2003 - Dispute whether notice was given or not is a question of fact which could not be decided a preliminary issue - No averment in plaint with respect to business of defendant no.1 - Question whether notice was mandated cannot be decided as preliminary issue - Defect of notice could not have been gone into at preliminary stage - Trial Court directed to decide the question after recording evidence - Appeal allowed : Shadab Grih Nirman Sahkari Sanstha Maryadit, Bhopal Vs. Parita Grih Nirman Sahkari Samiti Maryadit, Bhopal, I.L.R. (2007) M.P. 965 (DB) 3. Maintainability of suit
- Order 7 Rule 11 & Order 14 - Maintainability of suit - Court only has to see the plaint averments and not the questions, answers of which are dependent upon the evidence : Keshav Prasad Sharma Vs. Halke Raikwar, I.L.R. (2010) M.P. 179 (DB)
- Order 7 Rule 11(d) - Rejection of plaint - Application under Order 7 Rule 11(d) as suit is barred by limitation and no relief can be granted in view of S. 58(c) of Transfer of Property Act - Application rejected - Held - Plaintiffs pleaded that the sale deed was sham & bogus and it was not to be acted upon - They have also pleaded that they went to the defendant along with the amount for re-conveyance of the property but the defendant refused to do so - In view of the pleadings, it cannot be held that there is no cause of action and suit is barred by limitation - At this stage, Court is not required to enter into the applicability of the provisions contained u/s 58(c) of T.P. Act - Question of maintainability of suit and limitation will have to be decided at the time of hearing - Petition dismissed : Keshav Prasad Sharma Vs. Halke Raikwar, I.L.R. (2010) M.P. 179 (DB)
- Order 7, Rule 11, Indian Limitation Act, - Section 14, Article 56, Co-operative Societies Act, M.P., 1961, Section 64 - Rejection of Plaint - Question of Limitation is mixed question of fact and law - Suit filed by appellant for declaration that sale deed was not binding being void - Sale deed executed on 2.12.2000 - Consideration amount was to be paid in installments by way of post dated cheques - Last installment was payable on 7.10.2002 - Cheque not handed over nor consideration amount paid in any Civil Procedure Code (5 of 1908) 90 other mode - Trial Court dismissed suit as barred by limitation while deciding it as preliminary issue - Held - It is not the case that even in case of default of one installment, entire amount became recoverable - Not possible for plaintiff to know that intention of defendant was not to make the payment in future - Suit was filed within 3 years from the date of last installment - Dispute raised by plaintiff before Registrar Co-operative Societies was dismissed for want of jurisdiction - All questions being mixed questions of facts and law could not have been decided by way of preliminary issue - Dismissal of suit as barred by time set aside - Trial Court directed to decide the issue of limitation after recording evidence : Shadab Grih Nirman Sahkari Sanstha Maryadit, Bhopal Vs. Parita Grih Nirman Sahkari Samity Maryadit, Bhopal, I.L.R. (2007) M.P. 965 (DB) 4. Mohammedan Law
- Order 7 Rule 11, Mohammedan Law - Inheritance - Suit for declaration, partition and separate possession - Dismissed on the ground that in Mohammedan Law sons of predeceased son are not entitled to claim property of their grandfather - Appellate court reversed the finding and remanded the case - Held - Suit involved mixed questions of law and fact - Property was agriculture holdings and what would be the position of devolution of agriculture holdings of a person governed by Mohammedan Law has to be decided on merits - Appellate court committed no error in remanding case - Revision dismissed : Sheikh Ikar Vs. Sheikh Shamim Ahmad, I.L.R. (2008) M.P. 3041 5. Scope
- Order 7 Rule 11 - Rejection of plaint - Duty of Court - Court is also required to see that the vexatious and frivolous litigation should not be allowed to proceed so as to kill the time of the Court for nothing : Karim Bhai Vs. State of Maharashtra, I.L.R. (2009) M.P. 3167
- Order 7 Rule 11 - Rejection of plaint - Powers of Court - A plaint shall be rejected on the grounds mentioned in the Rule, but the instances as given cannot be regarded as exhaustive of all the cases, in which the Court can reject the plaint or is limiting the inherent powers of the Court in respect thereof - Provisions are procedural and enacted with an aim and object to prevent vexatious and frivolous litigation : Karim Bhai Vs. State of Maharashtra, I.L.R. (2009) M.P. 3167
- Order 7 Rule 11(a) to (f) - When a question is beyond the scope of Order 7 Rule 11 then such question is to be raised by the defendant in his written statement : Keshav Prasad Sharma Vs. Halke Raikwar, I.L.R. (2010) M.P. 179 (DB) Civil Procedure Code (5 of 1908) 91
6. Valuation of suit property
- Order 7, Rule 11, Court Fees Act, 1870, Section 7 - Valuation of suit property - Appellant filed suit for declaration of sale-deed as void and also for possession - Sale Deed was executed for a consideration of Rs.18 lacs - Suit valued by plaintiff at Rs.18 lacs - Defendants in application under Order 7 Rule 11 raised objection that as houses have been built and other development activity has taken place the present value of property is not less than Rs.8 Crores - Trial Court held that ad valoram Court Fee on valuation of property is payable - Held - Earlier in writ petition it was directed that ad valorem Court Fee is payable on Rs.18 lacs - Whether the valuation of the land has increased is a question of fact and cannot be decided as preliminary issue - Trial Court directed to advert to question of valuation at the time of final decision if it is raised in written statement : Shadab Grih Nirman Sahkari Sanstha Maryadit, Bhopal Vs. Parita Grih Nirman Sahkari Samity Maryadit, Bhopal, I.L.R. (2007) M.P. 965 (DB) 7. Want of cause of Action
- Order 7 Rule 11 - See - Representation of the People Act, 1951, Section 86 : Mukesh Nayak Vs. Brijendra Pratap Singh, I.L.R. (2010) M.P. 420
- Order 7 Rule 11(a) - See - Representation of the People Act, 1951, Sections 83 & 86 : Shushil Kumar Khatri Vs. Sartaj Singh, I.L.R. (2010) M.P. 204
- Order 7 Rule 11(a) - Rejection of plaint - Where it does not disclose a cause of action - Mere writing that plaintiff is having cause of action would in itself is not sufficient to hold that plaintiff has disclosed the cause of action : Karim Bhai Vs. State of Maharashtra, I.L.R. (2009) M.P. 3167
- Order 7 Rule 15 - Verification of pleading - Authority to verify plaint & pleadings not denied in written statement - No other reason to disbelieve authority - Plaint held duly verified : Nav Bharat Corporation, Bombay Vs. M.P.E.B. Jabalpur, I.L.R. (2006) M.P. 600 (DB)
● - Order 8 Rule 3 & 5, Accommodation Control Act, 1961, Section 12(1)(a) - Suit for eviction - Allegation of arrears of rent - No specific denial of arrears of rent or service of notice - Even after order of trial Court to deposit arrears of rent, appellant again committed default - Application for condonation of default rejected - In absence of specific denial, the fact will be deemed to be admitted on the ground of non-traverse - Held - Appellant failed to establish denial of the landlord-tenant relationship - Decree of eviction rightly passed by two courts below - Appeal dismissed : Santosh (Smt.) Vs. Mohd. Sharif, I.L.R. (2008) M.P. 2326 Civil Procedure Code (5 of 1908) 92
- Order 8 Rule 5, Evidence Act, 1872, Section 137 - Suit for declaration - Plaintiff pleaded factum of Will by way of amendment in plaint - Affidavits of two witnesses of Will filed in support of Will - Application under Order 8 Rule 5 CPC praying that as factum of Will has not been disputed, the defendants should not be permitted to cross- examine the witnesses - Rejection - Held - Although defendants has not amended written statement as sequel to the amendment in plaint - The effect of it has to be considered at the time of final decision - Factum of Will disputed by defendants in reply of application - Defendants being adverse party has right to cross-examine the witnesses whose affidavits have been filed by plaintiff - No error in rejecting application - Writ petition dismissed : Rajendra Nagrath Vs. Col. V.L. Vohra, I.L.R. (2009) M.P. 1004 (DB)
- Order 8 Rule 6-A - Counter claim by defendant - The language of Order 8 Rule 6-A makes it clear that the counter claim solely against the co-defendants cannot be filed : Om Prakash Malviya Vs. Shambhunath Singh, I.L.R. (2009) M.P. 3449
- Order 8 Rule 6-A - Counterclaim - Counterclaim is maintainable by defendants against the claim of plaintiff not inter se defendants - However if justice demands, it can be treated as cross suit and it would be open to a Court to convert or treat the counterclaim as a plaint in a cross suit : Mukund Lal Vs. Ghanshyam, I.L.R. (2009) M.P. 2023 (DB)
- Order 8, Rule 6-A, Counter claim - Subsequent amendment in counter claim seeking recovery of money - Computation of limitation - Statutorily prescribed as the date on which counter claim is filed in the Court - Doctrine of relation back does not get attracted : Kanhaiyalal S/o Vishwambherdayal Agrawal Vs. Muktilal S/o Rameshwardas Naredi, I.L.R. (2006) M.P. 1026 (DB)
- Order 9 Rule 3 & 4, Order 7 Rule 11 & 13 - Earlier suit was dismissed in default of appearance of the parties - Apart from this, there was non-compliance of the order to make payment of deficit court fee - Subsequent suit dismissed as not maintainable - Held - If the order passed in earlier suit is treated u/O. 9 R. 3 CPC then the plaintiff can file a fresh suit u/O. 9 R. 4 CPC - If the order passed in earlier suit is treated u/O. 7 R. 11(b) CPC then it was rejection of plaint and u/O. 7 R. 13 CPC plaintiff can file a fresh suit in respect of the same cause of action subject to period of limitation - Order of dismissal of subsequent suit set-aside - Matter remanded back to trial Court : Har Prasad Sharma Vs. Smt. Nisha Sharma, I.L.R. (2009) M.P. 2965 (DB)
- Order 9 Rule 4, Limitation Act, 1963, Section 5 - On 20.11.1992 an application u/ O 9 R 13 CPC for setting-aside ex parte decree was filed - Simultaneously, regular civil appeal u/s 96 CPC was also filed on 23.02.1993 - Appeal dismissed on 30.03.1993 on account of non-appearance - Application for restoration of appeal u/O 9 R 4 CPC filed Civil Procedure Code (5 of 1908) 93 after more than 7 years i.e. on 12.02.2001 along with application u/s 5 of Limitation Act - Application dismissed being barred by limitation - Held - Appellant though was prosecuting his cause u/O 9 R 13 CPC untill 16.09.1996 and did not take appropriate steps for its restoration which is quite indicative of negligence as well as inaction and want of bonafide on his part - No sufficient cause for not preferring the application for restoration of appeal at earlier stage - Appeal dismissed : Shaikh Khalil Vs. Shaikh Jamil, I.L.R. (2009) M.P. 1048
- Order 9 Rule 7 - Ex parte order - Setting aside of - The trial Court ought to have taken a lenient view in the matter in setting aside the ex parte order as the object of Order 9 CPC is not penal in nature : Ujjwal Kesari Vs. Shri Krishna Gupta, I.L.R. (2010) M.P. 2538 (DB)
- Order 9 Rule 9 - Earlier suit for declaration of title dismissed under Order 9 Rule 8 - In subsequent suit cause of action is based on same set of facts - Held - Plaintiff is precluded from filing fresh suit on same cause of action in view of Order 9 Rule 9 - Judgment of the trial Court affirmed - Appeal dismissed : Karuna Chaturvedi (Smt.) Vs. Smt. Sarojini Agarwal, I.L.R. (2009) M.P. 2935 (DB)
- Order 9 Rule 9 - Dismissal of Claim Petition for default of appellant's counsel - Party should not suffer due to the mistake of Counsel : Tikaram Sen Vs. T. Sandhya Rani, I.L.R. (2008) M.P. Note *12
- Order 9 Rule 9 r/w M.P. Motor Vehicles Rules, 1994, Rule 240 - Application for restoration of Claim Petition - Case fixed for awaiting service report of notices issued to respondents - Claim Petition could not be dismissed for want of prosecution : Tikaram Sen Vs. T. Sandhya Rani, I.L.R. (2008) M.P. Note *12
- Order 9 Rule 9 & Order 43, Motor Vehicles Act, 1988, Section 104, Motor Vehicles Rules, M.P. 1994, Rule 240 - Application for restoration under Order 9 Rule 9 CPC rejected by the MACT - No appeal would lie under Order 43 : Sharad Kumar Mishra Vs. Shriram Transport Finance Company Ltd., I.L.R. (2010) M.P. 2170 SYNOPSIS : Order 9, Rule 13
1. Limitation 3. Principles of natural justice 2. Powers of Court 4. Probate proceedings 5. Service of summons
1. Limitation
- Order 9 Rule 13 - See - Limitation Act, 1963, Section 5, Article 123 : Bhagmal Vs. Kunwar Lal, I.L.R. (2010) M.P. 2252 (SC) Civil Procedure Code (5 of 1908) 94
- Order 9, Rule 13, Limitation Act, 1963, Section 12 Art. 123 - Application for setting aside ex-parte decree - Limitation - Application for setting aside ex-parte decree to be filed within 30 days - Provisions of Section 12 and exclusion contained therein will not apply to a proceeding under Order 9 Rule 13 C.P.C : Mohan @ Munna Pachari Vs. Jagdish Chandra Dubey, I.L.R. (2008) M.P. 1402
- Order 9, Rule 13 - Setting aside ex-parte decree - Plaintiff filed a suit for enforcement of Bank Guarantee - Appellant/Defendant bank did not appear in spite of service of notice - Ex parte Decree passed on 25.8.1998 - Appellant filed application for setting aside ex-parte decree on 3.3.1989 disclosing that summon was not accompanied by copy of plaint - Bank came to know about passing of ex-parte decree on 4.2.1989 - Application for setting aside ex-parte decree dismissed in default - Another application filed on 27.8.1990 for setting aside ex-parte decree stating the date of knowledge of decree as 24.8.1990 - Application rejected by Trial Court - Appeal also dismissed by High Court - Held - Trial Court rejected second application as barred by time in view of contradictions in two applications regarding date of knowledge - Second Application for setting aside ex-parte decree not maintainable as first was already dismissed - Not proper to interfere with the orders under challenge - Appeal dismissed : Ghaziabad Urban Co-op. Bank Ltd Vs. State of M.P., I.L.R. (2007) M.P. 730 (SC) 2. Powers of Court
- Order 9 Rule 13 - Setting aside decree ex parte against the defendant - Powers of the Court - Held - Court will have ample jurisdiction to set aside the ex parte decree subject to the statutory interdict and there exists no statutory bar in setting aside an ex parte decree in Order 9 Rule 13 of CPC : Sohanlal Vs. Smt. Manju, I.L.R. (2010) M.P. 1672
- Order 9 Rule 13 - Setting aside Exparte decree - Powers of the Court - When an application under Rule 13 of Order 9 of the Code of Civil Procedure is filed then the Court entertaining such application is always entitled to exercise all its inherent powers - Court may pass such orders which are required to be passed in the matter to avoid abuse of the process of law : Parikshit Vs. M.P. Rajya Sahakari Bank Maryadit Nihalpur Branch, Indore, I.L.R. (2010) M.P. 1701 (DB)
- Order 9 Rule 13 - Setting aside Exparte decree - Proper remedy when application is allowed or rejected - Held - Under the provisions of the Code of Civil Procedure when an application under rule 13 is rejected an appeal under Order 43 Rule 1 of the Code of Civil Procedure would be maintainable but, if the application is allowed then the other side would have no right to an appeal but the matter can be challenged under Section 115 C.P.C. or under Article 227 of the Constitution of India : Parikshit Vs. M.P. Rajya Sahakari Bank Maryadit Nihalpur Branch, Indore, I.L.R. (2010) M.P. 1701 (DB) Civil Procedure Code (5 of 1908) 95
- Order 9 Rule 13 - Setting aside Exparte decree - Stay of the order - Powers of the Court - Held - The Court dealing with the application filed under Order 9 Rule 13 C.P.C. would be entitled to stay the effect and execution of the decree/award - It shall be within the jurisdiction of the said Court to grant or not to grant stay but while deciding the application filed under Rule 13 Order 9 C.P.C. the Court has to record a positive finding that there exist a sufficient cause or there was no sufficient cause : Parikshit Vs. M.P. Rajya Sahakari Bank Maryadit Nihalpur Branch, Indore, I.L.R. (2010) M.P. 1701 (DB) 3. Principles of natural justice
- Order 9 Rule 13 - Setting aside decree ex parte against the defendant - Principles of natural justice - Held - Principles of natural justice could not be pressed into service at the touchstone of statutory provisions of the CPC but all the Courts would be having power to set aside an ex parte order on the ground of failure of principle of natural justice - Wife had been proceeded ex parte right from the inceptive stage of the divorce proceedings, the principle of natural justice of audi alteram partem have been violated as the Wife has not been afforded an opportunity of hearing : Sohanlal Vs. Smt. Manju, I.L.R. (2010) M.P. 1672
- Order 9 Rule 13 - Setting aside Ex parte decree - Defendant appeared and filed his written statement - Suit transferred to another Court - Transferee Court did not issue notice and passed exparte decree - Held - Such decree is a nullity - Ex parte decree set aside - Appeal allowed : Ramgulam @ Sadhu Patel Vs. Bhagwat Prasad Patel, I.L.R. (2010) M.P. 1685 (SC) 4. Probate proceedings
- Order 9, Rule 13, Succession Act, 1925, Sections 263, 268 - Whether provisions of Order IX Rule 13 C.P.C. are applicable in respect of setting aside ex parte order in probate proceedings - Applicant filed application for grant of probate on the basis of will allegedly executed in his favour by husband of respondent - Summons issued to respondent were received back with endorsement that she has refused to accept the same - Ex parte order was passed - Respondent filed application for setting aside ex parte order on the ground that no summon was tendered or served on her - Applicant objected the maintainability of application for setting aside ex-parte order - Held - Section 268 of Act, 1925 provides that proceedings regarding grant of probate and letters of administration shall be regulated so far as the circumstances of case permit, by C.P.C. - Section 263 of Act, 1925 gives wide power to Court to revoke or annul a grant for just cause - Though provision of O. 9 of C.P.C. not been made applicable but Section 263 provides that grant of probate may be revoked or annulled for just cause - Non service Civil Procedure Code (5 of 1908) 96 of summons or defected service or fraudulent service are just cause within meaning of Section 263(a) of Act, 1925 - In order to show sufficient cause for defendant for non appearing before Court, the provisions of O. 9 Rule 13 read with Section 263 of Act, 1925 can be invoked - Revision dismissed : Bablu Mandal Vs. Smt. Vandana Bhowmik, I.L.R. (2008) M.P. 180 5. Service of summons
- Order 9 Rule 13 - Setting aside decree ex parte against the defendant - How can be exercised - No appeal preferred against ex parte decree of divorce - Summons not properly served - Held - No appeal was preferred against the ex parte decree by the wife and the Court not only on account of irregularity in the service of summons exercised powers under Order 9 Rule 13 of CPC, but it has exercised its powers, while liberally construing the provisions, while setting aside the ex parte decree of divorce : Sohanlal Vs. Smt. Manju, I.L.R. (2010) M.P. 1672
- Order 9 Rule 13 - Setting aside decree ex parte against the defendant - When can be exercised - A perusal of Rule 13 of Order 9 of CPC reveals that there exist certain exigencies, in which a Court can pass an order of setting aside an exparte order/ decree, where firstly the Court has to record its satisfaction that the summons was not duly served and secondly that the defendant/litigant was prevented by any sufficient cause from appearing before the Court, however in other situations also, the Court can pass suitable orders for setting aside the decree on such terms and costs which the Court may deem fit : Sohanlal Vs. Smt. Manju, I.L.R. (2010) M.P. 1672
- Order 9 Rule 13, Order 5 Rule 9, Motor Vehicles Rules, M.P. 1994, Rule 240 - Setting-aside ex parte decree - Presumption of service of summons - In claim case service of summons was made by registered post acknowledgment - Summons were received back with noting of postman that "refused to take notice" - Held - It is not always necessary to produce the postman who tried to effect service - Appellant in his evidence admitted that he had knowledge about the case and also tried to compromise the matter - Looking to the evidence of appellant and conduct of the appellant himself presumed that there was service of notice on appellant and appellants deliberately did not appear before the Claims Tribunal - Lower court has not committed any error in rejecting the application for setting-aside the ex parte award : Harisingh Vs. Kallobai, I.L.R. (2009) M.P. 497
● - Order 11, Rules 1 to 11, 12, 15 to 18 [As amended w.e.f. 01.02.1977] and Order 11 Rule 21 - Non-compliance with order for discovery - Non-compliance of order to answer interrogatories, or for discovery or inspection of documents by plaintiff - In this situation, only on an application and that too after giving notice to the parties and giving Civil Procedure Code (5 of 1908) 97 them reasonable opportunity of being heard - Court can dismiss the suit, exercising power under Order 11 Rule 21 : Archdiocese of Bhopal Regd. Society Vs. Hasan Kabir, I.L.R. (2009) M.P. 3351 (DB)
- Order 11 Rules 14 & 21, [As amended w.e.f. 01.02.1977] - Production of documents - Non-compliance of the order passed under Order 11 Rule 14 with respect to production of documents - Suit dismissed under Order 11 Rule 21 - Held - Legislature in its wisdom has not included in Rule 21 of Order 11 such a penal consequence due to non-compliance of order passed under Order 11 Rule 14 - Suit cannot be dismissed u/s Order 11 Rule 21 - It can be dismissed due to non-compliance of order of interrogatories, discovery or inspection as envisaged under Order 11 Rule 21 : Archdiocese of Bhopal Regd. Society Vs. Hasan Kabir, I.L.R. (2009) M.P. 3351 (DB)
- Order 12 Rule 2 - Admission of document - Stage at which it is permitted - Held - The admission of a document may be made by the parties at any stage, if permitted by the Court : Mohd. Yunus Vs. Devjani, I.L.R. (2010) M.P. 2105 (DB)
- Order 12 Rules 2, 2A, 3A & 4 - Admissions of facts and documents - Stage at which it is permitted - Held - For admission of facts, the period has been specified, while for admission of the documents no such period has been specified either under Order 12 Rule 2 or 3A of CPC or in the Civil Courts Rules and Orders : Mohd. Yunus Vs. Devjani, I.L.R. (2010) M.P. 2105 (DB)
- Order 14 Rule 1 - See - Wakf Act, 1995, Sections 6-A (As amended by M.P. Amendment) & 54 : Asif Ansari Vs. Waqf Mahal Umrao Jehan, I.L.R. (2009) M.P. 1319 (DB)
- Order 14 Rule 1(3) - Summoning of witnesses - Reasons - When a party prays for summoning of a witness to the Court, then he has to assign sufficient and adequate reasons for seeking assistance - Inability of plaintiff to keep her witness present for cross-examination is justified reason for summoning witness : Gopaldas Renwal Vs. Smt. Deepika Jain, I.L.R. (2010) M.P. 1072 (DB)
- Order 14 Rule 1(3) - Summoning of witnesses - When plaintiff made serious efforts of bringing his witnesses to the Court, and witness expresses his unwillingness - Plaintiff left with no choice except to prefer an application for seeking assistance of Court machinery to enforce and secure the attendance of her own witness : Gopaldas Renwal Vs. Smt. Deepika Jain, I.L.R. (2010) M.P. 1072 (DB)
- Order 14 Rule 5 - Power to amend and strike out issues - Suit for declaration of title of agricultural land - Application for framing issue regarding maintainability of the suit on the pleadings that land in dispute was subject matter of the agriculture ceiling Civil Procedure Code (5 of 1908) 98 matter pending before the Competent Authority, M.P. Ceiling on Agriculture Holding Act - Application rejected - Held - Any decree passed in civil suit shall not bind the Competent Authority whether State/Commissioner are party or not a party to the civil suit - The question of maintainability of the suit will have to be decided by the Civil Court - Such issue is required to be cast and answered : Ravindra Prakash Vs. State of M.P., I.L.R. (2009) M.P. 3144 (DB)
- Order 16 Rule 6 - Summons to produce document - Court possesses power to issue summon for production of documents - On the basis of facts & circumstances, Court is required to ascertain the justification of documents sought to be summoned during the course of trial : Jogendra Singh Pal Vs. Omprakash Gupta, I.L.R. (2010) M.P. 896 (DB)
- Order 17 - See - Representation of the People Act, 1951, Section 87 : Rajkumar Patel Vs. Shivraj Singh Chauhan, I.L.R. (2009) M.P. 3063
- Order 17 Rule 1 - In election petition application of adjournment supported by medical certificate - Held - Application not supported by affidavit - Name of author of the certificate is not ascertainable and overwriting in the date of commencement of ailment - Trial had to be adjourned at the request of the petitioner on five earlier dates of hearing - It has led to a ridiculous result as the evidence of the petitioner is yet to be recorded in election trial whereas, in the meanwhile, a fresh election to the Legislative Assembly has already been held - Application rejected : Rajkumar Patel Vs. Shivraj Singh Chauhan, I.L.R. (2009) M.P. 3063
- Order 17 Rule 1, Proviso - Interpreted in the light of Salem Advocate Bar's case (2005) 6 SCC 344 - The question as to grant of further adjournment to the party, who has already been able to get hearing of the trial adjourned on three occasions, would always depend upon the facts and circumstances of each case - In other words, the process of judicial interpretation has not made the proviso totally redundant, otiose and nugatory : Rajkumar Patel Vs. Shivraj Singh Chauhan, I.L.R. (2009) M.P. 3063
- Order 17 Rule 1(1) Proviso - Trial Court refused to take on record the affidavit containing chief-examination of plaintiff's witness in the light of proviso to Order 17 Rule 1 CPC on the ground that three opportunities of evidence were already granted to the plaintiff - Held - Proviso empowers the Court to refuse adjournment if availed by a party for more than three times during hearing of the suit - Plaintiff had submitted the affidavit of her witness but didn't pray for adjournment - Thus, proviso to sub-rule (1) of Order 17 Rule 1 CPC has no application : Mayadevi Kukreja (Smt.) Vs. Meera Agrawal, I.L.R. (2009) M.P. 2858 (DB) Civil Procedure Code (5 of 1908) 99
- Order 17 Rule 1(1) Proviso, Order 18 Rule 4 - Recording of evidence - It is not obligatory on the part of a litigant to produce evidence of a fresh witness before cross- examination of the previous witness is concluded - After cross-examination the litigant may decide whether to produce further evidence or not - However, adjournment for this purpose may be refused in exercise of powers conferred by virtue of proviso to Order 17 Rule 1(1) CPC : Mayadevi Kukreja (Smt.) Vs. Meera Agrawal, I.L.R. (2009) M.P. 2858 (DB)
- Order 17 and Rule 1 and Rule 2 - Scope and object - Rider of three adjournments to check the litigant from seeking unwanted adjournments - It does not mean that the Court is powerless to grant any further adjournments, even if there is a bonafide reason - Court has to judge the genuiness for which adjournment is sought and can compensate the other party by imposing punitive cost : Nanhe Khan Vs. Geeta Bai, I.L.R. (2006) M.P. 792
- Order 17 Rule 2 - Procedure if the parties failed to appear on the day fixed - In election petition on the previous date of hearing last opportunity was given to the petitioner for recording of his evidence - However, he has not been able to make out an extreme case for grant of further adjournment - Consequently, the election petition dismissed under Order 17 Rule 2 of the Code for want of evidence : Rajkumar Patel Vs. Shivraj Singh Chauhan, I.L.R. (2009) M.P. 3063
- Order 18 Rule 4 - Affidavits - Despite opportunity to cross-examine - Defendants made no effort to cross-examine plaintiff's witnesses - It was not necessary in ex parte proceeding to bring the witness to the witness box merely for appearing and stepping down - Ex parte decree affirmed : Rasiklal Manikchand Dhariwal; And Dhariwal Industries Ltd. Vs. M/s. M.S.S. Food Products, I.L.R. (2008) M.P. 3225 (DB)
- Order 18 Rule 12 - Scope - Scope of Order 18 Rule 12 is that the demeanour can be recorded when the witness is under examination and not at a subsequent stage : Yogendra Kumar Vs. Pavan Kumar Jain, I.L.R. (2010) M.P. 415 (DB)
- Order 20 Rule 18 - Final Decree - Preliminary decree passed in a suit for partition - Applicants filed an application for execution of decree - Commissioner was appointed to give effect to preliminary decree - Report submitted by Commissioner and objections were filed by parties - Application for execution may be treated as final decree proceedings : Kamla Bai Patel (Smt.) Vs. Vidhyawati Patel, I.L.R. (2008) M.P. 1809
- Order 20 Rule 18 - Final Decree proceedings - Limitation - Proceedings for final decree can be initiated at any time - No limitation is provided therefore : Kamla Bai Patel (Smt.) Vs. Vidhyawati Patel, I.L.R. (2008) M.P. 1809 Civil Procedure Code (5 of 1908) 100
- Order 21 - Interest - Part of the decretal amount deposited after the period of limitation of one month - Interest is payable only on the amount paid after the period of limitation and not on the entire amount - Order granting interest on entire amount modified : The New India Assurance Co. Ltd., Bhopal Vs. Ram Vilash Vijayvargiya, I.L.R. (2007) M.P. 148
- Order 21 Rule 4 - Necessary parties - Decree holder and judgment debtor are necessary party in a suit challenging the title of judgment debtor by third party - Neither decree holder nor judgment debtor were joined as party - Non-joinder would make the suit statutorily bad : State of M.P. Vs. Rajendra Kumar, I.L.R. (2009) M.P. 2979
- Order 21 Rule 11 - Madhyastham Adhikaran Adhiniyam, 1983, Sections 2(d), 7,7(a),7(b), 16, 17, 18, 19 and 20 - Maintainability of execution application of award passed by Arbitrator before Civil Court - Dispute between contractor and PWD referred to Superintendent Engineer acting as Arbitrator - Arbitrator's award presented for execution before Civil Court - Civil Court has no jurisdiction unless the Arbitrator's award is adjudicated by the Arbitration Tribunal as per Section 16 - Only that award is executable by Civil Court which is passed by Arbitration Tribunal under Section 18 - Execution application not maintainable : State of M.P Vs. Manoj Sharma, I.L.R. (2006) M.P. 1620
- Order 21 Rule 29, Transfer of property Act, 1882, Section 52 - Stay of execution pending suit between decree holder and judgment debtor - Applicability of the rule to transferee lis pendente lite - Held - Rule 29 of Order 21 CPC deals with cases wherein a suit has been instituted by the judgment debtor against the decree holder and has no relevance to cases of lis pendens wherein transfer of property has been effected by the judgment debtor to a third party during the pendency of the proceedings : Dilip Kumar Vs. Vijay Bahadur Singh, I.L.R. (2009) M.P. 1408
- Order 21 Rules 54, 66 - Proclamation of Sale by Public Auction - Decree for payment of Rs.5,65,000 with interest passed against appellant/Judgment Debtor - No notice given to Judgment Debtor before attaching their property - Property auctioned without any notice to J.D. - Held - At each stage of execution of decree when property is sold, notice should be served upon person whose property is being sold - Any property sold without notice to the person is a nullity - All actions pursuant thereto are liable to be struck down - No valuation of property was carried out - No proclamation of sale was made as per provisions of M.P. Civil Court Rules and Order 21 Rule 66 - There was no publication of sale - Judgment Debtor directed to deposit Rs.15 lacs apart from the amount which he has already deposited for satisfaction of decree - On payment of amount, title to the property shall vest free of all encumbrances on appellant - Appeal allowed : Mahakal Automobiloes (M/s.) Vs. Kishan Swaroop Sharma, I.L.R. (2008) M.P. 1581 (SC) Civil Procedure Code (5 of 1908) 101
- Order 21 Rule 54, 66 & 89 - House valued more than 10 lac rupees auctioned by court in execution of ex parte decree valued Rs.75,305 - Application for setting-aside the sale on the ground of non-compliance of provisions of law - Executing court dismissed the application as barred by time - Held - Applicant was never served either in suit or in execution proceedings - In execution of ex parte decree Court ought to have extra cautions - Mandatory provisions of law were not complied - Sale set-aside on following certain terms and conditions - Appeal disposed of accordingly : Gurbej Singh Khanuja (Dr.) Vs. Union of India, I.L.R. (2009) M.P. 476
- Order 21 Rule 58 - Suit for specific performance - Decree of refund of money passed - In execution attachment and auction of judgment debtor's property - Objection under Order 21 Rule 58 filed by appellant alleging that he purchased same property in court auction of other civil suit - Identity of property sold in auction of other suit disputed by respondent/decree holder - Objection rejected without opportunity to adduce evidence - Held - Provision gives statutory and substantial right to a party to get his claim or objection to attachment of property to be adjudicated - Since identity of property was in dispute, the Executing Court erred in rejecting objection without opportunity to adduce evidence and by merely observing that the property is different and sale has not been confirmed in other proceeding - Matter remanded for fresh adjudication after opportunity to lead evidence - Appeal allowed : Mukesh Kumar Sanghvi Vs. Saifuddin, I.L.R. (2009) M.P. 830
- Order 21 Rules 89 & 90, Limitation Act, 1963, Section 5, Article 127 - Commencement of period of limitation for the said purpose is the date of sale - S. 5 of Limitation Act has no application : ACME Papers Ltd. (M/s.) Vs. M.P. Financial Corporation, I.L.R. (2010) M.P. Note *56
- Order 21 Rule 92 - Maintainability of suit after deciding objections by Executing Court - Property of judgment debtor put to auction as it failed to pay suit amount - Sale ordered - Objections were raised by State Government and person who was in possession of property as lessee of State Government - Objections decided against the objectors - Objectors subsequently filed civil suit for declaring the sale as bad - Held - Once objections are decided by Executing Court, Order 21 Rule 92(3) would come into play and would forbid every person against whom order is made, to bring a suit - Suit not maintainable - Appeal dismissed : State of M.P. Vs. Rajendra Kumar, I.L.R. (2009) M.P. 2979
- Order 21 Rule 97 - Resistance or obstruction to possession of immovable property - Application/objection how to be adjudicated - Holding the inquiry by Executing Court does not mean to adduce the evidence but the inquiry means the satisfaction of the Court in the available circumstances with respect of objections raised by the objectors - Court is not bound to record the evidence or direct the parties to adduce the evidence in support of the objections : Shobha Mishra Vs. Vinod Kumar, I.L.R. (2009) M.P. 3182 Civil Procedure Code (5 of 1908) 102
- Order 21 Rule 97 - Resistance or obstruction to possession of immovable property - Married daughters of deceased tenant filed objections that they were not impleaded as party and no opportunity of hearing given to them, therefore, decree is not binding - Held - Objectors did not have any right to inherit the tenancy right as member of the family of deceased tenant - Objectors were neither in possession of the premises nor paid the rent - Objections rightly dismissed by executing Court and appellate Court : Shobha Mishra Vs. Vinod Kumar, I.L.R. (2009) M.P. 3182
- Order 21 Rules 98, 100, 101 & 102, Transfer of property Act, 1882, Section 52 - Rules not applicable to transferee pendente lite - Whether purchaser pendente lite has a right to cause obstruction in a decree - Held - A purchaser pendente lite has no right to offer resistance or cause obstruction and as his rights have not been crystallized in a decree, Rule 102 of Order 21 of the Code comes into operation and hence, he cannot resist execution during the pendency of the proceedings : Dilip Kumar Vs. Vijay Bahadur Singh, I.L.R. (2009) M.P. 1408
- Order 22 Rules 3, 4 Order 16 R. 17 - Constitution of India. Article 227 - Impleadment of Legal heirs - Minor sons of the Petitioner were directed to be impleaded in place of defendant who died issue less - Implement was not given effect to - Application under Order 6 Rule 17 was filed subsequently for incorporating the names of petitioners in the cause title of suit - Application rejected by Trial Court, consequently suit dismissed as abated - Held - Impleadment is a ministerial act and not judicial one - Suit should not have been dismissed on account of failure to implead the Petitioners - Order of Trial Court set aside - Application under Order 6 Rule 17 allowed : Amar Singh Vs. Pooran; I.L.R. (2007) M.P. 521
- Order 22 Rule 4 - Second Appeal pending before High Court - During pendency Mohd. Hussain one of respondents died - Appellants failed to make an application to bring LRs of Mohd. Hussain on record - Held - It would be too technical to set aside entire judgment of High Court on ground of not bringing entire body of LRs of Mohd. Hussain because some of his LRs were on record and left out of LRs were sufficiently represented by other LRs on record : Mohd. Hussain (dead) by LRs Vs. Occhavlal, I.L.R. (2008) M.P. 647 (SC)
- Order XXII Rule 4 - Rights of Legal Representative to raise defence - Legal Representative impleaded as party may make any defence appropriate to his character - He can also raise independent title or interest by getting himself impleaded in his personal capacity : Munnalal Vs. Chironjilal, I.L.R. (2006) M.P. 1642
- Order 22 Rule 9 - Abatement - Sub-tenant - Sub-tenant not a necessary party in a suit for eviction against original tenant - Firm joined as defendant in its capacity as sub-tenant - On death of one or all of the partners, the suit would not abate against the Civil Procedure Code (5 of 1908) 103 firm : Suresh Kumar Vs. Baluram (Deceased) Through L.Rs., I.L.R. (2009) M.P. 706 (DB)
- Order 22 Rule 9 - Setting aside abatement - Death of principal respondent informed by her Counsel on 94th day from the death - Application for bringing her L.Rs. on record filed on 60th day from the date of information - Application not accompanied by application for setting aside abatement - Appeal dismissed as abated with liberty to file application for setting aside abatement - Application for setting aside abatement, along with condonation of delay filed - Held - Applicant/appellant filed application for bringing L.Rs. on record within 60 days from receiving information - Bonafides to bring L.Rs is apparent on record - Applications allowed - Abatement set aside - Appeal is restored on its original number : Laxmi Chand (deceased) through LRs Vs. Bhawati Bai, I.L.R. (2008) M.P. 1305
- Order 22 Rule 10, Specific Relief Act, 1963, Section 28 - Suit for specific performance of contract for sale decreed - During execution proceeding, judgment debtor sold part of suit land - Application under Order 22 Rule 10 CPC for impleading purchaser - Rejection - Held - U/S. 28 of Act, the Court, which passes decree of specific performance, retains control over decree even after decree has been passed but the parties to the suit have no option to deviate from the terms of decree - Unless an assignment, creation or devolution of any interest is during pendency of suit, no right accrues under Order 22 Rule 10 CPC - Assignment during execution proceeding will not amount to assignment during pendency of the suit - Application rightly rejected - Appeal dismissed : Mahfooz Ahmed Vs. Smt. Neelmani, I.L.R. (2010) M.P. 1771
- Order 23 - Proceedings before Probate Court - May be akin to a suit of a civil nature, but 'not a suit deciding inter-parties rights - Provisions of Order 23 CPC per se inapplicable with full vigour-objection rightly rejected : June Aldons Vs. Smt. Theresa Brown, I.L.R. (2006) M.P. 1099
- Order 23 Rule 2 & Order 2 Rule 2 - See Limitation Act, 1963, Section 14(1) & (3) : Hindustan Motors Ltd. (M/s.) Vs. D.R. Motors (M/s.), I.L.R. (2010) M.P. 215 (DB)
- Order 23 Rule 3 - Compromise of Suit - Parties to the suit filed compromise petition during pendency of suit - Statements recorded on the same day - Case fixed for orders - Application for cancellation of compromise petition filed by respondent no. 1 before orders could be passed - Court directed for enquiry and for adducing evidence and no evidence adduced by parties - Compromise petition dismissed by Court - Held - Court is required to satisfy itself whether there has been complete adjustment of compromise of suit - Court was not satisfied that lawful agreement or compromise has been entered between parties - Rejection of Compromise petition proper - No jurisdictional Civil Procedure Code (5 of 1908) 104 error - Revision dismissed : Rajesh Kumar Vs. Rakesh Kumar, I.L.R. (2007) M.P. 1458
- Order 23 rule 3 - Application for Compromise during pendency of first appeal - Once a Court finds compromise lawful it has to pass a decree in terms of compromise : Diviya Vs. Pyarelal, I.L.R. (2006) M.P. 1176
- Order 23 Rule 3-A - Bar to suit - Scope - Provision merely puts an embargo on parties to dispute compromise decree on the ground that compromise on which the decree is based was not lawful - It does not create absolute bar against institution of suit to set-aside compromise decree : Tijauwa Vs. Rajmani, I.L.R. (2009) M.P. 2616
- Order 26 Rule 1 - Order allowing or disallowing an application u/O 26 R 1 CPC is a discretionary order, but if a judge proceeds on a wrong principle in a matter within its jurisdiction, his order may be set-aside by an appellate Court : Annapurna Dubey (Smt.) Vs. Champalal @ Chaua, I.L.R. (2009) M.P. Note *28
- Order 26 Rule 1 - Plaintiff 80 years old lady patient of heart and arthritis diseases - Application for examination on commission filed supported by affidavit and certificate of Doctor that she is a patient of arthritis and is unable to walk - No reply to the application and counter affidavit has been filed by defendant - Trial Court rejected the application only on the ground that it cannot be inferred that plaintiff is seriously ill - Held - Court may permit any party to examine on commission if he or she is sick or infirm and is unable to attend the Court - Explanation to Rule 1 of Order 26 empowers a Court to accept a certificate purporting to be signed by Registered Medical Practitioner as a evidence of the sickness or infirmity without calling the medical practitioner as a witness - Trial Court adopted a wrong approach of law and in arbitrary manner dismissed the application - High Court set-aside the order and remanded the matter to trial Court : Annapurna Dubey (Smt.) Vs. Champalal @ Chaua, I.L.R. (2009) M.P. Note *28
- Order 26, Rule 10-A - See - Family Courts Act 1984, Section 10 : Amar Sharma Vs. Smt. Seema Sharma, I.L.R. (2008) M.P. 2008
- Order 29 Rule 1 - Suit against Corporation - Appellant's plea that offending bus was neither registered nor belonging to appellant No.1 in fact such bus was belonging to some other depot of appellant No.2 - Held - It is undisputed fact on record that the appellant No.2 is the main authority of U.P. State Road Transport Corporation, Jhansi and also the other depot, hence after impleading it as party in the case in view of the provisions of Order 29 of the Code, the presence of any other subordinate officer or its manager was not necessary in the claim petition : Manager U.P. State Road Transport Corp. Jhansi Vs. Halkibai, I.L.R. (2009) M.P. Note *4 Civil Procedure Code (5 of 1908) 105
- Order 29 Rule 1 - Divisional Manager of insurance company - Not "Principal officer" - Not competent to file suit on behalf of corporation : The New India Assurance Co. Ltd. New Delhi Vs. Transport Corporation of India Ltd. Andhara Pradesh, I.L.R. (2006) M.P. 1183
- Order 29 Rule 1, Order 41 Rule 25 and Evidence Act, Indian, 1872 Section 65 - Suit for recovery by public sector undertaking - Divisional Manager of insurance company - Not "Principal officer" - Not competent to file suit on behalf of corporation - Power of attorney - Proving of - Secondary evidence - No relaxation can be granted on ground that plaintiff is public sector Company - Remand inviting fresh finding after recording evidence - Trial Court not competent to give finding contrary to earlier finding without recording further evidence : The New India Assurance Co. Ltd. New Delhi Vs. Transport Corporation of India Ltd. Andhra Pradesh, I.L.R. (2006) M.P. 1183
- Order 30 Rule 4 - Right of suit on death of partner - Where two or more persons may sue or be sued in the name of a firm, if any such person dies during the pendency of the suit, it shall not be necessary to join the legal representatives of deceased as a party to suit : Suresh Kumar Vs. Baluram (Deceased) Through L.Rs., I.L.R. (2009) M.P. 706 (DB)
- Order 30 Rule 4(1),(2), Order 1 Rule 10 - Suit by or against firm - Legal representatives of deceased partner - Impleadment of - Suit filed against defendant who is only surviving Partner - Rule 4(1) of Order 30 carves out exception to provision of Section 45 of Contract Act - Not necessary to join legal representative of deceased partner as a party to the suit : Kalinidi Mohan Vs. Bank of Maharashtra, I.L.R. (2008) M.P. 316 (DB)
- Order 32 Rule 7 - See - Motor Vehicles Act 1988, Section 166 : Tijauwa Vs. Rajmani, I.L.R. (2009) M.P. 2616
- Order 33 Rule 1, Order 44 Rule 1 - Accounts of Cooperative Society audited - Society has suffered a loss - Appellant permitted to sue as an indigent person : Bhopal Wholesale Consumer Cooperative Store Limited Vs. Madan Lal Gandhi, I.L.R. (2009) M.P. 585 (DB)
- Order 33 Rule 1, Order 44 Rule 1 - Indigent Person - Whether a Cooperative Society can be permitted to present an application for grant of leave to sue as an indigent person - Held - Body corporate can maintain an application under Order 33 Rule 1 and Order 44 Rule 1of Code : Bhopal Wholesale Consumer Cooperative Store Limited Vs. Madan Lal Gandhi, I.L.R. (2009) M.P. 585 (DB)
- Order 34 Rule 3 - Final Decree in foreclosure suit - Can a Preliminary Decree become a Final Decree by efflux of time - Held - Preliminary Decree would not convert Civil Procedure Code (5 of 1908) 106 automatically into a Final Decree, either by efflux of time or upon further non-compliance of the conditions prescribed by a Court, while setting aside the ex parte Preliminary Decree, as the same would not have the effect of an appellate order, passed in relation to the Preliminary Decree and, therefore, a Preliminary Decree would certainly be required to be made a Final Decree, by a specific prayer/application of the plaintiff in terms of Rule 3 of Order 34 CPC and only upon drawing of a Final Decree by the Court (though at times it may be formal in nature), its execution could then be made, by putting the hypothecated/charged properties to the auction/sale for the realization of the due amount described in the decree : Kasturi Devi Jain (Smt.) Vs. Union Bank of India, I.L.R. (2010) M.P. Note *17
- Order 34 Rule 3 - Final Decree in foreclosure suit - Failure on non-payment of dues under the Preliminary Decree - Effect - Held - When the defendant fails to make the payment of the amount under the Preliminary Decree and the plaintiff applies for passing of the Final Decree to the Court, thereafter alone the stage of drawing the Final Decree reaches and a Preliminary Decree could not automatically convert into a Final Decree either on account of the expiration of the period of limitation of preferring an Appeal or on account of non-fulfillment of any condition prescribed in an order setting aside the Preliminary Decree, on not being an order passed in appeal : Kasturi Devi Jain (Smt.) Vs. Union Bank of India, I.L.R. (2010) M.P. Note *17
- Order 34 Rule 3 - Final Decree in foreclosure suit - Meaning - Held - When a specific condition for obtaining a Final Decree is provided in a Preliminary Decree and the plaintiff/decree holder straight away seeks execution of a Preliminary Decree (upon a defendant failing to comply with conditions), then the Executing Court could not execute the Preliminary Decree, in absence of a Final Decree, as per the legislative intendment reflecting in Order 34 Rule 3 CPC : Kasturi Devi Jain (Smt.) Vs. Union Bank of India, I.L.R. (2010) M.P. Note *17
- Order XXXVII (Summary Procedure) - Suit for recovery of amount outstanding towards price of the supplied goods - Suit not covered by Order XXXVII Rule 1(2) - Hence not maintainable : Bhatinda Chemicals Ltd. Vs. Mahesh & Co. Mandsaur; I.L.R. (2007) M.P. 126
- Order 38 Rule 5 - Attachment before judgment - Where defendant may be called upon to furnish security for production of property - Held - A defendant is not debarred from dealing with his property merely because a suit is filed or about to be filed against him before judgment - A plaintiff should show, prima facie, that his claim is bonafide and also satisfy the court that defendant is about to remove or dispose of the whole or part of his property, with the intention of obstructing or delaying the execution of any decree that may be passed against him : Dharampal (Dead) Through L.Rs. Civil Procedure Code (5 of 1908) 107
Smt. Ashima Syal Vs. Hari Chandra @ Harish Chandra (Dead) Through L.Rs. Suresh Kumar Chaudhary, I.L.R. (2008) M.P. 2313
- Order 38 Rule 5 - Powers of Court - Plaintiffs have proved that they have substantive rights in their favour and prima facie defendants are enjoying the benefits of the suit property - Defendants published an advertisement with regard to sell of other land which is of the ownership of the defendants - In such circumstances, it is necessary to attach some property of the defendants or they may furnish some security to the satisfaction of the trial court - Defendants be directed to furnish a security of Rs.10 lacs before trial court - Petition disposed of accordingly : Dharampal (Dead) Through L.Rs. Smt. Ashima Syal Vs. Hari Chandra @ Harish Chandra (Dead) Through L.Rs. Suresh Kumar Chaudhary, I.L.R. (2008) M.P. 2313 SYNOPSIS : Order 39, Rule 1 & 2
1. Anti-suit injunction 8. No Khasra entry in the name 2. Dissolution of partnership of seller - No prima facie case firm 9. Registered Will 3. Easementry rights 10. Sources of power 4. Grant of interim injunction 11. Unregistered agreement to in contravention of the orders sale by co-owner passed by the HC - Illegal 12. When Serious questions of law 5. Installation of hoardings & facts are involved - Possession 6. Interest of purchaser to be protected 7. Mandatory Injunction
1. Anti-suit injunction
- Order 39 Rule 1 & 2 - Anti-suit injunction - Governing principles - Principles governing grant of injunction apply in respect of grant of anti-suit injunction since it is a species of injunction : State Bank of India Vs. Bank of Ireland, I.L.R. (2010) M.P. 924
- Order 39 Rule 1 & 2 - Anti-suit injunction - Powers of Indian Courts - In appropriate case, Courts in India have power to issue anti-suit injunction to a party over whom it has personal jurisdiction - The anti-suit injunction though directed against a person, in effect causes interference in the exercise of jurisdiction by another Court - Therefore, this power should be exercised sparingly with due regard to the rule of Civil Procedure Code (5 of 1908) 108 comity i.e. respect for the other Courts' jurisdiction : State Bank of India Vs. Bank of Ireland, I.L.R. (2010) M.P. 924 2. Dissolution of partnership firm
- Order 39 Rule 1 & 2, Partnership Act, 1932, Section 53 - Suit for dissolution of partnership firm along with an application for grant of injunction - Appellate Court granted the injunction restraining defendants from using the name of the firm, its goodwill and its property - Held - S. 53 of Act not applicable as suit is for dissolution of partnership firm - Without appreciating allegation and counter allegation, Court can not bring business to standstill or to a grinding halt - The balance of convenience would be in favour of defendants who are running the business - Irreparable injury would be suffered more by defendants in comparison to the plaintiff - Order set-aside with direction protecting interest of plaintiff - Petition allowed : Ishwarchand Jain Vs. Sushil Kumar Jain, I.L.R. (2009) M.P. 2796 (DB)
- Order 39, Rules 1 & 2, Partnership Act, Indian 1932 - Sections 7,40 and 53 - In the suit for rendition of accounts, temporary injunction filed by plaintiff for restraining defendant from carrying on business - Defendant can be restrained only when firm proved to be dissolved as per Section 53 - Plaintiff claiming that partnership could be dissolved 'at Will' - Held - Partnership deed containing both the terms, dissolution 'at Will' and dissolution by 'mutual consent' - However, Clauses 8 and 11 of deed make it clear that partnership could be dissolved only by 'mutual consent' - Partnership not proved to be dissolved - Prima facie case, balance of convenience and irreparable loss also not in favour of plaintiff - Temporary injunction cannot be granted : Ramesh Kumar Vs. Smt. Lata Devi, I.L.R. (2007) M.P. 615 3. Easementry rights
- Order 39 Rule 1 & 2 - See - Easements Act, 1882, Section 13(c) : Bharat Oman Refinery Ltd., Mumbai Vs. Padam Singh, I.L.R. (2009) M.P. 953 (DB)
- Order 39 Rules 1 & 2, Order 43, Rule 1 (r) and Easement Act, 1882, Section 15 - Easementry rights of light and air - Temporary injunction - Prima facie case, irreparable loss, balance of convenience and whether can be compensated in terms of money - Light and air is need of day to day life - Cannot be measured in terms of money - If deprived irreparable loss will be caused - In case suit is dismissed defendent can be compensated in terms of money - Prima facie case made out - Temporary injuction granted till decision of the suit subject to furnising surety of Rs. 1,00, 000/- : Smt. Shashi Agrawal Vs. Smt. Usha Agrawal, I.L.R. (2006) M.P. 339 Civil Procedure Code (5 of 1908) 109
4. Grant of interim injunction in contravention of the orders passed by the HC - Illegal
- Order 39 Rule 1 & 2 - Grant of injunction - Permissibility - Executing Court declined to stay the execution of judgment & decree passed in terms of arbitration award - Against the order writ petition was also rejected by the HC - Respondents again filed application for injunction before trial Court - Trial Court accepted application and granted interim injunction - Held - Grant of interim injunction by trial Court is in contravention of the orders passed by the HC, nullifying the effect of the orders passed by the HC - Trial Court acted arbitrarily, illegally and against the well settled principle of law in granting the order of injunction - Appeal allowed : Padamchand Vs. Ashok, I.L.R. (2009) M.P. 1099 5. Installation of hoardings
- Order 39, Rules 1 & 2 - Temporary injunction - Appellant granted license by Municipal Corporation to install hoardings in the city of Bhopal - One of the hoardings fell down killing one person - Corporation initiating action for removal of hoardings installed contrary to bye-laws and hazardous to public safety - Application for grant of temporary injunction rejected by Trial Court - Appeal against - Human life is precious and human safety cannot be compromised - It is the duty of respondents to ensure that human life is not jeopardized under the guise of commercial gains - Respondents directed to remove all hoardings which are dangerous - Appeal dismissed : Rajesh Jain Vs. Nagar Palika Nigam, Bhopal; I.L.R. (2006) M.P. 1519 6. Interest of purchaser
- Order 39 Rule 1 & 2 - Ancestral property - Suit for declaration and injunction - Application for temporary injunction - Rejection on the ground of deed of family settlement - Held - Family settlement not signed by all co-sharers therefore cannot be relied - However, plaintiff acting upon said deed sold part of suit property, it would not be open to him to question the deed of family settlement - Facts regarding partition is a question of fact hence can not be interfered - However, if interim order is passed, purchaser will not be able to utilize the property, therefore, would suffer irreparable loss and injury - Purchaser would be permitted to carry out construction activities but shall be restrained from alienating or transferring property during pendency of civil suit : Narendra Kante Vs. Anuradha Kante, I.L.R. (2010) M.P. 1227 (SC) 7. Mandatory Injunction
- Order 39 Rules 1 & 2, Contract Act, 1872, Sections 148, 160 & 170 - Plaintiff filed the suit seeking the relief of settling the accounts in terms of contract and the relief Civil Procedure Code (5 of 1908) 110 of direction to the defendant to handover the machinery and equipments to plaintiff - Defendant took the plea that in terms of S. 160 or 170 of the Act, he has right to retain the machines and equipments - Held - Contract agreement between the parties indicates that the conditions of bailment as contained in S. 148 of the Act are not satisfied - Therefore, the plea cannot be accepted : F.F. (I) L.C. 16/3, T.T.M.I.D.C. Area, Navi Mumbai Vs. M/s Supreme Engineers, Alwar, I.L.R. (2010) M.P. 1165
- Order 39 Rules 1 & 2 - Interlocutory mandatory injunction - Court has to grant such relief on the basis of sound judicial discretion to be exercised in the fact situation in a particular case - Though exercise of such a discretion is limited to rare and exceptional cases - But, there is no absolute bar in granting such a relief in deserving cases - Such order can be granted on an application after notice to the defendants and after hearing the parties : F.F. (I) L.C. 16/3, T.T.M.I.D.C. Area, Navi Mumbai Vs. M/s Supreme Engineers, Alwar, I.L.R. (2010) M.P. 1165
- Order 39 Rules 1 & 2 - Interlocutory mandatory injunction - Court is required to see that the plaintiff has a strong case for trial i.e. it should be of a higher standard than the prima facie case and it is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money and the balance of convenience should be in favour of plaintiff : F.F. (I) L.C. 16/3, T.T.M.I.D.C. Area, Navi Mumbai Vs. M/s Supreme Engineers, Alwar, I.L.R. (2010) M.P. 1165
- Order 39 Rules 1 & 2 - Interlocutory mandatory injunction - Plaintiff's machinery and equipments lying at the site unused are getting spoiled and loosing their value - The final disposal of suit may take some time - Considering the controversy involved between the parties, it may not be possible to compensate the plaintiff if the machines and equipments are destroyed and damaged - Plaintiff has a very strong prima facie case in his favour - Interlocutory mandatory injunction rightly granted : F.F. (I) L.C. 16/3, T.T.M.I.D.C. Area, Navi Mumbai Vs. M/s Supreme Engineers, Alwar, I.L.R. (2010) M.P. 1165 8. No Khasra entry in the name of seller - No prima facie case
- Order 39 Rule 1 & 2 - Temporary Injunction - No Khasra entry showing that before executing sale deed, the disputed land was recorded in the name of seller - At this stage it cannot be inferred that sale deeds were executed by rightful owners of the land - No prima facie case or balance of convenience in favor of appellants to hold their possession - No ground to issue any ad interim temporary injunction : Satyanarayan Agrawal Vs. State of M.P., I.L.R. (2008) M.P. 3178 Civil Procedure Code (5 of 1908) 111
9. Registered Will
- Order 39 Rules 1 & 2 - Temporary injunction - While deciding the application under Order 39 Rules 1 & 2 CPC the registered Will and codicil cannot be ignored only because it is unprobated : Rupindersingh Anand Vs. Smt. Gajinder Pal Kaur, I.L.R. (2010) M.P. Note *50 10. Sources of power
- Order 39 & Section 94(c) - Order 39 CPC deals with the temporary injunction and exercise of powers u/s 94(c) CPC - Thus, it is clear that Section 94(c) and Order 39 are not the two alternative sources of powers : Surendra Rathore Vs. Vishwanath Bhasin, I.L.R. (2009) M.P. 1697 (DB) 11. Unregistered agreement to sale by co-owner
- Order 39 Rules 1 & 2, Transfer of Property Act, 1882, Section 44 - Agreement to sale with delivery of possession by one co-owner (who later died) in favour of plaintiff - Other co-owners sold out the property to the defendant - Plaintiff filed a suit for specific performance - Upon application of plaintiff for temporary injunction, the Court directed that the land in question was not to be sold to any person - Against the order the M.A. is filed - Held - Since the document/agreement is only notarized and not registered and without consent of other co-owners, it is doubtful that the plaintiff will have even a prima facie case in his favour for enforcing such an agreement - The suit itself was filed after 3 years of the agreement & death of executor - Thus, the right of purchaser can not be restricted in any manner for an indefinite period - Order passed by trial Court granting injunction set aside - Appeal allowed : Girish Shrivastava Vs. N.K. Pateria, I.L.R. (2010) M.P. 2165 12. When Serious questions of law & facts are involved - Possession to be protected
- Order 39 Rule 1 - Temporary injunction - Open land was given on lease for 20 years by defendent for construction of bus stand and other purposes - Defendant issued notice to handover possession after the expiry of lease period - Application under Order 39 Rule 1 dismissed in a suit filed for injunction against dispossession - Held - Whether plaintiff has acquired status of tenant at will or tenant at sufferance or tenancy continued by holding over and whether the tenancy has been rightly determined is a matter of investigation - As serious questions of law & facts are involved therefore, the possession of plaintiff required to be protected - Defendant restrained from interfering with possession of plaintiff till the suit is decided - Appeal allowed Civil Procedure Code (5 Civil Procedure Code (5 of 1908) 112 of 1908), Nagar Palika Parishad, Malajkhand Vs. Hindustan Copper Ltd., I.L.R. (2009) M.P. 485
- Order 39 Rule 1 - Temporary injunction - Real thing is to be seen is whether plaint is not frivolous or vexatious - It is not function of court at this stage to resolve disputed questions of fact or difficult questions of law which should be left to be decided at the conclusion of trial : Nagar Palika Parishad, Malajkhand Vs. Hindustan Copper Ltd., I.L.R. (2009) M.P. 485
● - Order 41 - Appeal against judgment and decree of trial Court - Trial Court granting Rs.25, 000/- as compensation to plaintiff/respondent - Plaintiff suffering damage of radial nerve of right hand due to administering injection without testing for allergic reaction - Negligence of concerned nurse of Govt. Hospital found proved - Compensation rightly awarded by trial Court - No scope for interference in trial Court judgment and decree - Appeal dismissed : State of Madhya Pradesh Vs. Krishna Kumar Kushwaha; I.L.R. (2006) M.P. 1645
- Order 41, Rule 1, (3-A) C.P.C. - Inconvenience caused to respondents can be compansated by awarding appropriate costs - Delay condoned : Asharam Vs. Smt. Gangabai, I.L.R. (2006) M.P. 49
- Order 41 Rules 1 & 22 - A Cross-objection, in an appeal against an order appealable under Order 43 Rule 1 CPC, can be made : Rupindersingh Anand Vs. Smt. Gajinder Pal Kaur, I.L.R. (2010) M.P. Note *50
- Order 41, Rule 1(d), Order 9 Rule 13 - Court's jurisdiction to proceed ex parte on a date fixed by Reader - Court has no jurisdiction to proceed ex parte - Effect of order made on such date - No due notice of date of hearing to the party proceeded against ; Indermal Vs. Shambhulal, I.L.R. (2007) M.P. 266
- Order 41 Rule 5, Order 41 Rule 5 (3)(c) - Stay by Appellate Court - Respondent filed suit for declaration that he has 2/3rd share in property, partition, separate possession and mesne profits - Suit was decreed holding respondent has 2/3rd share in property and also for separate possession but suit for mesne profits dismissed - Application for stay of execution of decree filed - Held - Hotel business is being run by or on behalf of appellant in premises in question - House also situated in prime and commercial locality of city - Execution of decree stayed subject to deposit of Rs. 10,000/- per month with Executing Court by appellant - Respondent entitled to withdraw the same on submitting solvent surety for amount withdrawn and undertaking to redeposit the same along with interest on arising the occasion and subject to decision of appeal : Shashi Agrawal Vs. Ram Chandra Agrawal, I.L.R. (2008) M.P. 271 Civil Procedure Code (5 of 1908) 113
- Order 41 Rule 14(3) [Sub-rule (3) added by High Court of M.P. vide notification No.5283-A published in M.P. Gazette dated 16.06.1960 part-IV] - Service of notice - Whether necessary on a person who remained ex parte in the Court of first instance - Held - Sub-rule (3) empowers an appellate Court to dispense with notice to any respondent against whom the suit was heard ex parte - This being an empowering provision, such power is to be exercised necessarily by passing specific order of dispensation in writing : Shivraj Singh Chauhan Vs. Rajendra Kumar, I.L.R. (2010) M.P. 247
- Order 41 Rule 14(3) [Sub-rule (3) added by M.P.H.C.] & 14(4) - Distinction - Held - By virtue of sub-rule (4) proceedings incidental to an appeal are not vitiated merely in the absence of notice on any respondent who did not choose to give appearance and file an address for service in the Court of first instance - Whereas by virtue of sub- rule (3) appellate proceedings may be vitiated even against any respondent against whom the suit was heard ex parte if prejudice is shown to have caused to him and the appellate court has not passed specific order dispensing with notice on any such respondent : Shivraj Singh Chauhan Vs. Rajendra Kumar, I.L.R. (2010) M.P. 247
- Order 41 Rule 14(3), Order 41 Rule 21 and Order 43 Rule 1(t) - Appeal against dismissal of application to restore appeal - Discretion to dispense with notice on certain respondents - Discretion has to be exercised by Court on sound basis and correct factual matrix not procured by false statement - False statement that no relief claimed against those respondents - Court committed illegality while exercising discretion - Exercise of discretion is open to judicial review and is neither unfettered nor arbitrary - It was necessary to issue notice to unrepresented defendants after the plaint was amended - Moreover, respondents No. 5 and 14 were dead before filing appeal and appeal could not have been decided against dead person - Appellate judgment set aside : Imratlal Vs. Vishnu Prasad, I.L.R. (2007) M.P. 105
- Order 41 Rule 14(4) - Service of notice - Whether necessary on a person who remained ex parte in the Court of first instance - Held - Service of notice of any proceeding incidental to an appeal on a respondent is necessary only if he has appeared and filed an address for service in the Court of first instance or has appeared in the appeal - Provision applies to any proceeding incidental to an appeal and not to the appeal itself on merits : Shivraj Singh Chauhan Vs. Rajendra Kumar, I.L.R. (2010) M.P. 247
- Order 41 Rule 22 - Upon hearing, respondent may object to decree as if had preferred separate appeal - Petitioner preferred an appeal for enhancement and the same was dismissed on the ground of limitation - In an appeal preferred by the owner, cross-objection was filed within time and the Court while dismissing the appeal filed by the owner, allowed the cross-appeal and enhanced the compensation - Held - Order of the Court was well within the four corners of the stipulations contained under Older 41 Civil Procedure Code (5 of 1908) 114
Rule 22 of CPC because the appeal preferred by the claimant was dismissed on limitation and not on merits - There was no adjudication on merits to bar the consideration of cross-objection : Sushila Gupta Vs. Rajendra Kumar, I.L.R. (2010) M.P. 1423
- Order 41 Rule 22 - Upon hearing, respondent may object to decree as if had preferred separate appeal - Pleadings - Non-disclosure of a relevant fact - The petitioner preferred an appeal for enhancement and the same was dismissed on the ground of limitation - In an appeal preferred by the owner, cross-objection was filed within time and the Court on while dismissing the appeal filed by the owner, allowed the cross- appeal and enhanced the compensation but dismissal of the earlier appeal was not mentioned in the cross-objection - Held - Petitioner while moving cross-objection failed to mention the dismissal of appeal on the ground of limitation but non-disclosure of this fact will not cause any change in law as it stands : Sushila Gupta Vs. Rajendra Kumar, I.L.R. (2010) M.P. 1423
- Order 41 Rule 22 - See - Motor Vehicles Act, 1988, Section 173 : Manager U.P. State Road Transport Corp. Jhansi Vs. Halkibai, I.L.R. (2009) M.P. Note *4
- Order 41 Rule 22 - See - Motor Vehicles Act, 1988, Section 173 : United India Insurance Company Ltd., Indore Vs. Smt. Ramtubai, I.L.R. (2008) M.P. 3251 (DB)
- (Amendment inserted w.e.f. 1.2.1977), Order 41, Rule 22 - The decree is entirely in favour of Respondent - Though an issue has been decided against Respondent or a finding in the judgment is against the Respondent - Held - Respondent has right to challenge the findings in an appeal filed by appellant - Even without filing a cross objection or cross appeal : Executive Engineer (Vigilance), M.P. State Electricity Board, Khargone Vs. Jaswant Singh, I.L.R. (2008) M.P. 1187
- Order 41 Rules 23, 23-A, 24 & 25 - Remand - Appellate court remanded the suit with direction to implead 'G' and decide the suit after taking evidence - Held - It was nobodies case that 'G' was a necessary party to the suit or that though they wanted to examine him as witness but opportunity has been denied - Appellate court should have decided the appeals on the basis of evidence available on record - Impugned judgment and decree set-aside - Appeal allowed : Arvind (Dr.) Vs. Mannalal, I.L.R. (2009) M.P. 1075
- Order 41 Rule 23A - Remand - Plaintiff orally making statement of not pressing certain issues, though pleaded in plaint - Trial Court after recording such statement left the issues undecided - Held - No illegality committed by trial Court - Defendant failed to show any prejudice caused - Order of remand directing trial Court to decide such issues, is illegal and unwarranted - Appeal allowed : Reg. Vidhichand Dharamshala Trust Vs. Shyam Singh, I.L.R. (2010) M.P. Note *49 Civil Procedure Code (5 of 1908) 115
- Order 41 Rule 25 - Remand inviting fresh finding after recoding evidence - Trial Court not competent to give finding contrary to earlier finding without recording further evidence : The New India Assurance Co. Ltd. New Delhi Vs. Transport Corporation of India Ltd. Andhara Pradesh, I.L.R. (2006) M.P. 1183
- Order 41 Rule 26 - After remand, findings recorded by trial Court not challenged before Lower Appellate Court - Those findings can not be attacked in second appeal except on grounds envisaged u/s 100 CPC : Ikrar Mohammad Vs. Isub Khan, I.L.R. (2010) M.P. 447
- Order 41 Rule 27 - Application made by Registrar Public Trust to Court sought to file as additional evidence - Held - The application would not help the Court to decide controversy as finding of the Court on the application has not been submitted - Application rejected : Reg. Vidhichand Dharamshala Trust Vs. Shyam Singh, I.L.R. (2010) M.P. Note *49
- Order 41 Rule 27 - Additional Evidence - No plea that documents sought to be produced by way of additional evidence could not be produced earlier despite efforts diligently made by appellant or such evidence was not within its knowledge - Appellant had sufficient opportunity to bring evidence on record before Trial Court - Matter is entirely in discretion of Court, which is to be exercised judiciously and sparingly - Application rejected : Krishnarao Kavdikar (dead) through his LRs Ullas Kavdikar Vs. Sadhna Khanvalkar, I.L.R. (2008) M.P. 1207
- Order 41 Rule 33 - Power of Court of appeal - Mesne profit - When can be granted - Held - Judgment of the trial Court refusing grant of mesne profit not challenged in first appellate Court or in the second appeal - Said judgment attained finality - Mesne profit cannot be granted at this stage : Sitara (Smt.) Vs. Hemchand, I.L.R. (2010) M.P. 1786
- Order 41 Rule 33 - Power of Court of Appeal - Subsequent purchaser (def. No.1) has not prayed for refund the amount of consideration - Even though, in exercise of power under Order 41 Rule 33, High Court directs vendor (def. No.2) to refund the amount of consideration to the subsequent purchaser within 3 months - In case of failure, subsequent purchaser shall be entitled to recover the amount from vendor with interest @ 6% p.a. : Parwat (Dead) Through L.Rs. Smt. Kesar Bai Vs. Pyarelal, I.L.R. (2010) M.P. 1146
- Order 41 Rule 33, Land Acquisition Act, 1894, Sections 28 & 34 - Reference Court has not awarded interest which is payable to the claimant under various heads - Claimant has not filed an appeal against the decree of Reference Court - Held - Appellate Court may pass any decree or order which ought to have been made and to make such Civil Procedure Code (5 of 1908) 116 further order or decree as the case may be in favour of all or any of the parties even though the appeal is as to part only of the decree and such party or parties may not have filed an appeal - High Court awarded interest as provided u/ss. 28 & 34 of Act : Land Acquisition Officer Vs. Jeet Singh, I.L.R. (2010) M.P. 1001
- Order 41 Rule 33 - Power of Appellate Court - The appellate court has been conferred with the power not withstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection, then appellate court in exercise of powers vested under Order 41 Rule 33 can pass an order in favour of the respondents or parties although the respondents have not preferred any appeal or objection : Sushil Kumar Kanungo Vs. M.P. Rajya Sahkari Bank Maryadit, I.L.R. (2008) M.P. 2238
- Order 41 Rule 33 - See - Motor Vehicles Act, 1988, Section 170 : Samundra Devi Vs. Narendra Kaur, I.L.R. (2008) M.P. 2743 (SC)
- Order 42 Rule 2, Order 41 Rule 22 - Cross-Objection in Second Appeal - Cross Objection can be maintained only when Substantial Question of Law arises - Respondent not framing any Substantial Question of Law in memo of Cross Objection - No Substantial Question of Law formulated by Court - No need to consider Cross Objection : Indramani Prasad Shukla Vs. Shakuntala, I.L.R. (2008) M.P. 846
- Order 43 Rule 1(a) - See - Family Courts Act, 1984, Sections 19, 20 & 21 : Kamla Patel Vs. Neeraj Prasad Patel, I.L.R. (2010) M.P. 253(DB)
- Order 43 Rule 1(r), Order 39 Rule 1 & 2 - Temporary injunction - When cannot be granted - Injunction for sale and circulation of a book granted after 9 years of its publication on the ground that certain statements made in the book to be defamatory in nature - Held - Sufficient prima facie material is available to hold that the publishers may have justification to substantiate the so-called defamatory statements made - Temporary injunction granted without evaluating the principles properly and without taking note of the fact that 9 years has been passed after the publication of defamatory statements - Injunction could not be granted - Application for staying the operation of injunction order allowed till disposal of appeal : Dominique Lapierre Vs. Swaraj Puri, I.L.R. (2009) M.P. 2982
- Order 43 Rule 1(w) - Appeal - Powers of appellate Court - Held - While considering the appeal under Order 43 Rule 1(w), the appellate Court was required to examine merits of the case - The appellate Court has not considered the earlier judgment on merits but confined its order limited to the extent of granting relief of mesne profit by allowing review application by the trial Court : Kamal Vasini Agarwal (Smt.) Vs. Hindustan Petroleum Corporation Ltd., I.L.R. (2009) M.P. 3128 (DB) Civil Services (Classification, Control & Appeal) Rules, M.P. 1966 117
- Order 47 Rule 1 - See - Accommodation Control Act, M.P., 1961, Section 13(6) : Ganesh Prasad Vs. Asadulla Usmani, I.L.R. (2010) M.P. 2528 (DB)
- Order 47 Rule 1 - Review - Powers of trial Court - Can a Court modify its earlier judgment when such question was not considered in earlier judgment - Held - No - Such recourse was not available to the trial Court - Modifying the decree by allowing mense profit was beyond the scope of Order 47 Rule 1 of CPC, when such question was not at all considered in the earlier judgment : Kamal Vasini Agarwal (Smt.) Vs. Hindustan Petroleum Corporation Ltd., I.L.R. (2009) M.P. 3128 (DB)
- Order 47 Rule 1 - Review - Scope - Law discussed : Tijauwa Vs. Rajmani, I.L.R. (2009) M.P. 2616
- Order 47 Rules 1, 4, 7 & 8 - Review - Proper remedy in case review application is allowed or dismissed - Held - When a Court hearing the review application rejects the same then the order shall not be appealable but if an order granting review application is allowed then the party aggrieved may object to it at once by an appeal from the order grating the application - Such an appeal is to be filed under Order 43 Rule 1(w) CPC while the order can also be challenged after final judgment/decree or order is passed in the main proceedings : Anandi Prasad Dwivedi Vs. State of M.P., I.L.R. (2010) M.P. 1904 (DB)
- Order 47 Rules 1 & 8 - Review - Procedure when the application for review is granted - Stated : Anandi Prasad Dwivedi Vs. State of M.P., I.L.R. (2010) M.P. 1904 (DB)
- Order 47 Rule 4 - Whether a First Appeal u/s 96 CPC would be maintainable or a Miscellaneous Appeal under Oder 43 Rule 1, against an order allowing an application under Order 47 Rule 4 - Held - If an order under Rule 4 of Order 47 CPC granting an application of review is passed then Miscellaneous Appeal would lie and not a First Appeal : Kamal Vasini Agarwal (Smt.) Vs. Hindustan Petroleum Corporation Ltd., I.L.R. (2009) M.P. 3128 (DB) Civil Services (Classification, Control & Appeal) Rules, M.P. 1966 SYNOPSIS
1. After acquittal, appeal pending - 13. No work no pay - When Employee can revert back to service arbitrary Civil Services (Classification, Control & Appeal) Rules, M.P. 1966 118
2. Borrowing authority has the 14. Order of punishment can not power to suspened the employee be reviewed after six months on deputation 15. Order of reversion 3. Deemed suspension 16. Order passed by State S.C. 4. Departmental Enquiry Commission not appealable 5. Disciplinary Authority during 17. Power of review election - Election Commission 18. Power of suspension 6. Effect on suspension when 19. Punishment - Rule of natural charge sheet issued after 45 days justice to be followed 7. Enquiry Officer can not act as 20. Question of competence of a prosecutor and a judge Enquiry Officer 8. Evidence recoreded by first 21. Review Enquiry Officer when can be 22. Suspension after filling challan in disregarded criminal case 9. Imposition of penalty after 23. Suspension, when detained in retirement - What recourse custody 10. Minor Penalty - 24. The Order of Common Hearing ought to be given Proceedings is required only 11. Misconduct when two delinquent 12. No grievance can be permitted employees holding different if right of legal assistance Waived ranks during course of D.E. 25. Warning - Whether is a punishment
1. After acquittal, appeal pending - Employee can revert back to service
- Rule 9(1) - Petitioner, an employee of Corporation acquitted of all charges against him under IPC & Prevention of Corruption Act, 1988 - Representation for revocation of suspension order rejected on the ground of pending appeal against order of acquittal - Learned Single Judge quashed order of suspension and directed employer to reinstate - Held - The rule is absolutely silent as regards the situation when a judgment of acquittal recorded against the employee - However, employee can revert back to service after acquittal - Otherwise it may cause immense hardship to employee to wait for the final adjudication of matter by the final court : M.P. State Civil Supplies Corporation Ltd. Vs. Vinod Kumar Save, I.L.R. (2008) M.P. 2213 (DB) Civil Services (Classification, Control & Appeal) Rules, M.P. 1966 119
2. Borrowing authority has the power to suspened the employee on deputation
- Rules 14 & 20 - See - Service Law : Pramod Kumar Agrawal Vs. State of M.P., I.L.R. (2010) M.P. 145 3. Deemed suspension
- Rule 9 - When there is an order of acquittal in a criminal case - There is nothing in the rule relating to the spectrum of deemed suspension : M.P. State Civil Supplies Corporation Ltd. Vs. Vinod Kumar Save, I.L.R. (2008) M.P. 2213 (DB) 4. Departmental Enquiry
- Rules 14 (5) & 30 - See - Service Law : Nanhe Bhai Raikwar Vs. District & Sessions Judge, I.L.R. (2009) M.P. 107 5. Disciplinary Authority during election - Election Commission - Rule 9, Representation of Peoples Act, 1951, Section 28-A - Authority to disciplinary action against official on election duty - Every official on election duty is deemed to be on deputation to Election Commission - Authority to take disciplinary action during election vests only with Election Commission - Suspension of petitioner by Commissioner bad in law and hence quashed : S.K. Tripathi Vs. State of M.P., I.L.R. (2009) M.P. 2567 6. Effect on suspension when charge sheet issued after 45 days - Rules 9(1)(a), 9(2-a) - The employee/petitioner placed under suspension on account of Rule 9(2-a) and not under Rule 9(1)(a) - Issuance of charge-sheet beyond 45 days would have no effect or impact on his order of suspension which would continue until modified or revoked by the competent authority : Rajesh Singh Vs. State of M.P., I.L.R. (2010) M.P. Note *35 7. Enquiry Officer can not act as a prosecutor and a judge - Rule 14 (5) - See - Service Law : Balveer Singh Vs. State of M.P., I.L.R. (2010) M.P. 191 8. Evidence recorded by first Enquiry Officer when can be disregarded - Rule 14 (22) - First D.E. against petitioner cancelled - After appointment of Inquiry Officer afresh enquiry started - Despite restrain order of HC, D.E. completed and order of dismissal passed - Held - Succeeding Inquiry Officer had no power to Civil Services (Classification, Control & Appeal) Rules, M.P. 1966 120 totally disregard the evidence already recorded by previous Inquiry Officer unless and until he expresses an opinion that further examination of witness already examined is necessary in the interest of justice - Order of dismissal set-aside - Matter remanded back for continuing enquiry from the stage it was left by previous Inquiry Officer - Petition allowed : Anirudh Dwivedi Vs. State Chief Commissioner, Bharat Scout & Guide, I.L.R. (2009) M.P. 2191 9. Imposition of penalty after retirement - What recourse - Rule 10 (iv), Civil Services (Pension) Rules, M.P. 1976, Rule 9 - Withholding of pension to the extent of 1% with cumulative effect - Petitioner retired before the order of penalty could be passed - Penalty of withholding of 1% of pension with cumulative effect imposed - Held - Such penalty is not a minor penalty - If petitioner had already retired, respondents could have taken recourse of Rule 9 of Rules, 1976 - Order of penalty quashed : Ahmad Hussain Vs. State of M.P., I.L.R. (2010) M.P. 581 10. Minor Penalty - Hearing ought to be given - Rule 10 (i) to (iv) - Minor Penalty - Natural Justice - Show cause notice issued to petitioner who submitted his reply - Departmental Enquiry ordered - However, no enquiry was conducted on ground that since neglect and dereliction in duties is made out from reply - Minor penalty of censure imposed - Held - Fresh opportunity of hearing ought to have been given before inflicting minor penalty - Petition allowed : Ajay Kumar Singh Vs. State of M.P., I.L.R. (2008) M.P. 746 11. Misconduct - Rule 10 - See - Service Law : M.P. Housing Board Vs. K.V. Shrivastava, I.L.R. (2009) M.P. 1589 (DB) 12. No grievance can be permitted if right of legal assistance Waived during course of D.E. - Rule 14 (8) - See - Service Law : Dinesh Chandra Pandey Vs. High Court of M.P., I.L.R. (2010) M.P. 2007 (SC) 13. No work no pay - When arbitrary - Rule 9 and Fundamental Rules, Rule 54-B - Suspension as consequence of detention in custody for more than 48 hours - Acquittal in trial - Continued suspension after acquittal - Illegal and against Rule 9(4) of C.C.A. Rules - Period of suspension ought to be dealt under F. R. 54-B(3) - Application of principle of "no work no pay" - Arbitrary : Kanhaiyalal Parmar Vs. State of Madhya Pradesh, I.L.R. (2006) M.P. 1404
- Rule 9 & 20 - See - Service Law : Ashok Noronha Vs. M.A. Khan, I.L.R. (2009) M.P. 662 Civil Services (Classification, Control & Appeal) Rules, M.P. 1966 121
14. Order of punishment can not be reviewed after six months - Rule 29(iii) - See - Police Regulations, M.P., Regulation 270 : Angad Singh Rathore Vs. State of M.P., I.L.R. (2009) M.P. 2310 15. Order of reversion - Collector being an appointing authority promoted the petitioner as Revenue Inspector - Settlement Officer reverted the petitioner from the post of Revenue Inspector to the post of Patwari - Powers of Collector or of disciplinary authority has not been delegated to the Settlement Officer - Order passed by Settlement Officer is without jurisdiction - Void ab initio - Order quashed : Chetanlal Thakur Vs. State of M.P., I.L.R. (2008) M.P. 1114
- Order of reversion is an outcome of disciplinary action under the rules - The power of the appointing authority or the disciplinary authority may be delegated by the general or special order of the Governor and by the State Government - Therefore, reversion order cannot be passed by the authority subordinate to the appointing authority : Chetanlal Thakur Vs. State of M.P., I.L.R. (2008) M.P. 1114 16. Order passed by State S.C. Commission not appealable - Rule 23 - See - Constitution, Article 226 : S.K. Verma Vs. State of M.P., I.L.R. (2008) M.P. 1892 (DB) 17. Power of review - Rule 29 - Rule 29 confers the power of review and clearly stipulates that the said power can be exercised only by the authority superior to the authority making the order : Anil Soni Vs. State of M.P., I.L.R. (2008) M.P. 1636 18. Power of suspension - State Government's circular dated 15/2/1999 that Divisional Commissioner has no power to place class I and II officers under Suspension - Contrary to the statutory Rules : Vinod Kumar Shukla Vs. State of M.P., I.L.R. (2008) M.P. 212 (DB)
- Rule 2(f) - See - Service Law : Ashok Noronha Vs. M.A. Khan, I.L.R. (2009) M.P. 662
- Rules 9(1), 12 - Divisional Commissioner is empowered by Governor to impose minor penalties specified in clauses (i) to (iv) of Rule 10, therefore, he is disciplinary authority in respect of class I and II officers within meaning of Rule 9(1) - Order of suspension passed by Divisional Commissioner is not without jurisdiction : Vinod Kumar Shukla Vs. State of M.P., I.L.R. (2008) M.P. 212 (DB) Civil Services (Classification, Control & Appeal) Rules, M.P. 1966 122
19. Punishment - Rule of natural justice to be followed - Rule 15 - See - Service Law : Nanhe Bhai Raikwar Vs. District & Sessions Judge, I.L.R. (2009) M.P. 107 20. Question of competence of Enquiry Officer - Rule 12 - See - Service Law : B.N. Verma Vs. State of M.P., I.L.R. (2009) M.P. 336 (DB) 21. Review - Rule 29 - See - Service Law : O.P. Pandey Vs. State of M.P., I.L.R. (2009) M.P. 436 (DB) 22. Suspension after filling challan in criminal case - Rule 9(1) Proviso - Suspension - Word 'shall' in proviso indicates that where a Challan for criminal offence involving corruption or other moral turpitude is filed after sanction of prosecution by Government, the government servant has to be invariably placed under suspension and there is very little discretion with authority : Rajendra Singh Dasondhi Vs. State of M.P., I.L.R. (2009) M.P. 2766 (DB)
- Rule 9(1)(b) - Challan for offence u/ss. 13(1)(d) & 13(2) of Prevention of Corruption Act r/w Ss. 120-B & 406 IPC filed against appellant but Government is yet to sanction the prosecution - Proviso to Rule 9(1) not attracted - It is not mandatory for authority to place appellant under suspension but discretion by authority to place the appellant under suspension can not be said to be arbitrarily exercised - Appeal dismissed : Rajendra Singh Dasondhi Vs. State of M.P., I.L.R. (2009) M.P. 2766 (DB) 23. Suspension, when detained in custody - Rules 9(1)(a), 9(2)(a) - Distinction between - Under Rule 9(1) a Govt. servant may be placed under suspension where a disciplinary proceeding is contemplated or is pending against him or where a case against him in respect of any criminal offence is under investigation, inquiry or trial - Under Rule 9(2)(a) makes it clear that a Govt. Servant shall be deemed to have been placed under suspension by an order of the appointing authority from the date of his detention, if he is detained in custody for a period exceeding forty-eight hours : Rajesh Singh Vs. State of M.P., I.L.R. (2010) M.P. Note *35 24. The Order of Common Proceedings is required only when two delinquent employees holding different ranks - Rule 18 - See - Service Law : Balveer Singh Vs. State of M.P., I.L.R. (2010) M.P. 191 Civil Services (General Conditions of Services) Rules, M.P. 1961 123
25. Warning - Whether is a punishment - Rule 10 - See - Service Law : Prakash Chandra Prasad Vs. State of M.P., I.L.R. (2009) M.P. 3139 Civil Services (Conducts) Rules, M.P. 1965
Gross negligence without mens rea can constitute misconduct - Rule 3(i) & (ii) - See - Service Law : M.P. Housing Board Vs. K.V. Shrivastava, I.L.R. (2009) M.P. 1589 (DB) Bigamous Marriage - Rule 22(1) - Bigamous Marriage - Government Servant cannot contract another marriage, without prior permission otherwise it may amount to misconduct - Rule does not disqualify a citizen, who is aspiring to get an employment, it merely puts an embargo to seek prior permission to contract another marriage - Petitioner had performed first marriage in 1964 and second marriage in 1967, prior to entering into employment while he was not Government Servant - No case of misconduct is made out - Order of compulsory retirement is set aside with grant of back wages : Kailashvan Goswami Vs. State of M.P., I.L.R. (2008) M.P. 1053 Civil Services (General Conditions of Services) Rules, M.P. 1961 Disqualification - If marry before minimum age fixed for marriage - (As amended w.e.f. 10-3-2000) - Rule 6(5) - Disqualification - Provides that no candidate shall be eligible for appointment to a service or post who has married before minimum age fixed for marriage - Appellant appeared in examination conducted by P.S.C. for State Civil Services - He was not called for interview as he solemnized marriage before the minimum age fixed for marriage i.e. 21 years - Held - Though rule is not retrospective - But on the date of marriage appellant was below the age of 21 years - Therefore, not eligible for any service or post - Appeal dismissed : Gendlal Patel Vs. M.P. Public Service Commission, I.L.R. (2008) M.P. 1040 (DB) Seniority can not be claimed from the date of initial appointment if fail to pass the necessary examination - Rules 8(6) & 12(4) - Grant of seniority from the date of initial appointment - Appointment order clearly stipulating that petitioners have to pass the necessary examination from the central training institute within a period of 3 years - Petitioners could not pass the said examination within 3 years - Held - Petitioners not entitled to seniority from the date of initial appointment - Both the petitioners have accepted the said condition - In absence of any challenge to the said condition even otherwise are estopped from claiming the benefit of ad hoc period for the purpose of reckoning the Civil Services (Medical Attendance) Rules, M.P. 1958 124 seniority - Petition dismissed : Rakesh Mishra Vs. State of M.P., I.L.R. (2009) M.P. 757 Fixation of Seniority when probation period extended - Rule 12(1)(a) & 12(1)(f) - See - Service Law : Suresh Kumar Vs. State of M.P., I.L.R. (2010) M.P. 815 (DB)
- Rule 12(2)(b) & (c) (As amended w.e.f. 2nd April 1998) - Applicability - Rule 12(2)(b) & (c) shall apply with retrospective effect : Hemchandra Pandey (Dr.) Vs. State of M.P., I.L.R. (2008) M.P. 2548 Determination of Seniority when deputation and absorption in another department - Rule 12(2)(c) - Determination of Seniority - Transfer on deputation to another department and subsequently absorption in that department - Past service for determining seniority can be counted only subject to equivalence of post - Nature of duties, minimum qualifications, responsibilities and powers exercised by an officer holding post, extent of territorial or other charge held, salary for post are to be considered - Merely because payscale in parent department and absorption is same itself is not determinative factor : Hemchandra Pandey (Dr.) Vs. State of M.P., I.L.R. (2008) M.P. 2548 Inter se seniority of the promotee - Rule 12(b) & (c) - Inter se seniority of promoted Government Servant - According to Rule 12(b), the inter se seniority of the promoted Government Servant has to be reckoned from the date of his confirmation on the post on which he is promoted - If two or more persons are confirmed with effect from the same date then the appointing authority shall determine their inter se seniority in service in which they were included in the merit list, if any, prepared for determining their suitability for promotion and their relative seniority in the lower service from which they were promoted : Devendra Bapna Vs. State of M.P., I.L.R. (2008) M.P. 1942 Civil Services (Medical Attendance) Rules, M.P. 1958 - Rule 1(3) - Petitioner suffered heart ailment while in service - After obtaining due sanction took treatment - During treatment suffered an operation of open heart surgery - During treatment petitioner attained age of superannuation - Held - Though sub-rule (3) provides that Rules shall not apply to retired employees, but when petitioner was admitted in hospital he was not retired, and during period of treatment in hospital petitioner suffered open heart surgery - Petitioner cannot be denied with the reimbursement of medical expenses - Petition allowed : L.P. Sanodia Vs. State of M.P., I.L.R. (2010) M.P. 1729 Civil Services (Pension) Rules, M.P. 1976 125
- Rule 2(d)(ii) - Wholly dependent - Husband of the petitioner was receiving meagre pension - The husband of the petitioner has to be treated wholly dependent for the purpose reimbursement of medical bills - Therefore, petitioner is entitled for reimbursement in respect of treatment availed by her husband : Padma Sharma (Smt.) Vs. State of M.P., I.L.R. (2010) M.P. 1089
- Rules 2 & 8 - See - Service Law : Prasanna Kumar Shrama Vs. State of M.P., I.L.R. (2010) M.P. 1271
- Rule 4 - Husband of the petitioner was treated at All India Institute of Medical Sciences, New Delhi without prior permission - Held - State Government cannot deny reimbursement of medical bills on the ground that prior permission has not been obtained - Writ petition allowed - Respondents directed to reimburse the amount with interest @ 8% p.a. : Padma Sharma (Smt.) Vs. State of M.P., I.L.R. (2010) M.P. 1089 Civil Services (Pension) Rules, M.P. 1976 - Rule 9 - See - Civil Services (Classification, Control and Appeal) Rules, M.P. 1966, Rule 10(iv) : Ahmad Hussain Vs. State of M.P., I.L.R. (2010) M.P. 581
- Rule 9 - See - Constitution, Article 226 : Vishnu Vakil Vs. State of M.P., I.L.R. (2008) M.P. 2609
- Rules 9(2), 9(4) - Order of withholding 30% pension for one year - In D.E. petitioner was found guilty of unauthorized absence and non-compliance of order of transfer - Representation of petitioner against show cause was not found satisfactory - Meanwhile petitioner retired and order of imposing penalty of withholding 30% pension passed after 5 years of his retirement - Held - Departmental proceedings come to an end when disciplinary authority on consideration of enquiry report either exonerate or imposes punishment - Although enquiry report was submitted before retirement but order imposing penalty was passed after 5 years of retirement - Order passed against Rule 9(4) quashed - Petition allowed : Krishnalal (Dr.) Vs. State of M.P., I.L.R. (2008) M.P. 3128
- Rule 9(b)(2) - See - Service Law : Ramesh Chandra Gupta Vs. State of M.P., I.L.R. (2010) M.P. 2506
- Rule 42(1)(a) - See - Service Law : Ganpatlal Vyas Vs. State of M.P., I.L.R. (2010) M.P. 1900
- Rule 42(1)(a) - Permissibility - Withdrawal of application for voluntary retirement after expiry of period of notice - Held - No relationship of employer-employee continued or existed between them subsequent thereto - Withdrawal not permissible : Ruksana Begum Siddiqui Vs. State of M.P., I.L.R. (2009) M.P. 3072 Civil Services (Promotion) Rules, M.P. 2002 126
- Rule 42(1)(a) - Services rendered by teacher after the expiry of the period of notice and withdrawal of application for voluntary retirement - Effect - Held - Work taken by Principal subsequent to the date of voluntary retirement without taking any permission from the Competent Authority would be at the risk and cost of the Principal himself, who was not competent to either accept the application for voluntary retirement or extend the period of voluntary retirement - Teacher stood voluntarily retired w.e.f. expiry of period of notice - Petition dismissed : Ruksana Begum Siddiqui Vs. State of M.P., I.L.R. (2009) M.P. 3072
- Rule 42(1)(b) - See - Service Law : Bhagvant Singh Parihar Vs. State of M.P., I.L.R. (2010) M.P. 199
- Rule 42(1)(b) - See - Service Law : Yogiraj Sharma (Dr.) Vs. State of M.P., I.L.R. (2009) M.P. 959
- Rule 45 (a) - Persons to whom gratuity is payable - Gratuity is payable to the nominee - However, Rule 46(1) provides that the nomination shall not be in favour of any person or persons other than the family member of government servant : Girijabai Vs. State of M.P., I.L.R. (2008) M.P. 1167
- Rule 47 (6) - For grant of family pension nomination is not necessary - Legally wedded wife of government servant is entitled to receive family pension : Girijabai Vs. State of M.P., I.L.R. (2008) M.P. 1167
- Rule 65 - See - Service Law : Ramesh Chandra Gupta Vs. State of M.P., I.L.R. (2010) M.P. 2506
- (Work Charged & Contingency Paid Employees) Pension Rules, M.P., 1979, Grah Nirman Mandal Adhiniyam, M.P., 1972 (3 of 1973), Section 15, Housing Board Regulations, M.P., 1977, Regulation 3 - Petitioner appointed as Time Keeper on 25.07.1973 as a Work Charge & Contingency Employee in the M.P. Housing Board - Regularised on the post of Assistant on 14.03.1995 - Retired on 30.08.2003 but was denied pension - Held - Provisions of Rules 1976 & Rules 1979 are applicable to employees who have been rendered their services as Work-Charge & Contingency paid employees also in the M.P. Housing Board - Petitioner entitled for pension : Satyanarayan Gupta Vs. M.P. Housing Board, I.L.R. (2008) M.P. 2046 Civil Services (Promotion) Rules, M.P. 2002 -Civil Services (Promotion) Rules, M.P. 2002 - See - Service Law : Fuljencia Kujur (Smt.) Vs. State of M.P., I.L.R. (2010) M.P. 2504 Coal Bearing Areas (Acquisition and Development) Act (20 of 1957) 127
Civil Services (Special Provision for Appointment of Women's) Rules, M.P., 1997 - Civil Judge, Class-II (Entry Level) Examination, 2009 - Age Relaxation - No Age Relaxation provided to women candidates for appointment as Civil Judge - Eligibility criterion challenged as discriminatory and violative of Article 14 of the Constitution of India on ground that age relaxation is provided by M.P. Public Service Commission and some other States - Held - The Rules 1997 are not framed in consultation with the M.P. High Court, hence the Rules 1997 cannot be applied and if benefit of extension of upper age limit by ten years is extended to women candidates, the same would be violative of Articles 233 and 234 of the Constitution of India - Writ petition dismissed : Sheela Gaur (Smt.) Vs. State of M.P., I.L.R. (2010) M.P. 1745 (DB) Civil Wrong & Criminal Offence - Distinguished - Criminal proceedings cannot be quashed merely on the ground that civil remedy is available - In the matter of exercise of High Court's inherent power, the only requirement is to see whether continuance of the proceeding would be a total abuse of the process of Court : V.C. Raam Sukaesh Vs. State of M.P., I.L.R. (2008) M.P. Note *70 Class III (Non-Ministerial) Forest Service Recruitment Rules, M.P. 1967 - Rule 15 - See - Service Law : N.K. Dubey Vs. State of M.P., I.L.R. (2010) M.P. 836 (DB) Class III (Non-Ministerial) Forest Services Recruitment Rules, M.P. 1999 - Rule 16 - See - Service Law : N.K. Dubey Vs. State of M.P., I.L.R. (2010) M.P. 836 (DB) Coal Bearing Areas (Acquisition and Development) Act (20 of 1957) - Sections 10 & 11, Stamp Act, 1899, Section 2(14) - Central Government has ordered u/s 11(1) of Act of 1957 for vesting of lands in favour of Government Company - Such an order would not be an instrument - Governmet was unjustified in demanding the stamp duty in view of a direction/order issued by Central Government : State of M.P. Vs. Western Coalfields Ltd., I.L.R. (2009) M.P. 1887 (DB)
- Section 14, Land Acquisition Act, 1894, Section 11 - Central Government acquired right to mine u/s 9 of the Act of 1957 but instead of issuing notice of intention to acquire land u/s 7 of the Act of 1957, requested the Collector to acquire under Act of 1894 - State Government issued notification and initiated proceedings u/s 9 of the 1894 Act Commercial Tax Act, M.P. 1994 (5 of 1995) 128 and the Collector made the award determining the compensation u/s 11 of the 1894 Act - Held - 1894 Act was a general Act whereas 1957 Act was a special Act for acquisition of land and 1957 Act has partially repealed 1894 Act - Land owners, whose lands were acquired, were deprived of determination of compensation by agreement or failing such agreement by tribunal u/s 14 of Act of 1957 - Considering the public interest vis-à-vis private interest, instead of quashing acquisition proceeding, Central Government directed to proceed under Act of 1957 and determine compensation - Petition allowed : Naresh Singh Vs. Union of India, I.L.R. (2009) M.P. 730 (DB) Coal Mines Labour Welfare Fund (Repeal) Act (27 of 1986) - Coal Mines Provident Fund Scheme, Payment of Gratuity Act, 1972, Section 7 - Entitlement of Gratuity - Petitioner an employee of Coal Mines Welfare Organisation - Said Organisation was abolished and services of the petitioner were transferred to a Company - After retirement petitioner filed claim before the Controlling Authority for payment of gratuity - Controlling Authority allowed the claim by holding that past services of the petitioner have not been properly counted - Appellate authority set-aside order - Held - There was a specific provision in option exercised by petitioner that past services rendered in the Coal Mines Welfare Organisation that for the purposes of calculation of gratuity shall not be counted - Thus petitioner not entitled for payment of gratuity - Petition dismissed : Kedar Nath Mishra Vs. Appellate Authority under Payment of Gratuity Act, 1972 and Regional Labour Commissioner (C), I.L.R. (2008) M.P. 1923 Coal Mines Provident Fund Scheme, Payment of Gratuity Act, (39 of 1972) - Section 7 - See - Coal Mines Labour Welfare Fund (Repeal) Act 1986 : Kedar Nath Mishra Vs. Appellate Authority under Payment of Gratuity Act, 1972 and Regional Labour Commissioner (C), I.L.R. (2008) M.P. 1923 Commercial Tax Act, M.P. 1994 (5 of 1995) - Circular issued by Sales Tax Authority contrary to statutory provisions - Can not override statutory provision : Pawan Kumar Jain (M/s) Vs. The Commercial Tax Officer, I.L.R. (2010) M.P. 2049 (DB)
- Petitioner preferred appeals before the M.P. Commercial Tax Appellate Board - Final arguments were heared by the Bench on 22.12.2007 and the appeals were closed for orders - The order is purported to have been passed on 02.08.2008 but at the behest of the Chairman, the order passed by the Bench not communicated and the matter was referred to the larger Bench by the order of the Chairman in terms of sub-rule (8) of Rule 4 of the Rules, 1995 - Action challenged by the petitioner that such a course/reference is without jurisdiction - Held - There was nothing wrong in the Commercial Tax Act, M.P. 1994 (5 of 1995) 129 course of action adopted in the facts and circumstances of the case - Mere passing of an order alone was not sufficient until it was pronounced or delivered : Emami Ltd. (M/s.) Vs. Registrar, M.P. Commercial Tax, I.L.R. (2010) M.P. 2497 (DB)
- Sections 2(t)(ii) & 9-B - Value Added Tax on material consumed in process of works contract - Sale includes transfer of property in goods "Whether as goods or in some other form" - Transfer of goods in any form involved in the execution of works contract is a case of resale and tax has to be paid : Pawan Kumar Jain (M/s) Vs. The Commercial Tax Officer, I.L.R. (2010) M.P. 2049 (DB)
- Section 35 - Providing for deduction at source of tax payable by contractor - Vires of Section 35 challenged - Section 35 not excluding sales made out side state and is contrary to Section 79 and entry 54 of list II of 7th Schedule providing for exemption of tax on sales made side state - Section 35 is beyond the competence of the state legislature and is ultra vires the Constitution : M/s Jaiprakash Associates Ltd Vs. State of Madhya Pradesh; I.L.R. (2006) M.P. 1367 (FB)
- Section 45-D - Whether refrigerator is an electrical good - Held - Refrigerator is not ousted from the purview of the electrical goods - It is operated by the electricity - Refrigerator is not only used by the electrical energy but answers the description of electrical goods - It is used for the domestic purpose and it's functions are controlled by the electrical energy - It is an electrical good : Varun Road Lines Pvt. Ltd., Bhopal (M/s.) Vs. Commissioner of Commercial Tax, Indore, I.L.R. (2010) M.P. 1737 (DB)
- Section 70 - Reference to High Court on substantial question of law - Reference to High Court on substantial question of law rejected on the ground of delay of 1 month and 17 days - Held - Court of law unless finds that the litigation is absolutely frivolous or is filed with the motive to procrastinate the proceeding, it should adopt a liberal approach while dealing with the application for condonation of delay - When there is some delay and it has been acceptably explained - The legal forum should not adopt a hyper- technical approach to throw the lis on the threshold : M. Ishaq M. Gulam (M/s) Vs. State of M.P., I.L.R. (2009) M.P. 2842 (DB)
- Entry No.22 in Part I of Schedule II, Entry No.22 in Part V of Schedule II, Entry No.39 in Part IV - Reference made to 5 judges bench to decide "Whether the coal ash is a part of cinder and covered by the term coal in Entry No.22 in Part V of Schedule II of the Commercial Tax Act or the said commodity would be taxable under Entry No.39 in Part IV ?" - Held - "Coal Ash" is "Cinder" and covered by the term "Coal" in Entry No.22 in Part V of Schedule II and therefore it is not exigible to tax under Entry No.39 in Part IV. Further it has been held that judgment in Hukumchand Mills case de hors the earlier decisions and the view expressed therein with regard to Cinder (Coal Ash) being different commodity from its parent coal - Overruled to the Common Entrance Examination, D-MAT, 2006 130 extent that Cinder is not Coal - Appeal dismissed accordingly - State preferred an appeal against order of Single Judge, holding that - "The rate of tax on the sale of Coal Ash would be same as that of Coal and not prescribed under residuary entry", on the ground that it is against the ratio decided by 3 Judges bench in Hukumchand Mills Ltd. v. Commercial Tax MP [1988] 71 STC 101 - Hence this Reference : Additional Commissioner of Sales Tax Vs. M/s. S. Kumar Limited, I.L.R. (2008) M.P. 2156 (FB) Commission of Inquiry Act (60 of 1952) - Section 3, Constitution, Article 226 - Enforcement of fundamental right - Apex Court treating a letter to be a PIL passed certain observations and appointed panel of advocates as Commissioner - Held - These observations of Shri P.N. Bhagwati, J of the Supreme Court equally apply to the exercise of jurisdiction of the High Court under Article 226 for enforcement of fundamental rights - Therefore, Shri Justice S.S. Jha, retired Judge of High Court of M.P., has been appointed as a Commission to inquire into and submit a report : Narmada Bachao Andolan Vs. State of M.P., I.L.R. (2009) M.P. 112 (DB) Commissioner of Oath Rules, 1976 - Rule 2(b), High Court Rules and Orders, Rule 1 of Chapter III, Oaths Act, 1969, Section 3, Civil Procedure Code, 1908, Section 139, Criminal Procedure Code, 1974, Section 297 - Oath Commissioner - Whether Oath Commission entitled to administer oath and solemn affirmation for the purpose of proceeding in High Court - Oath Commissioner is created under Oath Act - They can administer oath for filing in judicial proceedings only if they are empowered in this behalf by High Court - High Court has not empowered any person to administer oath for filing affidavits for proceeding before High Court - Rule 2(b) of Rules, 1976 defines Court as only Civil Court under superintendence of High Court - Oath Commissioner not entitled to administer oath and receive solemn affirmation under Rules, 1976 for the purpose of proceeding in High Court : Smt. Manju Vs. Ghanshyam, I.L.R. (2007) M.P. 1793 (DB) Common Entrance Examination, D-MAT, 2006 - Admission - Petitioner was offered admission on the basis of his performance in entrance examination - College demanded bank guarantee for Rs. 10 lacs - Held - If Institution feels that student may leave the course in midstream then it may require that student to give a bond/bank guarantee that the balance fee for the whole course would be received by Institution - No assessment by Institution that whether petitioner would leave the course midstream - Demand of bank guarantee without assessment contrary to judgment of Supreme Court - Demand made by institution quashed : Manoj Modi Vs. State of M.P., I.L.R. (2007) M.P. 1365 (DB) Companies Act (1 of 1956) 131
Companies Act (1 of 1956) - Act of oppression or mis-management - Challenge - Delay - Held - When a case of mis-management or apprehension of oppression' and mis-management of a company u/s 397/398 is alleged, the same would be a continuous act, which may continue up to the date of presentation of a petition or till the damage caused by the act of oppression or mis- management is not rectified or made good : H.L. Taneja (Deceased) Through L.Rs. Vs. Jitendra Mohan Khungar, I.L.R. (2010) M.P. Note *27
- Applicability of Limitation Act before Company Law Board - Held - The Company Law Board is a quasi-judicial authority and, therefore, the provisions of S. 137 of the Limitation Act will not apply : H.L. Taneja (Deceased) Through L.Rs. Vs. Jitendra Mohan Khungar, I.L.R. (2010) M.P. Note *27
- Section 10 - Power of the High Court - Held - While exercising limited jurisdiction in a proceeding u/s 10-F of the Act the High Court does not sit over the order of the Company Law Board, as if it is exercising appellate jurisdiction - The High Court is only required to consider substantial questions of law : H.L. Taneja (Deceased) Through L.Rs. Vs. Jitendra Mohan Khungar, I.L.R. (2010) M.P. Note *27
- Section 10-F - Jurisdiction of High Court - Appeal u/s 10-F only deals with questions of law involved therein - A question of fact may give rise to a question of law, if the finding of fact is perverse or contrary to the material available on record - At the same time, if the finding based on some evidence available on record and is a possible finding that can be arrived at in the given set of circumstances, then the same need not and will not give rise to a question of law : Marbel City Hospital & Research Centre Pvt. Ltd. (M/s.) Vs. Mr. Sarabjeet Singh Mokha, I.L.R. (2009) M.P. 2941
- Sections 53 & 286 - Presumption of service of notice sent by UPC - Permissibility - Held - Onus of proving the fact that the notice was sent, was on the company - Mere production of the certificate of posting is not and cannot be a conclusive proof of having served the notice upon the addressee - In the facts and circumstances of the case, company have failed to discharge this onus by adducing cogent, legal and admissible evidence - Accordingly, sending of the notice for the five Board meetings and its service on the respondent is not proved : Marbel City Hospital & Research Centre Pvt. Ltd. (M/s.) Vs. Mr. Sarabjeet Singh Mokha, I.L.R. (2009) M.P. 2941
- Section 399 - Right to apply u/ss. 397 & 398 - Who can apply - Held - In the case of a company having a share capital not less than 100 members of the company or not less than one-tenth of the total number of the members, whichever is less, or any member or members holding not less than one-tenth of the issued share capital of the company can institute the proceedings : H.L. Taneja (Deceased) Through L.Rs. Vs. Jitendra Mohan Khungar, I.L.R. (2010) M.P. Note *27 Constitution 132
- Section 400 - Non-service of notice to Central Government - Held - There is nothing under law to indicate that non-compliance with the aforesaid provision renders the proceeding vitiated in all cases, even when no public interest or right of any other member of the company, unrepresented : Marbel City Hospital & Research Centre Pvt. Ltd. (M/s.) Vs. Mr. Sarabjeet Singh Mokha, I.L.R. (2009) M.P. 2941
- Section 433(e) - Winding up of Company - Respondent Company indebted to petitioner - Respondent Company failed to prove defence - Held - Petitioner has proved that respondent Company is unable to pay its debts - Petitioner can not be denied the order of winding up of respondent Company by directing it to avail alternate remedy - Petition allowed : Sungrace Finvest Pvt. Ltd. Vs. Maikaal Fibres Ltd., I.L.R. (2010) M.P. 1141 Computation of posts for promotion - Computation of posts for promotion - Question as to whether both permanent and temporary posts are required to be considered for computation of posts - The word 'Cadre' includes both, permanent and temporary posts - Applying 'Senior Scale' and 'Selection Grade Scale' in respect of only permanent posts by State Government - Not proper qualification - Temporary posts also required to be included in computation of total number of posts - Petitioner entitled to be given benefit of there was temporary vacancy : Ghulam Moinuddin Vs. State of M.P., I.L.R. (2007) M.P. 208 Conduct of Election Rules, 1961 - Rule 63 - Recount of Votes - No application for recount made and Election Petition filed with a prayer of recount - Held - Non filing of application for recount before the returning officer would not operate as a bar to a petition seeking direction for recount : Shriniwas Tiwari Vs. Rajkumar Urmalia, I.L.R. (2010) M.P. 1761 Confiscation of commodity challenged - Confiscation of commodity challenged - Confiscation of edible oil challenged on the ground that order ought to have been passed by Judicial Authority and not by the Minister - Petitioner himself submitting apeal before concerned Minister - That apart, this ground not raised in the petition - Validity of the order on this ground cannot be challenged now : Rajendra Mahajan Vs. State of M.P., I.L.R. (2007) M.P. 353 Constitution - Constitution - Public Interest Litigation - Is to be invoked sparingly and with rectitude and any order made in this situation must be reasonable : S.K. Dasgupta Vs. Vijay Singh Sengar, I.L.R. (2010) M.P. 2248 (SC) Constitution of India 133
Constitution of India - Directive Principles of State Policy - P.I.L. - A woman jumped into funeral pyre of her husband & died (Committed Sati) - Cabinet of State Govt. decided not to provide any kind of financial assistance to Gram Panchayat for two years and also requested the Central Govt. not to extend any financial assistance to that Gram Panchat - Order challenged by P.I.L. - Looking to the importance of the matter, Division Bench referred the matter to the Full Bench - Held - Although provisions contained in Part IV of the Constitution are not enforceable in any Court - But, if State Govt. or Central Govt. withhold all financial aid of a village on the ground that some people of the village have committed or abetted the commission of offence - Order of the Govt. arbitrary and ultra vires Art. 14 of the Constitution : Anandilal Chourasia Vs. State of M.P.; I.L.R. (2007) M.P. 1183 (FB)
- Articles 3, 4, 245 & 246, Entry 41 of List II of 7th Schedule, Madhya Pradesh Reorganisation Act, 2000, Sections 68, 69 & 70 - Petitioner challenging the vires of the provisions contained in Ss. 68, 69 & 70 of the Act on the ground that only State Legislature has jurisdiction to frame guideline regarding the conditions of service of public servants - Held - Law made by the Parliament under Articles 3 & 4 of the Constitution forming a new State by separating any State and providing therein supplemental, incidental and consequential provisions will be within the competence of Parliament - Even if it encroaches upon a matter within the exclusive legislation competence of the State Legislature under Articles 245 & 246 of the Constitution - Ss. 68, 69 & 70 of the Act are not ultra vires : K.N. Shukla Vs. Union of India, I.L.R. (2009) M.P. 430 (DB)
- Articles 3, 4, 245 & 246, Entry 41 of List II of 7th Schedule - The exclusive power of State Legislature under Articles 245 & 246 of the Constitution to make law in respect of any matter enumerated in List II of 7th Schedule of the Constitution including a law on "State Public Services" in the State is subject to Articles 3 & 4 of the Constitution : K.N. Shukla Vs. Union of India, I.L.R. (2009) M.P. 430 (DB)
- Article 12 - Mere violation of rules by any citizen or person will not include him in the definition of Article 12 - If a person violates any particular law, it will not mean that he will be amenable to writ jurisdiction under Article 226/227 : Sunil Kumar Saxena Vs. Holy Cross Ashram Higher Secondary School, Datia, I.L.R. (2010) M.P. 29 (DB)
- Article 12 - State - Question whether M.P. Cooperative Dairy Federation Limited is a State or not referred to Larger Bench - Body financially, functionally and administratively dominated by or under the control of Govt. is a State - Held - Work of Federation relates to economic development of farmers engaged in production and sale of milk - Development of milk and milk products and economic development of farmers Constitution of India 134 carrying business of sale of milk is part of functions of welfare State - 90% of share capital of federation held by Govt. - In 2003 Rs.9,96,50,024 given by way of grant-in-aid by Govt. thus Federation financially dominated by Government - Vast powers including to appoint, dismiss, suspend federation employees vest in Board of Directors majority of which nominated by Govt. - Managing Director appointed by Govt. and works under control, directions and guidance of Board of Directors - General Assembly of Federation also dominated by Board of Directors thus, Federation dominated and controlled by Govt. administratively and functionally - Federation is a State within meaning of Article 12 - Writ Petition maintainable - Judgment passed by Full Bench in case of Dinesh Sharma overruled : M.P. State Co-operative Dairy Federation Vs. Madan Lal Chourasia, I.L.R. (2007) M.P. 859 (FB)
- Articles 12, 14, 16 & 309 - Municipal Corporation is 'State' and in the matter of recruitment of employees is bound by constitutional provisions containing in Articles 14 & 16 - Distinction between "illegal appointment" and "irregular appointment" - Appointment made in total disregard to constitutional scheme as also recruitment rules is illegal appointment - If there is substantial compliance of constitutional scheme, but some provisions of rules not followed, it is irregular appointment - Article 309 of is applicable - Illegal appointment cannot be regularized : Municipal Corporation, Jabalpur Vs. Om Prakash Dubey, I.L.R. (2007) M.P. 157 (SC)
- Articles 12,14, 226 - Advocates Act, 1961, Sections 3, 15 and Allotment of Chamber Rules 1998, Rules 4, 6 - State Bar Council - Is statutory body exercising statutory function - It is an "other authority" and is "State", bound by mandate of Article 14 - Sitting members of State Bar Council cannot constitute a separate class for special treatment in matter of chamber allotment - Rule 4 Conferring special privileges on sitting members of State Bar Council held ultra-vires - Chambers allotted on basis of first, Second and third proviso to Rule 4 to be vacated by occupants - Vacant chambers directed to be allotted as per waiting list : J.P. Sanghi Vs. The State Bar Council of M.P., I.L.R. (2006) M.P. 1262 (DB)
- Articles 13, 14, 15 (4), 16 (4), 21, 341, 342 and Constitution (Scheduled Tribes) Order, 1950 - Scheduled Tribes - Caste Certificate - Condition precedent - For a person to be brought within the purview, one must belong to a tribe and suffer disabilities wherefrom they belong - In absence of any statutory law a person would inherit his caste from his father and not mother even in a case of inter-caste marriage-offshoot of a wedlock of a trible woman married to a non-tribal husband - Can not claim scheduled Tribe status - GOI circular dated 4th March, 1975 - Not a law within the meaning of Article 13 of the Constitution : Anjan Kumar Vs. Union of India, I.L.R. (2006) M.P. 177 (SC) Constitution of India 135
SYNOPSIS : Article 14
1. A wrong never confer a right 5. Liquor trade 2. Constitutional validity 6. Service Matter 3. Contract 7. Wages Payable to prisoners 4. Entrance Examination 8. Miscellaneous
1. A wrong never confer a right - Article 14 - Equality - Negative equality - Merely on a wrong done by the State will not confer any right on the petitioners - It is a case of negative equality and a wrong benefit conferred shall not carry any right in favour of other person to claim the same relief by applying the concept of negative equality: Rakesh Mishra Vs. State of M.P., I.L.R. (2009) M.P. 757
- Article 14 - Equality - Employment to land losers - Guidelines framed and extent of acquire area fixed - Norms fixed not followed uniformly - Wrong decision by Government does not give a right to enforce wrong order and claim parity or equality - Two wrongs can never make a right : South Eastern Coalfields Ltd. Vs. Prem Kumar Sharma, I.L.R. (2006) M.P. 1243 (SC) 2. Constitutional validity - Article 14, Motoryan Karadhan Adhiniyam, M.P. 1991 [As amended w.e.f. 08.12.1999], Section 16(5) - Constitutional validity - S. 16(3) provides for seizure of the vehicle in the case of default of payment of tax - Such provision has not been assailed - In S. 16(5) only an additional rider has been added that the Court taking cognizance of the offence shall not release such vehicle - Provision not repugnant to main S. 16 and Motor Vehicle Act, 1988 - Provision cannot be said to be violative of Aritcle 14 of Constitution - Provision is constitutionally valid - Petition dismissed : Hardeo Motor Transport Co. (M/s.) Vs. State of M.P., I.L.R. (2010) M.P. 852 (DB)
- Articles 14, 16, 19, 21, 102, 226 and Right to Information Act, 2005, Sections 12(5), 12(6), 15(5), 15(6) - Constitutional validity - Constitution of Central Information Commission - Appointment of Chief Information Commissioner, and information Commissioner - Exclusions of class of persons from being so appointed - MPs, MLAs and persons holding office of profit excluded - While certain requisites are to be possessed there can be exclusion of certain categories - Purpose is to have neutrality, objectivity and avoidance of conflict of interest - Provisions not ultra-vires : Virendra Singh Choudhary Vs. Union of India, I.L.R. (2006) M.P. 1274 (DB) Constitution of India 136
- Articles 14, 19(1) (g), 226, Mines and Minerals (Development and Regulation) Act, 1957, Section 15 and M.P. Minor Mineral Rules, 1996, sub Rules 14 & 15 of Rule 30 - Writ Petition - Constitutional validity of Sub Rules 14 and 15 of Rule 30 - Requiring transit passes for transportation of goods challenged - Power to regulate mining operation includes issuance of transit pass for transportation - Rules can not be said to be ultra vires : Chiman Lal Vs. State of M.P., I.L.R. (2006) M.P. 1376 (DB)
- Articles 14 & 21 - See - Labour Laws (Amendment) and Miscellaneous Provisions Act, M.P. 2002 : Labour Bar Association, Satna Vs. State of M.P., I.L.R. (2009) M.P. 1207 (DB)
- Article 14, 226, Regularization of Ad hoc Appointment Rules, 1990, Rule 11 - Constitutional validity - Service law - Regularization and seniority - Purely ad hoc appointment till regular incumbent selected by P.S.C. - Method of regularization of such appointment is an exception to general rule - Seniority cannot be granted from date of ad hoc appointment - Computation of seniority is to be made from the date of substantive appointment - Rule 11 not ultra vires : Ramesh Khedkar Vs. State of M.P., I.L.R. (2006) M.P. 1137 (DB)
- Article 14 - See - Stamp Act, 1899, Section 35 : Vijay Choudhary Vs. Union of India, I.L.R. (2010) M.P. 376 3. Contract - Article 14 - Contract - Judicial Review - Imposition of new conditions before opening of tenders - Respondents invited tenders for supply of various items including Distribution Transformers - Petitioners submitted their tender forms - Before opening of tender forms corrigendum issued by respondents imposing further condition that tenderer would be eligible to submit bid only if he had capital of Rs. 8.5 crores approximately - Petitioners are small scale industries - Challenged imposition of additional condition being arbitrary, and malafide and has been issued with a view to oust small scale industries - Held - Illegality, Irrationality, namely Wednesbury unreasonableness and Procedural impropriety are grounds on which administrative action is subject to control by judicial review - Some of the Petitioners who were earlier granted contract for supply of DRT could not supply the DRT - Imposition of new condition has been prescribed to ensure smooth and sufficient supply of transformers - No illegality committed by imposing additional conditional - Petition dismissed : Sharad Oswal Vs. Madhya Pradesh Poorva Kshetra Vidyut Vitran Company Ltd., I.L.R. (2008) M.P. 226
- Articles 14, 226 - Govt. Contract - Eligibility Criteria - Earlier, Petitioner Company was working in the name of M/s Tejas Construction and M/s Agrawal Brothers - M/s Constitution of India 137
Tejas Construction converted into Petitioner Company and M/s Agrawal Brothers purchased by petitioner company through sale deed - Documents not considered on the ground of non-submission of dissolution deed of M/s Agrawal Brothers and non- registration of sale deed - Reason of non-submission of dissolution deed explained in sale deed - No objection by any partners of M/s Agrawal Brothers - In the sale deed it was specifically mentioned that partners shall allow the petitioner company to submit experience certificate gained by firm - Held - Rejection of experience certificate and disqualification of petitioner arbitrary, baseless and hyper technical - Petition allowed : Tejas Construction & Infrastructure Pvt. Ltd. Vs. Municipality Sanawad, I.L.R. (2008) M.P. 2305
- Articles 14, 226/227 - Judicial Review of Contract - Court can examine whether decision making process was rational, not arbitrary and not violative of Article 14 - Housing Board in the year 2004 issued advertisement for sale of its office building - Offer of the Petitioner was highest but was not accepted - Board decided to allot the building to a Semi Govt. undertaking at a price higher than quoted by Petitioner - Decision of the Board challenged - Action of the Board is not arbitrary as the decision to grant lease in favour of a Semi Govt. undertaking was in accordance with resolution passed by Board in the year 1997 - The Govt. or Semi Govt. organizations constitute a different class altogether and certain benefit conferred by virtue of circular can not invite grievance - Petition dismissed : Rajni Pathak Vs. The M.P. Housing Board, I.L.R. (2006) M.P. 1609 4. Entrance Examination - Articles 14, 226, M.P. Medical and Dental Under - Graduate Entrance Examination Rules, 2006 - Rules 9.6 and 9.9 challenged as being ultra vires - Rule 9.6 requiring candidates selected in P.M.T. examination to exercise option for allotment of available seats and Rule 9.9 providing that after exercise of option, the candidate becomes ineligible for a seat in college or course that becomes available later on - Petitioner taking PMT test and opting for BDS course as MBBS seats get filled up by more meritorious candidate - More seats becoming available later on but petitioner not called for counselling - Held, Rules 9.6 and 9.9 are reasonable and not ultra vires - If these Rules are not followed, chain reaction will start with regard to fill up of seats, making it difficult for authority to fill up the seats available before the time of commencement of the course - However, authorities conducting counselling directed to follow transparent and fair procedure so that candidates do not feel that information was withheld from them - New transparent procedure directed to be established in next counselling session : Arun Singh Yadav Vs. State of M.P., I.L.R. (2007) M.P. 178 (DB)
- Articles 14, 226 and M.P. Medical and Dental Post Graduate Course Substance Examination Rules 2005, Rules 15, 17.5 - Education - Admission - Constitutional validity Constitution of India 138 of Rule 17.5 challenged - Reserved category seat to be filled up by open competition from all candidates whosoever is eligible - Petitioner "in service" candidate - Not a ground to hold him ineligible for M.D.S. Entrance Examination - Reservation of Prosthodontics for Scheduled Tribe candidate - Ten year roster prepared - In fifth year seat to be reserved for S.C. candidate - Rule 17.5 providing reservation of Prosthodontics seat for S.T. candidate in fifth year of roster held ultra-vires : Anand Dattatray Bele Vs. State of M.P., I.L.R. (2006) M.P. 1290 (DB) 5. Liquor trade - Article 14 - Liquor trade - Elimination & exclusion from business is inherent - Trade or business in liquor is a special category and must be treated as a class and cannot be placed on same pedestal as other trades - Where State Government frames a policy with object to secure maximum revenue for parting with its privilege to deal in liquor, action of State Government cannot be assailed on the ground that it infringes Article 14 : Chingalal Yadav Vs. State of M.P., I.L.R. (2010) M.P. 788 (FB)
- Articles 14 & 19 - Liquor trade - No citizen has any fundamental right to trade or carry on business in liquor and all forms of dealing in liquor have from their inherent nature, been treated as class by themselves by all civilized societies : Chingalal Yadav Vs. State of M.P., I.L.R. (2010) M.P. 788 (FB)
- Articles 14, 226 and Excise Act, M.P., 1915, Section 25 and Excise Policy 2005-06, Clause 13 - Writ petition - Liquor is to be released against deposit of licence fee - Default of licencee - Licence liable to be cancelled - Liquor has to be supplied against licence fee collected - No stipulation that liquor will not be supplied against licence fee deposited beyond stipulated time - Circular of Excise Commissioner not to allow licence to lift liqour against licence fee deposited beyond stipulated time - Circular ultra vires Section 25 of the Act, 1915 : Lalit Jaggi Vs. The State of Madhya Pradesh; I.L.R. (2006) M.P. 351(DB) 6. Service Matter
(i) Age of superannuation (vii) Payment of salary (ii) Appointments (viii) Promotion (iii) Back wages (ix) Punishment (iv) Honorarium (x) Termination (v) Increments (xi) Transfer (vi) Maintainaility of writ petition Constitution of India 139
(i) Age of superannuation - Article 14 - State Government's notification dated 27.09.2003 prescribes the age of superannuation of 62 years of class IV employees of the Municipalities including Safai Kamgar - Held - Article 14 forbids class legislation - However, it permits reasonable classification - Two classes of Ivth class employees of Municipalities have been created - One class of employees is who have been retired between the period of 1998-2003 and other class of employees who have been retired after the notification - The second class of employees have been given the benefit of the notification but the earlier class of employees have been denied the benefit - However, the benefit of retirement at par with the State Government employees have been given to the members of M.P. State Municipal Service - No reasons have been assigned by the State Government as to why the class IV employees of the Municipalities have not been given the benefit of age of superannuation from the same date i.e. 26.09.1998 as has been given to the members of M.P. State Municipal Service - Petition allowed with the direction to give the benefit to petitioner : Mathuro (Smt.) Vs. State of M.P., I.L.R. (2009) M.P. 765
- Articles 14, 226, Public Works Department Workcharged and Contingency Paid Employees Recruitment and Condition of Service Rules, M.P., 1976, Rule 2(h), Workcharged & Contingency Paid Employees Revision of Pay Rules, 1977, Rule 4 and, Workcharged and Contingency Paid Employees' Pension Rules, 1979, Rule 2(c) - Writ Petition - Service Law - Superannuation - Gangman - Comparable to other class IV employees of State Government - Governed by Rules applicable to Workcharged & Contingency Paid Employees - Age of superannuation is 62 years : Vishnu Vs. State of M.P., I.L.R. (2006) M.P. 312(FB) (ii) Appointments - Articles 14, 16 - Right of selected candidate for appointment - Petitioner selected for the post of Additional Assistant Development Commissioner and was placed at serial no. 17 of supplementary list - Persons placed upto serial no. 16 given appointment - As one person did not join therefore, one post was lying vacant - Petitioner not given appointment - Held - Although a selected candidate has no right for appointment, however, there must be some rational for not appointing person - Action of employer has to be in consonance with Article 14 - No reasons assigned by respondent no.2 for not appointing petitioner although post was lying vacant - Respondents directed to appoint petitioner with all consequential benefits - However, Petitioner shall not be entitled for arrears of salary on the principle of No Work No pay : Shyam Mohan Srivastava Vs. State of M.P., I.L.R. (2008) M.P. 1119
- Articles 14 and 16 - Public Appointments - The equality of opportunity is held to be a hallmark in the matter of public appointment. When the advertisement issued is for appointment on adhoc or contract basis and if such appointee is regularized under the Constitution of India 140 process of regularization the same stands vitiated as it deprives the constitutional right to equality in the matter of opportunity to seek public appointment to many prospective candidates who would have otherwise applied but for the manner in which the advertisement was issued : Anil Kumar Purohit (Dr.) Vs. Dr. Hari Singh Gaur Vishwa Vidhyalaya, Sagar, I.L.R. (2010) M.P. 2135
- Articles 14 & 16 - Temporary employee - In case of appointment on temporary basis, a servant who is so appointed does not acquire any substantive right to the post and even if order is silent, it is an implied term of such appointment that it may be terminated at any time without notice : Vijay Singh Yadav Vs. State of M.P., I.L.R. (2010) M.P. 1275
- Articles 14 & 16 - Equal opportunity in the matter of public employment would be grossly violated if the appellant was not considered for the selection to the post of constable : Sandeep Kumar Richhariya Vs. State of M.P., I.L.R. (2008) M.P. 434 (DB)
- Article 14, 16 & 226, Rajya Prashasnik Adhikaran (Lambit Evam Nirakrat Avedano Ka Antaran) Adhyadesh, M.P. 2003, Administrative Tribunals Act, 1985, Section 21 - Appointment without any advertisement or calling names from Employment Exchange - Challenged before M.P. Administrative Tribunal - Application transferred to High Court upon abolition of Tribunal - Plea of limitation u/s 21 of Act of 1985 - Held - After transfer to High Court, cases are registered and decided treating to be writ petition under Article 226/227 - Section 21 of the Act of 1985 can not curtail jurisdiction under Article 226/227 - Appointments without advertisement and calling names from Employment Exchange - Violative of Article 14 & 16 - Hence quashed - However, appointees worked for 10 years and crossed upper age limit prescribed for public employment - Allowed to participate in fresh recruitment process and their application form shall not be rejected on the ground of age limit - Petition allowed : Nandkishore Narolia Vs. State of M.P., I.L.R. (2008) M.P. 2591
- Articles 14, 16, 227 - Service law - Recruitment - State Civil Service examination - Stipulation that Candidates must have passed Higher Secondary or Graduate degree from any School or college within the State - Differentia adopted has no rational nexus with the object sought to be achieved and deny equality of opportunity in matters relating to public employment - Thus in contravention of Articles 14 and 16 of the Constitution of India : The State of Madhya Pradesh Vs. Ritesh Kumar Sharma, I.L.R. (2006) M.P. 220 (DB)
- Articles 14, 16, 233, 235 - See - Uchchatar Nyayik Sewa (Bharti Tatha Sewa Sharten) Niyam, 1994, Rule 5(1) Second Proviso : Y.D. Shukla Vs. High Court of Judicature of M.P. At Jabalpur, I.L.R. (2008) M.P. 2577 (DB) Constitution of India 141
- Article 14, 16 - Irregular appointments and illegal appointments - Distinction - See - Service Law : Rajesh Ahirwar Vs. Principal Secretary Health Department, I.L.R. (2009) M.P. 2590 (iii) Back wages - Articles 14, 226 and Industrial Disputes Act, 1947, Section 25-H - Labour Laws - Back wages - Gainful employment is material factor - Tribunal not considered this aspect while awarding back wages - Award set aside only to that extent and remitted back to CGIT : Employers in Relation to The Management of Western Coalfields Pench Area, P.O. Parasia, Distt. Chhindwara Vs. Samyukta Khadan Mazdoor Sangh (Aituc) Post Chamdameta; I.L.R. (2006) M.P. 10 (iv) Honorarium - Article 14, Education Guarantee Scheme - Payment of Honorarium - Petitioner appointed as Shiksha Karmi and was not paid enhanced honorarium on the ground that he was not fulfilling the conditions mentioned in circular dated 26.07.2003 - Action challenged on the ground that respondents are trying to create two classes of Guruji (Shiksha Karmi) which is violation of Article 14 - Held - Under Article 14 a valid classification is permitted but class legislation is not permitted - However, it is neither in accordance with the Education Guarantee Scheme nor the respondents have mentioned sufficient reasons in the return - Classification and conditions laid down by the circular are illegal and arbitrary - Petition allowed : Brajesh Kumar Tiwari Vs. C.E.O. Zila Panchayat, Shivpuri, I.L.R. (2008) M.P. 2292 (v) Increments - Articles 14, 226 and Panchayat Shiksha Karmis (Recruitment and Conditions of Service) Rules 1997, Rule 7,25 - Service law - Shiksha Karmis - Grant of increments - Probation successfully completed and incumbent confirmed - Benefit of increment has to be given even for the period of probation : Raghwendra Sohgaura Vs. State of M.P.; I.L.R. (2006) M.P. 28 (vi) Maintainaility of writ petition - Articles 14, 16, 21, 226, 227, 257, 323-A, 323-B, Administrative Tribunal Act, 1985, Section 3(q) & 14, Reorganisation Act, M.P. 2000, Section 72 - Maintainaility of writ petition at the first instance in respect of service matter pertaining to a member of All India Services - Petitioner, member of All India Services incorrectly allocated to State of Chhattisgarh - Central Government cancelled the order and directed M.P. State Government to issue posting orders - Order not complied - Writ petition filed before High Court - Held - With regard to 'service matters' and service dispute relating to an employee of All India Services the court of first instance where the matter should be agitated is to CAT - Jurisdiction to deal with the matter vests exclusively with the Constitution of India 142
CAT - Against the order passed by CAT matter has to be agitated under Article 226 & 227 before High Court - Petition dismissed with liberty to take recourse to the remedy available under the Act of 1985 : Vinay Shukla Vs. State of M.P., I.L.R. (2008) M.P. 2898 (vii) Payment of salary - Articles 14, 226 - Judicial Review of Policy Decision - Payment of salary to its employees by account payee cheque - Petitioner awarded work contract by respondents - Senior Labour Officer issued impugned order directing petitioner to make payment of salary to its employees by account payee cheques - Held - SECL is making payment to its employees through Bank - Objects of Clause 31.1 to 31.3 of the Contract is to ensure payment to labourers/workmen - Contractor cannot be treated as an aggrieved person by virtue of impugned order - No illegality or breach of any statutory provision - Petition dismissed : M.N. Singh Vs. The South Eastern Coal Fields, I.L.R. (2008) M.P. 44 (viii) Promotion - Article 14 - Service Law - Promotion - Denial of promotion to petitioner on account of two adverse entries in his preceding five years ACRs - One adverse entry was never communicated and the other which was though communicated but petitioner's representation against it was not decided - Held - Non-communication of an entry in the ACRs and the denial of opportunity to represent against it, are violation of natural justice - Impugned order set-aside - Petition allowed : Om Prakash Lashkari Vs. State of M.P., I.L.R. (2008) M.P. 2863
- Articles 14 & 16, Transport (Gazetted) Service Recruitment Rules, M.P. 1972, Rule 7, Column 5 of Schedule II - Promotion to the post of Regional Transport Officer - Appointment to the post of Regional Transport Officer shall be made by taking persons on transfer or deputation - Out of 8 posts, 5 posts have been reserved to be filled on deputation and remaining posts are to be filled from in-service candidates - Held - Firstly, State Government by reserving 5 posts has created class within the class - Secondly, there are no equal opportunities in the employment and there is a differentiation with respect to the officers in services and Officer brought on deputation - No justification is given to prescribe such higher percentage for deputationists - Provision is contrary to Articles 14 & 16(1) - Provisions unconstitutional - Petition allowed : Subhash Sona Vs. State of M.P., I.L.R. (2010) M.P. 1114 (DB)
- Articles 14, 16 - Promotion - DPC - Not only actual bias but a reasonable likelihood of bias would affect a selection process - DPC comprising officers junior to incumbant could act with bias as promotion in the grade of Chief Secretary with retrospective effect would have affected their seniority - Tribunal rightly set aside DPC recommendations : State of M.P. Vs. Surendra Nath, I.L.R. (2006) M.P. 212 (DB) Constitution of India 143
- Articles 14,16, 226 - Service Law - Promotion and time bound promotion - Employee shall be entitled to benefit of pay scale provided under time bound promotion Scheme - If any promotion is to be given on basis of regular DPC it should be to the next higher post : Dinesh Kumar Khare Vs. State of Madhya Pradesh, I.L.R. (2006) M.P. 42
- Articles 14, 16 and 227 - Service law - I A S cadre - Remarks in ACRs - Unless held nonest by a Court or Tribunal, cannot be ignored by the DPC - Promotion - DPC - Not only actual bias but a reasonable likelihood of bias would affect a selection process - DPC comprising officers junior to incumbant could act with bias as promotion in the grade of Chief Secretary with retrospective effect would have affected their seniority - Tribunal rightly set aside DPC recommendations : State of Madhya Pradesh Vs. Surendra Nath, I.L.R. (2006) M.P. 212 (DB)
- Articles 14, 16 & 309 - Contingency Paid Employees - Time Bound Promotion - Contingency paid and work charged employees are considered to be forming a common class - The benefit of time bound promotion which is extended to work charged employees is also to be extended to contingency paid employee - Petition allowed : Tejulal Yadav Vs. State of M.P., I.L.R. (2009) M.P. 1326
- Articles 14, 226 and M.P. Medical Education (Gazetted service) Recruitment Rules, 1988, Schedule IV - Service law - Promotion - Minimum qualification prescribed "five years experience as Lecturer (Cardiology) in a Medical College" for promotion to the post of 'Reader' - Not open to State Government to prescribe qualification lesser than the minimum prescribed by Medical Council of India - Same group of super specialists - Pre-requisite of five years experience as Lecturer - Not ultra vires : Dr. Yogesh Verma Vs. State of M.P., I.L.R. (2006) M.P. 1130 (DB) (ix) Punishment - Articles 14, 227 - Equality before law - Disciplinary Authority recording finding of ''lack of integrity'' against three employees - One employee given the punishment of stoppage of one increment without cumulative effect - Another employee/Petitioner reduced in rank from UDC to LDC in the minimum pay scale - Third employee/Petitioner awarded punishment of reduction to the minimum pay scale of LDC - Reasons given by authority in awarding different punishments in almost similar charges does not satisfy the test of equality - Authority directed to reconsider quantum of penalty : Vishnu Priyesh Bansal Vs. Employees State Insurance Corporation, I.L.R. (2007) M.P. 334 (DB) (x) Termination - Articles 14,226 - Special Public Prosecutor - Petitioner was appointed as Special Public Prosecutor for a period of 3 years - Appointment could be terminated by giving Constitution of India 144 one month's notice - Petitioner was appointed despite his name not figuring in the panel sent by District Magistrate - Petitioner was removed after giving one month's notice - Order of removal challenged on the ground that it casts stigma - Petitioner was appointed dehors the procedure - Order of termination doesnot reflect any complaint - Order of termination proper - Petition dismissed : Bharat Singh Rajpoot Vs. State of M.P., I.L.R. (2007) M.P. 342 (xi) Transfer
- Articles 14, 226 - Transfer - Anonymous complaints alleging caste-biased working - Not proved on enquiry - Transfer on the same ground is malafide, arbitrary and suffers from 'Wednesbury unreasonableness' - Transfer order quashed : Somesh Tiwari Vs. Union of India, I.L.R. (2006) M.P. 1390 (DB)
- Articles 14, 226 - Writ petition - State Bank of India Officers Rules - Rules 40 (3) and 68 (2) - Service law - Transfer and deemed voluntary vacation of office - Show cause notice about deemed vacation of service before decision in L.P.A. - Petitioner subsequently called upon to join - Earlier notice stands superseded - No fresh show cause notice - Order of deemed voluntary vacation of office liable to be quashed : Shiv Sharan Sharma Vs. Chief General Manager, State Bank of India, Bhopal, I.L.R. (2006) M.P. 187 (DB) * See Service Law also - 7. Wages Payable to prisoners
- Articles 14, 21 and 23, Prisons (Madhya Pradesh Amendment) Act, 1999, Sections 35, 36, and 36 - A, Prisons Rules, M.P. 1968, Rules 2(J), 647 and 647-B - Equitable Wages Payable to prisoners - Payment of Rs. 8/- and Rs. 10/- per day to unskilled and skilled labour - Stand of State Govt. is that since work available in jail is not enough to provide more than four hours, therefore, wages fixed are for four hours work - Equitable wages should be paid to prisoners for the work done by them - Labour exacted from prisoners is classified as hard, medium or light - Task cannot be reduced without sanction of Inspector General - Time of nine hours of steady work fixed by State Govt. Cannot be reduced to four hours without sanction of Inspector General - Prisoners undergoing rigorous imprisonment have to be given priority for employment over prisoners undergoing simple imprisonment - Contention of respondent that enough work is not available in jail to provide employment for more than four hours a day cannot be accepted - Equitable wages can be worked out after deducting expenses incurred on food, clothing and other amenities - Rates of wages fixed by order dated 30-6-1999 was prior to prison (Madhya Pradesh Amendment) Act and amendment in rules - State Govt. to notify wages afresh in accordance with section 36A of Act and 647-B and 2(J) of Rules : S.P. Anand Vs. State of M.P., I.L.R. (2007) M.P. 889 (DB) Constitution of India 145
- Articles 14, 21 and 23, Prisons Rules, M.P., 1968, Rule 2(J) - Wages - Wages for the services or tasks performed by prisoners must have some rational basis - Minimum wages fixed for similar task/service can constitute rational basis for determination of wages - Deductions to be made towards food, clothing and other amenities excluding medical facility as it is the obligation of the State - Equitable wages can be fixed after making such deductions and be notified by State Govt. under 647-B(1) of Rules from time to time - Wages should be reasonable as they are not only to take care of expenses of prisoners in jail but to provide for future rehabilitation and compensation to victims : S.P. Anand Vs. State of M.P., I.L.R. (2007) M.P. 889 (DB) 8. Miscellaneous Age for registration as an Advocate
- Article 14, State Bar Council of Madhya Pradesh Rules, 1963, Rule 143-A - Maximum age for registration as an Advocate - State Bar Council has not placed any material in support of prescription of maximum age of 45 years for enrollment nor has any material been brought on record to establish as to how debarring entry of the persons above the age of 45 years would either benefit the legal profession or would adversely affect the standard of the legal profession or polluted its sanctity - Rule is arbitrary and discriminatory - And violative of Article 14 of Constitution - Rule declared ultra vires : Shekhar Seth (Dr.) Vs. M.P. State Bar Council, I.L.R. (2008) M.P. 1974 (DB) Compensation payable to Victims
- Articles 14, 21 and 23, Prisons (Madhya Pradesh Amendment) Act, 1999, Section 36-A, Prisons Rules, M.P. 1968, Rule 647-B - Compensation payable to Victims - 50% of the wages earned by prisoner in a month to be deposited in common fund for payment of compensation to deserving victim - Object to compensate the victim or his family out of common fund is not being effectively achieved as affidavit filed by State shows a very meager amount has been disbursed to victims - Deserving Victim to be determined in consultation with Court in which prisoner is being tried and a human right activist in the area to be nominated by State Govt. - Deserving victim can be paid compensation from common fund whether deductions from the wages of prisoner who has committed the offence have been made or not - Identification of victim and payment of compensation need not await the conclusion of the Trial - Directions issued : S.P. Anand Vs. State of M.P., I.L.R. (2007) M.P. 889 (DB) Discrimination
- Article 14 - Scope - Mere differentiation or inequality of treatment does not per se amount to discrimination - It is necessary to show that selection or differentiation is Constitution of India 146 unreasonable or arbitrary and it does not rest on any rational basis : Manoj Kumar Pandya Vs. State of M.P., I.L.R. (2008) M.P. 1383 (DB)
Doctrine of Legitimate Expectation
- Articles 14 & 226 - Doctrine of Legitimate Expectation - Scope of the doctrine of Legitimate Expectation discussed : Resources Development Institute, Bhopal Vs. State of M.P., I.L.R. (2009) M.P. 974
Exclusion of 'electrical goods industry' from purview of MPIR Act 1960
- Articles 14, 226, Industrial Relation Act, MP 1960, Sections 1(3), 112, General Clauses Act, MP, 1957, Section 21 - Exclusion of 'electrical goods industry' from purview of MPIR Act 1960 by Section 1 (4) of Amending Act of 2000-For application of amending Act no appointed date fixed - Notification of State Government in purported exercise of powers under Section 1(3) of the Act, 1960 - Quashed : Heavy Electricals Mazdoor Trade Union Habibganj, Bhopal, M.P. Vs. State of M.P. Through The Principal Secretary, Department of Labour, Vallabh Bhawan, Bhopal, I.L.R. (2006) M.P. 443 (FB)
Show cause notice
- Articles 14 - Show cause notice about deemed vacation of service before decision in L.P.A. - Petitioner subsequently called upon to join - Earlier notice stands superseded - No fresh show cause notice - Order of deemed voluntary vacation of office liable to be quashed : Shiv Sharan Sharma Vs. Chief General Manager, State Bank of India, Bhopal, I.L.R. (2006) M.P. 187 (DB)
Special provisions for women
- Articles 14 & 15(3) - Right to equality - Article 15(3) provides that the State can make special provision for women - Such special provisions for women include reservation of seats in educational institutions or of posts in public employment in favour of women : Satish Menon (Dr.) Vs. State of M.P., I.L.R. (2009) M.P. 2583 (DB)
Tender
- Articles 14 & 19 - Condition of second NIT restricting the supply of tender forms to those intending tenderers, who had obtained blank forms, pursuant to first NIT but did not submit - The incorporation of a restriction in the shape of a condition requires a reference to the incorporation of a similar condition in the previous NIT, because unless the intending tenderers are warned/alarmed about the future events; on account of their non-participation or non-submission of tender forms, it appears to be quite an Constitution of India 147 unreasonable restriction/condition on such tenderers who had no idea about the disability being subsequently attached or found in their previous conduct - As the same puts fetters/restrictions on the fundamental right of a citizen, in violation of constitutional guarantee enshrined in Article 19(1)(g) - Condition No.12 of the NIT quashed - Petition allowed : Gyan Singh Sisodia Vs. State of M.P., I.L.R. (2010) M.P. 1317 (DB)
● - Article 15(4) - Common Law Admission Test - Age relaxation - No age relaxation given to OBC candidates - Held - A conscious decision has been taken by CLAT in public interest which cannot be said to be illegal or arbitrary or violating provisions of Article 15(4) of the Constitution : Smriti Patel Vs. State of M.P., I.L.R. (2010) M.P. Note *37 (DB) SYNOPSIS : Article 16
1. Absorption 6. Regularization 2. Allowance 7. Resignation 3. D.P.C. 8. Seniority 4. Employment 9. Transfer 5. Promotion
1. Absorption - Article 16 - Absorption - Respondent No.3 working as Sub-Engineer in Special Area Development Authority, Singrouli - Transferred in same capacity to Town Improvement Trust, Rewa in year 1987 and on abolition of Town Improvement Trust, Rewa w.e.f. 1994 has continue to work with Municipal Corporation, Rewa - On consideration of relevant fact - Services of respondent No.3 absorbed in Municipal Corporation - Held - Decision of authorities to absorb respondent No. 3 can not be arbitrary and illegal : Shiv Raj Singh Vs. State of M.P., I.L.R. (2008) M.P. 669 (DB)
- Articles 16, 309 - Appellant Assistant Agriculture Engineer in Agriculture Department - Opted for transfer and absorption in Irrigation Department - As per rules past services in Agriculture Department cannot be counted in computing seniority in Irrigation Department - Lien in Agriculture Department lost - Agriculture Department refusing to take back - As appellant sought transfer on his own request and lost his lien in parent department so request to take him back rightly rejected - Appeal dismissed : Surendra Singh Gaur Vs. State of M.P., I.L.R. (2007) M.P. 1 (SC) 2. Allowance
- Articles 16, 21 - M.P. Fundamental Rules, Rule 53 - Non payment of Subsistence Allowance - It must be shown - Delinquent officer was not in a position to participate in Constitution of India 148 proceedings or that any other prejudice in effectively defending proceeding was caused to him - Respondent placed under suspension and was asked to collect Subsistence Allowance - Respondent collected Subsistence Allowance for some period - Attended departmental enquiry on some dates and thereafter absented - In ex-parte proceedings respondent was found guilty and his services were terminated - SAT dismissed application holding that respondent himself responsible for not receiving Subsistence Allowance - High Court quashed order of removal on ground of non payment of Subsistence Allowance holding that question of prejudice is irrelevant - Held - Finding of High Court that question of prejudice is irrelevant is not correct - Matter remanded back to High Court to decide the question of prejudice caused to respondent for non payment of Subsistence Allowance : State Government of M.P. Vs. Shankarlal, I.L.R. (2008) M.P. 615 (SC) 3. D.P.C.
- Article 16 - Recommendations by D.P.C. - Courts would not interfere with assessment of D.P.C. unless the aggrieved officer establishes that he was not promoted on account of malafide or decision was hit by Wednesbury principles : Jagdish Kumar Shrivastava Vs. State of M.P., I.L.R. (2008) M.P. 1141 4. Employment
- Articles 16(2) & (3) - See - Service Law : Lalita Tomar Vs. State of M.P., I.L.R. (2009) M.P. 3302 5. Promotion
- Articles 16, 136 - Promotion - Selection Committee's approved list of candidates for promotion to IFS challenged before CAT - Tribunal considering ACRs of more than five years despite regulations providing for consideration of only 5 years of A.C.R. and directing review of entire selection process - Tribunal's order confirmed by High Court - Special Leave Petition by UPSC before apex court - Evaluation made by an expert committee should not be easily interfered - Selection Committee had acted strictly in accordance with the Regulations - Approach of Tribunal erroneous in considering ACRs of more than five years - High Court merely followed the decision of Tribunal without independently applying mind - Orders of the Tribunal and High Court quashed - Appeal allowed : Union Public Service Commission Vs. L. P. Tiwari, I.L.R. (2007) M.P. 302 (SC)
- Articles 16, 309 - Promotion - Criteria adopted by D.P.C. is seniority cum merit which requires satisfying a pre-determined Bench Mark - Petitioner could not be promoted as he was not able to qualify pre-determined Bench Mark - Petitioner was rightly superseded : Jagdish Kumar Shrivastava Vs. State of M.P., I.L.R. (2008) M.P. 1141 Constitution of India 149
6. Regularization
- Articles 16, 136 - Regularization - Employee working on contract basis - Original Application filed by respondents/employees before Central Administrative Tribunal for regularization of their services - Tribunal directed the appellants to consider their cases for appointment on regular basis - Writ Petition filed by appellants before High Court dismissed - Matter remitted back to High Court for reconsideration in the light of judgment passed in Uma Devi's case : Chief Commissioner of Income Tax, Bhopal Vs. Ms. Leena Jain, I.L.R. (2007) M.P. 721 (SC) 7. Resignation
- Article 16 - Resignation - Petitioner submitted resignation making a request for its acceptance prior to expiry of period of notice - Acceptance of resignation before expiry of period of notice not arbitrary : Sunil Thakur Vs. Hindustan Petroleum Corporation, I.L.R. (2008) M.P. 1452
- Article 16 - Resignation - Withdrawal of - Resignation once accepted cannot be permitted to be withdrawn as the relations of employer and employee ceases with effect from the date of its acceptance : Sunil Thakur Vs. Hindustan Petroleum Corporation, I.L.R. (2008) M.P. 1452 8. Seniority
- Article 16 - Seniority - Absorbed Deputationist - Computation of seniority - Services rendered in parent department - Held - Two posts in both departments equivalent - Services rendered in parent department for fixation of seniority are to be counted : Shiv Raj Singh Vs. State of M.P., I.L.R. (2008) M.P. 669 (DB)
- Article 16 (4A) [77th and 85th Amendment], Public Services (Promotion) Rules, M.P. 2002, Lok Seva (Anusuchit Jatiyon, Anusuchit Jan Jatiyon Aur Anya Pichhada Vargon Ke Liye Arakshan) Ahiniyam, M.P. 1994 - Appellant appointed as A.E. in P.W.D. - Private respondents were senior to appellant - Appellant granted promotion in the year 1980 to the post of E.E. against post reserved for Scheduled Caste - Respondents promoted in the year 1985 to the post of E.E. as posts in General category were not available at the time of promotion of appellant - Tribunal directed for placing General promotees above as seniority was to be counted on the basis of feeder cadre - Held - The 85th amendment in Article 16(4A) came into force w.e.f. 17.06.1995 - State Govt. framed Rules 2002 enabling benefit to SC/ST candidates who got promotion against reserved post - Rules 2002 came into force in the year 2002 whereas issue triggered in the year 1985 and Rules were not in force - Neither 77th nor 85th amendment has been made applicable from the year 1985 - As per circular of 1975 appellant was only entitled Constitution of India 150 for accelerated promotion but not seniority - Appellant not entitled for seniority on the basis of his promotion against reserved post - Appeal dismissed : Shiv Nath Prasad Vs. Saran Pal Jeet Singh Tulsi, I.L.R. (2008) M.P. 3059 (SC) 9. Transfer
- Article 16 - Transfer - Recommendation of MLA of different constituency - Effect - Petitioner transferred to Bhopal from Chhatarpur at his own request on 10.7.06 - Petitioner was transferred to Chhatarpur and respondent no. 3 from Kannod to Bhopal by order dated 23.12.2006 - Transfer order of Petitioner and respondent no. 3 set aside by High Court with liberty to pass fresh order if circumstances so warrant - Petitioner again transferred from Bhopal to Kannod and Respondent no. 3 transferred from Kannod to Bhopal - Held - Record produced by respondents show that local MLA of District Morena had recommended transfer of respondent no. 3 to Bhopal - Respondent no. 3 had remained at Bhopal from the year 2002 till 10.7.06 - It is clear that petitioner has been transferred in order to accommodate respondent no. 3 at any cost - Recommendation has not been made by MLA of either Bhopal or Kannod but by MLA of Morena - Transfer has been effected only because of recommendation of MLA of Morena as such transfer is arbitrary - Transfer order of Petitioner and that of respondent no. 3 quashed - Petition allowed : Arvind Kumar Chaturvedi Vs. State of M.P., I.L.R. (2007) M.P. 1749
● - Article 19, Foreign Liquor Rules, M.P. 1996, Rule 8 - For the year 2006-07 Government has taken decision that licence of existing licence holders shall be renewed after payment of 20% extra licence fee - It is contended that this decision is contrary to the provision of Rule 8 of Rules 1996 - It is further contended that such a policy restrained from applying a new person for licence and this policy is violative of Fundamental Rules and Article 19 of the Constitution - Held - Provision of Rule 8(a) is amply clear that the State Government is having power to issue direction from time to time with regard to the grant of licence in form FL-1 and under this provision if direction has been issued or the policy decision has been taken that is within the power of Government - No case is made out for interference : Madan Mohan Chaturvedi Vs. State of M.P., I.L.R. (2008) M.P. 2776 (DB)
- Article 19 - Protection of certain rights regarding freedom of speech, etc. - Fundamental Right guaranteed under Article 19 is absolute but subject to reasonable restrictions : B.S.N. Joshi & Sons Ltd. Vs. State of M.P., I.L.R. (2008) M.P. 1671
- Articles 19(1)(a) and 19(2), Cinematograph Act (37 of 1952), Sections 5(a) & 13 - A movie enjoys the guarantee under Article 19(1)(a) of Constitution - Article 19(2) of Constitution enables the State to make law imposing reasonable restrictions on the exercise of rights guaranteed under Article 19(1)(a) of Constitution - A film shall not be Constitution of India 151 certified for public exhibition if in the opinion of the authority competent to grant certificate, the film or any part of it is against the interest of inter alia public order : UTV Software Communication Vs. State of M.P., I.L.R. (2008) M.P. 544 (DB)
- Articles 19(1)(a),(b), 21 - Protection of certain rights regarding freedom of speech etc. - Petitioners and other agitators were exercising their fundamental right to freedom of speech and expression and to assemble peaceably and without arms - They were shouting slogans demanding land for land and demanding other rehabilitation measures - Nothing in their conduct to show that they had design to commit cognizable offence - They have not done anything giving apprehension that they will disturb public tranquility, public peace or public order - Insistence by S.D.M. to execute personal bonds under section 107 of Cr.P.C. and on refusal sending them to jail was in gross violation of their fundamental rights - Payment of compensation is one of the way to prevent violation of fundamental right under Article 21 of Constitution by the authorities - State to pay Rs. 10,000 each to petitioner and those who were arrested and detained in jail - Petition allowed : Medha Patkar Vs. State of M.P., I.L.R. (2007) M.P. 1618 (DB)
- Article 19(1)(c) - Denial of recognition - A registered trade union filed writ petition being aggrieved by order passed by Bank/respondent, by which the petitioner union has been informed that it ceases to be a majority union and has lost the character of recognized union - Held - Since officers of the State Bank of Indore have switched over to another union and their option forms are also on record, therefore, no irregularity of any kind has been committed by the respondent Bank - No case for interference is made out - Writ petition dismissed : All India State Bank of Indore Officers' Co- ordination Committee Vs. State Bank of Indore, I.L.R. (2010) M.P. Note *74
- Article 19 (1) (d) - Externment - Order passed after recording statement of witnesses in camera - Petitioner's right to hearing - Does not include right to cross- examination of witnesses : Sanjay @ Oondar Vs. State of M.P., I.L.R. (2006) M.P. 46
- Article 19(1)(g) - To practise any profession or to carry on any occupation, trade or business - Condition in N.I.T. that Firm should have successfully executed work contract of similar type awarded by MPPGCL / MPSEB / MPEB without any default - Held - Prescribing terms and conditions and qualifications for tender does not permit interference to be made by Writ Court - Action of tendering authority can be interfered with only if it is found to be tainted with malice or is misuse of statutory power and taken in arbitrary manner : B.S.N. Joshi & Sons Ltd. Vs. State of M.P., I.L.R. (2008) M.P. 1671 Constitution of India 152
- Article 19(1)(g) - To practise any profession, or to carry on any occupation, trade or business - Condition in N.I.T. that only those Firms shall be eligible if no litigation is pending - Held - Any rule, regulation or condition which prevents a person from litigating his grievance in a Court of Law is unsustainable - Condition quashed as unjustified : B.S.N. Joshi & Sons Ltd. Vs. State of M.P., I.L.R. (2008) M.P. 1671
- Articles 19(l)(g), (6) & 47 and Schedule VII List II Entry 8 - Trade or business in intoxicating liquor - No citizen has fundamental right to trade in liquor, the nature of right which is transferred in favour of a person to deal in the trade of liquor is only a privilege : Sivanand Damahe Vs. State of M.P., I.L.R. (2009) M.P. 653
- Articles 19(1)(g), 226 - Unaided Educational Institution - Fees Structure - Institution demanded bank guarantee and F.D.Rs for certain sum - Demand was made on the ground that Fee Structure by Committee is subject to judicial review - Held - No allegation that students can leave the college in mid-stream - Judicial Review cannot be a ground or basis requiring petitioners (students) to furnish bank guarantees/F.D.Rs - Demand of bank guarantee or F.D.R. quashed - Petition allowed : Priyanka Shrivastava Vs. State of M.P., I.L.R. (2008) M.P. 1641 (DB)
- Article 19(2) - Reasonable restriction - Determination - Reasonableness of restriction is to be determined in an objective manner and from the standpoint of interest of the general public and not from the standpoint of the interests of persons upon whom the restrictions have been imposed or upon abstract consideration : Barwani Sugar Vs. Union of India, I.L.R. (2010) M.P. Note *40
- Articles 19 & 226 - See - Niji Vyavsayik Shikshan Sanstha (Pravesh Ka Viniyaman Avam Shulk Ka Nirdharan) Adhiniyam, M.P., 2007, Sections 3(d), 6 & 7 : Association of Private Dental & Medical Colleges Vs. State of M.P., I.L.R. (2009) M.P. 2269 (DB)
- Article 20(2) - See - Penal Code 1860, Sections 147, 149, 294, 341, 323, 506-B, 307: Rajkumar Vs. State of M.P., I.L.R. (2008) M.P. 2478
- Article 21 - Right to life - Direction to the Central Bureau of Investigation for free and fair Enquiry - Permissibility - Petitioner seeking a direction for free and fair enquiry by the CBI as they alleged that their son was killed in an fake encounter - Respondents State stated that children were kidnapped for ransoms and when police was investigating they were fired by gun shot to which it had to reciprocate - Held - Article 21 guarantees right to life to the people and the State has no right to take any such action depriving the people of this basic right but where the dreaded criminals having kidnapped the children for ransom and the investigating agency which goes in operation to prevent such action and if prevented by the criminals,it was well within the Constitution of India 153 rights of such agency to open fire and if the criminals die in process of such action, there is no violation of right to life guaranteed under Article 21 of the Constitution of India : Mehmood Ahmed Vs. State of M.P., I.L.R. (2010) M.P. 1734
- Article 21 - Rehabilitation - No further acquisition of land, excavation or construction of canal network for Command Area of Indira Sagar and Omkareshwar Projects will be undertaken until Command Area Development Plans are cleared by committee of experts constituted for Sardar Sarovar, Indira Sagar and Omkareshwar Projects : Narmada Bachao Andolan Vs. State of M.P., I.L.R. (2010) M.P. 553 (DB)
- Article 21 - Rehabilitation - Respondents Nos.1 & 2 will provide rehabilitation and re-settlement benefits of rehabilitation policy of Government of M.P. for Narmada Valley Project to displaced persons and families of Indira Sagar and Omkareshwar Canal Projects and will constitute Grievance Redressal Authority to decide complaints : Narmada Bachao Andolan Vs. State of M.P., I.L.R. (2010) M.P. 553 (DB)
- Article 21 - Illegal detention - Compensation - Petitioner convicted u/s 18 of N.D.P.S. Act and sentenced to 10 years R.I. - Period of sentence reduced to 5 years in appeal - Copy of judgment sent to jail authorities as well as to Court - However, petitioner was released after completion of 10 years of sentence - Held - Defence of sovereign immunity is not available where fundamental right under Article 21 is violated - State directed to pay compensation of Rs.3 lacs : Pooran Singh Vs. State of M.P., I.L.R. (2009) M.P. 1978 (DB)
- Article 21, Municipal Corporation Act, M.P. 1956, Sections 66 & 220 - Provision of pollution free water to residents - Municipal Corporation is under an obligation to supply sufficient quantity of water for its residents - Right to pollution free water is fundamental right - Municipal Corporation directed to procure water in sufficient quantities if necessary through railway or motor vehicle tanker for supply for public and private purposes - Petition disposed of : Manoj Rajani Vs. State of M.P., I.L.R. (2009) M.P. 2210 (DB)
- Article 21 - Arrest of accused - No violation of fundamental rights stated in Article 21 as arrest or detention is under a procedure established by law : Shamim Modi (Ms.) Vs. Ms. Sudha Chowdhary, District Collector Betul, I.L.R. (2009) M.P. 84 (DB)
- Article 21 - Handcuffing - Handcuffing of undertrials during their transit from prison to court and back to prison - No valid justification given - No order obtained from SDM in whose court they were produced - Held - Fundamental right violated - State Government directed to pay compensation of Rs.10,000 to each of three undertrials - State Government given liberty to recover compensation from guilty personnel in Constitution of India 154 disciplinary proceedings : Shamim Modi (Ms.) Vs. Ms. Sudha Chowdhary, District Collector Betul, I.L.R. (2009) M.P. 84 (DB)
- Article 21 - Protection of life and personal liberty - Writ petition before High Court seeking a direction to set the petitioner at liberty and paying him adequate compensation on the ground that Arjun Singh who was alleged to have been killed by the petitioner is still alive - Held - It is clear that no person can be deprived of his life except according to the procedure established by law - Petitioner is kept under the custody after following the procedure established by law and, therefore, it cannot be said that his rights guaranteed by Article 21 are violated : Ramesh Vs. State of M.P., I.L.R. (2009) M.P. 636 (DB)
- Article 21 - Right to life - Right to live life with dignity - Examination of genital organs to perform sexual intercourse - Held - A woman, may be a wife, facing a decree of divorce, has a right guaranteed under the Constitution to live with dignity - Seeking a medical examination of a lady in respect of her ability to perform an intercourse would, in the considered opinion of High Court, tantamount to lowering her dignity - Husband is not entitled for a leave to get wife examined : Kunji Lal Lodhi Vs. Smt. Lata Bai Lodhi, I.L.R. (2009) M.P. 956
- Article 21 - Handcuffing - Appellant handcuffed by police - No reasons given by State that why such handcuffing was necessary - Appellant entitled for compensation : Hardeep Singh Anand Vs. State of M.P., I.L.R. (2008) M.P. 3068 (DB)
- Article 21 - Speedy trial - Delay in trial - Delay of five years in trial on account of State not taking timely steps in producing and examining witnesses on behalf of prosecution - Appellant ultimately acquitted by trial court - Appellant entitled for compensation as speedy trial is integral and essential part of fundamental right to life and liberty : Hardeep Singh Anand Vs. State of M.P., I.L.R. (2008) M.P. 3068 (DB)
- Article 21 - Writ jurisdiction - Violation of fundamental right - State can be directed to pay compensation to a person whose rights under Article 21 are affected : Hardeep Singh Anand Vs. State of M.P., I.L.R. (2008) M.P. 3068 (DB)
- Article 21 - Allotment of agricultural land - Displaced families and encroachers entitled to allotment of agricultural land - State to make all possible efforts to locate Government or Private Land and allot such land to displaced families and encroachers if they opt for the same and refund 50% of the compensation received by them and if they also agree to other terms stipulated in R & R Policy : Narmada Bachao Andolan Vs. State of M.P., I.L.R. (2008) M.P. 509 (DB)
- Article 21 - Allotment of agricultural land to landless persons - State Government had decided to give grant of Rs. 49,300 to landless person instead of allotting land to Constitution of India 155 them - Fundamental right under Article 21 not violated - Landless persons not entitled for allotment of agricultural land : Narmada Bachao Andolan Vs. State of M.P., I.L.R. (2008) M.P. 509 (DB)
- Article 21 - Major Son - Son who has become major on or before the date of notification under Section 4 of Land Acquisition Act will be treated as separate displaced family and would be entitled to allotment of agricultural land as far as possible in accordance with R & R Policy : Narmada Bachao Andolan Vs. State of M.P., I.L.R. (2008) M.P. 509 (DB)
- Article 21 - Protection of Life and Personal Liberty - Construction of Omkareshwar Dam - Rehabilitation - Rehabilitation and resettlement of displaced persons being part of fundamental right of displaced persons guaranteed under Article 21 of Constitution - They are to be rehabilitated and resettled in such manner that they are better off than what they were before their displacement - Rehabilitation and resettlement is constitutional obligation of State : Narmada Bachao Andolan Vs. State of M.P., I.L.R. (2008) M.P. 509 (DB)
- Article 21 - Rehabilitation and Resettlement Plan, Paragraph 3, 5 - Allotment of agricultural land - When agency undertaking construction of Dam assures in its R & R policy that it will offer agricultural land to displaced persons and later does not offer such agricultural land - Right under Article 21 of Constitution is violated - It is duty of Court to enforce R & R Policy and ensure allotment of agricultural land to displaced persons : Narmada Bachao Andolan Vs. State of M.P., I.L.R. (2008) M.P. 509 (DB)
- Article 21, Prisons Rules, M.P., 1968, Rule 30(1) Overcrowding of Jails - Rule 30 (1) provides that 41.80 meters should be taken as standard meter space per prisoner - Convict lodged in jail is not denude of all his fundamental rights but also doesnot enjoy all his fundamental right like other persons - State Govt. in its reply admitted that jails are overcrowded and standard meter space per prisoner cannot be provided - However new jails are under construction to meet such situation - State Govt. to continue with construction and expansion of jails to discharge its obligation under Article 21 of Constitution of India : S.P. Anand Vs. State of M.P., I.L.R. (2007) M.P. 889 (DB)
- Articles 21 & 38 - Government must made endeavour to eliminate inequality in status, facility and opportunity : Nilesh Singhal Vs. State of M.P., I.L.R. (2008) M.P. 2264
- Article 21 & 226 - Public Interest Litigation - Right to livelihood - Maintainability - Large scale corruption alleged in distribution of compensation in Sardar Sarovar Project - Respondents stated that single man commission appointed to look into the grievance and thus PIL was not maintainable - Held - If a large number of Project Affected Constitution of India 156
Families (PAFs) whose 25% or more land was submerged has not actually been able to get a minimum of two hectares of cultivable land and the civic amenities in the Resettlement & Rehabilitation (R&R) sites are of substandard quality because of large scale corruption, then the High Court, whose duty is to ensure enforcement of fundamental right in exercise of powers under Article 226 cannot remain indifferent - The High Court will have to find out through a Commission on which it has confidence and trust that the oustees have not been duped by fake registrations of sale - Deeds for purchase of land for cultivation and the public money spent for construction of civic amenities in the R&R sites have not been misused for extraneous purposes : Narmada Bachao Andolan Vs. State of M.P., I.L.R. (2009) M.P. 112 (DB)
- Articles 21, 226 - Direction of CBI enquiry - Direction to CBI to register a case against intervener/Superintendent of Police cannot be granted - Direction to investigate the entire case so as to bring accused after investigation to book can be issued - Such direction can be issued only if Court is satisfied that prima facie enquiry conducted in the matter by police authorities is not proper and inquiry by independent agency like CBI is necessary : Kedarnath Sharma Vs. U.O.I., I.L.R. (2007) M.P. 1579
- Articles 21, 226 and Criminal Procedure Code 1973 (2) (iii) - Custodial death - Violation of Article 21 - Final Report - Acceptence of by Magistrate - Record do not show that Magistrate applied his mind to the evidence collected - Opportunity of hearing not given to informant - Order accepting final report quashed - Custodial death violation of Article 21 - No evidence that deceased was married and had children - But death of deceased loss to petitioner - Lump sum compensation of Rs. 3,00,000/- awarded : Ran Singh Sikarwar Vs. The State of M.P., I.L.R. (2006) M.P. 508 (DB)
- Articles 21, 227, Civil Procedure Code, 1908 Sections 11, 151 and Hindu Marriage Act, 1955 Section 12 - Divorce Petition - Moral character of wife doubted-suspected Peternity - Illegitimacy of child - Burden is on the husband - Direction to undergo DNA test could be given to lay, to rest the unnecessary doubts : Savita Bai Vs. Chandrabhan Dubey, I.L.R. (2006) M.P. 519
- Articles 26 & 226 - P.I.L. - Freedom to manage religious affairs - Petitioners belonging to Christian community approached the High Court for a direction that the State be directed to permit the registered society to construct a Church as the earlier Church was in a dilapidated condition and was thus demolished - Held - In the absence of a Church, all the necessary rituals and religious functions which are carried out in Church cannot be carried out - High Court exercising powers under Article 226 to enforce the rights guaranteed under Article 26 must pass orders keeping in view the right of local Christian community of a particular district guaranteed under Article 26 : Rubina Danial (Smt.) Vs. State of M.P., I.L.R. (2009) M.P. 2897 (DB) Constitution of India 157
- Article 39(a) - Directive Principles - No legislation or delegated legislation can be declared invalid solely on ground that Directive Principles of State Policy have not been followed or have been violated : Smt. Uma Devi Sharma Vs. State of M.P., I.L.R. (2007) M.P. 1397(DB)
- Article 51-A & 226, Medical and Dental Post Graduate Entrance Examination Rules, M.P. 2010, Rule 19(1)(c) - In-service candidates, who have done Post Graduation in one subject will not be eligible for admission in other subject - The restriction is in consonance with requirement of medical field which requires expert of particular field - Striving towards the excellence in particulars field is the fundamental duty which is the underlying idea of Rule - Rule can not be said to be violative of any right of petitioner - Petition dismissed : Ashish Raj (Dr.) Vs. State of M.P., I.L.R. (2010) M.P. 2061 (DB)
- Article 136 - Service Jurisprudence - Departmental enquiry against judicial officer - Allegation of possession of disproportionate assets to known source of income - Appellant took incorrect defense contrary to his return and failed to discharge the onus placed upon him - Order of disciplinary authority can not be interfered - Appeal dismissed : Dinesh Chandra Pandey Vs. High Court of M.P., I.L.R. (2010) M.P. 2007 (SC)
- Article 136 - See - Penal Code, 1860, Section 302 : Dadan Vs. State of M.P., I.L.R. (2009) M.P. 615 (SC)
- Article 136 - Writ Petition filed by appellant disposed off by High Court with liberty to file representation - Appellant already submitted his representation - Held - Appellant could not question decision of High Court once he had submitted to decision of High Court by filing a departmental representation for reconsideration of his transfer : Prabir Banerjee Vs. Union of India, I.L.R. (2008) M.P. 413 (SC)
- Article 136, State University Service Rules, M.P., 1982, Rule 11 - Direct Recruitment - Examination conducted by PSC for short listing the candidates for filling 17 posts of Asstt. Registrar in Universities - Petitioner was called for interview, however, was not selected - Vires of M.P. State University Service Rules, challenged before Supreme Court on the ground that no selection could be made only on the basis of interview - Vires of Rules not challenged before High Court - All selected candidates not made party to the petition before apex court - Appeal dismissed - However, State Govt. directed to consider the desirability of amending the Rules to avoid favoritism or nepotism : Ku. Rashmi Mishra Vs. Madhya Pradesh Public Service Commission; I.L.R. (2007) M.P. 7 (SC)
- Articles 136, 226 & 14 - Public employment - Employees engaged on contract basis have no right of regularization in public employment on the ground of long rendition Constitution of India 158 of service - CAT directed for considering their cases for regularization - Employer's Writ Petition dismissed by the High Court - Special Leave granted by the Supreme Court - Case remitted back to the High Court to consider the case afresh in view of the decision in Uma Devi's case : Chief Commissioner of Income Tax Vs. Smt. Susheela Prasad, I.L.R. (2008) M.P. 3 (SC)
- Article 141 - Practice and Procedure - Dismissal of SLP in limine - Effect - The effect of such a non-speaking order of dismissal without anything more only means that Supreme Court has decided only that it is not a fit case where the special leave petition should be granted - The said order does not constitute law laid down by the Supreme Court for the purpose of Article 141 of the Constitution : Barwani Sugar Vs. Union of India, I.L.R. (2010) M.P. Note *40
- Article 141 - Binding Precedent - Dismissal of appeal from Rama & Co. is not binding precedent as there are earlier judgments in field and High Court bound to follow earlier decisions - View taken in Dr. Jaidev Siddha and others cannot be treated to have been impliedly overruled due to dismissal of SLP preferred against order rendered in case of Rama and Company - Law laid down in case of Dr. Jaidev Siddha holds field and principles laid down therein have full applicability. (Majority View) : Manoj Kumar Vs. Board of Revenue: I.L.R. (2007) M.P. 1504 (FB)
- Article 141 - Binding Precedent - Judgment passed in case of Dr. Jaidev Siddha is per incuriam - View taken by Supreme Court in SLP arising out of order rendered in case of Rama and Company is binding precedent as sole question in SLP was about maintainability of appeal after coming into force of Act, 2005. (Minority view) : Manoj Kumar Vs. Board of Revenue: I.L.R. (2007) M.P. 1504 (FB)
- Article 142 - Appellant secured higher marks yet promotion denied on ground that he failed to secure minimum marks in interview - No need to refer the matter for fresh consideration - Direction issued to promote appellant : Harigovind Yadav Vs. Rewa Sidhi Gramin Bank, I.L.R. (2006) M.P. 931 (SC)
- Article 142 and Madhya Pradesh Sahakari Bhumi Vikas Bank Adhiniyam 1966 Section 27 - Loan recovery proceedings by auction sale of mortgaged land - Service of notice on loanee was must - No notice served upon appellant and appellant also found to be minor on date of taking loan - Contract of loan was void ab initio - Such an auction sale is not protected under section 27 of the Act of 1966 - Sale set aside subject to appellant's deposit of entire auction money with 6% interest per annum : Kishori Lal Vs. Sales Officer, District Land Development Bank. I.L.R. (2006) M.P. 1362 (SC)
- Article 142 - Regional Rural Banks Act, 1976, Sections 17, 29 and Regional Rural Banks (Appointment & Promotion of Officers, and other Employees)-Rules, 1988, Constitution of India 159
Rule - Service Law - Promotion - Where procedure adopted does not provide minimum standard for promotion, selection with reference to comparative marks is contrary to the rule of 'seniority-cum-merit' - Appellant secured higher marks yet promotion denied on ground that he failed to secure minimum marks in interview - No need to refer the matter for fresh consideration - Direction issued to promote appellant : Harigovind Yadav Vs. Rewa Sidhi Gramin Bank, I.L.R. (2006) M.P. 931 (SC)
- Article 166 - Directory or Mandatory - Provisions of Article 166 are directory and substantial compliance with those provisions are sufficient : M. Balakrishna Reddy Vs. Director, CBI, New Delhi, I.L.R. (2008) M.P. 1001 (SC)
- Article 215, Contempt of Courts Act, 1971, Section 12 - Powers of the Court - Held - The jurisdiction in contempt is not to be invoked unless there is real prejudice which can be regarded as a substantial interference with the due course of justice and that the purpose of the Court's action is a practical purpose and it is reasonably clear on the authorities that the Court will not exercise its jurisdiction upon a mere question of propriety - Even if it is assumed that the respective actions attributed to the respondents suffer from any inadvertence or impropriety, it would not be possible to hold anyone of them guilty of contempt of the Court : Vivek Valenkar Vs. Arvind Joshi, I.L.R. (2010) M.P. 636 (DB)
- Article 215 - See - Contempt of Courts Act, 1971, Section 12, Horilal Vs. Bhajanlal, I.L.R. (2009) M.P. 3061
- Articles 216, 225, 226, State Reorganisation Act, 1956, Sections 54 & 68, Government of India Act, 1915, Section 106, High Court Rules and Orders, M.P., Section 3, Court Fees Act, 1870, Section 35 - Public Interest Litigation - In order to regulate filing of PIL, the Division Bench in its order dated 09.09.1999 in W.P. No.988/1999 issued certain directions including security deposit - Matter referred by the Division Bench to Full Bench after framing 5 substantial question of law - Held - Answering the reference the Full Bench held that the directions contained in the order dated 09.09.1999 passed in W.P. No.988/1999 by Division Bench of this Court will no longer hold good and that the rules in Section 3 of the High Court Rules for proceedings under Article 226 of the Constitution made under Article 225 of the Constitution and Clause 27 of the Letters Patent made by the High Court of Judicature, Nagpur, as amended from time to time, will continue to apply to all Public Interest Litigations filed under Article 226 of the Constitution until replaced or amended by rules made by the High Court of M.P. in exercise of its powers u/s 54 of the Act of 1956 r/w Article 225 of the Constitution : S.P. Anand Vs. The Registrar General, M.P. High Court, Jabalpur, I.L.R. (2008) M.P. 2172 (FB)
- Article 216, 225, 226, State Reorganisation Act, 1956, Section 54 & 68, Government of India Act, 1915, Section 106, High Court Rules and Orders, M.P., Section Constitution of India 160
3 - Public Interest Litigation - Powers to make Rules - These rules and orders do not provide for security deposit to be made along with a writ petition filed under Article 226 of the Constitution and it is only the High Court comprising of the Chief Justice and all Judges of the High Court of M.P. appointed by the President or a Committee of the High Court Judges or a Judge authorized to make orders or rules relating to practice and procedure of the High Court, which could make fresh orders or rules providing for a security deposit along with every PIL filed to prevent the abuse of PILs and hence the order dated 09.09.1999 of the Division Bench in W.P. No.988/1999 was without jurisdiction : S.P. Anand Vs. The Registrar General, M.P. High Court, Jabalpur, I.L.R. (2008) M.P. 2172 (FB) SYNOPSIS : Article 226
1. Abuse of process of Court 18. Judicial Review 2. Acquisition of land 19. Locus Standi 3. Admission 20. Maintainability of Writ Petition 4. Allotment of dealership 21. Penalty can not be imposed on 5. Allotment of Land appellate authority under RTI Act 6. Alternative remedy 22. Preventive detention 7. Compensation / Claim 23. Public Interest Litigation / Damages 24. Public policy 8. Constitutional validity 25. Rehabilitation 9. Contracts 26. Service Matter 10. Court fee 27. Tax 11. Decision in bunch of writ 28. Territorial jurisdiction petitions not in rem of High Court 12. Delay 29. Writ of Certiorari 13. Distinction between 30. Writ of Habeas Corpus Articles 226 and 227 31. Writ of mandamus 14. Estoppel 32. Writ of Quo warranto 15. Examination 33. Miscellaneous 16. Interference into administrative or quasi judicial orders 17. Investigation by CBI Constitution of India 161
1. Abuse of process of Court
- Article 226 - Suppression of material fact - First W.A. withdrawn stating that Service Tax due already deposited so it become infructuous - Court permitted for withdrawal with liberty to approach appropriate forum - Second W.A. filed in a quite different manner suppressing that order was challenged previously in W.P. and order of CESTAT was modified and appellant was directed to deposit amount - Held - Liberty to approach appropriate forum would not include filing second W.A. - Effort has been made to reiterate the grievance in different manner unknown to law and the same is nothing but abuse of process of Court - Since second W.A. is not maintainable - Reference need not be answered - W.A. dismissed : Great Galleon Ltd. Vs. Union of India, I.L.R. (2009) M.P. 1869 (FB)
- Article 226, Nagar Tatha Gram Nivesh Adhiniyam, M.P., 1973 - Petitioner very cleverly kept silent in subsequent writ petition that he had, in earlier writ petition, abandoned a substantial part of claim and given up his rights qua the disputed land - Held - Material concealment and not disclosing all relevant facts - Petitioner had tried to not only mislead the court but has also made an attempt to misuse and abuse the process of Court - Disentitled the petitioner from adjudication of his claim on merits : Sadashiv Joshi Vs. State of M.P., I.L.R. (2008) M.P. 2254
- Article 226 - See - Criminal Procedure Code, 1973, Section 340 : Bhavani Shankar Sharma Vs. Keshri Singh Chouhan, I.L.R. (2008) M.P. 3082 2. Acquisition of land
- Article 226 - Writ petition challenging acquisition of land for coal company - Court will have to weigh the public interest vis-à-vis the private interest while exercising the power under Article 226 - And even if it finds that the acquisition was vitiated on account of non-compliance of some legal requirement or that the persons interested are entitled to particular amount of compensation - Court should appropriately mould the relief and redress the wrong instead of quashing the acquisition proceedings : Naresh Singh Vs. Union of India, I.L.R. (2009) M.P. 730 (DB)
- Article 226 & 300A - Right to property - Whether the ownership land of the petitioner can be utilized by the Municipal Corporation for widening road without following the due procedure in accordance with law - Held - Right to own and retain property being not only a constitutional right but also human right - Petitioner cannot be deprived of said right except by following due process of law - The land has to be acquired by paying compensation at market rate - Petition allowed : Jaswant Bhai Doshi Vs. Indore Municipal Corporation, I.L.R. (2008) M.P. 3137 Constitution of India 162
3. Admission
- Article 226 - Admission in D. Ed. - Petitioners have passed examination of Uttar Madhyama in Sanskrit conducted by Bhartiya Vidya Bhavan, Mumbai - Minimum qualification for appearing in D.Ed. Course is Higher Secondary School Examination or Equivalent Examination - Uttar Madhyama Examination has not been equated with Higher Secondary Examination - Petitioners not entitled for admission to D.Ed. Course - Petition dismissed : Radha Mishra Vs. Secretary, Board of Secondary Education, I.L.R. (2008) M.P. 1101
- Article 226 - Admissions in Medical College - NRI Quota - Wards - Petitioners admitted in Medical Courses in NRI Quota - Their admissions cancelled by Committee on the ground that they are neither children nor Wards of NRI - All the petitioners securing first division marks in 10+2 Examination - Held - Term "Ward" has been given broader meaning by Supreme Court in the case of Ruchin Bharat Patel - Nothing on record to show that N.R.I. had acted with malafide manner - Merit has not been given complete go by - Admissions upheld - Decision of Committee quashed - Petition allowed : Ansul Tomar Vs. State of M.P., I.L.R. (2008) M.P. 1979 (DB)
- Article 226 - Admission Procedure - State Govt. decided to hold common entrance examination and centralized counselling instead of College level counselling - Holding of entrance test cannot be found fault with in view of clause 3.3 of NCTE Norms - Recourse to college level counselling cannot be allowed : Pitambra Peeth Shiksha Prasarani Samiti Vs. State of M.P., I.L.R. (2008) M.P. 1063 (DB)
- Article 226 - Admission - Resp. No.1 was given provisional admission in College subject to approval by University - University cancelled his admission as he failed in Pre-Law Test - Learned Single Judge held that resp. No.1 was wrongly admitted by College, therefore, petition disposed of with compensation of Rs.20,000/- - Order challenged in Writ Appeal - Held - Resp. No.1 knew very well that his admission was provisional - He was not kept in dark by College - He had chosen to obtain study at his peril - Moreover, he was allowed to appear in examination of LL.B. Ist year under interim order of High Court - In that examination he adopted unfair means and was debarred for three years from obtaining education - Thus, no loss was caused to him by the act of College - Order set-aside - Appeal allowed : Hitkarini Law College Vs. Ashish Kumar Pathak, I.L.R. (2008) M.P. 1866 (DB)
- Article 226 - Admission to B.Ed. Courses - Validity of Rules providing 75% of B.Ed. seats shall be for residents of M.P. and 25% for students who are not residents of M.P. already upheld - Examination forms not issued by University as enquiry with regard to domicile certificates submitted along with forms is still in progress - Held - High Power Committee constituted for conducting enquiry - Committee shall decide Constitution of India 163 verification within fours weeks - Before passing any adverse order, the committee shall hear concerned Principal or nominee of institution and student who is likely to be aggrieved - After verification Separate examination shall be held by University for eligible students - Petition disposed of : Yuva Vyayasayik Shikshan Sansthan Vs. Jiwaji University, Gwalior, I.L.R. (2008) M.P. 1056 (DB) 4. Allotment of dealership
- Article 226 - Allotment of dealership - Appellant was appointed ad-hoc dealer by respondent Corporation for one year - He provided land on lease for 30 years, spent amount and obtained license - Termination of dealership - Held - Clause 12 of guidelines for selection of retail outlet provides that advertisement has to be issued for allotment and preference can be given while awarding marks under the head "Land and infrastructure" - Letter of intent issued also provides that allotment in favour of appellant was purely a stopgap and temporary arrangement - In the matter of distribution of public largesse, if outlet is given to appellant without selection process, it would be violative of concept of fair play - Appellant has no right to continue with outlet - Appeal dismissed : Mohan Auto Supply Centre (M/s.) Vs. (M/s.) Hindustan Petroleum Corporation Ltd., I.L.R. (2009) M.P. 1898 (DB)
- Article 226 - Allotment of Kerosene/LDO Dealership - Petitioner was selected and letter of intent was issued for Kerosene/LDO dealership - Subsequently, selection and letter of intent were cancelled - Cancellation was based on complaints - Complaints were investigated by the Director General, Anti Adulteration Cell, Govt. of India - Cancellation order challenged in Writ Petition - Held - Director General, Anti Adulteration Cell was competent to recommend the cancellation of selection of dealers - After receiveing the orders about abolition of Dealers Selection Board, the Board ought to have rescued itself from the entire selection process but it proceeded with selection process and even declared a panel of selection - Recommendations by a non-existing body of persons cannot be termed as recommendations in the eyes of law - No mandamus can be issued for implementation of such recommendations - Petition dismissed : Anil Agrawal Vs. Union of India, I.L.R. (2009) M.P. 700 5. Allotment of Land
- Article 226 - Allotment of Government Land - Petitioner, a consumer society applied for allotment of land free of premium and annual rent of Rs.1 for establishing laboratory and administrative block - Order issued by State Government postulates earmarking of areas for Housing Board, Bhopal Development Authority, Municipal Corporation and Government and Semi-Government Departments for residential purpose and for administrative offices - Held - There is no indefeasible right of the petitioner as Constitution of India 164 well as respondent No.4 to have a land for its administrative office as a matter of right : Akhil Bhartiya Upbhokta Congress Vs. State of M.P., I.L.R. (2010) M.P. 2478
- Article 226, M.P. Revenue Book Circular, Rule 31, Section IV, Sr.No.1 - Allotment of Nazul Plot - Condition of allotment prohibiting alienation and forfeiture of property in breach of condition - Subsequent lease agreement does not contain term prohibition alienation and terms provided for assignment by transfer - Order of cancellation of allotment and direction for cancellation of lease due to transfer by lessee - Held - Specific terms prohibiting alienation being not incorporated in the later covenant will not be binding on the parties to agreement - Allotment can not be cancelled - Orders quashed - Petition allowed : Kuldeep Singh Punjabi Vs. State of M.P., I.L.R. (2010) M.P. 2068
- Article 226, Land Revenue Code, M.P. 1959, Section 248 - To vacate government land - Petitioner, a registered society, sought allotment of land - Permission was given with stipulation that to deposit premium and rent would not entitle petitioner for an advance possession - Decision was taken to take back possession of land from petitioner - Held - No public element is involved - No promise and no undertaking was given to petitioner - Right from the year 1979 it was made clear that petitioner has no right over property - No crystallization of right as would entitle petitioner for hearing before decision - Physical possession de hors specific stipulation cannot be termed to be crystallization of right - Petition dismissed : Resources Development Institute, Bhopal Vs. State of M.P., I.L.R. (2009) M.P. 974
- Articles 226/227 - Auction of Nazul plots by Nazul Department for non residential purpose - Petitioners challenging the auction of plots and construction of shops thereon - Nazul land which is proposed for construction of shops is a part of road as shown in the master plan of Mandla city - Such Nazul land cannot be auctioned - Auction of Nazul land for non-residential purposes bad - Hence quashed : Rajesh Sharma Vs. State of Madhya Pradesh; I.L.R. (2007) M.P. 65 6. Alternative remedy
- Article 226, Revenue Book Circular, Section 18 - Interference by the High Court against the order of the original authority, which is based on factual details, is not warranted under writ jurisdiction - When the ultimate order of Nazul Officer can be canvassed before Collector, the High Court ought not to have exercised its extraordinary jurisdiction under Art. 226 as an appellate court over the finding of fact arrived at : State of M.P. Vs. Nerbudda Valley Refrigerated Products Company Pvt. Ltd., I.L.R. (2010) M.P. 1858 (SC) Constitution of India 165
- Article 226 - Alternative remedy - Compensation - Civil Suit - Whether compensation can be awarded in a writ petition when petitioner has alternative remedy of filing civil suit - Held - Petitioner can certainly claim compensation by filing a civil suit, however, in the light of various judgments passed by High Court granting compensation in identical facts and circumstances of the case - Compensation awarded : Aradhana Singh (Ku.) Vs. Board of Secondary Education, M.P., I.L.R. (2009) M.P. 785
- Article 226, Urban Land (Ceiling and Regulation) Act, 1976, Section 10(3), Rule 5(2)(c) - Alternative Remedy - Learned Single Judge dismissed the writ petition for want of availability of alternative remedy - Held - The Division Bench reversing the finding of the learned Single Judge held that when the notices were not served, the proceedings were not conducted manifestly in a legal manner and the principles of Natural Justice were not followed - It cannot be held that the proceedings were lawful or writ jurisdiction of High Court is barred - Since no evidence is required to assess the question of legality of the proceedings, the question can be examined by the writ court - Writ Appeal allowed : Sohan Singh Vs. State of M.P., I.L.R. (2008) M.P. 2184 (DB)
- Article 226 - Alternative Remedy - In case of breach of statutory provision, violation of fundamental rights and action taken to be contrary to law - Interference under Article 226 can be made : Satya Prakashi Parsadia Vs. State of M.P., I.L.R. (2008) M.P. 1092
- Article 226 - Alternative Remedy - Order without jurisdiction - Order of removal passed by authority subordinate to appointing authority - Writ Petition dismissed by Single Judge holding that petitioner can avail the alternative remedy of appeal - Held - Order of removal was without jurisdiction - Alternative remedy of appeal is no bar for exercise of jurisdiction under Article 226 of the Constitution - Order of removal quashed - It will be open for Appointing authority to pass fresh order in accordance with law - Appeal allowed : Ram Kishore Shukla Vs. State of M.P., I.L.R. (2008) M.P. 1364 (DB)
- Article 226 - Alternative Remedy - Petition once admitted, could not be dismissed on the ground of alternative remedy : Bhuvneshwar Prasad @ Guddu Dixit Vs. State of M.P., I.L.R. (2008) M.P. 1683
- Article 226, Civil Services (Classification, Control and Appeal) Rules, 1966, Rule 23, Rajya Anusuchit Jati Ayog Adhiniyam, M.P., (25 of 1995), Section 9 - Alternative Remedy - Resp. No.6 belongs to S.C. Category made complaint to State S.C. Commission against appellant that he deliberately delayed writing of his A.C.Rs. and he was addressing and abusing him on the basis of caste - Chairman recorded finding against appellant and directed Secretary to impose punishment of stoppage of two increments Constitution of India 166 or of reversion - W.P. dismissed on the ground of alternative remedy i.e. departmental appeal - Held - Order was not passed in any departmental proceeding - No appeal against order which has been issued purportedly in exercise of power u/ss 9 & 10 of Adhiniyam - Order dismissing petition suffers from manifest irregularity : S.K. Verma Vs. State of M.P., I.L.R. (2008) M.P. 1892 (DB)
- Articles 226/227 - Alternative Remedy - Rule of exclusion of writ jurisdiction due to availability of alternative remedy is a rule of discretion and not one of compulsion - Writ Court may exercise discretionary jurisdiction of judicial review in atleast three contingencies where writ petition seeks enforcement of fundamental rights, where there is failure of principles of Natural Justice and where proceedings are wholly without jurisdiction or vires of an Act is challenged : M.P. State Agro Industries Development Corporation Ltd. Vs. Jahan Khan, I.L.R. (2007) M.P. 1282 (SC)
- Articles 226/227 - Alternative Remedy - Writ Petition is not a proper forum to decide dispute in respect of contractual matters - In respect of Bare Contractual obligations - Writ Petition is not to be entertained when remedy of civil suit is available - Dispute in respect of rent cannot be agitated under Article 226 of Constitution - Petitioner has remedy of filing suit under M.P. Accommodation Control Act to determine the question : Nand Kishore Choudaha Vs. Union of India, I.L.R. (2007) M.P. 1215 7. Compensation / Claim / Damages
- Article 226, Madhyamik Shiksha Mandal (Manyata) Viniyam, 2005 - Entitlement for compensation - Student admitted by the institution for the course for which it had no permission or recognition by the Board of Secondary Education under the Regulations of 2005 - Held - Student lost valuable academic year - Institution directed to pay compensation Rs.50,000 to student - Institution committed a fraud - District Administration directed to initiate appropriate criminal proceedings against institution - Petition allowed : Ratna Prabha (Ku.) Vs. State of M.P., I.L.R. (2010) M.P. 387
- Article 226 - Compensation - Petitioner is a bright young student having excellent academic record, appeared in 12th class examination as a regular student - Her result declared after two years and she has lost two valuable academic years - In the facts and circumstances of the case, petitioner entitled for compensation of Rs.50,000 and costs of writ petition Rs.5,000 : Aradhana Singh (Ku.) Vs. Board of Secondary Education, M.P., I.L.R. (2009) M.P. 785
- Article 226 - Damages - Can not be ascertained in exercise of writ jurisdiction : Mohammad Sageer Manihari Wale Vs. State of M.P., I.L.R. (2009) M.P. 681
- Articles 226, 227, National Highways Act (48 of 1956), Sections 3-H, 3-G - Determination of compensation - Public Interest Litigation Petition filed alleging Constitution of India 167 discrepancies in determination of compensation amount - If amount determined by competent authority is not acceptable to either party, the same may be determined by arbitrator appointed by Central Govt. on application of either party - Dispute is in the realm of individual entitlement and cannot assume character of P.I.L. - Petition dismissed : Kanhaiyalal Patel Vs. Union of India, I.L.R. (2008) M.P. 1932 (DB)
- Articles 226/227, Bhopal Gas Leak Disaster (Registration and Processing of Claims) Scheme, 1985 - Identification of claimant - Claim of the Petitioner for payment of compensation as Bhopal Gas Victim rejected by Deputy Welfare Commissioner on the ground that different name is mentioned in Tata Survey, Ration Card, Affidavit - Petitioner claimed that both the names are that of same person as father's name is the same - Held - Scheme 1985 provides procedure for identification of claimants - Deputy Welfare Commissioner has to verify identity of claimant on the basis of Photograph affixed on documents required to be filed - Deputy Welfare Commissioner cannot reject the claim where he entertains doubt about ideality of claimant but can reject only if he finds that claimant is not genuine - Deputy Welfare Commissioner should have insisted for personal appearance of petitioner for comparing him with photograph affixed on documents - Matter remanded back to decide the matter with regard to identity of claimant in accordance with procedure laid down in Action plan and instructions - Petition disposed off : Ishaq Mohd Vs. Welfare Commissioner, Bhopal Gas Victims, Bhopal, I.L.R. (2007) M.P. 1353 (DB)
- Articles 226 & 227 - Central Government employee claiming the actual amount spent by him in the operation conducted at Apollo Hospital - Claim allowed by Central Administrative Tribunal - State Government, in its petition claiming that the employee is only entitled to reimbursement as per the Government memorandum - Held, benefits that are to be given to the employees are clearly laid down in the office memorandum issued by Health Ministry - Irresistible conclusion is that respondent was only entitled to get the amount as per the package bill - Petition allowed : Union of India Vs. P.D. Agrawal, I.L.R. (2007) M.P. 200 (DB) 8. Constitutional validity
- Article 226 - Grounds to challenge constitutional validity - If the act of repository of power is in conflict with Constitution, or governing Act or general principles of law of land or it is so arbitrary or unreasonable that no fair minded authority could ever have made it : M.P. Cement Manufacturers Association Vs. State of M.P., I.L.R. (2008) M.P. 1665 (DB)
- Article 226 and Nagar Tatha Gram Nivesh Adhiniyam, M.P., 1923 as amended by Act No. 11 of 1991, Sections 47, 76-B (2-A), (2-B), (2-C), (2-D) and (6) - Constitution of India 168
Constitutional validity of - Transfer of officer and servants from one Development Authority to another - Conditions of service to be regulated not by consent or contract but by statutory rules to be made by State Govt. - State legislature empowered to amend the provisions - By Amendment - Continued employment insured - Liability to transfer equally applicable to all persons finally absorbed as also to person appointed after amendment - Provisions not ultra vires : Indore Development Authority Engineers Association Vs. State of Madhya Pradesh, I.L.R. (2006) M.P. 524 (DB)
- Article 226, VII Schedule List II, Entry 49, 50 and M.P. Rural Infrastructure and Road Development Act, 2005, Sections 2(a), 3 & 8 - Constitutional validity - Power to levy Rural Infrastructure and Road Development Tax - Tax imposed for purpose of development of Rural infrastructure and road development - Tax is on land which bears mineral - Methodology to levy tax - Merely, because the quantum of mineral produced and dispatched from the land is factor in determining value of land it does not become a tax on mineral - Legislation falls within power conferred upon State Legislature under Entry 49 of the II List of VII Schedule - Act not ultra-vires : M/s Neogy & Sons Vs. The State of M.P., I.L.R. (2006) M.P. 1381(DB)
- Article 226/227 - Petitions under Article 226/227 of the Constitution challenging vires of any Act or statute or any order or rule or regulation made under any Act or statute shall be heard at Principal Seat at Jabalpur as per order of Chief Justice - Chief Justice has ordered in exercise of powers conferred on him in pursuance of notification issued by the President : State of M.P. Vs. Shyam Sunder Savita, I.L.R. (2009) M.P. 2168 (DB) 9. Contracts
- Article 226 - Contracts - Judicial review - Action of the State expected - Held - When the State deals with the individuals in the matters of contract and construction, it becomes necessary for the State to act bonafidely and without any bias, while complying with the mandatory provisions of law including the cardinal principle of natural justice : Bhupendra Singh Kushwah Vs. State of M.P., I.L.R. (2010) M.P. 2482
- Article 226 - Contracts - Blacklisting of a Contractor - Natural Justice - Held - Registration and cancellation of the registration acquires great importance, as it incur civil consequences and in that situation the principle of 'audi alteram partem', requires to be necessarily complied with by the department : Bhupendra Singh Kushwah Vs. State of M.P., I.L.R. (2010) M.P. 2482
- Article 226 - Judicial review - When an entirely illegal condition is being imposed, with an intention to either include or exclude some individuals with ulterior motives, inferable from the record of the case, the Court can interfere in a contractual matter, Constitution of India 169 where tender condition seems to have been incorporated by way of punishment or a penalty, without complying with the principles of natural justice : Gyan Singh Sisodia Vs. State of M.P., I.L.R. (2010) M.P. 1317 (DB)
- Article 226 - Contract - Award of contract to partners - Dispute between partners - In compliance of settlement before authority first partner returned amount invested by second partner and new agreement was executed between first partner and the federation - At the instance of Minister, federation awarded contract to second partner for remaining term of contract - Held - Order of federation is arbitrary and irrational that no responsible authority acting reasonably and in accordance with relevant law could have reached to such conclusion - Order quashed - Petition allowed : Shivendra Singh Vs. State of M.P., I.L.R. (2010) M.P. 347 (DB)
- Article 226 - Bank guarantee - Bank guarantee was liable to be encashed against any loss or damage caused to or suffered or would be caused to or suffered by reason of any breach of contract - Department failed to intimate the Bank any loss or damage caused to or suffered or would be caused to or suffered by department by reason of any breach of contract - Held - Condition of Bank guarantee while directing Bank to encash remained uncomplied - Department not entitled to encash Bank guarantee - Petition allowed : G.V. Pratap Reddy Vs. M.P. Rural Road Development Authority, Bhopal, I.L.R. (2009) M.P. 3079 (DB)
- Article 226 - Contract - Breach of contract - Damages - Judicial Review - Held - Remedy available for a party complaining of breach of contract lies for seeking damages - He would be entitled to the relief of specific performance, if the contract was capable of being specifically enforced in law - The remedy for a breach of contract being purely in the realm of contract are dealt with by civil courts : Bits & Bytes (M/S) Vs. State of M.P., I.L.R. (2009) M.P. 3371 (DB)
- Article 226 - Contract - Judicial Review - Held - Contract between the parties is a contract in the realm of private law - It is not a statutory contract - It is governed by the provisions of the Contract Act - Any dispute relating to breach of contract cannot be agitated in a writ petition : Bits & Bytes (M/S) Vs. State of M.P., I.L.R. (2009) M.P. 3371 (DB)
- Article 226 - Contract - Notice inviting tenders - A condition stipulated in the notice inviting tenders that there should have been turnover of 10 crores in the last 3 years - The said condition challenged being arbitrary and to make undue favour to a single person - Held - Only genuine and capable persons should participate in the tender process and for this purpose the condition so imposed appears to be just and reasonable : Rakesh Kumar Naik Vs. State of M.P., I.L.R. (2009) M.P. 2576 (DB) Constitution of India 170
- Article 226 - Contract - Notice inviting tenders - Judicial review - Permissibility - Held - While exercising the power of judicial review of the terms of the tender notice the Court cannot say that the terms of the earlier tender notice would serve the purpose sought to be achieved better than the terms of tender notice under consideration and order change in them, unless it is of the opinion that the terms were either arbitrary or discriminatory or actuated by malice : Rakesh Kumar Naik Vs. State of M.P., I.L.R. (2009) M.P. 2576 (DB)
- Article 226 - Contracts - Power of judicial review - Petitioner was the lowest bidder and his tender form not accepted but fresh tender issued with some modifications and for only for a class of printers - Held - When the power of judicial review is invoked in the matters relating to tender or award of contract, certain special features have to be considered - A contract is a commercial transaction and evaluating tenders and awarding contract are essentially commercial functions - In such cases the principles of equity and natural justice stay at distance - If the decision relating to cancellation of earlier bid is bona fide and is in public interest, Courts will not exercise the power of judicial review and interfere even if it is accepted for the sake of argument that there is a procedural lacuna : Ami Art Creations & Offset Printers Vs. Board of Secondary Education, I.L.R. (2009) M.P. 3357 (DB)
- Article 226 - Petitioner firm was awarded contract for the job of making data entries relating to the implementation of Government scheme - Contract cancelled - Action challenged in W.P. - Held - Work of petitioner was unsatisfactory and inspite of notice there was no improvement - As per terms & conditions of the contract, he had failed to complete the work within a period of one year - Prior to termination of contract notice was duly issued to the petitioner - In such circumstances, the order of cancellation of contract was neither arbitrary nor unreasonable nor mala fide - Petition dismissed : Bits & Bytes (M/S) Vs. State of M.P., I.L.R. (2009) M.P. 3371 (DB)
- Article 226 - Writ petition challenging notification of Board amending and modifying agreement and withdrawing the condition of paying interest on security deposit - Any change resulting in non-payment or reduction of interest will have to be justified by cogent reasons and materials having a bearing on financial position - Sufficient justification given by Board regarding increased financial deficit - Board is justified in issuing the notification - Appeal dismissed : Jindal Strips Ltd Vs. M.P. State Electricity Board, I.L.R. (2009) M.P. 3257 (DB)
- Article 226 - Agreement for supply of water between Municipal Corporation, Indore and Dewas - Municipal Corporation, Indore able to meet only 50% of the requirement of water for its residents - Held - Municipal Corporation, Indore cannot be compelled to supply agreed quantity of water to Municipal Corporation, Dewas : Manoj Rajani Vs. State of M.P., I.L.R. (2009) M.P. 2210 (DB) Constitution of India 171
- Article 226 - Contract - After termination of contract without issuance of show cause notice or making any enquiry into damages or into the cause which led to cancellation of contract, Railway issued demand notice - Held - Matter was not referred to the arbitrator nor any competent and authorized person has ever adjudicated upon the dispute - Respondent Railway would not be entitled to recover the money on their lopsided calculation - Order of withholding amount quashed - Petition disposed of : Bridge and Roof Infrastructures (M/s.) Vs. Union of India, I.L.R. (2009) M.P. 1952 (DB)
- Article 226 - Contract - Notice inviting tender - Notice inviting tender mentioned that the earnest money in the form of FDR in favour of Municipal Corporation has to be deposited one day prior to the opening of the tender - Petitioner's tender was not opened as he deposited the earnest money in the form of FDR in favour of Municipal Corporation along with his tender and not one day prior - Held - Notice inviting tender did not clearly or expressly state that the FDR receipt towards the earnest money deposit should be furnished to the Municipal Corporation one day prior to the date of opening of the tender - That Fixed Deposit was infact made in favour of the Municipal Corporation one day prior to the date of opening of the tender, but Fixed Deposit Receipt was not furnished to the Municipal Corporation one day prior to the date of opening of the tender, but was submitted alongwith the tender of the petitioner to the Municipal Corporation on the date of opening of tender - Fairness demands that the tender of the petitioner be considered by the Municipal Corporation : Gaurav Technica India Pvt. Ltd. Vs. Municipal Corporation, Katni, I.L.R. (2009) M.P. 1647 (DB)
- Article 226 - Contract - Tender for purchase of minerals - Petitioner despite extension of time failed to lift quantity of mineral allotted - Other joint venture companies were offered to carry out the work and one of the offer being appropriate one was accepted - Except petitioner no offeree challenged the action - Held - It can not be said that without calling any offer from other companies which were ready to work in joint venture work was allotted - Action of allotment not arbitrary - Petition dismissed : Devendra Minerals (M/s.) Vs. State of M.P., I.L.R. (2009) M.P. 2251 (DB)
- Article 226 - Contractual matter - Bid Capacity and qualifying experience - Petitioner Company submitted its bid but was declared disqualified - Held - Notice Inviting Bids laying down conditions of minimum turnover of Rs. 222 lacs in last two financial years and experience of completion of similar work of requisite value - Petitioner nowhere stated that it possesses the requisite financial turnover and qualifying experience - Bid capacity and qualifying experience are two different things - Petitioner was rightly disqualified - Petition dismissed : M/s. Kandaria Constructions Company Vs. State of M.P., I.L.R. (2007) M.P. 756 Constitution of India 172
10. Court fee
- Article 226 - Dispensation of court fee on regular writ petition filed as Public Interest Litigation - View taken by Full Bench in ILR [2008] MP 2172 that court fee are payable on PIL filed as Writ Petition under Article 226 of Constitution except where the Chief Justice or a Judge designate directs on the basis of information received in a letter or any other document and considers that to be a fit case for registering case even though no court fee is paid on such letter or document is correct - Review dismissed : Satya Pal Anand Vs. Registrar General, High Court of M.P., I.L.R. (2009) M.P. 1586 (FB) 11. Decision in bunch of writ petitions not in rem
- Article 226, Nagar Tatha Gram Nivesh Adhiniyam, M.P., 1973 - Learned Single Judge while allowing the bunch of writ petitions, had specifically mentioned that the common order would be applicable only to the petitioners who had approached this Court and not others - Held - Judgment was not in rem - Petitioner who had abandoned a part of his claim and relinquished his rights in the disputed land - It would be deemed as if petitioner had not even filed the petition qua the disputed land - Such petitioner cannot get the benefit of that common order : Sadashiv Joshi Vs. State of M.P., I.L.R. (2008) M.P. 2254 12. Delay
- Article 226 - Delay in filing a writ petition - Respondent No.3 got appointment as operator of Kisan Seva Kendra to sell diesel and lubricating oils - Taking loan and spending huge amount over the project - Petitioner challenging his appointment after a period of 5 months - Held - As the position of respondent No.3 has altered after grant of appointment in his favour - In the facts of the case, no relief can be granted to the petitioner for making a delay in filing the writ petition : Shiv Dayal Singh Vs. General Manager, Indian Oil Corporation, I.L.R. (2009) M.P. 176
- Article 226 - Delay - In 1993, petitioner was informed that he was not entitled to get additional increment - Subsequent communication would not give fresh cause of action - Stale cause of action can not be entertained - Petition dismissed : Radheshyam Surolia Vs. National Textile Corporation (MP) Ltd., I.L.R. (2008) M.P. 2289
- Article 226 - Delay in filing Writ Petition - In case of pension cause of action arises from month to month - In such case claim for disability pension should not be rejected only on ground of delay : Mohd. Dildar Vs. Union of India, I.L.R. (2008) M.P. Note *22 (DB) Constitution of India 173
13. Distinction between Articles 226 and 227
- Articles 226, 227 - Distinction between - Proceeding under Article 226 are in exercise of original jurisdiction while proceeding under Article 227 are only supervisory. (Majority View) : Manoj Kumar Vs. Board of Revenue, I.L.R. (2007) M.P. 1504 (FB) 14. Estoppel
- Article 226, Nagar Tatha Gram Nivesh Adhiniyam, M.P., 1973 - Petitioner having abandoned a part of claim in the earlier writ petition and relinquished his right on part of disputed land - In subsequent writ petition, petitioner challenged whole scheme including disputed land which he had originally abandoned - Held - Petitioner is totally debarred and even estopped from raising that claim in subsequent writ petition - Not on the ground of res judicata but on the ground of public policy : Sadashiv Joshi Vs. State of M.P., I.L.R. (2008) M.P. 2254
- Article 226 - Estoppel - Notification shall make it clear that children/wards of the employees of Adarsh School would be admitted as days scholars only and such days scholars would not be entitled to any other facility - Knowing well the terms of this notification petitioner sought admission - Then he cannot be allowed to say that the relaxation given in favour of the children/wards of the employees though is correct but the benefits could not be denied : Master Shyam Kishore Vs. State of M.P., I.L.R. (2008) M.P. Note *35 (DB)
- Article 226 - Estoppel - Process of conducting written test and other particulars disclosed in circular - All 8 petitioners participated in written test - Out of them 6 petitioners were failed - Right to make complaint about manner of conducting written test after failing is not available - Failed petitioners estopped from challenging process of written test - Petition dismissed : Santosh Singh Chauhan Vs. State of M.P., I.L.R. (2008) M.P. 690 15. Examination
- Article 226 - Regulations of Medical Council of India, 2000, Clauses 3, 7 & Note (a) - MBBS Course - Attending classes is one thing and to become eligible in appearing in the examination is altogether different thing - Petitioners passed 1st professional examination in supplementary examination - Although they had attended classes with main batch but they were not allowed to appear in second professional examination - Held - Terminology used in clause 7 'joining of main batch' cannot be given undue emphasis - Passing in 1st professional examination is compulsory before proceeding to second professional examination - Petitioners cannot be permitted to Constitution of India 174 appear in examination unless they complete 18 months regular training and pass the first MBBS Course - Petition dismissed : Muniraj Patel Vs. State of M.P., I.L.R. (2008) M.P. 1377 (DB)
- Article 226, Ordinance of Dr. Harisingh Gour Vishwavidyalaya, Ordinance 5.22(2) - Academic Issue - Petitioner applied for revaluation of subject - On revaluation two different examiners given different marks i.e. 58 and 45 - As per provision of Ordinance No. 5.22(2) Petitioner was given 45 marks in revaluation - Petitioner challenged this by way of Writ Petition, Writ Appeal and SLP but could not get any success - In present petition constitutional validity of Ordinance 5.22(2) challenged - Held - Challenge to constitutional validity of Ordinance cannot confer any benefit to Petitioner as the controversy of revaluation as far as Petitioner is concerned has been put to rest - Issue has become totally academic, therefore does not deserve advertence - Petition dismissed : Suman Vs. State of M.P., I.L.R. (2008) M.P. 499 (DB)
- Article 226 - Recruitment - Examination - Cancellation of, due to leakage of paper - Domestic Enquiry - Strict legal proof is not the requirement of law - Theory of weeding out candidates who benefitted by such leakage not applicable - Extent of leakage can not be determined with accuracy - Cancellation of entire selection process bonafide and is not assailable : Amar Bahadur Vs. State of M.P., I.L.R. (2006) M.P. 816
- Article 226 - Selection process to the post of Subedar/ Sub- Inspector/Platoon Commander in Police Department challenged - Petitioner challenging minus marking, criterion fixed for evaluation in the Ready Reckoner and taking of physical fitness test in April as against in January in case of other candidates - Held - The fact of minus marking was already notified in 'Booklet' and question paper - Criterion fixed for Ready Reckoner not unjust - Temperatures in first week of April not so excessive as would disable the candidates to perform efficiently - Selection process was proper - Petition dismissed : Niaz Ahmad Ansari Vs. State of M.P., I.L.R. (2006) M.P. 1615
- Article 226 - Petitioner a blind person, appeared and got selected in preliminary and main examination conducted by M.P.P.S.C. - Was not permitted to participate in oral interview and denied benefit of reservation for disabled person - Held - Petitioner being selected in year 1998-99, therefore, direction to appoint can not be issued after 9 years : Nilesh Singhal Vs. State of M.P., I.L.R. (2008) M.P. 2264 16. Interference into administrative or quasi judicial orders
- Article 226, Panchayat Shiksha Karmis (Recruitment and Condition of Service) Rules, M.P. 1997 - Scope - Petitioners selected are either sons, daughter, sisters, sister- in-law of the members of Selection Committee - After appreciating all these factors, Constitution of India 175 the finding concurrently arrived at by the appellate authority (Collector) and revisional authority (Commissioner) - Order challenged in writ petition - Held - While exercising jurisdiction under Article 226 of the Constitution and while considering the question of interference into administrative or quasi judicial orders passed, if reasonable and prudent approach is adopted and if it is found that the approach of the authorities, administrative or quasi judicial in nature, is not vitiated by any statutory provisions or malafides, interference should not be made : Shyama Dwivedi (Smt.) Vs. State of M.P., I.L.R. (2008) M.P. 2885 17. Investigation by CBI
- Article 226 - Investigation by CBI - High Court has power to direct investigation by CBI - However, this power should be exercised only in cases where there is sufficient material to a prima facie conclusion that there is need for such investigation : Anurag Modi Vs. State of M.P., I.L.R. (2009) M.P. Note Note *38 (DB)
- Article 226 - Investigation by CBI - Video footage prima facie established that demolition of settlements of Pardhis and death of two persons had support of local administration and elected representatives of that area - Police merely recorded FIR against unknown persons - Two years were passed but not a single person was made an accused - Sufficient material to believe that police was under tremendous political pressure and did not investigate the case properly from very beginning - Director, CBI directed to take over investigation : Anurag Modi Vs. State of M.P., I.L.R. (2009) M.P. Note *38 (DB)
- Article 226 - Investigation by CBI cannot be ordered as a matter of routine - Missing person - Application filed for a direction that the case of applicant's missing son be directed to be investigated by the CBI - Before giving any direction court thought it proper to seek the opinion of the SP, CBI in the matter - SP, CBI in his reply stated that the Police had made extensive efforts to locate the missing boy by utilizing all resources at their command and therefore it will not be appropriate for the CBI to intervene - Held - CBI enquiry cannot be ordered as a matter of routine or merely because the party made some allegation - Court declined to order investigation by CBI - However, application dismissed with the direction that Police would continue to make sincere efforts to trace the missing son of applicant : Gurucharan Singh Bedi Vs. State of M.P., I.L.R. (2009) M.P. Note *14 (DB)
- Article 226 - Daughter of petitioner who was working as Sub-Inspector was found dead in her official residence - Complaints were made by deceased during her life time against Superintendent of Police - Body of deceased was removed from spot in the presence of Superintendent of Police inspite of request by relative of deceased not to do so unless he arrives - Panchnama, Inquest Report, and various other procedures Constitution of India 176 in the course of investigation were done even before senior officers could reach on the spot - Material on record shows that Superintendent of Police came to the spot and disturbed the entire place of incident - Even no substantial progress was shown by CID when the matter was handed over to it - Prima facie enquiry and investigation being conducted by CID and attitude of State Govt. is not in conformity with requirements of conducting proper investigation - CBI directed to take over investigation and proceed to enquire into the matter and bring it to its logical end : Kedarnath Sharma Vs. Union of India, I.L.R. (2007) M.P. 1579 18. Judicial Review
- Article 226 - Judicial Review - High Court does not sit over decision of disciplinary authority as if it is exercising appellate jurisdiction - Enquiry officer, disciplinary authority and appellate authority concurrently recorded finding against petitioner - Findings are based on documents on record and can not be held to be perverse - Petition dismissed : S.C. Mukherjee Vs. Chairman, State Bank of India, I.L.R. (2010) M.P. 391
- Article 226 - Judicial Review - Natural Justice - Instrumentalities of State are under obligation to discharge their functions in a fair and just manner, even when such discharge of duty is an administrative or a quasi-judicial power : Anil Agrawal Vs. Union of India, I.L.R. (2009) M.P. 700 19. Locus Standi
- Article 226 - Locus Standi - Member of Trade Union has locus standi to invoke jurisdiction of High Court under Article 226 when there is an interdiction in an election process : R.K. Kathal Vs. Registrar, Trade Union, I.L.R. (2008) M.P. 656 (DB)
- Article 226 - Locus Standi - Petitioner No. 1 stood promoted in the year 2006 - Impugned decision to lower the standard of evaluation made retrospective w.e.f. 1-1- 2004 - Candidates who had secured good and were senior to Petitioner as Asstt. Professor would again become senior to Petitioner No. 1 - Petitioner No. 1 has locus standi to challenge impugned decision of State Govt : Dr. Kailash Tyagi Vs. State of M.P., I.L.R. (2007) M.P. 1770
- Article 226 - Locus Standi - Petitioner prayed for departmental enquiry against respondent no.3 on the ground that he had substituted the partnership deed by new partnership deed in which the name of the Petitioner as partner was not mentioned - Held - Petitioner who is a liquor contractor has no locus standi to invoke jurisdiction of High Court so as to direct initiation of departmental enquiry which is essentially in the nature of service matter - Petition at the instance of petitioner not maintainable as it is the sole prerogative of employer to decide whether departmental enquiry has to be Constitution of India 177 drawn or not - Petition dismissed : Ajay Arora Vs. State of M.P., I.L.R. (2008) M.P. 1163
- Article 226 - Locus standi - Service Law - Maintainability of writ petition filed by a person not aggrieved - Re-appointment - Quo Warranto - Held - Writ petition for issuance of writ of Quo Warranto is maintainable even not filed by person aggrieved : Lalan Thakur Vs. State of M.P., I.L.R. (2008) M.P. 3116 20. Maintainability of Writ Petition
- Article 226 - Maintainability of Writ Petition - Appointment of respondent No. 4 as Incharge Managing Director, M.P. Hathkargha Bunkar Sahkari Sangh Maryadit - Appointment of respondent No.4 as Incharge Managing Director by giving go by to provisions of statute - Writ Petition maintainable : Ramesh Sahu Vs. State of M.P., I.L.R. (2009) M.P. 2534
- Article 226, Criminal Procedure Code, 1973 (2 of 1974) - Sections 125 & 397 - Maintainability of writ petition - Order of Maintenance under section 125 Cr.P.C - Held - The order of interim maintenance affects right of a person drastically and substantially and therefore, it cannot be treated as "interlocutory order" and criminal revision can be preferred under section 19 (4) of the Family Courts Act - It is to be construed as an intermediate order, hence, bar of section 397 (2) Cr.P.C is not applicable - Writ Petition directed to be converted into a Criminal Revision : Akanshha Shrivastava (Smt.) Vs. Virendra Shrivastava, I.L.R. (2010) M.P. 1723 (DB)
- Article 226 - See - Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, Section 13(2) : Aman Trading Company (M/s) Vs. Vyavisayik Evam Audhyogik Sahakari Bank, I.L.R. (2009) M.P. 2830
- Article 226 - Bharat Scout and Guide, a society registered under Society Registrikaran Adhiniyam - Whether State within meaning of Article 12 and amenable to writ jurisdiction - Held - However, society is not State within meaning of Article 12 - Society has been established for non-political educational movement of young people and imparting education in different way - Society is seeking to achieve collective benefit and is participating in social affairs in public interest and thus performing public function - Society is receiving Grant-in-Aid and grant is spent for educational movement - Society is amenable to writ jurisdiction : Anirudh Dwivedi Vs. State Chief Commissioner, Bharat Scout & Guide, I.L.R. (2009) M.P. 2191
- Article 226 - Disputed questions of fact - Mere existence of disputed questions of fact ipso facto does not prevent a writ court from determining disputed question of fact : Somnath (Dr.) Vs. State of M.P., I.L.R. (2009) M.P. 1306 (DB) Constitution of India 178
- Article 226 - Locus standi - Respondents selected for the post of Notary - However, no appointment order issued so far - Held - If the report sent by competent authority is vitiated, then any action taken in pursuance to that report would be vitiated - Petition maintainable : Ayaz Ahmad Khan Vs. State of M.P., I.L.R. (2009) M.P. 1623
- Article 226 - See - Cantonment Electoral Rules, 2007, Rules 12, 13 & 28 : Manu Bhai Tripathi Vs. Union of India, I.L.R. (2009) M.P. 1225 (DB)
- Article 226 - Scope - Cannot order for prosecution - Petitioner having apprehension that police may not register F.I.R. and investigate against police and forest officers - High Court in exercise of power under Article 226 cannot direct prosecution of such persons - Complainant has recourse to file complaint before concerned magistrate : Shamim Modi (Ms.) Vs. Ms. Sudha Chowdhary, District Collector Betul, I.L.R. (2009) M.P. 84 (DB)
- Article 226 - Scope - It is settled law that High Court, while exercising the jurisdiction under Article 226 of the Constitution, does not sit in appeal while examining challenge to administrative or quasi-judicial decisions and intereference is required only when the action of the administrative authority is so unfair or unreasonable that no reasonable person would have taken that action - In the case, no such unreasonableness of action is found in the action of the respondents : Shiv Dayal Singh Vs. General Manager, Indian Oil Corporation, I.L.R. (2009) M.P. 176
- Article 226 - The Petitioner/Appellant supplied goods to Respondent - Respondent executed sixteen promissory notes in favour of Petitioner/Appellant for price of goods - The Respondent not paid the amount of PN on due date - A petition under Article 226 of Constitution filed - Petition allowed by Single Judge - Order challenged in Writ Appeal - Held - It is undisputed that petitioner has supplied goods in time and the respondent has executed P.N. - In the matter High Court can exercise Jurisdiction under Article 226 - Order of Single Judge affirmed - Writ Appeal dismissed : Madhya Pradesh State Electricity Board Vs. M/s. Anand Transformers Pvt. Ltd., I.L.R. (2008) M.P. 28 (DB)
- Article 226 & 227, Civil Procedure Code, 1908, Section 115 - Alternative Remedy - Maintainability of Writ Petition - Order challenged before High Court under Article 226 & 227 - Objection raised that alternative remedy u/s 115 of Code is available, therefore, writ under Article 227 would not lie - Learned Single Judge without deciding the question of maintainability decided the writ petition - Order challenged in W.A. - Held - Matter remanded back to learned Single Judge for deciding the issue relating to maintainability of writ petition under Article 227 : Kalam Scooter Service Vs. Shri Shri 1008 Jagat Guru Shankaracharya Swami Swaroopanand Ji Maharaj, I.L.R. (2009) M.P. 41 (DB) Constitution of India 179
- Articles 226 & 227 - High Court exercising powers under Article 226/227 can not set-aside a judgment of a competent criminal Court which has attained finality : Ramesh Vs. State of M.P., I.L.R. (2009) M.P. 636 (DB)
- Articles 226 & 227 - In those cases where factual disputes are involved it would not be permissible to deal with them in a Writ Petition - However petitioner shall be free to take legal recourse by filing a civil suit or by approaching any other forum as permissible under the law : Veerpal Singh Gurjar Vs. Insurance Ombudsman for M.P. & Chhattisgarh, I.L.R. (2008) M.P. 1155
- Articles 226, 311 - Scope of Judicial Review in Departmental Enquiry - High Court does not sit as an appellate authority - Scope of interference is to the extent that whether enquiry was conducted by competent authority, whether principles of natural justice have been followed and whether there is some evidence which will reasonably support that delinquent officer is guilty : The Punjab & Sind Bank Vs. Gurmit Singh, I.L.R. (2007) M.P. 1051 (DB)
- Articles 226 & 329 - See - Representation of the People Act, 1951, Sections 36, 80 & 100 : Jaswant Singh Vs. Chief Election Commission, New Delhi, I.L.R. (2009) M.P. 946 (DB) 21. Penalty can not be imposed on appellate authority under RTI Act
- Article 226, Right to Information Act (22 of 2005), Section 20 - Petition for imposing penalty against appellate authority - Held - Section provides for imposition of penalties only in respect of Central Information Officer or State Public Information Officer but not in respect of appellate authority - Moreover, M.P. State Information Commission has arrived at a conclusion that no action is required in respect of imposition of penalty upon Public Information Officer and order has not been challenged - No order imposing penalty could be passed - Petition dismissed : Lajjaram Pandey Vs. M.P. State Information Commission, I.L.R. (2010) M.P. 2064 22. Preventive detention
- Article 226, National Security Act, 1980, Section 3(2) - Order of preventive detention - Grounds - Offences do not relate to any activity prejudicial to public order - Ground relating to shooting at public place causing terror in public - Ground alleged inconsistent with F.I.R. - Representation against detention rejected after 17 days without explanation of delay - Subjective satisfaction requisites for passing detention order stands vitiated - Held - Detention order quashed - Petition allowed : Lalita Bai Vs. State of M.P., I.L.R. (2008) M.P. 2587 (DB) Constitution of India 180
- Article 226 and National Security Act, 1980 - Section 8 - Preventive detention - "Law & order" and "Public order" - Distinction between - Grounds of detention do not travel beyond breach of "Law & order" - Subjective satisfaction of detaining authority vitiated - Lacking in basic requirement of breach of public order - Order quashed : Smt. Ayodhyabai Vs. Principal Secretary, I.L.R. (2006) M.P. 964 (DB) 23. Public Interest Litigation
- Article 226 - Public Interest Litigation - Closure of Railway Crossing Gate challenged on the ground of inconvenience to the residents - Over bridge has already been constructed just one kilometer away and tenders are also called for constructing Foot Over Bridge near Railway Crossing Gate - Held - Keeping in view that (i) no mala fides alleged against respondents regarding closing of Railway Crossing Gate (ii) the convenience of inhabitants of area have already been taken care and given alternative mode and further, (iii) for improvement in Railway development in town and broader public utility area, people are also required to do little sacrifice, petition disposed of expecting that respondents would seriously take this matter for construction of F.O.B. as early as possible : Mubarik Khan Vs. UOI, I.L.R. (2010) M.P. Note *84 (DB)
- Article 226 - Public Interest Litigation - Fixing of outer limit for construction of foot over bridge prayed for - Held - Since the construction work is being done by joint venture of State of M.P. & Railway department, it would not be just & proper to Court to fix any period : Mubarik Khan Vs. UOI, I.L.R. (2010) M.P. Note *84 (DB)
- Article 226 - Public Interest Litigation - What does not amounts to - Municipal Corporation decided to sell houses in open auction - Petitioners claimed that houses be sold to them by extending the facility of payment of price in instalments as they are in possession of houses as tenants - Held - Pleadings made by petitioners and reliefs sought by them, by no stretch of imagination, can be said that public or the community at large has some pecuniary interest or some interest by which their legal rights or liabilities are affected - Instant writ petition cannot be entertained as public interest litigation - Writ petition dismissed : Abhimanyu Singh Vs. State of M.P., I.L.R. (2010) M.P. 2518 (DB)
- Article 226, Wakf Act (43 of 1995), Sections 54 & 55 - Public Interest Litigation - Writ petition seeking issuance of writ of mandamus for directing removal of encroachment from Maszid, filed - Held - The writ petition as PIL declined to be entertained in view of Ss. 54 & 55 of the Wakf Act providing an adequate and efficacious remedy to an aggrieved person : Maszid Chandal Bhata Prabandh Committee Vs. Secretary, Local Self Department, I.L.R. (2010) M.P. 1952 (DB) Constitution of India 181
- Article 226 - Public Interest Litigation - Bonafide of the Petitioner - Duty of the Court - Held - Courts must encourage genuine and bona fide PIL and effectively discourage and curb the PIL filed for extraneous considerations - The courts should prima facie verify the credentials of the petitioner before entertaining a PIL and should be fully satisfied that substantial public interest is involved - The Court should also ensure that there is no personal gain/ private motive or oblique motive behind filing the public interest litigation : Balram Tiwari Vs. State of M.P., I.L.R. (2010) M.P. 1753 (DB)
- Article 226 - P.I.L. - Misappropriation of public money in construction of canals - Lokayukt was requested for enquiry of mis-appropriation of fund - Benefit for which dam was constructed is not reaching the villagers after two decades of its completion - State Government directed to immediately consider and take decision so that construction of canals is completed without any further delay - Petition allowed : Kumer Singh Bhati Vs. State of M.P., I.L.R. (2009) M.P. 2911 (DB)
- Article 226 - See - Commission of Inquiry Act, 1952, Section 3 : Narmada Bachao Andolan Vs. State of M.P., I.L.R. (2009) M.P. 112 (DB)
- Article 226 - Public Interest Litigation - Locus Standi - Public Interest Litigation Petition filed against resp. No.2, Revenue Minister, for C.B.I. enquiry regarding acquisition of disproportionate assets - Held - Although allegations of criminal record of petitioner, his personal interest as competitor in business and his acting as a proxy of another political rival, yet same requires keen scrutiny before discarding lis : Anil Bansal Vs Central Bureau of Investigation, I.L.R. (2008) M.P. 1952 (DB)
- Article 226 - Public Interest Litigation - Sarva Shiksha Abhiyan Scheme - Officers who are suppose to implement the scheme - Purchased machinery worth more than Rs. 57 lacs from a company to give undue benefit to it, without calling for tenders and following due procedure - Commissioner, Gwalior Division in its report found all the officers guilty - High Court gave certain directions to State Government - Frame rules & guidelines for utilizing funds & to monitor functions of the officers appointed for implementation of the scheme and also directed for strict and serious action against the erring officers: Ramashankar Bharadwaj Vs. State of M.P., I.L.R. (2008) M.P. 449 (DB)
- Articles 226, Essential Commodities Act, 1955 - Section 3(2)(c) - Public Interest Litigation - Writ filed for fixing price of milk by State Government - State Government refusing to invoke Section 3(2)(C) for fixing price of milk on the ground that Jabalpur is not the poorest area of the State and huge subsidies are available on other items - Held - Reasons for not invoking Section 3,2(c) of the Act not germane and relevant - State Government unwilling to exercise its power regarding price fixation for wholly extraneous Constitution of India 182 consideration in disregard of a statutory duty - Order of the State Government quashed - State Government directed to make an order under Section 3(2)(c) for controlling the price of milk in Jabalpur area : Nagrik Upbhokta Margdarshak Manch Vs. Secretary, Food, Civil Suplies & Consumer Protection Department Bhopal, I.L.R. (2007) M.P. 441(DB)
- Article 226, Indian Forest Act 1927, Sections 4(1), 20-A (as amended) - Writ Petition - PIL - Non-forest activites in forest land - Act done or proclaimed by erst while Ruler declaring reserved forest, protected forest or village forest shall be deemed to be continued as such - Non forest activities cannot be permitted on such forest lands : Kamal Kishore Vs. State of M.P., I.L.R. (2006) M.P. 473(DB)
- Article 226 - Writ Petition - P.I.L. - Education - Establishment of Law Colleges - Rules framed by Bar Council of India have force of law and are binding on Govt. Law Colleges - Govt. directed to establish at least one Law College in each District and appoint teachers on regular basis through P.S.C. - Whenever there are vacancies within six months : Smt. Asha Patwa Vs. State of M.P., I.L.R. (2006) M.P. 1253 (DB)
- Articles 226/227 - Public Interest Litigation - Evasion of Income Tax and Stamp Duty - PIL complaining evasion of Income Tax or Stamp Duty is maintainable because any loss to public exchequer affects rights of members of public - No material has been placed by petitioners to substantiate the submission except saying that land worth crores of rupees has been sold - However authorities under Income Tax Act and Stamps Act to take action if they find that there has been evasion of Income Tax and Stamp duty : Mitthulal Jain Vs. State of M.P., I.L.R. (2007) M.P. 1367 (DB)
- Articles 226, 227 - Public Interest Litigation - Land involved in dispute is Charnoi land - Villagers had raised objections before Collector - Villagers are interested parties - Writ Petition in the form of Public Interest Litigation maintainable : Harikrishan Vs. State of M.P., I.L.R. (2007) M.P. 505 (DB)
- Articles 226/227 - Public Interest Litigation - Locus Standi - Petitioners claiming themselves to be members of political parties filed petition challenging alienation of property belonging to Gaushala which is claimed to be a Public Trust - Respondents claimed Gaushala to be a Society - On the complaint of Petitioner no.1 enquiry by Registrar, Firms and Societies already pending - However petitioner instead of participating in enquiry filed Writ Petition - Respondents challenged the locus standi of petitioners to file writ petition - Held - Public Interest Litigation cannot be maintained unless Petitioners satisfy that rights and liabilities of class, community or locality to which he belongs have been affected one way or other - Nothing in petition that any of their right or liability is affected by any act or omission of office bearers or committee of Gaushala - Petitioners have no locus standi - Petition dismissed : Mitthulal Jain Vs. State of M.P.,. I.L.R. (2007) M.P. 1367 (DB) Constitution of India 183
- Articles 226/227 - Public Interest Litigation - Pond/water tank being used by villagers - Pond not allotted or leased out to respondent no.4 - On account of construction being made all around the said pond by respondent no. 4 accessibility to it by villagers has become impossible - Total land surrounding the pond from all directions has been allotted in favour of respondent no. 4 for establishment of factory - Pond recorded in name of State - Respondents contended that pond was being used only twice a year on two festive occasions for immersion of pooja for Dolgyaras and not for nistar purposes - Held - Pond has not been transferred to respondent no. 4 and State still continues to be its owner - Respondent no. 4 has been put to an advantageous position as accessibility to the pond has been denied to villagers - There is no delay or malafide intention in filing Petition - Respondent no. 4 directed to make arrangements to have the accessiblity to the pond for the villagers - In case respondent no. 4 fails to do so, respondents no. 1 and 2 would make adequate arrangements in this regard so that villagers are not denied accessibility to pond for nistar and day to day use throughout year - Petition allowed : Narendra Chauksey Vs. State of M.P., I.L.R. (2007) M.P. 1391 (DB)
- Articles 226/227 - Public Interest Litigation - Writ Petition in respect of transaction or affairs of Public Trust cannot be maintained unless it is shown by Petitioner that the legal rights or liabilities of a class or community is affected by some act or omission in respect of Trust : Mitthulal Jain Vs. State of M.P., I.L.R. (2007) M.P. 1367 (DB) 24. Public policy
- Article 226 - Public policy - Judicial review - Held -It is neither the domain of the Court nor within the scope of judicial review to embark upon an enquiry whether a particular public policy is wise or a better public policy can be evolved - The Courts would not be inclined to strike down the policy at the behest of the petitioner merely because it has been urged that another policy would have been fairer, wiser or more scientific or logical : Radheshyam Vs. Union of India, I.L.R. (2010) M.P. Note *34
- Article 226 - Public policy - Judicial review - Held - It is not open for the Courts to interfere into the conditions of policy - What condition of the policy would be best suited is not for the Courts to decide but it is in the domain and prerogative of the State to fix and to change its policies from time to time in changing circumstances : Radheshyam Vs. Union of India, I.L.R. (2010) M.P. Note *34
- Article 226 - Public policy - Judicial review - Held - The scope of judicial review when examining a policy of the Government is to check whether it violates the fundamental rights of the citizen or is opposed to the provisions of Constitution or any statutory provision or manifestly, arbitrary Courts cannot interfere with policy either on the ground that it is erroneous or on the ground that a better, fairer or wiser alternative is available : Radheshyam Vs. Union of India, I.L.R. (2010) M.P. Note *34 Constitution of India 184
25. Rehabilitation
- Article 226 - Demolition of shops while removing encroachment - Claim for rehabilitation on same place - Temporary lease in favour of petitioner expired prior to demolition - Respondents offered alternate site for rehabilitation - In the master plan area earmarked for parking of vehicles - Held - Rehabilitation at old place can not be granted as that would run counter to the interest of general public - Petition dismissed : Mohammad Sageer Manihari Wale Vs. State of M.P., I.L.R. (2009) M.P. 681
- Articles 226/227, Land Acquisition Act, 1894, Section 4 - Concept of "Displaced Family" - Govt. framing policy for providing rehabilitation grant to displaced family - Petitioner after her divorce residing with her father and claims to be totally dependent on him - Claim for rehabilitation grant rejected by Complaint Redressal Forum on the ground that she being married daughter is not covered by definition of displaced family - Definition of displaced family in the policy is merely illustrative and not exhaustive - Order rejecting claim set aside - Case remitted back for petitioner to prove her dependency and for decision of forum thereafter : Aneesha Bi Vs. The State of Madhya Pradesh, I.L.R. (2006) M.P. 1629 26. Service Matter
(i) Allowance (xiv) Reimbursement of (ii) Appointment legal and travelling expenses (iii) Appointment from waiting list (xv) Release of selection grade (iv) Arrears (xvi) Removal (v) Back wages (xvii) Retirement (vi) Correction of date of Birth (xviii) Seniority (vii) Departmental Enquiry (xix) Show cause notice (viii) Deputation (xx) Suppression of fact (ix) Increment (xxi) Suspension (x) Kramonnati (xxii) Termination (xi) Pension (xxiii) Transfer (xii) Promotion (xiii) Recovery
(i) Allowance
- Article 226 - Subsistence allowance can be claimed on the basis of deemed suspension - As a result of departmental proceedings applicant dismissed from service Constitution of India 185 by order dated 29.02.1996 - Departmental appeal also dismissed - High Court in writ petition quashed the order of dismissal and applicant was directed to be reinstated in service - Order of High Court was assailed in writ appeal - Appellate court set-aside all the orders and remitted the matter back to Disciplinary Authority with certain directions - Fresh order of dismissal passed on 16.04.2007 - Applicant claimed subsistence allowance from the date of his first dismissal i.e. 29.02.1996 till the date of his second dismissal i.e. 16.04.2007 - Held - Finding and order of Disciplinary Authority was set- aside and was directed to re-decide issue after affording adequate opportunity to applicant - Position of applicant as it existed prior to his dismissal from service as charged officer under suspension was restored - Applicant should be deemed to be under suspension till the date of subsequent order of dismissal - Applicant entitled for subsistence allowance - Application allowed : Gurmit Singh Vs. The Zonal Manager, Punjab & Sindh Bank, Bhopal, I.L.R. (2008) M.P. 3049 (DB)
(ii) Appointment
- Article 226 - Compassionate appointment - Claimed to be adopted son - Adoption deed not registered - Consent of mother of petitioner for adoption not on record - Due to presence of natural son, adoption was not permissible - Adoption contrary to Ss. 5 & 11 of the Hindu Adoption and Maintenance Act, 1956 - Petitioner not entitled for compassionate appointment - Petition dismissed : Ashish Kumar Shrivastava Vs. Western Coal Fields Ltd., I.L.R. (2010) M.P. 2094
- Article 226 - Appointment of operator - Appointment of operator of Kisan Seva Kendra to sell diesel and lubricating oils - Petitioner applied but was not selected as he had not submitted attested copies of the documents along with the application form - Action challenged on the ground that in the policy, there was no requirement of submitting attested copies of the documents and such a requirement could not have been incorporated in the advertisement - Held - The incorporation of condition of submission of attested copies of the documents is not contrary to but in addition to the policy documents - Corporation was competent to incorporate the additional condition while issuing the advertisement - Application was submitted by the petitioner in response to the advertisement - Petitioner was required to fulfill the conditions mentioned in the advertisement : Shiv Dayal Singh Vs. General Manager, Indian Oil Corporation, I.L.R. (2009) M.P. 176
- Article 226 - See - Service Law : Sunita Sharma (Smt.) Vs. Satpura Narmada Kshetriya Gramin Bank, I.L.R. (2010) M.P. Note *22
- Article 226 - Compassionate appointment - Father of petitioner died in harness on 18.05.1996 - Mother filed application for appointment of minor son - Application rejected with direction to submit fresh application on attaining majority - Fresh application Constitution of India 186 filed on 06.07.2005 after attaining majority - Rejected on 18.06.2007 on the ground that Circular dated 22.01.2007 provides that if there is no eligible major member in the family of deceased, the compassionate appointment can be given only if the age of majority is attained within 7 years and if age of majority is attained by minor after 7 years there would not be eligibility - Held - Policy prevailing at the time of death and application of compassionate appointment made, has to be applied and not the policy which came into existence subsequently - Order rejecting compassionate appointment quashed - Petition allowed : Bhupendra Bairagi Vs. State of M.P., I.L.R. (2008) M.P. 2310
- Article 226 - Compassionate appointment - Father of petitioner died on 18.12.1985 in harness - On obtaining majority petitioner applied for compassionate appointment on 01.09.2000 - Appointment - Cancellation of appointment on ground of subsequent policy dated 22.01.2007 in which compassionate appointment can be given only in case minor attains majority within 7 years of death of employee - Held - Policy prevailing at the time of application for compassionate appointment shall be applicable and not the policy which came into existence subsequently - Order of cancellation of appointment quashed - Petition allowed: Rakesh Jaju (Gupta) Vs. State of M.P., I.L.R. (2008) M.P. Note *81
- Article 226 - Service Law - Resp. No.6 appointed as Assistant Professor in Orthopaedics - Appointment challenged by petitioner on ground that resp. No.6 has obtained M.S. (Orthopaedics) degree from Jiwaji University, Gwalior which is not recognised by Medical Council of India - Held - Resp. No.6 was given admission in Orthopaedics from All India quota and subject of Orthopaedics is being taught in Jiwaji University for last 35 years - State Govt. has been giving appointment to persons obtaining degree from Jiwaji University - Admittedly, the course of Orthopaedics in Jiwaji University not recognised by Medical Council of India and thus when the Medical Council of India and M.P. Medical Council slept over the matter and permitted to commit illegality resp. No.6 cannot be made to suffer on that count - Petition dismissed : Omprakash Lakhwani (Dr.) Vs. State of M.P., I.L.R. (2008) M.P. 2003
- Articles 226/227 - Compassionate Appointment - Father of Petitioner died in harness in the year 1999 - Application for appointment on compassionate ground rejected on the basis of policy dated 1-9-2000 and not on the basis of policy dated 30-1-1997 which was in force at the time of death of father of Petitioner - Held - Order rejecting application on the basis of policy dated 1-9-2000 quashed - Respondents directed to re- consider the application for compassionate ground in view of policy dated 30-1-1997 which was prevalent at the time of death and date of submission of application - Petition allowed : Heeralal Baria Vs. M.P. State Electricity Board, I.L.R. (2008) M.P. 221 Constitution of India 187
(iii) Appointment from waiting list
- Article 226 - See - Service Law : Jinendra Kumar Jain Vs. State of M.P., I.L.R. (2010) M.P. 1910
(iv) Arrears
- Article 226 - Service Law - Claim for arrears of salary - Petitioner worked as In-charge Principal by order of Government - Subsequently, juniors were promoted prior to his promotion - Held - Petitioner is entitled to get arrears of salary for period commencing from date of promotion of juniors to his promotion - Principle of 'no work no pay' not applicable - Petition allowed : Anil Kumar Markhedkar Vs. State of M.P., I.L.R. (2010) M.P. 2307
(v) Back wages
- Article 226 - Service Law - Dismissal - Bank Employee - Teller allowing withdrawal from dead person's account - Ledger sheet material document - Report of Handwriting expert taken into consideration by disciplinary authority but not supplied despite demand - Proceedings vitiated by non-supply of document - Impugned order quashed - Back wages - Employer entitled to back wages from the date of acquittal : Gurmit Singh Vilkhu Vs. Punjab & Sind Bank, I.L.R. (2006) M.P. 665
(vi) Correction of date of Birth
- Article 226 - See - Service Law : Vishvanath Mishra Vs. Chief Managing Director, Western Coal Fields Ltd., I.L.R. (2010) M.P. 864
- Correction of date of birth - See - Service Law : Mirza Sharif Beg Vs. State of M.P., I.L.R. (2009) M.P. 778
- Correction of date of birth - See - Service Law : South Eastern Coalfields Ltd. Vs. Nijamuddin, I.L.R. (2009) M.P. 3053 (DB)
(vii) Departmental Enquiry
- Article 226 - Departmental Enquiry - Findings of Disciplinary Authority are perverse and not supported by evidence on record - It would be open for the High Court to interfere in the said findings - Petition allowed : Nilu (Smt.) Vs. M.P. State Electricity Board, I.L.R. (2009) M.P. 1959
- Article 226 - Departmental Enquiry - Petitioner prayed for departmental enquiry against respondent no. 3 on the ground that in an enquiry he was found guilty for Constitution of India 188 substituting the partnership deed by a new partnership deed in which petitioner was not shown as partner - No opportunity of hearing was given to respondent no.3 in the enquiry - In subsequent enquiry no direct evidence was found against respondent no. 3 - Decision of State Govt. not to start departmental proceedings against respondent no.3 is well founded - Petition dismissed : Ajay Arora Vs. State of M.P., I.L.R. (2008) M.P. 1163
- Article 226 - See - Service Law : Pramod Kumar Gupta Vs. State of M.P., I.L.R. (2010) M.P. 2074
- Article 226 - See - Service Law : Gurmit Singh Vikhu Vs. Punjab & Sindh Bank, I.L.R. (2010) M.P. 1551
- Article 226 - See - Service Law : B.N. Verma Vs. State of M.P., I.L.R. (2009) M.P. 336 (DB)
- Article 226 - See - Service Law : Sunil Kumar Jain Vs. State of M.P., I.L.R. (2009) M.P. 373
- Article 226, M.P. Civil Services (Classification, Control & Appeal) Rules, 1966, Rule 14 (5) (c) - "Enquiry Officer" ought not to act as a "Presenting Officer" - Departmental proceedings - No Presenting Officer appointed as per rule 14 (5) (c) - Enquiry Officer played the role of Presenting Officer - Proceedings stand vitiated - Order of reversion from the post of Head Constable to post of Constable - Quashed : Ram Prakash Vs. State of M.P., I.L.R. (2008) M.P. 790
- Articles 226 & 227 - Disciplinary enquiry - Charge framed and petitioner placed under suspension - Petitioner sought quashment of, on the ground that it amount to intimidation and victimization - Held - The charges levelled against petitioner are regarding filing of false complaint, bringing disrepute to the establishment and showing disrespect for higher authorities - The petitioner also has an alternative remedy of filing an appeal against placing her under suspension - No ground for interference - Petition dismissed : Deepa Dubey (Mrs.) Vs. Union of India, I.L.R. (2010) M.P. 2054
- Articles 226 & 227 - Petition against the order of Central Administrative Tribunal quashing disciplinary proceedings - Enquiry initiated against Divisional Forest Officer for committing financial irregularities while posted in Social Forestry Division - Central Government imposing penalty of deduction of basic pay by 5 stages for five years with cumulative effect - Central Administrative Tribunal quashing proceedings on account of delay in completing D.E. - Held - Enquiry report was submitted within time frame set by the Tribunal - There is material suppression by petitioner of the fact that penalty had been imposed against him during pendency of the matter before Tribunal - Tribunal Constitution of India 189 erred in quashing departmental enquiry - Petition allowed : State of M.P. Vs. Nirankar Singh, I.L.R. (2007) M.P. 592 (DB)
- Article 226 - See - Service Law : Rajesh Upadhyay Vs. State of M.P., I.L.R. (2010) M.P. 844
- Article 226 - See - Service Law : Sunil Pillai Vs. State of M.P., I.L.R. (2010) M.P. 77
- Article 226 - See - Service Law : Binda Prasad Vs. Narmada Malwa Gramin Bank, I.L.R. (2010) M.P. 833
- Article 226 - See - Service Law : Nilu (Smt.) Vs. M.P. State Electricity Board, I.L.R. (2009) M.P. 1959
- Article 226 - See - Service Law : Krishna Kumar Pateriya Vs. State of M.P., I.L.R. (2009) M.P. 47 (DB)
- Article 226 - See - Service Law : G.P. Dewangon Vs. State of M.P., I.L.R. (2010) M.P. 2547
- Article 226 - Stay of departmental enquiry during pendency of criminal case - See - Service Law : Gulab Chandra Vishwakarma Vs. South Eastern Coalfields Ltd., I.L.R. (2010) M.P. 413 (DB)
(viii) Deputation
- Article 226, Fundamental Rules 110 - Petitioner an employee of Forest Department - Sent on deputation to Rajya Laghu Vanopaj Sangh without consent - Held - M.P. Laghu Vanopaj Sangh is under control of Forest Department - Fundamental Rules empowers the State Government to transfer service of government servant to body incorporated or not which is wholly or substantially owned and controlled by Government without seeking his consent - No interference in impugned order called for - Petition dismissed : Rajaram Pal Vs. State of M.P., I.L.R. (2010) M.P. 2299
- Article 226 - Deputationist - Just ground for curtailing the tenure - Ordinarily the terms of the deputation should not be curtailed except on just grounds - Appellant was posted on deputation in M.P. Rajya Krishi Vipnan Board for 1 year thereafter period of deputation was extended for 1 year i.e. upto 26.4.08 - By order dated 11.1.08 he was repatriated to his parent department - Order challenged in Writ Petition - S.B. held that appellant has no enforceable right in his favour to continue on deputation - Order challenged in Writ Appeal - Held - If the service of deputationist is not required by the organization in which the deputationist has been posted that organization may legitimately Constitution of India 190 ask for curtailing the tenure of the deputationist in its organization - Appellate Court refused to interfere in the order of repatriation - Writ Appeal dismissed : C.R. Gaur Vs. State of M.P., I.L.R. (2008) M.P. Note *15 (DB)
- Deputation - See - Service Law - K.P. Bhalse Vs. State of M.P., I.L.R. (2010) M.P. 2292
- Deputation - See - Service Law - Mukesh Nahar Vs. State of M.P., I.L.R. (2009) M.P. 2599
- Deputation - See - Service Law - Babulal Jain Vs. State of M.P., I.L.R. (2007) M.P. 1278 (ix) Increment
- Article 226 - Petitioner during course of employment acquired LL.B. and M.B.A. degrees - Claim for additional increments for acquiring additional professional qualifications - By one increment petitioner reached the maximum of sanctioned pay scale - Held - Denial of additional increment because petitioner reached to maximum of scale would not result in discrimination - Petition dismissed : Radheshyam Surolia Vs. National Textile Corporation (MP) Ltd., I.L.R. (2008) M.P. 2289
- Articles 226, 309 - Non Gazetted Class III Educational Service (Non College Services) Recruitment and Promotion Rules, M. P., 1973 - Effect of amendment made in the Rule, M. P. 1993 - Question of entitlement of annual increments to candidates acquiring B.Ed degree - Recruitment Rules amended in 1993 prescribing minimum qualification of B.Ed degree for candidates aspiring to become teachers in school - Held - Candidates appointed up to the date of amendment i.e. 16.6.1993 acquiring training of B.Ed or B.T.I. at their own expenses up to 1.3.1999 entitled to get two annual increments - Those who were appointed after 16.6.1993 or those who have acquired qualification before appointment not entitled to additional benefits : State of Madhya Pradesh Vs. Manoj Kumar Sharma, I.L.R. (2007) M.P. 586 (DB) (x) Kramonnati
- Article 226 Kramonnati Policy, Clause 2(Kha) - Withdrawal of benefit of second Kramonnati - Since benefit of higher pay scale was extended to petitioner only once - He was entitled for second Kramonnati - Order cancelling Kramonnati quashed - Petition allowed : Nathulal Vs. State of M.P., I.L.R. (2010) M.P. 1721
(xi) Pension
- Article 226 - Prayer for direction to State for reconsideration of claim - Delay of 13 years - Deserves to be rejected : Qadeer Mohammad Vs. State of M.P., I.L.R. (2010) M.P. Note *20 Constitution of India 191
- Article 226 - See - Service Law : Qadeer Mohammad Vs. State of M.P., I.L.R. (2010) M.P. Note *20
- Article 226 - Recovery from Family Pension - See - Service Law : Ratan Bai Vs. State of M.P., I.L.R. (2010) M.P. 1578
(xii) Promotion
- Article 226 - Service - Retrospective promotion granted to petitioner but treating certain intervening period on principle of "No Work No Wages" - Held - Petitioner was denied the benefit of working in promoted post due to the laxity and error on the part of department - Petitioner can not be blamed for the same - Petitioner is entitled to entire financial benefit on his promotion to the next higher post - Petition allowed : Maniram Nagotiya Vs. State of M.P., I.L.R. (2010) M.P. 1713
- Article 226 - Indian Railway Establishment Manual, Para 228 (1) - Erroneous promotions - Fixation of Seniority - A person lost promotion on account of administrative error - Should on promotion be assigned correct seniority vis-a-vis his juniors already promoted irrespective of date of promotion - Respondents 4 to 55 officiating as Diesel Assistant/Fireman at Bhopal - Considered for promotion in year 1992 due to administrative lapse - On promotion be assigned seniority w.e.f. 13-2-90 - Petitioners as Diesel Assistant came to Bhopal on request basis on different dates in year 1990, 1991 and 1992 - Department placed petitioners at the bottom of Respondent 4 to 55 - Order proper: S.C. Mehta Vs. Union of India, I.L.R. (2008) M.P. 761 (DB)
- Article 226, Madhya Pradesh Forest Service (Recruitment) Rules, 1977 - Petition for treating the post of O.S.D. as separate cadre - Department of Forest adopting three tiers pay scales for Assistant Conservators of Forest as per the recommendations of Chowdhary Pay Commission - Consequent amendment incorporated in M.P. Forest Service (Recruitment) Rules, 1977 vide notification dated 3.3.1990 - Promotion of Assistant Conservator Forest as OSD - Petitioner contending that OSD in State Forest Service be treated as separate cadre and they be not adjusted against the post of ACF and they be held not entitled to get benefit of three tier pay scale - Held, OSD is a nomenclature given to a posting and does not mean that only the persons functioning as ACF are entitled to be benefited - Criteria is of State Forest Service and not of ACF : Ghulam Moinuddin Vs. State of M.P., I.L.R. (2007) M.P. 208
- Articles 226/227 - Time Bound Promotion & Adverse Confidential Remarks - Case of Petitioner not considered by D.P.C. for time bound promotion after completion of 15 years of service - D.P.C. held in 1999 rejected the case of Petitioner on the ground of adverse confidential remark in the year 1998-99 - Whether D.P.C. should have considered service record of 5 years preceding the year when Petitioner completed Constitution of India 192
15 years of service or service record of 5 years preceding the date on which D.P.C. convened - Held - Words preceding 5 years mentioned in time bound promotion scheme are clear indicators of fact that authorities are required to consider record of the past 5 years preceding the date on which D.P.C. is convened and not preceding the date on which petitioner completed 15 years of service - Petition dismissed : M.L. Gole Vs. M.P. Electricity Board, I.L.R. (2008) M.P. 246
- Articles 226/227 - Principle of Negative Equality - Petitioner seeking promotion on the ground that her junior officers have been promoted - Promotion of Junior Officers was found bad by State Govt., however, the Govt. did not revert them as PSC had recommended their cases for promotion - Illegality once committed cannot be pleaded to legalize other illegal acts - Petitioner not entitled to claim parity as the promotion of the junior officers was found bad - Petition dismissed : Smt. K. Sinha Vs. The State of Madhya Pradesh; I.L.R. (2007) M.P. 94
- Articles 226/227 - Withholding of Promotion - Departmental Examination conducted for promotion to Middle Management Grade II - Petitioner also appeared in examination and was declared successful - Order of promotion issued with a stipulation that it will come in force w.e.f. 1.12.1992 - Another order issued on 27.11.1992 informing the petitioner that since departmental action is contemplated, he should continue on same post until further instructions - "Contemplation" means investigation before issuance of Charge Sheet - Non release of Promotion order was in accordance with Departmental Circular - Petition dismissed : Dilip S. Gupte Vs. Central Bank of India, I.L.R. (2007) M.P. 85
- Article 226/227 - Delay and Laches - See - Service Law - Atma Ram Sharma Vs. State of M.P., I.L.R. (2010) M.P. 25 (DB)
(xiii) Recovery
- Article 226, Civil Services (Pension) Rules, M.P. 1976, Rule 9 - Service Law - Recovery by way of issuance of R.R.C. after retirement of employee - Allegation that while employee was posted as store keeper some articles were found missing and employee accepted the shortage of articles - Allegation not proved as department failed to produce any document - No adjudication of recovery by way of departmental or judicial proceeding - Held - Issuance of R.R.C. for recovery without departmental or judicial proceeding, not sustainable - R.R.C. quashed - Petition allowed : Vishnu Vakil Vs. State of M.P., I.L.R. (2008) M.P. 2609
- Article 226 - See - Service Law : Chhotelal Rai Vs. State of M.P., I.L.R. (2010) M.P. 1532 Constitution of India 193
- Article 226 - Recovery - See- Service Law : Sudhir Prasad Dwivedi Vs. State of M.P., I.L.R. (2009) M.P. Note *23
- Article 226 - Recovery - See- Service Law : State of M.P. Vs. Raghvendra Sohgaura, I.L.R. (2009) M.P. 623 (DB)
- Article 226 - Recovery - See- Service Law : Shrinivas Verma Vs. State of M.P., I.L.R. (2009) M.P. 195
- Article 226 - Recovery - See- Service Law : Sant Kumar Agrawal Vs. Laxmibai national Institute of Physical Education, I.L.R. (2009) M.P. 144
(xiv) Reimbursement of legal and travelling expenses
- Article 226 - See - Service Law : P.G. Kshatriya Vs. State of M.P., I.L.R. (2009) M.P. 10 (DB)
(xv) Release of selection grade
- Article 226 - Service Law - Release of selection grade - Once found eligible selection grade can not be held back because of prosecution on a later date in a criminal case : Manoj Sharma Vs. Food Corporation of India, I.L.R. (2006) M.P. 1416
(xvi) Removal
- Articles 226, 227, Industrial Relation Act, M.P. 1960, Sections 2(13), 31 and Apprentices Act, 1961, Section 18 - No finding that employer is notified as ''designated trade'' - Provision of Apprentices Act, 1961 not applicable - Petitioner is employee under Section 2(13) of the Act, 1960 - Removal from service without following procedure - Amounts to illegal retrenchment : Ghisilal Vs. State Industrial Court, I.L.R. (2006) M.P. 721
(xvii) Retirement
- Articles 226/227 - Voluntary Retirement - Petitioner applied on 01.09.2005 seeking voluntary retirement w.e.f. 01.12.2005 - Application accepted on 05.10.2006 - Petitioner withdrew the said application on 06.10.2006 - Held - Premature acceptance of application for voluntary retirement would not impede or deny his right to withdraw application before the effective date - He had right to withdraw or revoke it before it became effective - Not allowing the petitioner to withdraw the application for voluntary retirement is wholly illegal and unjustified - Order quashed - Petitioner directed to be reinstated - Petition allowed : Mahesh Kumar Swarnakar Vs. State of M.P., I.L.R. (2008) M.P. 2038 Constitution of India 194
(xviii) Seniority
- Articles 226/227 - Seniority - Options from employees working in other units of Railways sought for their absorption in newly established Coach Repair Workshop - Seniority was to be fixed in accordance with the date of entry in the cadre after their absorption in the cadre - subsequent circular directing to fix the seniority from the date of holding of substantial post in the parent deptt. - Subsequent circular challenged before Central Administrative Tribunal which was quashed - Writ Petition filed by Railways was dismissed by High Court - Review application on behalf of persons whose seniority was adversely effected by the orders passed by C.A.T. and High Court - It is the normal principle that seniority is to be fixed from the date of entry of staff in the cadre - No perversity in the order passed by High Court - Review application dismissed : Abdul Rehaman Vs. Union of India, I.L.R. (2006) M.P. 1596 (DB)
(xix) Show cause notice
- Article 226 - Show cause notice - Writ petition maintainable - When a show cause notice is ex facie a nullity or totally without jurisdiction then it can be interfered under Article 226 - Petitioner questions the authority of the C.E.O. to take any disciplinary action - Since jurisdiction of C.E.O. is being questioned, the petition under Article 226 is maintainable : Ramesh Singh Thakur Vs. Jabalpur Development Authority, I.L.R. (2010) M.P. 827
(xx) Suppression of fact
- Article 226 - Service Law - Recruitment - Filling up Police Verification form - FIR lodging cannot be treated as commencement of prosecution - Petitioner not aware of lodging of FIR on the date of filling up from that he has not been prosecuted - No suppression of fact : Pushpraj Singh Vs. State of M.P., I.L.R. (2006) M.P. 1144
(xxi) Suspension
- Article 226 and Civil Services (Classification Control and Appeal) Rules, M.P., 1966, Rules 9(1), 29 - Service law - Suspension - Arrest in corruption case - It is matter of discretion of disciplinary authority to decide whether employee to continue in office - First suspension order revoked but second suspension order passed in view of pendency of criminal case - There is no restriction on the authority to pass suspension order second time - Second suspension not a review of earlier suspension order : Suresh Kumar Purohit Vs. State of M.P., I.L.R. (2006) M.P. 1247
- Article 226 - Suspension - Mala fide - See : Service Law: Ashok Noronha Vs. M.A. Khan, I.L.R. (2009) M.P. 662 Constitution of India 195
(xxii) Termination
- Article 226 - Service Law - Termination of service - Natural Justice - Appointment of appellant as teacher with a condition, subjected to verification of antecedents - It was found that appellant was involved in seven criminal cases - Appointment cancelled by State Government - Order challenged - Held - A teacher having criminal antecedents cannot be permitted to continue in service - Nature of job of teacher is of immense significance not only in the context of a school but also in the context of national scenario - A teacher builds the character of students who in turn participate in playing the role of building of the nation - Order of Single Judge upheld - Writ Appeal dismissed : Narayan Singh Yadav Vs. State Government of M.P., I.L.R. (2008) M.P. 2783 (DB)
- Articles 226 & 227 - Termination of employee of an unaided educational institution - Action challenged in W.P. - Held - W.P. is maintainable against unaided educational institutions if element of public law is involved - Grievance of employee is personal in nature and therefore, element of public law is not involved - W.P. not maintainable : Sunil Kumar Saxena Vs. Holy Cross Ashram Higher Secondary School, Datia, I.L.R. (2010) M.P. 29 (DB)
- Article 226 and Co-operative Societies Act, M.P. 1960, Section 55 - Writ Petition - Service Law - Allegation of receiving gratification - Punishment of dismissal not disproportionate - Criminal Court extended benefit of doubt and acquitted Petitioner - Department within its right to take action against Petitioner - Chargesheet served after three years of acquittal - Not a case of inordinate delay : Sheikh Rahis Khan Vs. The Board of Revenue, I.L.R. (2006) M.P. 493
- Article 226/227 - Service Law - Appellants were terminated on the ground that selection committee not constituted properly - Order challenged in W.P. - W.P. dismissed - Writ Appeal filed - Held -The selection committee and the members who were within the knowledge about the defect in the selection committee have slept over the matter for about three and half years after appointments were made - Thus, the members have acquiesced themselves and have no right to challenge the appointment on the ground of selection - Appellants/petitioners are the candidates from outside the State of Madhya Pradesh have got their appointments and altered their position by leaving other jobs available to them - Appeal allowed : Sanjeev Yadav Vs. Lakshmibai National Institute of Physical Education, I.L.R. (2008) M.P. 2535 (DB)
(xxiii) Transfer
- Article 226 - Transfer - Appellant, a non-executive in service of a subsidiary of Coal India Limited, transferred to another subsidiary - Competency of Director (P & IR) to transfer from one subsidiary to another - Held - Delegation of power in favour of Constitution of India 196
Director (P & IR) by Board of Director in exercise of power under the Articles and Memorandum of Association subject to conformity with Ruels - Transfer policy does not specify that Director (P & IR) can exercise power of transfer of a non-executive from one subsidiary to another - Order of transfer by Director (P & IR) without authority, hence, set-aside - However, President, Coal India can transfer appellant in case the administrative exigency so demand from one subsidiary to another subsidiary - Appeal allowed : Subash Roy Vs. Coal India Ltd., I.L.R. (2009) M.P. 618 (DB)
- Article 226 - Transfer - Mala fides - Allegations of mala fide have to be established and proved to such a extent that the Court can record positive finding : Pareekshit Singh (Dr.) Vs. State of M.P., I.L.R. (2008) M.P. 2849
- Article 226 - Transfer - Malafides - Employee is required to place on record strong and clinching material in support of his plea of malafides - Transfer order of petitioner issued by Director - No malafides alleged against him - Petitioner failed to place on record any cogent material in support of his plea of malafides - Petition dismissed : Shishir Raizada Vs. Union of India, I.L.R. (2008) M.P. 2234 (DB)
- Article 226 - Transfer - Number of complaints and enquiries pending against petitioner - Transfer of employee to facilitate enquiry or disciplinary action is a proper exercise of power : Pareekshit Singh (Dr.) Vs. State of M.P., I.L.R. (2008) M.P. 2849
- Article 226 - Transfer - Scope of Judicial Review - Transfer order can be interfered only if mala fides are established or if the transfer is found to be contrary to statutory provisions or provisions having force of law : Pareekshit Singh (Dr.) Vs. State of M.P., I.L.R. (2008) M.P. 2849
- Article 226 - Transfer - Petitioner challenged her transfer - Another transfer order was passed during pendency of the petition - Application for amendment of Petition dismissed as subsequent transfer order raised a fresh cause of action and writ petition dismissed as infructuous - Held - Material facts remained the same - There was only alteration of one material fact that another transfer order was issued - Amendment should be allowed for the purposes of deciding real controversy in issue between the parties - Amendment allowed and matter remitted back to Single Judge for deciding writ petition on merits : Reshma Philip Vs. State of M.P., I.L.R. (2008) M.P. 1366 (DB)
- Articles 226/227 - Transfer Policy - Transfer Policy formulated by State is not enforceable as employee does not have a right and Courts have limited jurisdiction to interfere in the order of transfer - Court can interfere in case of mandatory statutory rule or action is capricious, malicious, cavalier and fanciful - In case of violation of Constitution of India 197 policy proper remedy is to approach authorities by pointing out violation and authorities to deal with same keeping in mind the policy guidelines : R.S. Chaudhary Vs. State of M.P., I.L.R. (2007) M.P. 1329 (DB)
- Article 226 - Mala fide transfer - See : Service Law : Bhagwati Singh Verma Vs. State of M.P., I.L.R. (2010) M.P. 2466 (DB)
- Article 226 - Transfer - Arbitrary exercise of power -See : Service Law : Narendra Vs. State of M.P., I.L.R. (2009) M.P. Note *16
- Article 226 - Transfer - Competence to transfer - See : Service Law : Pramod Kumar Shukla Vs. State of M.P., I.L.R. (2009) M.P. 1200 (DB)
- Article 226 - Mala fide transfer - See : Service Law : Rajesh Gupta Vs. Bharat Sanchar Nigam Ltd., I.L.R. (2009) M.P. 103
- Article 226 - Transfer - Misconduct - Punitive or Stigmatic - See : Service Law : R.B. Dubey Vs. State of M.P., I.L.R. (2009) M.P. 100
- Article 226 - Transfer - Petitioner an employee of Municipal Council - See : Service Law : S.B. Singh Vs. State of M.P., I.L.R. (2009) M.P. 1266
- Article 226 - Mala fide transfer : Arvind Tiwari Vs. State of M.P., I.L.R. (2009) M.P. 1331
- Article 226 - Mala fide transfer : Bhagwati Singh Verma Vs. State of M.P., I.L.R. (2010) M.P. 2466 (DB)
* See Service Law also - 27. Tax
- Article 226, and General Sales Tax Act, M.P. 1958, Sections 2(d) and General Sales Tax Rules, M.P., 1958 Rule 56-D - Transporter received goods from actual dealer - Disposed of the same is a dealer under the Sales Tax Act - May be made liable to pay sales tax : M.P. Motor Transport Company, Lalta Chowk, Satna District Satna, M.P. Vs. Commissioner of Sales Tax, M.P. Indore, I.L.R. (2006) M.P. 682
- Article 226, and General Sales Tax Act, M.P. 1958, Sections 2(d), 29(6), 29(8) - Alleged tax evasion and imposition of penalty - Condition precedent - Goods sent by seller through truck - No evidence that dealer was aware of arrival of goods - Ingredients of Section 29(6) not established - Impugned order quashed : M/s Bhawanidas Laxman Das, Through Its Partner Laxman Das, Gole Bazar, Katni, District Jabalpur (M.P.) Constitution of India 198
Vs. The Additional Commissioner of Sales Tax, Jabalpur (M.P.), I.L.R. (2006) M.P. 674 28. Territorial jurisdiction of High Court
- Article 226 - Territorial jurisdiction of High Court of M.P. - Petitioner having registered office at Gwalior was transporting Ballast to State of Uttar Pradesh wherein transit fee is being levied - Respondents raising an objection of territorial jurisdiction of High Court - Held - As the transit fee is being levied at Itawa and Jhansi falling within the territory of State of Uttar Pradesh - High Court of M.P. does not have jurisdiction to entertain writ petition under Article 226 : Emerald Industries Ltd. Vs. State of M.P., I.L.R. (2009) M.P. 3341
- Article 226 - Maintainability - Territorial jurisdiction of High Court in its Benches - Original order passed by Collector of Stamps, Satna, which was challenged before Commissioner, Rewa and thereafter before Board of Revenue, Gwalior - Writ Petition filed in Gwalior Bench of High Court - Dismissed for want of territorial jurisdiction - Writ Appeal - Held - Board of Revenue is within the territorial jurisdiction of Gwalior Bench - Therefore, the part of cause of action also arose within the territorial jurisdiction of Gwalior Bench, and merely because the original order was passed by Collector of Stamps, Satna, which is outside the territorial jurisdiction of Gwalior Bench, would in itself is no ground to hold that Gwalior Bench is not having the territorial jurisdiction over the matter : Vishnu Agrawal Vs. State of M.P., I.L.R. (2009) M.P. 1615 (DB) 29. Writ of Certiorari
- Article 226 - Writ of Certiorari - Alternative remedy - Held - It is a well settled principle of law that for issuance of a writ of certiorari the availability of alternative remedy is no bar : Ghanshyam Tiwari Vs. State of M.P., I.L.R. (2010) M.P. 1517 (DB)
- Articles 226,227 - Writ of Certiorari - In issuing writ of certiorari High Courts acts in exercise of original jurisdiction and not in exercise of appellate or revisional jurisdiction - Power to issue writ is original jurisdiction. (Majority View) : Manoj Kumar Vs. Board of Revenue, I.L.R. (2007) M.P. 1504 (FB) 30. Writ of Habeas Corpus
- Article 226 - Writ of Habeas Corpus - Custody lawful or unlawful - Petitioner gave birth to a child soon after death of her husband - Doctor after having dialogue with elder sister of petitioner gave child to resp. Nos. 3 & 4 - Since then they are bringing up the child - Resp. No. 3 & 4 are now not returning the child - Held - It could not be said Constitution of India 199 that child was not given with the consent of petitioner - Child attending the school and is mentally alert - No material that child was taken by fraud or force - Child not in unlawful custody - Petition dismissed : Tabassum Bano (Smt.) Vs. State of M.P., I.L.R. (2010) M.P. 35 (DB)
- Article 226 - Writ of Habeas Corpus - Question of custodian or guardian of the child need not be decided in these proceedings : Tabassum Bano (Smt.) Vs. State of M.P., I.L.R. (2010) M.P. 35 (DB)
- Article 226 - Writ of Habeas Corpus - Scope - Court is not prevented from holding enquiry into facts - However, full scale trial is not appropriate in such proceedings : Tabassum Bano (Smt.) Vs. State of M.P., I.L.R. (2010) M.P. 35 (DB) 31. Writ of mandamus
- Article 226 - Writ of mandamus - High Court cannot sit over the decision of the employer as if it exercises appellate jurisdiction - Respondent having refused to enter into a contract of service with the petitioner for the reasons not arbitrary or illegal, a writ of mandamus cannot compel respondent to enter into a contract, contrary to their wishes : Ashutosh Sharma (Dr.) Vs. School of Planning and Architecture, Bhopal, I.L.R. (2010) M.P. Note *75
- Article 226 - Writ of Mandamus - Regularization of appointment - Petitioners, appointed as samvida (Contract) Teacher, were later on considered fit for regularization by Executive council of University on 01.05.2008 and their matter was sent for approval of State Government - In the meantime the University was converted into Central University - Central University took a decision on 22.08.2009 to refer the case to H.R.D. Ministry, Govt. of India for considering the question of their regularization - The petitioners Challenged the resolution (dated 22.08.2009) and sought Mandamus to the University for enforcing the resolution dated 01.05.2008. - Held - The appointment of petitioners was made by a selection committee which was inferior to the one as is required u/s 49 of M.P. Vishwavidhyalaya Adhiniyam 1973. - As the appointment made, falls within the category of "illegal appointment" as held by the Supreme Court in the case of Uamdevi (Supra), Illegal appointments cannot be regularized by issuing Writ of Mandmus : Anil Kumar Purohit (Dr.) Vs. Dr. Hari Singh Gaur Vishwa Vidhyalaya, Sagar, I.L.R. (2010) M.P. 2135
- Article 226 - Writ of Mandamus - The directions given in W.P. No.1820/2001 (M/s Narmada Enterprised v. State of M.P. & others) made applicable and incumbent upon the State of M.P. and its functionaries, mutatis mutandis in the entire State of M.P. : Shiva Corporation Vs. State of M.P., I.L.R. (2010) M.P. 2289 Constitution of India 200
- Article 226 - Writ of Mandamus - No writ of mandamus could be issued for enforcement of pure contractual right : Paresh Spinners Ltd. Vs. State Bank of India, I.L.R. (2008) M.P. 2571
- Article 226 - Date of enforcement of Act - No mandamus can be issued to bring statutory provision into force when the date on which it is brought into force is left to the discretion of Central Govt. - However, Court can always issue mandamus to consider whether time for bringing a provision of an Act has arrived or not : Avinash Vs. Union of India, I.L.R. (2008) M.P. 1725 (DB)
- Article 226 & 227 - Writ of Mandamus - Petitioners working as teachers in school managed by Western Coalfields Limited Educational Society (WCLES) sought Mandamus to SECL for granting various allowances at par with State Govt. teachers and/or benefits given to coalfields employee under National Coal Wage Agreement (NCWA), on the grounds that the effective control of the Society (WCLES) vests with WCL and 100% grant is given to society by SECL and some other teachers are also being given the benefit - Held - (1) There being no deep pervasive control of the WCL/ SECL in the management of the Society which is an independent entity, which is the necessary corollary to claim for grant of wages and other allowances as per NCWA, (2) The petitioners have failed to establish that they are the employees of the erstwhile Associated Cement Company, to get the succour u/s 14 of Nationalization Act, (3) The petitioners are shown to be temporary teachers and no material is brought on record to show that any regular procedure known to law was adhere at while engaging the petitioners as teachers - The petitioners, therefore, cannot as a matter of right claim parity with regular teachers in respect of pay and allowances : Mahmood Hasan Vs. South Eastern Coalfields Ltd., I.L.R. (2010) M.P. Note *63 32. Writ of Quo warranto
- Article 226 - Writ of Quo warranto - Order granting charge of Engineer-in- Chief challenged - Petitioner at the fag end of his career and after 10 months, challenged the action - Held - Writ of Quo warranto is an extraordinary remedy - Court is required to consider the motive, conduct of applicant, delay & latches and the public interest likely to served or damaged in granting or refusing the writ - Petition dismissed : Anand Selot Vs. Chief Secretary, Govt. of M.P., I.L.R. (2010) M.P. 1357
- Article 226 - See - Service Law : Anand Selot Vs. Chief Secretary, Govt. of M.P., I.L.R. (2010) M.P. 1357 33. Miscellaneous
Affiliation of Institution Constitution of India 201
- Article 226 - Affiliation of Institution - Petitioner applied for grant of recognition for D.Ed. Courses to NCTE - During pendency of application Union of India directed NCTE not to proceed with the matter - High Court by interim order permitted petitioner to admit students at their own risk subject to decision of petition - Finally Writ Petition dismissed - Subsequently recognition granted by NCTE in December, 2007 - Thereafter on the basis of recognition petitioner applied for grant of affiliation to Board of Secondary Education for the year 2007-08 - The application was rejected by the Board on the ground that petitioner had not completed 180 days of imparting training - Held - Petitioner without recognition cannot nurture idea to admit students - When in final order relief was denied, petitioner cannot claim any benefit on the basis of interim relief - Affiliation rightly rejected - Petition dismissed : Siddhi Vinayak College, Bhind Vs. State of M.P., I.L.R. (2008) M.P. 1645 (DB)
Allotment of P.G. seats
- Article 226 - Allotment of P.G. seats in Medical College to respondent No. 4 challenged on the ground that respondent No. 4 does not belong to Scheduled Tribe category - Respondent No. 4 securing admission to P.G. course as tribal candidate by virtue of certificate dated 21.3.2003 - 'Meena' as 'tribe' omitted with effect from 8.1.2003 by virtue of Act No. 10 of 2003 - Respondent No. 4 was not a member of Scheduled Tribe on the date of certificate - Respondent No. 4 not entitled to pursue P.G. Course as tribal candidate - Petition allowed, allotment of seat to respondent No. 4 cancelled : Alawa Neelmani Vs. State of M.P., I.L.R. (2007) M.P. 761
Amendment of Petition
- Article 226, Civil Procedure Code, 1908, Order 6 Rule 17 - Amendment of Petition - Provisions of C.P.C. do not strictly apply to proceedings under Article 226 - However, High Court while exercising its power have to keep in mind the principles incorporated in different provisions of C.P.C. : Reshma Philip Vs. State of M.P., I.L.R. (2008) M.P. 1366 (DB)
Assessment & valuation of property
- Article 226 and Stamp Act Indian, 1899, Sections 47-A(3), 47-A(3-A) - Assessment & valuation of property in suo motu exercise of powers - Recording of evidence - Requirement as to - Provision incorporated subsequent to the date of impugned order - Power exercised cannot be said to be arbitrary : Smt. Hajjin Salma Begum Vs. State of Madhya Pradesh Through Collector, Shahdol, I.L.R. (2006) M.P. 318 Constitution of India 202
Contempt of Court
- Article 226 - Relaxation in conditions during pendency of Petition - Association made representation to respondents for relaxation in conditions - Conditions relaxed in view of representation - Held - Association itself took initiative and relaxation of conditions of N.I.T. does not amount to causing obstruction in course of justice or Contempt of Court : Sharad Oswal Vs. Madhya Pradesh Poorva Kshetra Vidyut Vitran Company Ltd., I.L.R. (2008) M.P. 226 Difference of Opinion - Scope of Third Judge
- Articles 226, 227 - Difference of Opinion - Scope of Third Judge - Both the Judges of Division Bench came to the conclusion that tendered votes can be opened and there is no divergent opinion on said question - Third Judge cannot go into the question that whether tendered vote can be opened or not : Kailashi Vs. Smt. Bharosi Bai, I.L.R. (2008) M.P. 1586 Dismissal from service
- Article 226 and Probation of Offenders Act, 1958 - Sections 3,4, and 12 - While invoking Section 12 Conviction remains untouched and stigma is not obliterated - Indiscipline in judicial institution - Dismissal from service is neither too harsh nor unreasonable : Syed Fakhrul Abrar Vs. The State of Madhya Pradesh, I.L.R. (2006) M.P. 732 Disputed Questions of Fact
- Articles 226/227 - Disputed Questions of Fact - Premises of Petitioner taken on rent by respondent - CPWD assessed monthly rent at the rate of Rs. 32,080 - Possession of Premises handed over by respondent after accepting the rent fixed by CPWD - Petitioner alleged that possession of room situated at 2nd floor was also taken by respondent although it was not included in rented premises - Petitioner claimed refixation of rent - Executive Engineer CPWD assessed rent of one room at Rs.2124 per month and refixed the entire rent to Rs. 45,750/- - Enhanced rent claimed by Petitioner from the date of delivery of possession - Held - Initial rent of Rs. 32,080 per month was accepted by Petitioner without any objection - Entire circumstances were taken into consideration while fixing rent at initial stage - Petitioner not entitled to get rent re-fixed on the ground that previously rent was wrongly fixed - Petition involved disputed questions of fact as petitioner is claiming higher rent whereas respondents are making payment as per initial assessment : Nand Kishore Choudaha Vs. Union of India, I.L.R. (2007) M.P. 1215 Constitution of India 203
Duty of Executing Court
- Article 226 - Civil Procedure Code, 1908 Order 21 Rule 43 - Writ petition - Duty of Executing Court before auctioning the attached items - Items attached were given on Supurdagi - Nama to respondent and were valued at Rs.12,000 - Auction proceedings of the attached items yielding only Rs.600 - Respondent stating that the goods had lost value due to damage suffered with passage of time - It was inconceivable that goods having inner valuable components would be damaged in a span of just 18 months - It was bounden duty of executing judge to ensure that Nazir or person entrusted with work of execution ought to have tallied the goods while putting them to auction - Executing Court not expected to sit in casual and non-serious manner - Successful execution and satisfaction of decree should be ensured and any tricky obstruction in execution must be thwarted sternly - Role of Nazir directed to be scrutinized and action directed to be taken - Application under Order 21 Rule 43 of the Civil Procedure Code directed to be re-decided - Writ allowed : Mithu Lal Soni Vs. Ram Lal Soni, I.L.R. (2007) M.P. 72 Election petition
- Article 226, Municipalities Act M.P., 1961, Sections 20,21 & 24 and M.P. Municipalities (Election petition) Rules, 1962, Rule 10 - Election petition - Recrimination claim - Within the scope of Sections 21 and 24 of the Act - Rule 10 of Election petition rules intra vires : Jaipal Singh Vs. Girish Chandra Patwa, I.L.R. (2006) M.P. 486 (DB) Equal Pay for Equal Work
- Article 226 - Physical Training Instructor - Equal Pay for Equal Work - Similarly situated Physical Training Instructor and Teacher have already been given UGC scale - Question of Nature of duties of Physical Training Instructor with the duties of Teacher has already become fait accompli - Single Judge allowed petition with the direction to grant pay scale of UGC Teachers - DB found no ground for interference - Appeal dismissed : State of M.P. Vs. Ramesh Chandra Bajpai, I.L.R. (2008) M.P. 1350 (DB) Green Card Holder
- Article 226 - Green Card Holder - Circulars - Exemption from Tuition Fee - Petitioner took admission on 12.06.2006 - Circular dated 29.11.2005 was in force and was modified on 17.10.2007 - Petitioner entitled to get benefit of circular dated 29.11.2005 which was in vogue - Later circular cannot curtail the right of a student who has already taken admission as that is the right conferred on him on the basis of earlier circular - Petition allowed : Ashutosh Mishra (Dr.) Vs. State of M.P., I.L.R. (2009) M.P. 2547 (DB) Constitution of India 204
Ground of appeal not raised
- Article 226 - Ground regarding maintainability of appeal not raised - Held - Petitioner not taking the ground of maintainability of appeal before all three authorities and even in writ petition cannot be permitted to raise at the time of final hearing : Prajapal Singh Vs. State of M.P., I.L.R. (2008) M.P. 1721
Lodging of First Information Report
- Article 226, Penal Code Indian, 1860, Criminal Procedure Code, 1973, Sections 156(3), 161 and 162 - First Information Report - Lodging of - Basic right of every citizen - Whether offence registered is made out or not is to be decided by competent Court - If concerned police refuses to register counter complaint Magistrate could direct police to register the complaint and investigate : Ram Behari Vs. State of M.P., I.L.R. (2006) M.P. 333
Maintainability
- Article 226, Service Law - Non Grant Aided Private Educational Institutions - Writ Petition - Maintainability - A writ petition under Article 226 of Constitution against a private educational institution not receiving grant-in-aid either from State Government or from Central Government - Petitioner claiming continuance in service beyond 58 years of age - No question of public law involved in as much as the grievance is of personal nature - Writ petition not maintainable : Yashwant Singh Sikarwar Vs. Teresian Carmel Educational Society, I.L.R. (2008) M.P. 3157
Matters of academic importance
- Articles 226/227 - Academic Issues - Courts should be reluctant to decide constitutional points merely as matters of academic importance : State of Madhya Pradesh Vs. M/s Shekhar Constructions, I.L.R. (2008) M.P. 20 (FB)
Mining Lease
- Article 226 - Mining Lease - Petitioner granted mining lease for extraction of sand - Possession of area could not be demarcated and handed over as the same was submerged in water of River Narmada - Alternative site for extraction of sand though proposed, but was not finally given - Petitioner prayed for refund of security amount and first instalment deposited by him - Respondents instead issuing demand notice of Rs. 4,56,010/- - Petition filed for quashment of order of recovery of money - maxim lex non cogit ad impossibilia applies meaning thereby that the law does not compel a man to do what he can not possibly perform - Possession could not be handed over as area was Constitution of India 205 submerged - Petitioner could not derive benefit from contract for no fault of his - Respondents directed to refund the amount deposited by Petitioner - Demand notice unreasonable and illegal hence quashed - Petition allowed : Hardeep Singh Vs. State of M.P., I.L.R. (2007) M.P. 216
Multiple relief in one writ petition
- Article 226 - Multiple relief in one writ petition - Writ petition challenging show cause notice for removal from service and also seeks direction to release annual increment and fixation of pay - The grievances pre-existed when the petitioner was subject to show cause notice - Unless the law prohibits, petitioner has right to claim multiple relief : Ramesh Singh Thakur Vs. Jabalpur Development Authority, I.L.R. (2010) M.P. 827
Natural Justice
- Article 226 - Departmental Enquiry - Non-supply of documents - Petitioner failed to show prejudice caused and the effect on findings of guilt by Inquiry Officer - Merely on the basis of vague allegations that documents called for are not produced or circulars are not taken note of, interference into matter can not be made - Petition dismissed : Gurmit Singh Vikhu Vs. Punjab & Sindh Bank, I.L.R. (2010) M.P. 1551
Operation of Scheme
- Article 226, Nagar Tatha Gram Nivesh Adhiniyam, M.P., 1973, Section 50 - Intention to prepare scheme - After finalization of draft scheme, final scheme published in Govt. Gazette on 28.03.2003 - It was stipulated that scheme would come into operation w.e.f. date of publication in Gazette - Held - Scheme would be treated as come into existence on 28.03.2003 : Mahavir Grih Nirman Sahkari Sanstha Maryadit Vs. State of M.P., I.L.R. (2008) M.P. 1603
Original Jurisdiction
- Article 226 - Original Jurisdiction - When a writ is issued under Article 226 of Constitution in respect of Court or Tribunals or administrative authorities it is done in exercise of original jurisdiction. (Majority View) : Manoj Kumar Vs. Board of Revenue, I.L.R. (2007) M.P. 1504 (FB)
P.M. Relief Fund is not subject matter of any review by Courts
- Articles 226/227 - Object of Prime Minister National Relief Fund - It is working in larger interest of public and help is being provided to needy people - A discretionary fund of PM and is being managed by trust and not bureaucratic machinery - Relief Constitution of India 206
Fund is not subject matter of any review by Courts - No allegation that Relief Fund is under mismanagement or is not functioning properly or the funds are not reaching the needy persons - Observations made against fund or mismanagement of fund are expunged : Secretary, Prime Minister National Relief Fund Vs. Gopal Das Nayak, I.L.R. (2008) M.P. 1352 (DB)
Payment of interest from P.M. Relief Fund
- Articles 226/227 - Prime Minister National Relief Fund - Interest can be awarded in a case where some debt is payable or amount is legally payable - Interest cannot be awarded where amount is distributed from discretionary fund : Secretary, Prime Minister National Relief Fund Vs. Gopal Das Nayak, I.L.R. (2008) M.P. 1352 (DB)
Power of Authority can not be restricted when matter is remanded
- Article 226 - When a matter is remitted to the original authority to decide the issue, the said authority must be allowed to take a decision one way or the other in accordance with the statutory provisions, rules and regulations applicable to the same - There cannot be any restriction to pass an order in such a way de hors to the statutory provisions or regulations / instructions applicable to the case in particular : State of M.P. Vs. Nerbudda Valley Refrigerated Products Company Pvt. Ltd., I.L.R. (2010) M.P. 1858 (SC)
Prohibited transaction
- Article 226 - Samaj Ke Kamjor Vargon ke Krishi Bhumi Dharakon Ka Udhar Dene Walon Ke Bhumi Hadapane Sambandhi Kuchakron Se Paritran Tatha Mukti Adhiniyam, M. P., 1976 - Claim before S.D.O. that the disputed land was not sold but was mortgaged with a condition of redemption allowed - Application for execution also allowed by Collector - Petitioner claiming that transaction was of year 1968 and the Act of 1976 does not apply - Act applies in regard to the prohibited transaction of loan subsisting on the appointed day - The objection of petitioner is highly misconceived - Impugned transaction is "prohibited transaction" under the Act - Petition dismissed : Mannu Vs. Collector, Tikamgarh, I.L.R. (2007) M.P. 602
Release of property
- Article 226, Criminal Procedure Code, 1973, Sections 50, 451 and Wild Life (Protection) Act, 1972, Section 39 - Writ petition - Forest officer - Truck seized - Cannot become property of State unless there is a trial and finding that it was being used for commission of offence - Pending trial property can be released : Kunjilal Gupta Vs. State of Madhya Pradesh, I.L.R. (2006) M.P. 358 Constitution of India 207
Reappreciation of evidence
- Articles 226, 227 - Scope of interference with the findings of Industrial Court - High Court in exercise of its powers under Articles 226 & 227 of Constitution cannot reappreciate the evidence led before Industrial Court and come to a different conclusion - High Court can interfere with the findings of Industrial Court only if it comes to conclusion that Industrial Court has acted beyond its jurisdiction or in violation of principles of natural justice or where there is an error apparent on face of record : Asbestos Janata Mazdoor Union Vs. Eternit Everest Ltd., I.L.R. (2008) M.P. 1905 (DB)
Recovery
- Article 226 - Recovery from terminal benefits - Due to clerical error benefit of two increments was extended to petitioner's husband - Order for recovery from terminal benefits - Held - Benefits of increments was not extended in favour of petitioner's husband on account of any fraud or misrepresentation on his part - Recovery could not be made - Order of recovery quashed - Petition allowed : Devkunwar (Smt.) Vs. State of M.P., I.L.R. (2008) M.P. Note *76
Rectification of Bail Order
- Article 226 - Writ petition to rectify or substitute part of the order passed u/s 439 Cr.P.C. by learned Single Judge of High Court - Held - Petition is abuse of process of law, thus, not maintainable and absolutely frivolous - Dismissed with cost : Vijendra Singh Vs. Central Bureau of Investigation, I.L.R. (2009) M.P. 2521 (DB)
Reference to electric inspector
- Article 226, Electricity Duty Act, M.P. 1949, (as amended) and Electricity Duty Rules, M.P. 1949, Rule 13 - Cement Industry - Consumption of energy for colonies on high tension line - Covered by residuary items - Reference to electric inspector - Can be made when quantum is in dispute and not rate : M/s Birla Jute & Industries Ltd. Vs. The State of M.P., I.L.R. (2006) M.P. 690
Regulation of Areas for mining and construction
- Article 226, Ancient Monuments and Archaeological Sites and Remains Act, M.P. (12 of 1964), Sections 2(a), 2(c), 3, Ancient Monuments and Archaeological Sites and Remains Rules, M.P., 1976, Rule 10 - Fort at Sendhwa declared ancient monument - Notification declaring area upto 100 meters and further beyond it upto 200 meters from protected limits near or adjoining of protected monument as prohibited and regulated areas for mining and construction - Act and Rule regulate activities in the area and do Constitution of India 208 not impose total ban on construction - However, Collector of District directed to ensure that no construction shall be permitted in prohibited area except in accordance with provision of Act and Rules - Petition disposed of : Mohammad Rafik Bhutto Vs. State of M.P., I.L.R. (2008) M.P. 2274 (DB)
Release of deposited amount
- Article 226 - Money deposites by senior citizens in Bank - Petitioners are senior citizen and had deposited savings of their entire life in Bank - On account of irregularities, RBI cancelled licence of the Bank and put under liquidation - Official liquidator provided amount to discharge liability of Bank - Part payment made to petitioners - Release of balance amount to petitioners withheld by liquidator till money advanced by Guarantee Corporation was return back - Held - Petitioners are not millionaires ever expecting to multiply money by making commercial or speculative investments - Official liquidator directed to release the deposited amount of petitioners at first instant - Petition allowed : Mandakini Raverkar (Smt.) Vs. State of M.P., I.L.R. (2008) M.P. 3147
Requirement of whole time Principal and teachers in Law colleges
- Article 226 and Bar council of India Rules, Rule 8, Law colleges - Requirement of whole time Principal and at-least 4 whole time teachers - State is duty bound to ensure compliance : Amir Patel Vs. State of M.P., I.L.R. (2006) M.P. 716
Re-start of Company and Recovery
- Article 226 and Employees Provident Fund and Miscellaneous Provisions Act, 1952, Section 1(5), 16 - Merely because there was closure for longer period position of law cannot change - Re-start of Company without change in ownership, place or line of production - Liability persists - Recovery notice is in accordance with law : M/s Rajkumar Oil Mills Pvt. Ltd. Vs. Regional Provident Fund Commissioner, I.L.R. (2006) M.P. 707
Review by the effected person
- Articles 226/227 - Scope of Review - Application for review of an order on merits is maintainable on behalf of the persons who were not party to the earlier proceedings but are effected by the order passed therein : Abdul Rehman Vs. Union of India, I.L.R. (2006) M.P. 1596 (DB)
Sale of surplus land
- Articles 226,227, Ceiling on Agricultural Holdings Act, M.P., 1960, Sections 4,10 - Sale of surplus land by holder - Burden is on holder to prove that sale was Constitution of India 209 bonafide and not in order to defeat provisions of that Act - No return filed nor any evidene adduced - Competent authority rightly held that sale to be void : Rajesh Kumar Vs. State of M.P. Through Secretary, Department of Revenue, Vallabh Bhawan, Bhopal, I.L.R. (2006) M.P. 323 Service tax
- Article 226, Finance Act, 2005, Section 65 (76-b) and Central Excise Act, 1944, Section 2(f) - Bottling and packaging of country spirit by distillers for supply through bonded warehouse to retail sale contractors - The process is packaging activity and not manufacture - While packaging it is service which is provided - Service part of activity which is being taxed is independent from process of manufacture - Service provider can pass on the liability of service tax to the retail contractor : M/s. Vindhyachal Distilleries Pvt. Ltd. Vs. State of M.P., I.L.R. (2006) M.P. 542 (DB) Statement recorded in criminal Proceedings, how far relevant in D.E.
- Article 226 - Departmental Enquiry - Witness examined in criminal case not examined in departmental proceeding - Statement of witness recorded in criminal case is not relevant for consideration in departmental enquiry : Gurmit Singh Vikhu Vs. Punjab & Sindh Bank, I.L.R. (2010) M.P. 1551 Tender
- Article 226 - Tender - Disqualification in technical bid - Petitioner claimed experience of work by its lead partner as Sub-Contractor - Condition of eligibility criteria required work in same name and capacity - Held - Experience as contractor can not be equated with that of Sub-Contractor - Unless the decision is arbitrary, unfair or based on malafides, the court will not interfere in decision taken in commercial matter relating to contracts - Petition dismissed : Niraj Pratibha J.V. Vs. Indore Development Authority, I.L.R. (2008) M.P. 2013
● - Article 227, Civil Procedure Code, 1908, Section 115 - Rejection of application under Order 7 Rule 11 CPC - Though revision could be maintainable - High Court has to exercise its powers under Article 226/227 and has to strike with the sword of its power against each and every illegality : Shyama Prasad Datta Vs. Arun Kumar Vasudeo, I.L.R. (2010) M.P. 1588 (DB)
- Article 227 - See - Civil Procedure Code, 1908, Section 115(1) : Johra Bi Vs. Jageshwar, I.L.R. (2010) M.P. 160 (DB)
- Article 227 - Jurisdiction - Where subordinate court assumes jurisdiction, which it does not have - High Court can step in and exercise its supervisory jurisdiction : Vimla Bai Choudhary (Smt.) Vs. Board of Revenue, I.L.R. (2009) M.P. 415 Constitution of India 210
- Article 227 - See - Civil Procedure Code 1908, Section 34 : Chitrarekha (Smt.) Vs. Virendra Kumar Sharma, I.L.R. (2008) M.P. 2611
- Article 227 - Supervisory Jurisdiction - Scope - High Court in exercise of its supervisory jurisdiction can only look into the dispute that was raised before the Industrial Court and examined as to whether the Industrial Court has committed any patent error which is manifest and apparent from the face of record which has resulted in gross injustice or failure of justice : Katni Pottery Karamchari Sangh Vs. M/s. Associated Cement Companies Ltd., I.L.R. (2008) M.P. 2870
- Article 227 - Power of Superintendence - Power of Superintendence conferred on High Court is power restricted to the Courts and tribunal in relation to which it exercise jurisdiction - Power under Article 226 is not confined to Courts or Tribunals but extends to any person or authority. (Majority View) : Manoj Kumar Vs. Board of Revenue, I.L.R. (2007) M.P. 1504 (FB)
- Article 227 and Civil Procedure Code, 1908, Order 3 Rule 2 - Holder of Power of attorney to ''act'' on behalf of Principal - Such an 'act' could not be interpreted to include deposition about acts done by prinicipal himself : Mohd. Mansur Ali Khan Vs. Saifia Education Society, Bhopal, I.L.R. (2006) M.P. 809
- Article 227, Civil Procedure Code, 1908, Order 6 Rule 17, Order 18 Rule 17 and M.P. Civil Courts Rules, 1961, Rules 104,105 - After closure of evidence Court permitted a party to amend pleading in respect of controversy - Court has to allow the parties to lead evidence - Application for calling of record - Must show that without unreasonable delay or expenses applicant cannot obtain a duly authenticated copy : Ram Vishal Alias Vishali Kachhawaha Vs. Dwarka Prasad Jaiswal, I.L.R. (2006) M.P. 461
- Article 227, Civil Procedure Code, 1908, Order 7 Rule 11 and Court fees Act, 1870, Section 7(iv)(c) - Suit for declaring sale void alongwith prayer of possession - No misrepresentation as to character or contents of sale deed - Plaintiff required to pay ad- valorem court fees : Shadab Grih Nirman Vs. Parita Grih Nirman Sahkari Samiti Maryadit, I.L.R. (2006) M.P. 1149
- Article 227 and Civil Procedure Code, 1908, Order 26 Rule 9 - Appointment of Commissioner - May be issued for elucidating any matter in dispute - Relief is purely discretionary : Suryabhan Singh Vs. State of M.P., I.L.R. (2006) M.P. 505
- Article 227, Civil Procedure Code, 1908, Order 41 Rule 19 and Samaj Ke Kamjor Vargon Ke Krishi Bhumi Dharkon Ka Udhar Dene Walon Ke Bhumi Hadapane Sambandi Kuchkaron Se Paritran Tatha Mukti Adhiniyam, 1976, Section 8 - Appeal under - Dismissal for default - Restoration - Procedure envisaged under CPC shall be applicable Constitution of India 211
- Collector has jurisdiction to re-admit the appeal : Suraj Prasad Vs. Arjun Prasad, I.L.R. (2006) M.P. 330
- Article 227, Fundamental Rules, M.P., Rules 9 (23), 27 and Revision of Pay Rules, M.P., 1990, Rules 3(d) and 7(1) - Service law - Pay fixation on Revision of pay - Two advance increments for family planning operation - Constitutes personal pay' - Govt. servant gets benefits of two advance increments when pay is fixed in revised scale above pre-fixation emoluments - Once pay is fixed in accordance with Sub-Rule (1) of Rule 7, Government Servant cannot claim any further benefit in the event of his promotion or payment of higher scale of pay : State of Madhya Pradesh Vs. R.K. Chaturvedi, I.L.R. (2006) M.P. 655 (FB)
- Article 227, Specific Relief Act, Section 1963, 16 (c) and Code of Civil Procedure 1908, Order 6 Rule 17 - Suit for Specific Performance - Readiness and willingness of plaintiff - In appeal Division Bench remanded case to trial court to allow defendant to adduce evidence and decide afresh - A party to the lis has right to move application until case is decided - By amendment plaintiff seeking introduction of averments as to readiness and willingness to perform his part of contract - Could be allowed even at appellate stage in a suit for specific performance - No error committed by trial court in allowing the application - No injustice or failure of justice occasioned : D.K. Sheorey Vs. Anup Kumar Jain, I.L.R. (2006) M.P. 1283
- Article 227 and Stamp Act, Indian, 1899 Sections 31, 35, 61 - Agreement to sell immovable property - Property transferred to the purchaser - It is a conveyance - Must be stamped under Article 23 of Schedule I-A : Ku. Muskan Dubey Vs. Shri Sarang Ranadey, I.L.R. (2006) M.P. 367
- Article 227 and Stamp Act, Indian, 1899, Sections 35,36,37 and Evidence Act Indian, 1872, Section 63 - Secondary evidence - Document insufficiently Stamped - Original Document lost - Cannot be verified whether duly stamped - Such document can neither be impounded nor accepted in Secondary evidence : Prakash Chandra Malviya Vs. Hariom Agrawal, I.L.R. (2006) M.P. 727
- Article 227 - Writ petition - Civil Procedure Code, 1908, Order 6 Rule 17, Order 13 Rule 2 and M.P. Accommodation Control Act, 1961, Sections 12(1) (a) and (c) - Suit for specific performance of agreement for sale - Counter claim - Decree of eviction sought on ground of 12(1)(c) of the Act - Application for amendment and for production of document - By way of applications facts pleaded sought to be further explained - Do not cause injustice as it does not take away any legal right accrued to the petitioner - Discretion exercised is in accordance with law - No interference called for : Kishorilal Vs. Balkishan, I.L.R. (2006) M.P. 197 Constitution of India 212
- Articles 227, 309, 311 Fundamental Rules, 56(3) - Compulsory Retirement - Order of Compulsory retirement of respondent quashed by State Administrative Tribunal holding that ACRs of only last 5 years were considered and not entire service record - Opinion whether or not to compulsorily retire an employee is to be formed by State/ Authority/Screening Committee and not by the Court - Tribunal should have directed the State to reconsider the entire service record instead of quashing the order of compulsory retirement - State Govt./Screening Committee directed to consider the entire service record - Petition allowed : The State of Madhya Pradesh Vs. M.S. Wankankar, I.L.R. (2007) M.P. 437 (DB)
- Article 233(2), Uchchatar Nyayik Sewa (Bharti Tatha Sewa Shartein) Niyam, M.P., 1994, Rule 7(1)(c) - Qualification for appointment as District Judge entry level - Whether an Advocate who has put in seven years of practice but has been appointed as Public Prosecutor or Asstt. Public Prosecutor or Asstt. District Public Prosecutor is eligible for appointment as District Judge (Entry Level) by way of Direct recruitment - Held - As per rules framed by Bar Council, a Law Officer of State Govt. is qualified to be admitted as an Advocate if by terms of his appointment, he is required to act and plead in Courts on behalf of State - If person has been enrolled as an advocate and thereafter appointed as P.P. / A.P.P. / A.D.P.P. and by terms of his appointment continues to conduct cases on behalf of State Govt. before Criminal Courts, does not cease to be an Advocate within meaning of Art.233(2) of Constitution and Rule 7(1)(c) of Niyam, 1994 : Jyoti Gupta (Smt.) Vs. Registrar General, High Court of M.P., I.L.R. (2008) M.P. 1711 (DB)
- Article 234, Lower Judicial Service (Recruitment and Conditions of Service) Rules, M.P. 1994, Rule 5(1) - Minimum eligibility for reserved candidate - Petitioner belonging to ST category - Applied for the post of Civil Judge Class II - Not selected because could not secure 35% marks in the aggregate - Petition filed on the ground that High Court could not have prescribed the condition of minimum of 35% marks - Held - In view of the proviso to sub-rule (1) to Rule 5, the final decision that reserved category candidates must secure a minimum of 35% marks in the aggregate was that of the M.P.P.S.C. though that decision was in the consultation with the High Court and the State Government - Petition dismissed : Ashok Narayan Kale Vs. State of M.P., I.L.R. (2009) M.P. 643 (DB)
- Article 235 - See - Service Law : Ramakant Choudhary Vs. District & Sessions Judge, Guna, I.L.R. (2009) M.P. 3265 (DB)
- Article 235 - See - Service Law : Ramakant Choudhary Vs. District & Sessions Judge, Guna, I.L.R. (2009) M.P. 1666 Constitution of India 213
- Articles 235 & 309 - Subsequent correction of number of reserved vacancies - One post each reserved for SC and OBC in advertisement issued for recruitment of Process Writer - Interview was held as per the advertisement - However on recalculation it was found that no post of SC or OBC is available - Merely because advertisement speaks about availability of vacancy in SC and OBC category, that does not mean that respondent is estopped from re-examining the matter : Ramakant Choudhary Vs. District & Sessions Judge, Guna, I.L.R. (2009) M.P. 1666
- Articles 243-B, 243-C, 243-M, 244, Vth Schedule Part C, Panchayat (Extension to the Scheduled Areas) Act, 1996, Section 2, M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993, Section 129-E - Reservation of post of President Zila Panchayat for Scheduled Tribe - District Shahdol was constituted of many tahsils - On 15.8.2003 District Anuppur was constituted - District Anuppur consisted of four tahsils which were already declared as Scheduled Areas - Gram Panchayats and Janpad Panchayats reserved for Scheduled Tribes - Petition was filed contending that office of President Zila Panchayat be reserved for Scheduled Tribes - Petition allowed by Single Judge directing State Govt. to make reference to President for declaring Anuppur District as Scheduled Area and to defer the holding of election till the matter is decided by President - Held - Concept of reservation would get attracted once there is an order by President declaring such area to be Scheduled Area - There is distinction between various categories of Panchayats at various levels - District has different unit for election under Article 243-M - An area cannot form part of Scheduled Area unless there is declaration of President - Section 129-E of Act, 1993 cannot override Constitution - As State Govt. has already forwarded its recommendations to Union of India decision may be taken in that regard - However keeping elections in abeyance till decision is set aside - Writ Appeal allowed : State of M.P. Vs. Ashok Kumar Tripathi, I.L.R. (2007) M.P. 949 (DB)
- Article 243-U, Municipalities Act, M.P. (37 of 1961) (Amending Act No.17 of 1994 and 18 of 1994), Sections 36, 45, 47 & 49 - Recalling of President of Municipal Council - Initiation of the process of recalling within span of two year from the date of first meeting - Held - Process of recalling can not be initated within 2 years from the date on which President was elected - The term shall commence from the date of election as notified u/s 45 of the Act and not from the date of first meeting : Mangilal Vs. State of M.P., I.L.R. (2009) M.P. 1903 (DB)
- Article 243-ZG - Bar for staying an election - Bar created under Article 243-ZG would only mean that during the process of election HC should stay its hand by not exercising the powers under Article 226 of Constitution, to avoid delay in completing the process of election - But the bar as such will not come into play when a returned candidate is disqualified under the statute and a writ of Quo-warranto is asked for : Satyarath Prakash Agrawal Vs. State of M.P., I.L.R. (2009) M.P. 923 (DB) Constitution of India 214
- Article 244, Schedule V - Land required for mining of coal located in scheduled areas and owned by tribals - Any project which deprives the tribals in scheduled areas of their land by acquisition must ensure that such tribals are rehabilitated and resettled with alternate source of living in accordance with policy of appropriate Government : Naresh Singh Vs. Union of India, I.L.R. (2009) M.P. 730 (DB)
- Article 266 - Judicial review - Penalty imposed in disciplinary proceedings - Scope of interference - Petitioners working as Sorting Assistants in Railway Mail Service, M.P. Division - Opening the parcel bags and taking out certain articles - People have faith in postal department - Action of the Petitioners amounts to betrayal of faith - Punishment of reduction in pay scale with cumulative effect - Punishment imposed is proper - Petition dismissed : J. P. Shande Vs. Union of India, I.L.R. (2007) M.P. 750 (DB)
- Article 300 A - Right to property is not only a constitutional right but is also a human right : Chairman, Indore Vikas Pradhikaran Vs. M/s Pure Industrial Cock & Chem. Ltd, I.L.R. (2007) M.P. 976 (SC)
- Article 300-A - Right to property - No person shall be deprived of his property save by authority of law - Includes right to construct on his land : M/s Pure Industrial Cock & Chemicals Ltd. Vs. State of M.P., I.L.R. (2007) M.P. 360 (DB)
- Article 309 - Empanelment - Mere empanelment of petitioners does not confer upon them any legal right to seek appointment : Ramakant Choudhary Vs. District & Sessions Judge, Guna, I.L.R. (2009) M.P. 1666
- Article 309 - See - Service Law : Devilal Tanwar Vs. Registrar General, I.L.R. (2009) M.P. 446
- Article 309 - Conditional appointment order - An employee who accepts appointment on certain terms and conditions, can not turn around and claim benefit without fulfilling the criteria, then the same has its own binding - Respondent appointed on a specific stipulation that unless he passes Hindi Typing Examination or completed 40 years of age, whichever is earlier will not be entitled for regularization, unless fulfills conditions laid down in appointment order - Decision in Dongar Singh Pawar's case does not lay down correct proposition of law - Appeal allowed : State of M.P. Vs. Vinod Mohan Shrivastava, I.L.R. (2008) M.P. 1869 (DB)
- Article 309 - Grant of benefit of Second Time Bound Promotion - Entitlement - Petitioner not granted the benefit of Second Time Bound Promotion - Learned Single Judge directing for grant of Second Time Bound Promotion to the petitioner - Held - In matter of grant of Time Bound Promotion, the DPC is required to make an over all Constitution of India 215 assessment of performance of each candidate by adopting same standard, yardsticks and norms - Process of assessment is vitiated either on the ground of bias, malafides or arbitrariness - No allegation of malafides or arbitrariness - Not entitled for grant of Second Time Bound Promotion - Appeal allowed : State of M.P. Vs. Subhash Chandra Agrawal, I.L.R. (2008) M.P. 1900 (DB)
- Article 309, Land Revenue Code, M.P., 1959, Section 104(2) - Disciplinary Authority - Petitioner working as Patwari - He was removed from service by Sub Divisional Magistrate after holding departmental enquiry - Held - Collector is the appointing authority and removal of Petitioner by Sub Divisional Magistrate not proper - Notification to that effect issued by State Govt. will not have the effect of damaging substantive Section 104(2) - Petitioner directed to be reinstated with 50% back wages - Competent Authority is free to pass appropriate order in accordance with law - Petition allowed : Vinod Kumar Khare Vs. State of M.P., I.L.R. (2008) M.P. 1436
- Article 309 - Recovery - Respondent worked as Stenographer (Ordinary Grade) till 28.03.95 in Income Tax department - Subsequently appointed as L.D.C. and regularized on the said post - Respondent given pay protection for the post of Stenographer as pay of Stenographer was higher - Subsequently order of pay protection withdrawn and recovery directed to be made from the salary of the respondent - Held - No recovery can be made from the salary as respondent did not misrepresent and actually worked on the post of Stenographer till 28.03.95 - Petition disposed of : Union of India Vs. C. Samuel, I.L.R. (2008) M.P. 1619 (DB)
- Articles 309, 311 - Higher Pay Scale - Petitioner was granted higher pay Scale in the year 2000 after completion of 9 years of service - Penalty of censure imposed in the year 2004 - Respondents directed for recovery of Rs. 97,365/- on the ground that penalty of censure was imposed for the period prior to the date when petitioner became entitled to higher pay scale - Held - No disciplinary action/enquiry was pending or contemplated on the date when higher pay scale was granted - Order of punishment was passed on 20-10-2004 - It cannot be said that petitioner was undergoing punishment on due date - No ill effect of censure as no departmental enquiry was pending or contemplated and Petitioner was not undergoing any sort of punishment - Order for recovery of surplus amount not sustainable in law - Petition allowed : Mohd. Ayub Khan Vs. Chairman-cum-Managing Director, M.P. Poorv Kshetra vidyut Vitran Co. Ltd., I.L.R. (2008) M.P. 438
- Articles 309, 311 - Promotion - Sealed Cover Procedure/Review D.P.C. - Case of Petitioner not considered by D.P.C. for promotion as he was undergoing punishment of stoppage of one increment for two years - Appeal against order of punishment was pending - Held - As order of punishment had not attained finality, authorities should have adopted the sealed cover procedure - Order of punishment and appellate order Constitution of India 216 has already been quashed by High Court - Allegations for which disciplinary proceeding was initiated has been wiped out - Case for promotion deserves to be considered by review D.P.C. - Consequential benefits would follow the outcome of review D.P.C. - Petition allowed : Raj Kishore Jha Vs. State of M.P., I.L.R. (2008) M.P. 240
- Article 310(1), Madhya Pradesh Reorganisation Act, 2000, Sections 68, 69 & 70 - Except as expressly provided by the Constitution - Every person who is a member of a civil service of a State or holds any civil post under a State holds office during the pleasure of the Governor of the State - Held - The contention is misconceived because Article 310(1) of the Constitution starts with the expression "except as expressly provided by the Constitution" - Under Article 4 of the Constitution, Parliament has powers to make supplemental provisions while forming a new State comprising territories of an erstwhile State in exercise of its powers under Article 3 of the Constitution - The provisions in Ss. 68, 69 & 70 of the Act are not ultra vires Article 310(1) of the Constitution : K.N. Shukla Vs. Union of India, I.L.R. (2009) M.P. 430 (DB) SYNOPSIS : Article 311
1. Compulsory Retirement 6. Finding of disciplinary authority 2. Contractual service 7. Interference in punishment 3. Departmental proceedings 8. Natural Justice are quite distinct to criminal 9. No work no pay proceedings 10. Reasoned order 4. Discrimination 11. Recovery of excess payment 5. Distinction between 12. Termination simplicitor or suspension of sentence and stigmatic in nature conviction
1. Compulsory Retirement
- Article 311 - Compulsory Retirement - Scope of interference - Petitioner remained absent without leave unauthorisedly and thereafter did not join at his transferred post in spite of receiving instructions - Held - The conduct of petitioner is not becoming that of an employee and that it has resulted in loss of faith, trust and loss of confidence in him - Punishment of compulsory retirement is not harsh or grossly disproportionate - Order does not suffer from any kind of perversity or wednesbury unreasonableness - Petition dismissed : Hari Krishna Verma Vs. The District & Sessions Judge, I.L.R. (2008) M.P. 2231 Constitution of India 217
2. Contractual service
- Article 311(1), Lok Swasthya Evam Parivar Kalyan Chikitsa Samvida Sewa (Niyukti Tatha Sewa Ki Sharten) Niyam, 2002 - Service Law - Petitioner appointed on the post of Medical Officer on contract basis - Termination without notice or enquiry by Chief Medical & Health Officer - Held - Under provisions of Niyam, appointing authority for Medical Officer is Commissioner, Health Services - Termination by CMO, an officer much below the rank of appointing authority, violative of Article 311(1) - Order of termination quashed and petitioner directed to be reinstated with consequential benefits - Petition allowed : Arti Choudhari (Dr.) Vs. State of M.P., I.L.R. (2008) M.P. 3110 3. Departmental proceedings are quite distinct to criminal proceedings
- Article 311 - Departmental Enquiry - Acquittal in criminal case - Appellant was Asstt. Manager in State Bank of India - He was custodian of extension counter - On surprise check Rs. 1 lacs were found short - He was prosecuted u/ss 409 & 477A of I.P.C. - Departmental Enquiry on the allegation that he had failed to protect the Bank's interest as a result of which Bank has been saddled with pecuniary loss of Rs. 1 lacs initiated - Charges were found proved and appellant was dismissed from service - Appellant thereafter acquitted in criminal proceedings - Held - Scope of criminal proceedings and scope of departmental proceedings are quite distinct, exclusive and independent of each other - Both the proceedings were on a totally different sets of facts and charges - Charges have a different character, tenor and contour - No scintilla of doubt that charge sheet is absolutely different - Appeal dismissed : R.K. Geete Vs. Deputy Managing Director and Corporate Development Officer, I.L.R. (2008) M.P. 2771 (DB) 4. Discrimination
- Article 311 - Departmental Enquiry and Discrimination - Allegations against the petitioner are not similar to the other two employees - No case of discrimination made out : Shambhunath Mishra Vs. State of M.P., I.L.R. (2009) M.P. 1335
- Article 311 - Departmental Enquiry and Judicial Review - Merely because certain persons were punished by imposing minor penalty and others have been punished with major penalty then that would not be a ground for judicial review : Shambhunath Mishra Vs. State of M.P., I.L.R. (2009) M.P. 1335 5. Distinction between suspension of sentence and conviction
- Article 311 - Distinction - Suspension of sentence and conviction - Petitioner convicted U/s 13(1)(d) r/w 13(2) of Prevention of Corruption Act - Sentence suspended Constitution of India 218 in appeal - Show Cause Notice issued as to why he should not be dispensed with service - Notice challenged on the ground that sentence is suspended - Held - There is distinction between suspension of sentence and conviction - Order suspending sentence by no stretch of imagination can be said to be an order of stay of conviction - Issuance of Show Cause Notice cannot be flawed - Appeal dismissed : Umashankar Singh Vs. Union of India, I.L.R. (2008) M.P. 1360 (DB) 6. Finding of disciplinary authority
- Article 311 - Departmental Enquiry - Petitioner working as teller in nationalized bank - Charge that Petitioner had withdrawn some amount from the account of dead account holder after forging signatures - Petitioner was dismissed from service by disciplinary authority - Writ Petition allowed by Single Judge holding that report of handwriting expert was not supplied and no evidence on record that it was within knowledge of petitioner that account holder is dead - Held - High Court does not sit as appellate authority over finding of disciplinary authority - Conclusion reached by disciplinary authority could be interfered with only if there is no evidence - Copy of handwriting expert report which was relied upon by disciplinary authority not supplied to delinquent officer - Re-instatement of delinquent officer cannot be directed because matter which ought not to have been considered by Disciplinary Authority was considered - Matter should be remanded to record fresh finding after excluding such material - Order of reinstatement quashed - Matter remitted back to disciplinary authority to record finding afresh excluding report of handwriting expert : The Punjab & Sind Bank Vs. Gurmit Singh, I.L.R. (2007) M.P. 1051(DB)
- Articles 311, 226 - Departmental Enquiry - Appreciation of Evidence - Not permissible for High Court to re-appreciate the evidence and come to a different conclusion - Re-appreciation of evidence is permissible only when evidence does not establish the conclusion arrived at by authorities or the conclusion is such that no prudent person can arrive at the same : Ram Prakash Trademen Vs. State of M.P., I.L.R. (2008) M.P. 1072
- Articles 311, 226 - Departmental Enquiry - No Confidence of Deptt. on delinquent officer - Such submission can be accepted if the enquiry was absolutely correct - The Departmental Authority including Enquiry Officer acted in highhanded or hasty manner - Action taken by department cannot be approved - Appeal dismissed with cost of Rs. 10,000/- : Regional Manager Vs. Ram Prasad Mandal, I.L.R. (2008) M.P. 673 (DB) 7. Interference in punishment
- Articles 311, 226 - Departmental Enquiry - Penalty - Punishment imposed by authorities can be interfered with only if punishment is shown to be so harsh and excessive, Constitution of India 219 it warrants interference as it shocks the conscious of the Court : Ram Prakash Trademen Vs. State of M.P., I.L.R. (2008) M.P. 1072 8. Natural Justice
- Article 311 - Departmental Enquiry - Principles of Natural Justice - Appellant himself chosen not to participate in disciplinary proceeding - It does not lie in his mouth that principles of Natural Justice have been given indecent burial : R.K. Geete Vs. Deputy Managing Director and Corporate Development Officer, I.L.R. (2008) M.P. 2771 (DB)
- Article 311 - See - Service Law : Devilal Tanwar Vs. Registrar General, I.L.R. (2009) M.P. 446
- Article 311 - Departmental Enquiry - Non supply of documents - Order of punishment challenged by the petitioners on the ground that documents relied upon by the Department were not supplied - Held - Petitioners has admitted their guilt before Railway Mail Service Inspector - Nothing was shown before enquiry officer that R.M.S. Inspector had coerced them to sign the said statement - No prejudice was caused due to non supply of document - Enquiry cannot be quashed on that ground : J.P. Shande Vs. The Union of India, I.L.R. (2007) M.P. 750 (DB)
- Articles 311, 14 - Natural Justice - Order passed in violation of - "Useless formality theory" - Petitioner appointed as Principal in Non-Government School although he had no requisite qualification - School taken over by State Govt. - Petitioner absorbed as Principal - Subsequently Order cancelled and was absorbed as Upper Division Teacher - No opportunity of hearing given before cancellation Order - Held - If person lacks basic qualification for the post then observance of principle of natural justice not necessary - Exception termed as "useless formality theory" - Petition dismissed : Rakesh Kumar Sharma Vs. State of M.P., I.L.R. (2008) M.P. 460
- Articles 311, 226 - Departmental Enquiry - Petitioner member of SAF, posted in sensitive area i.e., ATC Tower at Airport Bairagarh - Found in company of a lady in his barrack - Witnesses examined in presence of Petitioner - Petitioner was allowed to cross examine them - Petitioner could not point out any specific irregularity or illegality with regard to manner in which enquiry was conducted - Departmental Enquiry was conducted in accordance with rules after following principles of Natural Justice - Petition dismissed : Ram Prakash Trademen Vs. State of M.P., I.L.R. (2008) M.P. 1072
- Articles 311, 226 - Departmental Enquiry - Adjournment - 10 days time sought by delinquent officer on 15-1-1991 on the ground that his witnesses are busy in local fairs - Enquiry Officer in earlier part of order had directed department to produce Constitution of India 220 documents till 13-2-1991 - Enquiry Officer closed the proceedings on 15-1-1991 itself - Held - Once the enquiry officer himself had directed that documents be filed latest by 13-2-1991 heavens were not to fall if the case was adjourned for 10 days to produce witnesses - Learned Single Judge was justified in interfering with inquiry proceedings : Regional Manager Vs. Ram Prasad Mandal, I.L.R. (2008) M.P. 673 (DB)
- Articles 311, 226 - Departmental Enquiry - Non supply of documents - Enquiry Officer directed Presenting Officer to supply documents demanded from defence side - Documents not supplied - Held - Enquiry Officer did not reject the application of delinquent officer for production of documents on the ground that they are irrelevant - Direction of enquiry officer not challenged by Deptt. - Non supply of documents vitiated enquiry - Matter remanded back with direction to produce the copies of documents : Regional Manager Vs. Ram Prasad Mandal, I.L.R. (2008) M.P. 673 (DB)
- Articles 311, 226 - Departmental Enquiry - Rule of Natural Justice - Once disciplinary authority disagrees with findings recorded by Enquiry Officer it has to issue notice to delinquent officer - It is immaterial that the findings are recorded partly in favour of delinquent officer and partly in favour of department : Regional Manager Vs. Ram Prasad Mandal, I.L.R. (2008) M.P. 673 (DB)
- Articles 311, 226 - Departmental Enquiry - Witness - Stand of Deptt. that witnesses sought to be examined by delinquent officer were irrelevant - Held - Prejudging the issue in enquiry not permissible : Regional Manager Vs. Ram Prasad Mandal, I.L.R. (2008) M.P. 673 (DB) 9. No work no pay
- Article 311 - Back Wages - D.P.C. kept the recommendations of petitioner for promotion in sealed cover as he was facing criminal trial - Later on, petitioner acquitted for want of evidence - Petitioner given notional promotion with seniority as he was found suitable after opening of sealed cover - Back wages not given on the ground of no work no pay - Held - Respondents have not made any exercise to determine whether petitioner in the light of judgment could be said to have been found blameworthy in least or totally unblameworthy - Claim of petitioner could not have been legally declined without assigning any reason - Respondents directed to decide the matter - Petition disposed of : R.P. Upadhyaya Vs. State of M.P., I.L.R. (2008) M.P. 1985 10. Reasoned order
- Articles 311, 226 - Regulations 1976, Clause 17 (2) - Departmental Enquiry - Order of Appellate Authority - Reasons - Appeal dismissed by Appellate Authority without disclosing any reason - Held - Reasons are required to be recorded while Constitution of India 221 passing administrative order except in cases where requirement is dispensed with expressly or by necessary implication : Regional Manager Vs. Ram Prasad Mandal, I.L.R. (2008) M.P. 673 (DB) 11. Recovery of excess payment
- Articles 311 & 16 - Recovery of excess amount paid - Pay of Petitioner wrongly fixed by the respondents without there being any malafide or fraud or misrepresentation on the part of petitioner - Respondents cannot recover the amount already paid to Petitioner - Petition partly allowed : Shyam Paranjape Vs. State of M.P., I.L.R. (2008) M.P. 441 12. Termination simplicitor or stigmatic in nature
- Article 311 - Termination simplicitor - Court has to see that whether allegations made against employee was motive for passing order of termination or it was the foundation for the order terminating him : Vijay Singh Yadav Vs. State of M.P., I.L.R. (2010) M.P. 1275
- Article 311 - Termination simplicitor - Stigma - Services of the petitioner were terminated as no longer required - Respondents in the return stated that petitioner had committed serious irregularities and violated conditions of appointment and also criminal case has been registered - Held - Termination order does not contain any reason - Order is not based upon any findings arrived at by respondents in any ex parte enquiry but is based upon allegations of irregularities and violation of conditions of appointment as well as registration of offence - Such allegations are only motive for passing the order - By lifting the veil, it cannot be held that the order of termination was stigmatic in nature : Vijay Singh Yadav Vs. State of M.P., I.L.R. (2010) M.P. 1275
● - Article 326 - Right to contest election - Contesting an election is statutory right, though it is fundamental contour of democracy : Jaswant Singh Vs. Chief Election Commission, New Delhi, I.L.R. (2009) M.P. 946 (DB)
- Articles 327 & 329 - See - Delimitation Act, 2002, Sections 9 & 10(1) : Association of the Resident of Mhow Vs. Delimitation Commission of India, I.L.R. (2008) M.P. 2809 (DB)
- Articles 329(b) & 226, Election Symbols (Reservation and Allotment) Order, 1968, Order 13 - Bar to interference by Court in electoral matter - Petitioner candidate for election of State Legislative Assembly - Failed to file declaration in Form A & B of Recognized National Political Party, till last date of filing nomination - Nomination form rejected by Returning Officer - Writ Petition - Held - Filing of nomination form, its Constitution of India 222 scrutiny and acceptance or rejection is part of process which is to be gone through to return a candidate, hence, covered within meaning of election - Order rejecting nomination paper is to be challenged in election petition - Writ can not be entertained - Petition dismissed : Jaswant Singh Vs. Chief Election Commission, I.L.R. (2009) M.P. 717
- Articles 341, 342 - Cancellation of Caste Certificate - High Power Committee cancelled caste certificate as petitioner does not belong to Halba/Halbi but Kosti community which is a backward Class - Petitioner claimed protection under Milind's Case - Held - Apex Court had extended benefit only to the Doctors who had already carried out their studies and had also obtained degree - Petitioner cannot be given protection by directing employer for not taking any action against petitioner as employment was obtained by submitting a false certificate - Petition dismissed : Domudas Dhakate Vs. State of M.P., I.L.R. (2008) M.P. 1448
- Articles 343 & 344, Official Languages Act, 1963, Section 3(4) - Circular dated 4th August, 2006 of the respondent Bank in so far as it insists on 35% pass marks in English to qualify for promotion in the case of persons like the petitioner who are proficient in Hindi, is not ultra vires : Raghvendra Prasad Gautam Vs. Union Bank of India, I.L.R. (2010) M.P. 2275 (FB)
- Estoppel - Petitioner participated in selection process after understanding the Rules - As he could not secure employment, he cannot be allowed to challenge the constitutional validity of Rules : Shailesh Kumar Sahu Vs. State of M.P., I.L.R. (2008) M.P. 1138 (DB)
- (Scheduled Caste) Order, 1950, Clause 2 & Entry 22, Representation of People Act, 1950, Section 20 - Caste certificate - Dhobi belonging to Bhopal, Raisen and Sehore District of Madhya Pradesh are Scheduled Caste as per Entry 22 of Constitution (Scheduled Caste) Order, 1950 - Petitioner born in Sehore alleging herself to be Dhobi and sought for caste certificate - Held - When the presidential Order, 1950 came into existence, the petitioner's father was not an ordinary resident of Sehore and was residing at Betul - Petitioner born after the presidential notification, therefore, ineligible for being considered as belonging to Scheduled Caste - No fault in rejection of application for caste certificate - Petition dismissed : Rashmi Khedle (Ku.) Vs. State of M.P., I.L.R. (2009) M.P. 2563
- Seventh Schedule, Union List, Entry 89 and State List, Entry 56 - Entry 89 of Union List provides for terminal tax on goods or passengers carried by railway, sea or air - It does not contemplate any terminal tax on goods or passengers carried by road or on inland water - Entry 89 of Union List and Entry 56 of State List operates in different fields : Northern Coal Fields Ltd. Vs. State of M.P., I.L.R. (2010) M.P. 1304 (DB) Contempt of Courts Act (70 of 1971) 223
Constitutional validity
- What is - Function of Court is to examine whether law made by State Legislature violates any provisions of Constitution - Court not to substitute its own wisdom in law making with that of State : Center for Environment Protection Research & Development, Indore Vs. State of M.P., I.L.R. (2007) M.P. 475 (DB) Consumer Protection Act (68 of 1986)
- Sections 2(1)(e) & 21(b) - A revision is maintainable against an appellate order passed by the State Commission before the National Commission u/s 21(b) of the Act : Rajendra Singh Sisodiya Vs. M.P. Housing Board, Indore, I.L.R. (2009) M.P. 2552 (DB)
- Section 12, Arbitration and Conciliation Act, 1996, Section 11(5) - Insurance policy - Whether after availing remedy under Consumer Protection Act and having award in her favour respondent can have recourse to proceed under arbitration - Held - State Consumer Grievances Redressal Commission itself has given liberty to respondent to approach for arbitration - Apart from this, writ petition challenging order of appointment of arbitrator was withdrawn by appellant - Therefore, appellant can not be allowed to raise objection about arbitration proceedings - However, since appellant was ex parte before arbitrator - Award set-aside on payment of cost - Appeal allowed : Oriental Insurance Co. Ltd. Vs. Anjali Gupta (Ku.), I.L.R. (2008) M.P. 2075
- Section 16(1)(b)(iii) - Composition of State Commission - Eligibility Criteria - Public Affairs or Administration - Respondent No.4 had worked for 14 years as an executive in Informatics Computer System - Term 'administration' is of wide expanse and indubitably includes administration of an institution or organization which basically relates to supervision of management or performance of executive duties of institution, business or the like : Akhil Bhartiya Upbhokta Congress, Bhopal Vs. State of M.P., I.L.R. (2009) M.P. 2233 (DB) Contempt of Courts Act (70 of 1971)
- Sections 10 & 12, Criminal Procedure Code, 1973, Section 340 - Pleadings - False affidavit - When somebody swears on affidavit on the basis of official record then not only he has to go through the records and understand the contents of the record but he also has to understand the meaning of what he is writing in the pleading and affidavit - He is also required to understand that what would be the consequences of his wrong reporting or wrong filing of an affidavit - To obtain a favourable order in favour of the State Government and the other persons, the officer-in-charge raised concocted and false pleadings and had also sworn a false affidavit - This action on the part of the Contempt of Courts Act (70 of 1971) 224 officer-in-charge is punishable under the provisions of the Act and is also punishable under the common law : Anita Karope (Smt.) Vs. Smt. Geeta Uikey, I.L.R. (2009) M.P. 31 (DB)
- Section 12 - See - Constitution, Article 215 : Vivek Valenkar Vs. Arvind Joshi, I.L.R. (2010) M.P. 636 (DB)
- Section 12, Constitution, Article 215 - Maintainability of Contempt Petition for execution of a decree passed by competent civil Court - Held - Not maintainable - When the Code of Civil Procedure provides for instituting a proceeding for execution of the judgment & decree, then a contempt application under Article 215 of Constitution r/w S. 12 of Act is not maintainable as the statute provides for a mechanism for execution of the decree passed : Horilal Vs. Bhajanlal, I.L.R. (2009) M.P. 3061
- Section 12 - Contempt Jurisdiction must be exercised with scrupulous care only when a clear case beyond reasonable doubt is prima facie made out - Contempt Petition filed on the ground that non-applicants have willfully disobeyed order of the Court, in not deciding the representation - Held - The later part of the order completely wipes out directions, so deciding the representation would be a futile exercise - No Prima facie case made out - Application dismissed : Jyoti Simlot Vs. M.M. Uppadhyaya, I.L.R. (2008) M.P. 249
- Sections 12,19 - Contempt of Court - Municipal Corporation initiating process of regularization of daily wages workers - Municipal Corporation making appointment on daily wages without following rules framed by State of Madhya Pradesh - Industrial disputes arising and awards passed by different Labour Courts - During pendency of the writ petition, Municipal Corporation making a policy decision to regularize the services of employees who had been working from before 31.12.83 - Contempt petition filed before High Court- High Court directing fresh preparation of gradation list in view of the alleged manipulation in implementing scheme - High Court order challenged by Municipal Corporation before the Apex Court on the ground that the same is contrary to Govt. circular dated 12.4.2005 - Government Circular issued on the basis of Apex Court Judgment according to which appointments made on daily wages cannot be deemed to be appointment against civil posts and that regular appointment could be made after following the procedure on record as per the relevant recruitment rules - Such appointment on daily wages could not be regularized since the relevant recruitment rules not followed - Held, Corporation bound by the circular of State Government and, therefore it cannot be said to have committed Contempt of Court : Municipal Corporation, Jabalpur Vs. Om Prakash Dubey, I.L.R. (2007) M.P. 157 (SC)
- Section 13(1) - Appealable order - Appeal shall lie against any order passed in Contempt Proceedings : Municipal Corporation, Jabalpur Vs. Om Prakash Dubey, I.L.R. (2007) M.P. 157 (SC) Contract Act (9 of 1872) 225
- Section 15 (2) - Reference of criminal contempt - Special judge and Additional Sessions Judge presiding over sessions trial - Trial Court convicted the accused for the offences - Accused after hearing sentence hurled the sandals which he was wearing towards the Judge which fell on dias - Reference made by Trial Court under Section 15 (2) of Contempt of Courts Act - Held - Accused admitted his guilt and tendered unconditional apology - Conduct of contemner appears to be a case of wilful contempt - Abusing judge and throwing sandals towards him is clearly a serious kind of criminal contempt - Unconditional apology tendered by contemner is not acceptable - It is duty of every citizen to maintain dignity and respect of the Courts - Contemner guilty of committing criminal contempt of the Court of Special Judge - Setnenced to simple imprisonment for three months and fine of Rs.1000/- in default one month's simple imprisonment : In The Matter of Reference of Contempt Against Jagmohan Parashar, I.L.R. (2007) M.P. 608 (DB)
- Section 15(3) - Criminal Contempt - Contemnor, S.H.O. Police Station came in Court and dragged away three persons who were waiting for the delivery of judgment in their criminal case, took them in custody and thereafter registered a false case against them - Matter referred by lower Court to High Court - Held - Contemnor has unable to satisfy why without permission of the Court he dragged away three persons from the Court - He did not care for the personal liberty of these persons, violated the human right and registered a false case against them - He committed contempt of lawful authority of the Court and had also created false reports and false documents to cover up his illegalities - High Court found him guilty: In Reference Vs. Kailash Nahta, I.L.R. (2009) M.P. 1342 (DB)
- Section 15(3) - Criminal Contempt - Sentence - Contemnor tendering unconditional apology and seeking mercy - Held - Present is not a case where after committing the wrong, the wrong doer had come to the Court seeking mercy of the Court but present is a case where after committing misconduct and misdeed, the contemnor to cover his misconduct, has created false documents, registered a false case and took the innocent persons in the custody - Act is not pardonable - 3 months sentence awarded : In Reference Vs. Kailash Nahta, I.L.R. (2009) M.P. 1342 (DB)
- Section 19 - Appeal - Court passed certain directions in exercise of its contempt jurisdiction - Held - Not only punishment awarded to alleged contemnors can be challenged but even correctness, validity and propriety of directions can also be challenged : Sulochana Mallaiya (Smt.) Vs. S.N. Shrivastava, I.L.R. (2008) M.P. 2205 (DB) Contract Act (9 of 1872)
- Section 8 - Concluded Contract - By conduct - Instance of - Defendant submitted tender for supply of 3 ACW pumps - Offer of defendant accepted by Plaintiff - Letter Contract Act (9 of 1872) 226 of Intent was issued however, it was mentioned that detailed order indicating price break up and detailed terms and conditions are being mailed to defendant separately - Held - Acceptance of tender did not constitute concluded contract between parties as detailed terms and conditions price break up was yet to be disclosed by plaintiff : M.P. Power Generating Company Ltd., Jabalpur Vs. Flow More Private Ltd., I.L.R. (2008) M.P. 810 (DB)
- Section 8 - Concluded Contract - No acceptance of detailed offer sent by Plaintiff to the defendant - On the contrary defendant had insisted for certain modifications - Plaintiff failed to communicate acceptance and at no point of time indicated that whether it was ready to accept defendants conditions or not - Plaintiff only insisted on execution of performance bond and agreement - At no point of time it was understood by parties that contract was to be carried out without execution of aforesaid documents - Parties were only negotiating and did not reach consensus ad idem necessary for enforceable contract - In absence of concluded contract plaintiff not entitled for extra costs of Rs. 19,35,410 which was incurred by getting the work done by some other agency - Appeal dismissed: M.P. Power Generating Company Ltd., Jabalpur Vs. Flow More Private Ltd., I.L.R. (2008) M.P. 810 (DB)
- Section 23 - See - Vinirdishta Bhrashta Acharan Nivaran Adhiniyam, M.P. 1982 [Entire chapter VIII from Sections 24 to 32 omitted w.e.f. 31.08.1998], Section 31 : Rameshwarlal Vs. Dattatraya, I.L.R. (2010) M.P. 970
- Section 23, Civil Procedure Code, 1908, Section 20 (3), Order VII Rule 11 - Exclusion of jurisdiction of Court - Respondent submitting tender for supply of goods - Clause 9 of tender containing the term All disputes shall be subject to Satna Court - Dispute arose in respect of supply of goods - Civil Suit filed at Jabalpur - Jurisdiction of Court at Jabalpur challenged - Held - Part of cause of action also arose within territorial jurisdiction of Court at Jabalpur - No clause excluding jurisdiction of Court at Jabalpur and vesting exclusive jurisdiction to Satna Court - Plaintiff had not agreed to give exclusive jurisdiction to Civil Court at Satna - Plaintiff entitled to field suit in Court at Jabalpur - Revision dismissed : Registrar, Mahatma Gandhi, Chitrakoot, Gramodaya Vishwavidyalaya, Chitrakoot, Distt. Satna Vs. M.C. Modi & Company, I.L.R. (2007) M.P. 1815
- Sections 148, 160 & 170 - See - Civil Procedure Code, 1908, Order 39 Rules 1 & 2 : F.F. (I) L.C. 16/3, T.T.M.I.D.C. Area, Navi Mumbai Vs. M/s Supreme Engineers, Alwar, I.L.R. (2010) M.P. 1165
- Section 171 - General lien - Demand loan given against fixed deposits - Bank has a lien on the fixed deposits: State Bank of India Vs. Mukesh Rawat, I.L.R. (2007) M.P. 80 Co-operative Societies Act, M.P., 1960 (17 of 1961) 227
- Section 188 - Extent of Agent's authority - Writ Petition filed by holder of power of attorney in his own name - Petitioner was not entitled to file petition in his name in absence of specific authority that he can file petition in his own name - Petitioner may be entitled to file petition but in the name of Principal showing the petitioner as his agent : Nand Kishore Choudaha Vs. Union of India, I.L.R. (2007) M.P. 1216 Co-operative Societies Act, M.P., 1960 (17 of 1961)
- Section 3(2), 55(2) - Whether Deputy Registrar can decide the dispute - Held - Section 55(2) of Act, 1960 is specific provision - Legislature has authorized Registrar to appoint any officer not below the rank of Asstt. Registrar to decide the dispute - Section 55(2) has to be read independently of Section 3(2) of Act, 1960 - State Govt. by a Special or General order cannot override express specific provision made by State Legislature in Section 55(2) of the Act - Order of Tribunal set aside and matter remanded back for decision on merits: Ramanuj Tiwari Vs. M.P. State Co Operative Tribunal, I.L.R. (2008) M.P. 216 (DB)
- Section 8, M.P. Cooperative Societies Rules, 1962, Rules 14, 23 - Power of Registrar to decide certain questions and Admission of Members - Appellant wanted to become member of a Co-operative Society - He was not given the membership form - Consequently his name was not included in the voter list - Appellant filed writ petition challenging the voters list, election/election process as he comes under clause any person - Held - If appellant was aggrieved by non supply of membership form, then he should have approached Registrar under Section 8 of Act - Word any person cannot be interpreted in wild expression - Any Person means who is entitled to be included in the list of members on the date when the list is prepared - Person who does not apply under Rule 14 to become member cannot be allowed to challenge the elections of the Society - Any Person would not mean any person who has no interest in Society but would mean a person who is a member of the said Society - Appeal dismissed : Santosh Vs. State, I.L.R. (2007) M.P. 1562 (DB)
- Sections 41-A(5), 64, 82, M. P. Cooperative Societies Rules, Rule 66(2)(h), M.P. Land Revenue Code, 1961, Section 165 - Bar of jurisdiction of Court - Auction of land by Bank for recovery of loan amount challenged being void under Rule 66 (2)(h) of Rules - Land could not have been auctioned as plaintiff is member of aboriginal tribe - Application under Order VII Rule 11 C.P.C. for dismissal of suit as barred filed by applicant - Suit dismissed by Trial Court as not maintainable, however, it was remanded back by Appellate Court holding that it involves disputed question of facts - Held - Facts averred in plaint were disputed - If plaint averments are accepted as true, suit could not have been dismissed on preliminary ground - As preliminary issue requires evidence to be recorded it cannot be said that suit was not maintainable - Appeal Dismissed : Narayan Singh Vs. Surat Singh, I.L.R. (2007) M.P. 1775 Co-operative Societies Act, M.P., 1960 (17 of 1961) 228
- Sections 48, 48 (C) - Exercise of delegated powers - Power of Committee or the Board of Directors to revoke the license of societies and to hand over the responsibility to the M.P. Electricity Board - The Committee exercises delegated powers and such powers subject to the final authority of the general body of the society - Committee should always respect the wishes of the general body rather to act in detriment to it - Recommendation of the Committee is not according to Section 48 : Chandra Vallabh Vs. State of M.P., I.L.R. (2007) M.P. 254
- Section 49(8) - Authority of Committee headed by Chief Minister to make resolution regarding handing over the work of Society to Madhya Pradesh Electricity Board due to failure to hold elections - As per Section 49(8), in case of failure to hold elections, the Registrar is empowered to assume charge of Committee and hold election as early as possible - No power vests in the Committee to make resolution regarding handing over the work of Society to the Board : Chandra Vallabh Vs. State of M.P., I.L.R. (2007) M.P. 254
- Section 49-E - Appointment of Managing Director - Respondent No.4 is not a class-I officer - Not eligible for appointment as Managing Director - Appointment de hors statutory provision - Appointment quashed : Ramesh Sahu Vs. State of M.P., I.L.R. (2009) M.P. 2534
- Section 55 & 64, Staff Service Rules, 61 & 62, State Cooperative Tribunal Regulations, 2000, Regulation 31, Civil Procedure Code, 1908, Order 6 Rule 17 & Order 41 Rule 33 - Termination - Amendment of Written Statement - Petitioners employees of Cooperative Bank registered under the Act, 1960, terminated from service - Joint Registrar setting aside the order of termination on the ground of non-observance of principles of natural justice - Both petitioners and respondents filed appeal before the Cooperative Tribunal and the appeal by respondents withdrawn - Respondent carrying out extensive amendment in the written statement at the stage of appeal before the Cooperative Tribunal - Cooperative Tribunal allowed the amendment, hence the writ petition by the petitioners for setting-aside the order allowing the amendment - Held - The object of allowing an application for amendment is to minimize the litigation and as the Joint Registrar had given liberty to the respondents to pass appropriate orders in accordance with the regulations, no prejudice would be caused to the petitioners if the amendment is allowed as the petitioners again would have challenged their termination which may ultimately result into the fresh litigation - Petition dismissed : Sushil Kumar Kanungo Vs. M.P. Rajya Sahkari Bank Maryadit, I.L.R. (2008) M.P. 2238
- Sections 55(1), 95(3), Bank Karmachari Sewa (Niyojan, Nibandhan Tatha Unki Karya Stithi) Niyam, 1982, Rule 72(1) - Reduction in age of superannuation - Age of superannuation reduced from 60 to 58 by amendment made by Registrar in Niyam, 1982 - Constitutional validity of amendment challenged on the ground that rule has not Co-operative Societies Act, M.P., 1960 (17 of 1961) 229 been laid before table of Legislative Assembly as required U/s 95(3) - Held - Section 95(3) relates to rules framed by State Govt. - It has no applicability to an order by which service conditions in Co-operative Society are framed by Registrar U/s 55(1) - Petition dismissed : Ganesh Dutt Pandey Vs. State of M.P., I.L.R. (2008) M.P. 457 (DB)
- Section 58-B (As amended w.e.f. 05.05.2005) - Petitioner retired on 31.08.06 from the post of Supervisor from Zila Sahkari Kendriya Bank, Tikamgarh - Number of employees including the petitioner found responsible for indulging in misconduct of defalcation - At the instance of Bank RRC issued by Collector against the petitioner - Petitioner has challenged RRC in W.P. - Held - No opportunity of hearing given prior to issuance of RRC as per the provisions of first proviso of Section 58-B - Bank was not entitled to make a request to the Collector for issuance of RRC - Such order shall be passed by the Registrar - RRC issued by the Collector at the request of Bank was without jurisdiction : Harcharan Rajpali Vs. The Collector, Tikamgarh, I.L.R. (2008) M.P. 1702
- Section 64 - Dispute - Alternative Remedy - Election in respect of District Co- operative Krishi Evam Gramin Vikas Bank Shivpuri challenged on the ground that percentage of reservation of delegates is determined to the extent of 90% - Held - Reservation of membership in the election process should not exceed more than 50% - When glaring infirmities are found in the matter of fixation of reservation over and above, the proportionate reservation, writ petition may not be dismissed on the ground of alternative remedy: Kalyan Singh Vs. State of M.P., I.L.R. (2008) M.P. 1406
- Section 64, Constitution of India, Article 226/227 - Election Dispute - Petitioner challenged elections of Co-operative Society on the ground that voter-list was not prepared as per provisions of Rule 23 - Held - Dispute relating to voter-list being a dispute arising in connection with election can be referred to Registrar - Merely because voter-list prepared by returning officer is final will not be a bar to entertain such dispute - Petitioner can file dispute - Petition dismissed : Rajendra Singh Vs. State of M.P. , I.L.R. (2007) M.P. 874 (DB)
- Sections 64 & 82 - Bar of jurisdiction of Courts - Civil suit filed for restraining the Bank from recovering loan amount - Held - Bank was a registered cooperative society - There is a clear bar u/s 82 of the Act - Civil suit not maintainable : Adim Jati Seva Sahakari Samiti Maryadit Vs. Kodar, I.L.R. (2009) M.P. 2922
- Sections 64 & 82 - Lack of jurisdiction - Decree of civil Court for restraining the cooperative bank from recovering loan amount - There is inherent lack of jurisdiction of civil Court - Question of jurisdiction can be raised at any time and at any stage even in collateral proceedings : Adim Jati Seva Sahakari Samiti Maryadit Vs. Kodar, I.L.R. (2009) M.P. 2922 Cooperative Societies Rules, M.P. 1962 230
- Section 69(3), Cooperative Societies Rules, M.P. 1962, Rule 75 - Winding up of Society - Natural Justice - An order of winding up of a Society is penal in nature having civil consequences - Before taking such an action, principles of natural justice ought to have been followed - Rule 75 provides a specific procedure for service of summons which ought to have been followed - Service of notice on the Society not in accordance with the procedure - Serious prejudice has been caused to the Society who has suffered an order of winding up : Jansahyog Grih Nirman Sahkari Sanstha Maryadit Vs. Deputy Registrar, I.L.R. (2010) M.P. 912 (DB)
- Section 77 - Appointment of members - Qualification of Chairman has been laid down in Section 77(3) (a) and that of members in Section 77(3)(b) - Discretion with Govt. if it thinks fit that Tribunal may constitute of single person - Person embraces within it chairman as also the members - Not imperative for Govt. to appoint one or two members - Statutory provision makes it discretionary for Govt. to appoint members or to permit Tribunal to be manned by single person - Chairman already appointed - No writ can be issued for directing State Govt. to appoint the member : Garvesh Vs. State of M.P., I.L.R. (2007) M.P. 206 (DB)
- Section 77 (3)(a) - Qualification for appointment as Chairman - Respondent no.2 has worked for more than 5 years as A.D.J. and District Judge - He is qualified to be appointed as Chairman : N.K. Saxena Vs. State of M.P., I.L.R. (2008) M.P. 1144 (DB)
- Section 84-A - Registrar is competent authority to make request to the Collector for recovery of amount as arrears of land revenue and not the Society - Neither certificate was issued by Registrar nor Registrar had determined or ascertained the amount as recoverable as an arrears of land revenue - Issuance of RRC by the Collector was without jurisdiction : Harcharan Rajpali Vs. The Collector, Tikamgarh, I.L.R. (2008) M.P. 1702 Cooperative Societies Rules, M.P. 1962
- Rule 41(2) - Procedure for election of members of the Committee - Maintainability of the writ petition against an election dispute - Held - Generally in an election dispute writ petition under Article 226 of the Constitution is not maintainable - However, the right to contest an election and holding free and fair election is a valuable right in a democratic society and if that civil right has been denied to a person or if the whole election procedure is only an eye-wash, in those circumstances, the Court cannot lay down its hand on the ground of availability of alternative remedy : Ghanshyam Tiwari Vs. State of M.P., I.L.R. (2010) M.P. 1517 (DB) Court Fees Act (7 of 1870) 231
- Rule 75 - Service of notice by affixure - How affected - Dy. Registrar, after recording due satisfaction that the modes enumerated in clauses (a), (b) & (c) of sub- rule (3) were not available and only mode was available by affixure of service - Then on specific order, service of notice by affixure can be affected : Jansahyog Grih Nirman Sahkari Sanstha Maryadit Vs. Deputy Registrar, I.L.R. (2010) M.P. 912 (DB)
- Rule 75 - Valid service of notice - Process server affixed the notice on the office of the Society despite no order in that regard - Held - Process server was not authorized to decide to serve the notice by affixure - Before affixure of the notice, he ought to have obtained an order from the Dy. Registrar - Not valid service of notice : Jansahyog Grih Nirman Sahkari Sanstha Maryadit Vs. Deputy Registrar, I.L.R. (2010) M.P. 912 (DB) Country Spirit Rules, M.P. 1995
- Rule 9 - See - Foreign Liquor Rules, M.P. 1996, Rule 8(1)(a) : Chingalal Yadav Vs. State of M.P., I.L.R. (2010) M.P. 788 (FB) Court Fees Act (7 of 1870) Ad valorem Court-Fees
- Section 7(iv)(c) - Payment of ad valorem court fees - Sale deed executed by father binding on the son - Held - Ad valorem court fees on the valuation of the sale deed is required to be paid - Even if the relief is couched in declaratory form, the relief of avoidance and/or cancellation is implicit in the declaratory relief contained in plaint : Israt Jahan (Smt.) Vs. Rajia Begum, I.L.R. (2009) M.P. 3107 (DB)
- Section 7(iv)(c) - Suit for declaring sale deed as void - Plaintiffs are parties to the documents - Held - Consequential relief of cancelling sale deed is necessary - Plaintiffs are required to pay ad valorem court fees - Appeal dismissed : Shyamacharan Paul Vs. M/s. Roopali Promoters & Construction, I.L.R. (2009) M.P. 1595 (DB)
- Section 7 (iv) (c) - Suit for declaring sale void alongwith prayer of possession - No misrepresentation as to character or contents of sale deed - Plaintiff required to pay ad-valorem court fees : Shadab Grih Nirman Vs. Parita Grih Nirman Sahkari Samiti Maryadit, I.L.R. (2006) M.P. 1149
- Schedule I, Section 7(iv)(a) - Suit filed by plaintiff for declaring the order dated 10.08.2006 as illegal by which security amount of Rs.44,75,000/- has been forfeited - Trial court directed to pay ad valorem court fee on consequential relief - Held - Security Court Fees (Madhya Pradesh Amendment) Act (6 of 2008) 232 amount is in possession of defendants and has to be prayed for by plaintiff for its refund - Suit for declaration will not be enough until amount is refunded to plaintiff - Plaintiff has to pay ad valorem court fee as prescribed in Schedule I - Petition dismissed : Bansal Highway (M/s.) Vs. General Manager, Gramin Sadak Vikas Pradhikaran Pariyojna Kriyanvayan, I.L.R. (2008) M.P. 2912 No Ad valorem Court-Fees
- Section. 7 (iv) C and Art. 17 Schedule II - If plaintiff makes an allegation that the instrument is void and hence not binding upon him, then ad valorem court- fee is not payable and he can claim declaration simplicitor for which court-fee under Article 17(iii)of Schedule-II would be sufficient : Sunil Radhelia Vs. Awadh Narayan, I.L.R. (2010) M.P. 2454 (FB)
- Schedule II, Article 17 - Ad valorem court fee - Void & voidable transaction - Sale deed obtained by playing fraud - Document is void not voidable - Held - In case of a void document it is not necessary to seek the relief of cancellation of document - Ad valorem court fees is not payable : Manzoor Ahmad Vs. Jaggi Bai, I.L.R. (2009) M.P. 3111 (DB) No Court fees separately
- Section 7 (XI) - Eviction Suit - Also on ground of illegal possession an adjacent land - No need to pay Court fees separately : Pandharinath Vs. Smt. Rukminibai, I.L.R. (2006) M.P. 73 Court fees payable on PIL when filed as writ petition
- Section 35 - See - Constitution, Articles 216, 225, 226 : S.P. Anand Vs. The Registrar General, M.P. High Court, Jabalpur, I.L.R. (2008) M.P. 2172 (FB)
- Refund of Court fee - Suit held to be not maintainable - Defendant/appellant entitled for refund of Court Fee : Bhatinda Chemicals Ltd. Vs. Mahesh & Company, I.L.R. (2007) M.P. 126 Court Fees (Madhya Pradesh Amendment) Act (6 of 2008)
- Schedule I, Article 1-A, [As amended by M.P. Amendment Act of 2008 w.e.f. 02.04.2008] - Interpretation - Court fees payable on plaint, counterclaim etc. when amount or value exceeds Rs.10 lacs - Trial courts have interpreted the clause to mean that the plaintiffs/suitors were required to pay not only Rs.95,000 on such suit but a further amount to a maximum of Rs.1,50,000 over and above Rs.95,000 - Held - The Criminal Procedure Code, 1973 (2 of 1974) 233 subject matter in dispute exceeds Rs.10 lacs, the court fees payable thereupon by the plaintiffs/suitors would be Rs.95,000 + 3% on the amount or value in excess of Rs.10 lacs, but the total court fees payable by the plaintiffs/suitors would be subject to a maximum of Rs.1,50,000 - The maximum court fees required to be paid on all such suits would be Rs.1,50,000 only and no more : Mohan Lal Vs. Kaji Vakiluddin, I.L.R. (2008) M.P. 3152
- Schedule I Article 1-A, [As amended by M.P. Amendment Act of 2008 w.e.f. 02.04.2008] - Prospective in nature - Amendment Act is prospective in nature - Reference u/s 18 of Land Acquisition Act made on 05.01.2007 - Appellant liable to make payment of ad valorem court fee on appeal as was applicable on 05.01.2007 - Cannot take advantage of amendment which provided maximum court fee - Appellant directed to pay deficit court fee : Fatehchand Vs. Land Acquisition & Rehabilitation Officer, I.L.R. (2009) M.P. 2073 (DB) Criminal Law Amendment Ordinance, 1944
- Sections 3, 4 - Attachment of Property - District Judge - Special Judge has passed ad-interim order U/s 4 of Ordinance for attaching the property - No charge sheet was filed before Special Judge - Held - Special Judge is empowered with the powers of District Judge under the Ordinance of 1944 only when the said Court is trying the offence punishable under Prevention of Corruption Act - No charge sheet was filed when impugned order of attachment was passed - Order passed by Special Judge without jurisdiction - Appeal allowed : V.K. Brahamankar Vs. Special Police Establishment, I.L.R. (2008) M.P. 1511 Criminal Practice
- Burden on defence - Burden on defence is not as onerous as on the prosecution to prove its case - Merely giving suggestion to witnesses and examining the defence witnesses - Version of defence would not be accepted unless it is substantiated & corroborated by material particulars : Arshad @ Arsad Vs. State of M.P., I.L.R. (2008) M.P. 3278
- Duty of applicant - It is not possible to entertain any bail application unless full particulars of person who has given instructions, and the fact pertaining to earlier attempts and pendency of application, if any, are placed on record : Chandu Singh Vs. State of M.P., I.L.R. (2009) M.P. Note *1 Criminal Procedure Code, 1973 (2 of 1974)
- First Schedule, Appendix "A" r/w S. 2(a) - See - Essential Commodities Act, 1955, Sections 7(1)(a)(ii) & 10-A, : Hariom Vs. State of M.P., I.L.R. (2010) M.P. 764 Criminal Procedure Code, 1973 (2 of 1974) 234
- First Schedule, Code of Criminal Procedure (Amendment) Act, 2005 (25 of 2005), Section 42(f)(iii), Penal Code, 1860, Section 324 - Bailable - Section 324 of IPC continues to be bailable as provisions of Section 42(f)(iii) of Code of Criminal Procedure (Amendment) Act, 2005 has not been brought into effect : Raju @ Raj Kishore Yadav Vs. State of M.P., I.L.R. (2009) M.P. Note *9
- Section 2(d) - Complaint as defined u/s 2(d) of the Code does not include a police report : Gautam Kalloo (Dr.) Vs. State of M.P., I.L.R. (2010) M.P. 536
- Sections 2(d) & 195 - See - Penal Code, 1860, Sections 177 & 181: Meena Rathore (Smt.) Vs. CBI, ACB, Bhopal, I.L.R. (2010) M.P. Note *30
- Sections 4, 5 & 190 - See - Chartered Accountants Act, 1949, Sections 2(d), 24, 24A, 26 & 28 : Institute of Chartered Accountants of India Vs. Vimal Kumar Surana, I.L.R. (2009) M.P. 1477
- Sections 6 & 20 - See - Narcotics Drugs and Psychotropic Substances Act, 1985, Section 52-A : Nirmal Vs. State of M.P., I.L.R. (2009) M.P. 848
- Section 24, Legal Remembrance Manual, Rule 18 - Extension of terms of Government Pleaders and Additional Government Pleaders - Extension granted on the basis of recommendation by District Magistrate having approved by District & Sessions Judge - Held - S. 24 of the Code does not speak about extension or renewal of terms of person so appointed - Same procedure, as provided u/s 24(4) has to be followed for extension - No panel of names prepared by District Magistrate - No effective consultation between District Magistrate and Sessions Judge - Provisions not complied - Appointment quashed - Petition allowed : Anita Khare (Smt.) Vs. State of M.P., I.L.R. (2010) M.P. Note *57
- Sections 24, 378(1) & 378(3) - State of Maharashtra filed an appeal against acquittal passed by Sessions Judge, and application seeking permission/leave to file the appeal was also filed by Special Public Prosecutor of State of Maharashtra - Maintainability of appeal was challenged by non-applicants on the ground that there was no valid appointment of Public Prosecutor - Held - It is only the State of M.P., who can appoint and direct Public Prosecutor or a Special Public Prosecutor to file the appeal u/s 378(1) of the Code against the impugned judgment of acquittal passed by the Sessions Judge, Chhindwara - The appeal/application for grant of leave to appeal filed by the State of Maharashtra is therefore not maintainable : State of Maharashtra Vs. Nandlal Dewani, I.L.R. (2010) M.P. Note *71(DB)
- Sections 29, 397, 401 and Penal Code, Indian, 1860, Sections 34,325 - Conviction and Sentence - Appellate or Revisional Court cannot pass sentence beyond original Court's jurisdiction : Raghuraj Singh Vs. State of M. P., I.L.R. (2006) M.P. 896 Criminal Procedure Code, 1973 (2 of 1974) 235
- Section 31 and Penal Code, Indian, 1860, Sections 302, 201, 304, 365 and 120-B - Appellant accused for kidnapping for ransom and later on killing two boys aged 10 to 12 years old - Charge of murder not proved before the trial Court but accused convicted under Sections 364, 365 and Section 120-B, 201 IPC and punished with various sentences totaling 20 years cumulatively - Appeal before High Court dismissed - Appeal before Apex Court - As per Section 31 Cr.P.C., cumulatively the sentences cannot exceed 14 years. - Lower Court and High Court erred in sentencing the accused cumulatively with 20 years - Accused having already spent 12 years in jail, interest of justice would be served if he is sentenced to the period already undergone : Chatar Singh Vs. State of M.P., I.L.R. (2007) M.P. 19 (SC)
- Sections 41(2), 102, 451, 457, Income Tax Act, 1961, Sections 132(A), 293 - Seizure - Rs.14,50,000/-seized on the suspicion of theft but no crime registered - Warrant of authorization issued u/s 132(A) of the Act - Application u/ss 451 & 457 of the Code rejected by JFMC, but allowed by ASJ in revision - Order challenged before the High Court - Held - After issuance of warrant of authorisation by the Income Tax Department, in absence of any crime having been registered - The magistrate or the police has no jurisdiction to deal with the money and the money has to handed over to the Income Tax Department for its disposal in accordance with Law - M.Cr.C. Allowed : Director of Income Tax (Investigation) Vs. State of M.P., I.L.R. (2008) M.P. 2483
- Section 42(f)(iii) - Criminal Procedure Code (Amendment) Act, 2005 (25 of 2005) -See - Criminal Procedure Code, 1973, First Schedule : Raju @ Raj Kishore Yadav Vs. State of M.P., I.L.R. (2009) M.P. Note *9
- Sections 53, 53-A - Blood sample collected by Lab Technician of 15 years experience on the direction of pathologist of District Hospital, can not be said to be not taken by Medical Practitioner. There was no illegality in collecting the blood sample : In Reference Vs. Rahul, I.L.R. (2010) M.P. 2206 (DB)
- Section 70(2) - Perpetual warrant of arrest - Applicant accused in another crime - However, warrant of arrest issued in wrong name - Applicant directed to be taken into custody : Sanjay Vs. State of M.P., I.L.R. (2009) M.P. 3025
- Section 70(2) - Perpetual warrant of arrest - Applicant not an accused in Crime No.26/95 - Inspite of that perpetual warrant of arrest issued against him - Issuance of warrant of arrest and proclamation issued by S.P., are without any authority - Consequently they are quashed : Sanjay Vs. State of M.P., I.L.R. (2009) M.P. 3025
- Section 71 - Double punishment - Appellant No.2 convicted u/s 323 as well as u/ s 323/34 IPC for causing injury to one person - Held - Section 71 prohibits double punishment for same offence - Conviction of appellant No.2 u/s 323/34 IPC not legal : Beniram Vs. State of M.P., I.L.R. (2009) M.P. 885 Criminal Procedure Code, 1973 (2 of 1974) 236
- Section 85(3) - Restoration of attached property - Requirements and procedure stated - Appeal allowed : Murarilal Sharma Vs. State of M.P., I.L.R. (2010) M.P. 2395
- Section 91 - Summoning of documents at the stage of framing of charge - It cannot be said to be absolute proposition of law that under no circumstance the Court can look into the material produced by defence at the time of framing of charge : Munnalal Vs. State of M.P., I.L.R. (2010) M.P. 703 (DB)
- Section 91 - Summoning of documents at the stage of framing of charge - There can be rare and exceptional cases where alleged defence material could be shown to the trial Court for demonstrating that prosecution version is totally absurd or preposterous and defence material could be looked into by the Court at the time of framing of charge - Trial Court was directed to entertain application u/s 91 and also to examine documents sought to be summoned by petitioner at the time of framing of charge : Munnalal Vs. State of M.P., I.L.R. (2010) M.P. 703 (DB)
- Section 91 - Production of documents - Court must see that apart from necessity, desirability is also one of the two factors : Map Auto Ltd. Vs. Anil Kumar Jain, I.L.R. (2008) M.P. Note *34
- Section 105 A to 105 L - Applicability of provisions in Indian Territories - Conflicting views of two single judge benches - Matter referred to Division Bench - Held, provisions applicable only to territories which are foreign territories in which by reciprocal arrangements provisions of code have been made applicable and not applicable within the territories of the country : Balram Mehani Vs. State of M.P., I.L.R. (2006) M.P. 1433 (DB)
- Section 107 - Security for keeping peace - Term Public Order and Public Tranquility mean absence of insurrection, riot, turbulence or crimes of violence and includes absence of all acts which are danger to the security of State and which disturb serenity of others : Medha Patkar Vs. State of M.P., I.L.R. (2007) M.P. 1618 (DB) SYNOPSIS : Section 125
1. Adultery 6. Instead of writ petition, 2. Amount of maintenance criminal revision maintainable 3. Delay 7. Legitimacy of the child 4. Effect of decree for 8. Maintenance of Illegitimate child restitution of conjugal rights 9. Muslim wife Criminal Procedure Code, 1973 (2 of 1974) 237
5. Effect of acquittal for the 10. "Unable to maintain herself" offence u/s 498-A
1. Adultery
- Section 125 - Maintenance - Adultery - Allegation by husband that wife is living in adultery - This must necessarily be proved by husband by cogent and reliable evidence - Mere friendship with a man does not amount to living in adultery : Santosh Tomar (Smt.) Vs. Rajesh Singh Tomar, I.L.R. (2010) M.P. 2647
2. Amount of maintenance
- Section 125 - [As amended by Code of Criminal Procedure (Amendment) Act, 2001 w.e.f. 24.09.2001] - Amount of maintenance - Interim order of maintenance challenged as maximum maintenance can be awarded upto sum of Rs.3000 - Held - As per State's amendment for the words "five hundred rupees" words "3000 rupees" were substituted w.e.f. 29.05.1998 - This State amendment was made prior to the enactment of Code of Criminal Procedure (Amendment) Act, 2001 by which the words "not exceeding five hundred rupees in the whole" have been omitted - The ceiling which was fixed under the original enactment of Rs.500 p.m. has been removed and now it is open to Court under the amended law to fix such amount as it thinks fit - Looking to the social & economic status of parties and facts & circumstances of the case, Court has fixed a reasonable amount of interim maintenance - No interference warranted - Revision dismissed : Piyushkant Sharma Vs. Smt. Pragati Sharma, I.L.R. (2009) M.P. Note *54 3. Delay
- Section 125 - Delay cannot be as a bar in filing of the application for maintenance - Both the parties have not filed any case for divorce which makes it apparent that the pit fall of their marriage lies in clash of egos - Its also explains the inordinate delay of 25 years in filing of application for maintenance - Application allowed : Shobha Vs. Krushnakant Pandya, I.L.R. (2008) M.P. 1299
- Section 125 - Maintenance - Merely denying the claim on hyper technical grounds would be taking undue advantage of the provisions of law to twist the beneficial aspects of S. 125 of the Code : Shobha Vs. Krushnakant Pandya, I.L.R. (2008) M.P. 1299
- Section 125 - Limitation - Delay in filing application for grant of maintenance - Question referred to Division Bench as to whether an application for maintenance under Section 125 of Criminal Procedure Code can be dismissed on account of delay in Criminal Procedure Code, 1973 (2 of 1974) 238 filing application - Held - Words Unable to maintain herself or himself are of importance - Cause of action would arise only after satisfaction of above condition - Cause of action accrues on every day - No period of limitation is prescribed for filing application - Application for grant of maintenance cannot be rejected on the ground of delay after the applicant proves he/she is unable to maintain himself/herself - Earlier judgments did not lay the correct law - Reference answered accordingly : Makarchand Vs. Smt. Leelabai, I.L.R. (2007) M.P. 571(DB) 4. Effect of decree for restitution of conjugal rights
- Section 125 - Whether an ex parte decree for restitution of conjugal rights passed in favour of husband was sufficient to disentitle the wife from claiming maintenance u/s 125 from her husband - No : Prashant Shrivastava Vs. Smt. Sushma Shrivastava, I.L.R. (2010) M.P. 1216
- Section 125, Hindu Marriage Act, 1955, Section 9 - Maintenance - Wife did not join her husband in spite of decree for restitution of conjugal rights - It is on record that husband is having illicit relations with another woman - There are grounds of cruelty also - Prima facie these are just grounds to refuse wife to live with her husband - Wife entitled for maintenance - Revision dismissed : Rewalal Vs. Smt. Urmila, I.L.R. (2009) M.P. 2111 5. Effect of acquittal for the offence u/s 498-A
- Section 125, Penal Code, 1860, Section 498-A - Effect of acquital on maintenance proceedings - Prosecution for the offence u/s 498-A affords a reasonable ground to the wife to live separately - Moreover, the acquital for the offence u/s 498-A would not be sufficient to wash out the statement of the wife on oath that she had been treated with cruelty at her matrimonial home : Prashant Shrivastava Vs. Smt. Sushma Shrivastava, I.L.R. (2010) M.P. 1216 6. Instead of writ petition, criminal revision maintainable
- Sections 125 & 397 - See - Constitution, Article 226 : Akanshha Shrivastava (Smt.) Vs. Virendra Shrivastava, I.L.R. (2010) M.P. 1723 (DB) 7. Legitimacy of the child
- Section 125 - Maintenance sought by wife & child on ground of cruelty and desertion - Petition opposed by husband on ground that the wife is living in adultery - The Family Court after holding summary inquiry dismissed the petition - Held - The presumption of legitimacy is presumption of law - When a child is born out of a wedlock, Criminal Procedure Code, 1973 (2 of 1974) 239 there is a presumption in favour of his legitimacy and presumption of legitimacy largely depends on the presumed fact that the parties to a marriage have necessary access to each other - Where the legitimacy of a child is questioned, it is the duty of the Court to examine the evidence with a view that the evidence adduced is enough to rebut the presumption - Revision allowed : Chanda (Smt.) Vs. Sanjay Chouhan, I.L.R. (2010) M.P. 2224
- Section 125, Evidence Act, 1872, Section 112 - Non-applicant No.1 living with paramour applicant and son non-applicant No.2 has been born - Claim of maintenance by non-applicant No.2 from applicant - Held - Whether non-applicant No.2 is legitimate or illegitimate son of applicant - Presumption is that non-applicant No.2 is legitimate son of non-applicant No.1's husband - Presumption could have been rebutted by evidence that husband had no access at the time when non-applicant No.2 have been begotten - Non-applicant No.1 was living with paramour applicant is no evidence of non-access of husband - Case remanded for recording evidence of both the parties on this aspect after framing of point of determination : Premlal Vs. Leelabai, I.L.R. (2009) M.P. 2129 8. Maintenance of Illegitimate child
- Section 125 - Maintenance - Illegitimate child - Illegitimate child born out of illicit relationship of applicant and non-applicant No.1, is entitled for maintenance till she attains majority : Pawan Kumar Vs. Mamta, I.L.R. (2009) M.P. 2446 9. Muslim wife
- Section 125 - See - Muslim Women (Protection of Rights on Divorce) Act, 1986, Sections 3 & 4 : Irshad Khan Vs. Smt. Rani, I.L.R. (2009) M.P. Note *31
- Section 125 - Order for maintenance of children - Divorced Muslim wife can file maintenance application u/s 125 of the Code before the Magistrate for maintenance of children : Shabana Bano (Smt.) Vs. Imran Khan, I.L.R. (2009) M.P. 276
- Section 125 - See - Muslim Women (Protection of Rights on Divorce) Act, 1986, Sections 3 & 4 : Shabana Bano (Smt.) Vs. Imran Khan, I.L.R. (2009) M.P. 276
- Section 125, Muslim Women (Protection of Rights on Divorce) Act, 1986 - Claim for maintenance by Muslim women who is not divorced - Held - Application for maintenance by such Muslim women is maintainable - Revision allowed : Jumana Bai Vs. Mushtaq Ali, I.L.R. (2008) M.P. 1839 Criminal Procedure Code, 1973 (2 of 1974) 240
10. "Unable to maintain herself"
- Section 125 - "Unable to maintain herself" - Means available to deserted wife while she was living with her husband and would not take within itself the efforts made by wife after desertion to survive somehow - Where personal income of wife is insufficient she can claim maintenance U/s 125 Cr.P.C. - Unable to maintain herself does not mean wife must be absolutely destitute before she can apply for maintenance - Wife has some income from rent but insufficient to maintain herself - Rs. 1500/- per month granted by the Trial Court - Order maintained upto Supreme Court : Chaturbhuj Vs. Sita Bai, I.L.R. (2008) M.P. 193 (SC)
● - Sections 125(1) & 125(3) - Explanation - Maintenance - Appellant married to respondent in the year 1978-79 - Gauna ceremony performed in the year 1982 - Appellant did not join her matrimonial house - Respondent contracted second marriage - Held - As respondent has contracted second marriage in terms of explanation appended to Sub-section (3) of Section 125 of Code, appellant is entitled to claim maintenance from respondent although appellant had refused to live with respondent - Appeal allowed : Ahilya Bai Vs. Meharwan Singh, I.L.R. (2008) M.P. 3066 (SC)
- Section 125 (4) - Wife stated before the court that she was willing to reside with her Husband - Husband refused to take her back, stating that since he had been living alone for more than 25 years - He was no longer interested in taking her back - Trial Court's conclusion that wife was not willing to reside with her husband without just cause - Finding is incomprehensible : Shobha Vs. Krushnakant Pandya, I.L.R. (2008) M.P. 1299
- Section 126(2) - See - Muslim Woman (Protection of Rights on Divorce) Rules, 1986, Rule 4 : Mohiuddin Vs. Smt. Azra Bano, I.L.R. (2008) M.P. Note *88
- Section 133 - Conditional order of removal of nuisance - SDM issued a show cause notice on the basis of police report and letter of CMO for demolition of a house which was in dilapidated condition - Held - Formulation of an opinion by the SDM without the reference to expert/engineer is not proper - SDM, therefore, directed to seek an opinion from the engineer, not below the rank of SE, PWD and after an opinion is received shall forward a copy to the petitioners and give them an opportunity of hearing before passing a final order : Niranjan Singh Vs. State of M.P., I.L.R. (2009) M.P. 3276
- Sections 133 & 145 - Nuisance - In proceedings u/s 145, material available on record discloses existence of public nuisance - SDM is not precluded from taking action u/s 133 - Application dismissed : Shivraj Singh Vs. State of M.P., I.L.R. (2010) M.P. 742 Criminal Procedure Code, 1973 (2 of 1974) 241
- Sections 133, 137, 138, 482 - Public Nuisance - Quashing of proceedings - Proceeding u/s 133 of Code initiated against the applicant for encroaching the public way - Applicant filed a civil suit and the civil court passed an order of injunction - Despite the order of injunction in favour of the applicant, the S.D.M. passed a conditional order of removal of encroachment - Proceeding challenged - Held - Magistrate has to first make an inquiry u/s 137(1) of Code - In such inquiry, if he finds there is reliable evidence in support of denial of the existence of a public way on the disputed land, he shall stay the proceedings until the matter of existence of such right is decided by civil court - If he finds there is no evidence, he shall proceed in accordance with Section 138 of Code - Petition disposed of : Mohammad Ausaph Vs. Mohammad Shaid, I.L.R. (2008) M.P. Note *87
- Section 145 - During pendency of civil suit an order u/s 145 Cr.P.C. was passed by S.D.M. directing applicant not to interfere over the land in question - Order challenged by applicant on ground that parallel proceeding should not be permitted to continue - Held - Mere pendency of the Civil suit will not ipso-facto operate bar to the proceedings u/s. 145 of Cr.P.C : Santosh Vs. State of M.P., I.L.R. (2010) M.P. 2233
- Sections 145, 482 -Third party intervention - S.D.M. in proceedings under Section 145 Cr.P.C. held that party no. 3 to 6 were forcibly dispossessed by party no. 1 & 2 - Order of S.D.M. affirmed by Higher Courts - Party No. 3 to 6 filed application for restoration of possession - Applicant filed objection that he is in possession of the disputed land and was not party to the proceedings - Held - S.D.M. is required to give notice to those who are concerned in such dispute - Section 145 nowhere provides notice be also given to all other persons who are not party to dispute - No scope of third party intervention or providing opportunity of hearing in a proceeding which is already decided - Petition dismissed with costs : Jugal Rathore Vs. Jagdish Rathore, I.L.R. (2007) M.P. 1471
- Section 146 - Duties of receiver - Held - Supurdagidar having not received directions from SDM under the order of Supurdagi is required either to seek instructions or to look after agricultural land by proper cultivation : Ishwar Dayal Vs. Mohan Singh, I.L.R. (2010) M.P. 1625
- Section 146 - Duties of receiver on termination of proceedings - Held - On termination of proceedings, Supurdagidar can not deliver back the possession contrary to the outcome of the proceedings and without obtaining specific permission : Ishwar Dayal Vs. Mohan Singh, I.L.R. (2010) M.P. 1625
- Section 146 - Attachment - Dispute regarding possession - Applicant was recorded Bhumiswami, whereas, non-applicant No.1 was having a decree of declaration of title on the basis of adverse possession - S.D.M. had passed an order of attachment of property and a receiver has been appointed to lookafter the property - Held - Section Criminal Procedure Code, 1973 (2 of 1974) 242
146 attracted - Order of attachment can not be said to be illegal - However, the magistrate erred in not directing parties at the time of attachment to approach competent civil court for establishment of their entitlement to possession - Petition disposed of with such direction : Basant Kumar Vs. Smt. Kavita Bai, I.L.R. (2008) M.P. 2728 - Section 146(1) - Attachment of property and appointment of receiver - If after passing order u/s 145(1) Cr.P.C. the Magistrate considers the case to be one of emergency - Magistrate has to record reasons of satisfaction to the effect that it is a case of emergency - Only apprehension of breach of piece simplicitor cannot be said to be a valid ground for attachment of a property - Reasons leaking - Order is not sustainable in law : Yashwant Vs. Sachin, I.L.R. (2008) M.P. Note *14 - Section 146(1) - Object of attachment is to keep the property custodia legis so as to prevent the contesting parties from scramble for possession to obtain actual possession of subject of dispute during pendency of the proceeding : Yashwant Vs. Sachin, I.L.R. (2008) M.P. Note *14 - Section 149 - Unlawful Assembly - Involvement of appellants no. 1 and 2 not proved beyond reasonable doubt that they had caused injury to the deceased - Merely on the basis of their presence on the spot, their common intention for causing injury to deceased cannot be inferred : Rajkumar Vs. State of M.P., I.L.R. (2010) M.P. 1821 (DB) - Section 151 - Arrest to prevent commission of cognizable offence - Before resorting to Section 151 of Cr.P.C., it must appear to police officer that person who is sought to be arrested is designing to commit cognizable offence and commission of that cannot be prevented except by such arrest : Medha Patkar Vs. State of M.P., I.L.R. (2007) M.P. 1618 (DB) SYNOPSIS : Section 154
1. Anonymous oral message 6. Effect of non-mentioning 2. Compulsory registration the name of eye-witness of F.I.R. 7. Human error 3. Contradiction 8. Non examination of scribe 4. Delay explained 9. Purpose 5. Delay not explained 10. Suspicious 11. Two F.I.R.s
1. Anonymous oral message - Section 154 - F.I.R. - Cryptic and anonymous oral message, which did not in terms, specify cognizable offence cannot be treated as F.I.R. : State of M.P. Vs. Gopal Singh, I.L.R. (2008) M.P. 1265 (DB) Criminal Procedure Code, 1973 (2 of 1974) 243
2. Compulsory registration of F.I.R.
- Section 154 - Whether police is empowered to investigate the cognizable offences without registering the F.I.R. - Police, on receiving complaint, proceeded with inquiry by giving zero number without registering the same - Held, the concerned officer is duty bound to register F.I.R. - Complainant may resort to making application under Section 200 Cr.P.C. or 154 (3) Cr.P.C. : Smt. Laxmi Sharma Vs. State of M.P., I.L.R. (2007) M.P. 775 (DB) 3. Contradiction
- Section 154 - Contradiction about lodging of F.I.R. - Effect of such contradiction has to be viewed in light of facts and circumstances of each case - In some cases it may prove fatal whereas in some cases it may not have the same effect : State of M.P. Vs. Gopal Singh, I.L.R. (2008) M.P. 1265 (DB) 4. Delay explained
- Section 154 - FIR - Delay in lodging - In the backdrop of threat and intimidation caused by the appellant to the prosecutrix, which resulted in delay in lodging the FIR by twenty five days, her testimony cannot be viewed with suspicion, particularly when there are no cogent reasons for false implication : Girish Kumar Vs. State of M.P., I.L.R. (2010) M.P. 2373
- Section 154 - See - Penal Code, 1860, Section 376 : Nanda Vs. State of M.P., I.L.R. (2009) M.P. 3221
- Section 154 - Delay in F.I.R. - Delay explained - Not fatal to the case of prosecution - The delay in lodging the F.I.R. was explained by the facts brought on record that when the matter came to light and was discovered, it was reported to the police - The delay of 5 days in lodging the F.I.R. in the case does not cause any doubt on the prosecution case : Santosh Vs. State of M.P., I.L.R. (2009) M.P. 241
- Section 154 - See - Penal Code 1860, Section 376(2)(g) : Kummer Singh Vs. State of M.P., I.L.R. (2009) M.P. Note *20
- Section 154 - See - Penal Code, 1860, Section 376 : Fulloo @ Phool Singh Vs. State of M.P., I.L.R. (2010) M.P. Note *4 5. Delay not explained
- Section 154 - FIR - Delay - Incident took place on 14.08.1992 - FIR lodged on 20.08.1992 - Complainant had come into contact with Sarpanch and Watchman of Criminal Procedure Code, 1973 (2 of 1974) 244 village after the incident - Explanation that due to fear FIR could not be lodged, does not appear to be reliable - If FIR is lodged at belated stage without giving proper explanation, then it being suspicious could not be made basis for holding conviction : Mangal Singh Vs. State of M.P., I.L.R. (2009) M.P. 2671
- Section 154 - Delayed FIR - The report was lodged after due deliberation and consultation with the office employees and the officer himself - Officer on the same day was apprised but he didn't send complainant to lodge the report at outpost - Report exaggerated and does not contain the true facts of the case - The report is delayed and no plausible explanation has been offered on behalf of the prosecution to condone such delay - FIR cannot be relied on : Kavindra Nath Thakur Vs. State of M.P., I.L.R. (2009) M.P. Note *15 6. Effect of non-mentioning the name of eye-witness
- Section 154 - See - Evidence Act, 1872, Section 3 : Pillu @ Prahlad Vs. State of M.P., I.L.R. (2010) M.P. 1181 (DB) 7. Human error
- Section 154 - Wrong mention of time in FIR or merg inquest report by slip of pen or human error can not be viewed with suspicion - FIR can not be said or suspected ante-dated or ante-timed : State of M.P. Vs. Paramlal, I.L.R. (2010) M.P. 2357 (DB) 8. Non examination of scribe
- Section 154, Police Regulations, Regulation 744 - F.I.R. dictated by I.O. to another Sub-Inspector and scribe not examined in court - Held - F.I.R. shall be reduced to writing by officer-in-charge of police station to whom the report was made or can be recorded under his direction - There is no requirement to examine scribe - Case of prosecution not vitiated on account of flaw in F.I.R. or procedure adopted for recording F.I.R. - Regulation 744 is not applicable in the matters relating to the recording of F.I.R : Ashok Vs. State of M.P., I.L.R. (2008) M.P. 2997 (DB) 9. Purpose
- Section 154 - FIR - FIR is not a substantive piece of evidence and can only be used for corroboration and contradiction to the statements of its author given in Court, but at the same time, its importance cannot be lost sight of because it brings the investigating agency into movement for the purpose of investigation and if it is found that the FIR is a concocted piece of evidence and brought into existence after due deliberation and consultation then further prosecution story becomes suspicious and the Criminal Procedure Code, 1973 (2 of 1974) 245
Court is required to be very careful in appreciating the evidence of prosecution witnesses : Champalal Vs. State of M.P., I.L.R. (2010) M.P. Note *25 (DB)
- Section 154 - FIR - FIR is not a substantive piece of evidence - Can be used for contradiction and corroboration : State of M.P. Vs. Habib Ahmad, I.L.R. (2009) M.P. 3187 (DB)
- Section 154 - F.I.R. - F.I.R. is not substantial piece of evidence - It can be used only for corroboration and proving the contradiction, omission and improvements in the statement of prosecution witnesses - Only on the basis of F.I.R. conviction cannot be upheld : Ganesh @ Ganesha @ Ganesh Prasad Vs. State of M.P., I.L.R. (2008) M.P. 3026 (DB)
- Section 154, Penal Code, 1860, Section 376 - F.I.R. - F.I.R. by itself is not a substantive piece of evidence - In absence of evidence of the prosecutrix, the averments made in the F.I.R. could not be acted upon as the evidence of commission of rape by the appellant with her : Suresh Vs. State of M.P., I.L.R. (2008) M.P. 3324 10. Suspicious
- Section 154 - F.I.R. - Contradictory statement of complainant and constable with regard to lodging of F.I.R. and time of recording thereof - It appears that there was concoction of time of recording of F.I.R. - F.I.R. not reliable : Nathu Vs. State of M.P., I.L.R. (2008) M.P. 2682
- Sections 154 & 157 - According to prosecution case, FIR was lodged at 23:30 hours - Author of FIR states that FIR was written by him at 10-11 in morning - FIR was not only ante timed but also antedated - Non-sending of FIR to Magistrate amounts to a serious lapse on the part of I.O. going to the root of matter and hammers the authenticity of prosecution's case - Appeal allowed : Chhabilal Vs. State of M.P., I.L.R. (2009) M.P. 536 (DB) 11. Two F.I.R.s
- Section 154 - Two F.I.R.s - First report discloses that husband is pressurising to sign blank papers - Second report discloses as to how husband and his relatives demanded dowry and how she was harassed - If certain facts constituting the offence were not disclosed at the first available opportunity - On this ground proceedings can not be quashed : Shakuntala Sharma Vs. State of M.P., I.L.R. (2008) M.P. 1320
● - Section 156 - Powers of officer-in-charge of police station - Section 156(1) confers un-restricted powers on officer-in-charge of police station to investigate Criminal Procedure Code, 1973 (2 of 1974) 246 cognizable offence without order of Magistrate - He can investigate either on its own motion, on its own knowledge or from any other reliable information - Statutory right to investigate cognizable offence cannot be interfered with or controlled by any court : Vivek Aggarwal Vs. Premchand Guddu, I.L.R. (2009) M.P. 568
- Section 156 - Investigation - Absence of Kerosene Oil - Burnt piece of blouse not sent for chemical examination by Investigating Officer - Irregularities and illegalities committed by investigating officer - Will not cast doubt on prosecution case : Reeta Sonkar Vs. State of M.P., I.L.R. (2007) M.P. 1255 (DB)
- Sections 156, 202(2) proviso - See - Penal Code, 1860, Sections 147, 148, 323, 395 r/w 149 : Nanjiram Vs. State of M.P., I.L.R. (2008) M.P. 2737
- Section 156(3) - Police investigation - Magistrate directed S.P. to take legal action instead of directing Officer Incharge of Police Station to register FIR - Police also did not submit its report in terms of S. 173 of Code - Such order cannot be said to have been passed u/s 156(3) of Code : Yashpal Singh Vs. State of M.P., I.L.R. (2010) M.P. 520
- Section 156(3) - Power to direct investigation - Magistrate is empowered to pass an order to investigate the allegations alleged in complaint even if it is triable by Court of Sessions : Arun Kumar Jain Vs. Dinesh Tripathi, I.L.R. (2010) M.P. 707
- Section 156(3) - Power to direct investigation - While passing an order to investigate, the Magistrate ought to have applied his mind to the allegations - If order is passed without application of mind, even at the stage of direction u/s 156(3) Cr.P.C., it may be liable to be set-aside : Arun Kumar Jain Vs. Dinesh Tripathi, I.L.R. (2010) M.P. 707
- Section 156(3) - When direction to investigate cannot be given - In absence of any specific allegation of causing any injury or assigning any role against superior officers, merely on the bald statement issuance of direction to investigate the said incident by the concerning SHO against them cannot be directed : Arun Kumar Jain Vs. Dinesh Tripathi, I.L.R. (2010) M.P. 707
- Section 156(3) - Cognizable offence - Magistrate directed the police station to register F.I.R. if cognizable offence is found to have been committed - Held - Magistrate ought to have expressed in the order, if he prima facie found the complaint disclosing cognizable offence - However, every mistake does not necessarily call for correction : In Reference Vs. Alok Singhai, I.L.R. (2009) M.P. 264
- Section 156(3) - Investigation - Magistrate not justified in ordering investigation by Inspector General of Special Police Establishment, Lokayukt : Vivek Aggarwal Vs. Premchand Guddu, I.L.R. (2009) M.P. 568 Criminal Procedure Code, 1973 (2 of 1974) 247
- Section 156(3) - Power of Magistrate - Even if the Magistrate does not say in so many words about commission of cognizable offence and if it could be gathered on perusal of order that he applied his mind to the material on record with that view, order u/s 156(3) cannot be held to be without jurisdiction : Vivek Aggarwal Vs. Premchand Guddu, I.L.R. (2009) M.P. 568
- Section 156(3) - Power of Magistrate - Magistrate has no jurisdiction to order police investigation u/s 156(3), if complaint does not disclose commission of cognizable offence : Vivek Aggarwal Vs. Premchand Guddu, I.L.R. (2009) M.P. 568
- Section 156(3) - Territorial jurisdiction of Magistrate - Magistrate is empowered to direct investigation only by officer-in-charge of police station who has jurisdiction over the local area within his territorial jurisdiction : Vivek Aggarwal Vs. Premchand Guddu, I.L.R. (2009) M.P. 568
- Section 156(3) - If concerned police refuses to register counter complaint Magistrate could direct police to register the complaint and investigate : Ram Behari Vs. State of M.P., I.L.R. (2006) M.P. 333
- Sections 156(3), 161 and 162 - First Information Report - Lodging of - Basic right of every citizen - Whether offence registered is made out or not is to be decided by competent Court : Ram Behari Vs. State of M.P., I.L.R. (2006) M.P. 333
- Sections 156(3), 173(2) & 190(1)(a) - After sending a case for investigation on a private complaint to the police u/s 156(3) Cr.P.C. and on submission of the police report, the case cannot be treated as instituted upon police report because cognizance of the offence has already been taken on the basis of complaint filed by the complainant - The report submitted u/s 156(3) Cr.P.C. cannot be treated as Police Report u/s 173(2) Cr.P.C. - Revision allowed : Anita Pawar Vs. Dharmendra Sikarwar, I.L.R. (2010) M.P. 2422
- Sections 156(3) & 190 - Private complaint and application u/s 156(3) filed against applicant - Magistrate directed police to investigate and register FIR - Revision - Held - Section 156(3) mandates that any Magistrate being empowered u/s 190 may order investigation - After receiving the report of investigation, two options are available to Magistrate either to register offence or not - Merely issuing process u/s 156(3) would not amount to take cognizance u/s 190 - Seeking quashment or setting-aside impugned order would be challenging an interlocutory order - Revision not maintainable - Revision dismissed : Ayyub Ahmad Vs. State of M.P., I.L.R. (2009) M.P. 1484
- Section 156(3) & 190 - Investigation - Magistrate can direct investigation u/s 156(3) only at pre-cognizance stage : In Reference Vs. Deepak Agrawal, I.L.R. (2009) M.P. 272 Criminal Procedure Code, 1973 (2 of 1974) 248
- Sections 156(3) & 190 - Difference of powers exercisable u/s 156(3) and Section 190 - Opportunity of hearing to accused - There is a patent difference between the powers exercisable u/s 156(3) and Section 190 of the Code - Accused has no right of hearing before the magistrate issues an order u/s 156(3) of Code - If the police submits a report in favour of accused either in relation to all charges or some charges - Then the complainant would always have a right to file a protest petition and submit to the magistrate that the protest petition filed by the complainant in so far as it relates to all or some of the offences (alleged in complaint) should be treated as private complaint - Court should take cognizance u/s 190 of Code and proceed u/s 200 of Code : Lalit Sugandhi Vs. Mahendra Kumar Sugandhi, I.L.R. (2008) M.P. 3348
- Sections 156(3) & 190 - Once a complaint is filed and magistrate finds that a cognizable offence has been committed by the alleged accused person - Then instead of taking cognizance u/s 190 of the Code magistrate can direct the police to make investigation - If the police finds that the person has committed an offence then it may file a charge-sheet/Challan against the named accused and in case the police finds that no offence is made out, it can submit such report : Lalit Sugandhi Vs. Mahendra Kumar Sugandhi, I.L.R. (2008) M.P. 3348
- Sections 156(3) & 202 - Jurisdiction of Magistrate - If a complaint of a cognizable offence is made, power u/s 156(3) of Code can be invoked by Magistrate : Yashpal Singh Vs. State of M.P., I.L.R. (2010) M.P. 520
- Sections 156(3), 202 - Procedure when offence complained of is triable exclusively by Court of Session - In case the offence is triable exclusively by the Court of Session - The magistrate has no jurisdiction to direct investigation by police in exercise of powers u/s 156(3) of Code - He has to make inquiry himself as provided u/s 202 of Code : Nanjiram Vs. State of M.P., I.L.R. (2008) M.P. 2737
- Sections 157 - Non-complaince of S. 157 could not be said to be fatal to prosecution so as to throw its case, particularly when the investigation had soon started : State of M.P. Vs. Paramlal, I.L.R. (2010) M.P. 2357 (DB)
- Section 157 - Delay in forwarding the FIR to the Magistrate - Effect - Held - Mere delay in dispatch of FIR to the Magistrate was not sufficient to throw out the prosecution case in its entirety simply because the veracity of the incident was not disputed - At the most, it could be taken as an infirmity in the investigation : Sheikh Sultan Vs. State of M.P., I.L.R. (2009) M.P. 1769
- Section 157 - Copy of FIR to Magistrate - Merely because I.O. could not specify that when copy of FIR is dispatched to concerning Magistrate, no ground to reject entire prosecution story : Balkishan (Deleted) Vs. State of M.P., I.L.R. (2010) M.P. 1473 (DB) Criminal Procedure Code, 1973 (2 of 1974) 249
- Section 157 - Non-compliance - There is prompt FIR - Police reached on the spot immediately - Spot map prepared mentioning the crime number etc - Dead body sent for postmortem mentioning the summary story of case - Assault by respondent No.1 also mentioned in application addressed to Doctor - Non-compliance of S. 157 would not be fatal to the prosecution : State of M.P. Vs. Habib Ahmad, I.L.R. (2009) M.P. 3187 (DB)
- Section 157 - Spot map - Spot map prepared in the presence of eye witnesses - Eye witness also signatory to spot map - If the place where the witness was standing is not shown, it would not dilute the case of the prosecution : State of M.P. Vs. Habib Ahmad, I.L.R. (2009) M.P. 3187 (DB)
- Section 157 - Duty of investigator - Where during the investigation, previous history of insanity is revealed, it is the duty of an honest investigator to subject the accused to a medical examination and place that evidence before the court, and if, this is not done, it creates a serious infirmity in the prosecution case and the benefit of doubt has to be given to the accused - The onus, however, has to be discharged by producing evidence as to the conduct of the accused shortly prior to the offence and his conduct at the time or immediately afterwards, also by evidence of his mental condition and other relevant factors : Hari Singh Gond Vs. State of M.P., I.L.R. (2008) M.P. 2764 (SC)
- Section 157 - Delay in sending copy of F.I.R. to Magistrate - When evidence of eye witnesses are trustworthy, delay in sending copy of F.I.R. to Magistrate will not affect prosecution case : Radheshyam Vs. State of M. P., I.L.R. (2008) M.P. 354
- Sections 158 & 173(3) - Further investigation - Superintendent of Police, Special Police Establishment informed Special Judge that further investigation has been started in pending trial - Challenged the legality, enforceability and effect - Held - Superior officer may give such instructions to the officer in charge of the police station as he thinks fit, and shall after recording such instructions on such report, transmit the same without delay to the Magistrate - In such a case, the special officer is required to submit his personal report along with the report of the officer in charge of the police station : Prashant Pathak Vs. State of M.P., I.L.R. (2009) M.P. 3234 (DB)
- Sections 158 & 173(3) - Permission/Order of Magistrate for further investigation not necessary - Section 173(3) makes it clear that officer especially appointed u/s 158, pending orders of the Magistrate, may direct the officer in charge of Police Station to make further investigation - Officer in charge is only required to give an information to the concerned Magistrate - However, his authority to issue instructions to officer in charge of Police Station to make further investigation cannot be short circuited : Prashant Pathak Vs. State of M.P., I.L.R. (2009) M.P. 3234 (DB) Criminal Procedure Code, 1973 (2 of 1974) 250
- Section 161 - Delay in recording of statement of witnesses - Explanation given by I.O. satisfactory - Objection not tenable : Gajendra Singh Vs. State of M.P., I.L.R. (2009) M.P. Note *41 (DB)
- Section 161 - Charges u/s 307/34 and 120-B IPC framed against the applicant on the basis of confession of co-accused before police u/s 161 - Revision - Held - Confessional statements made by the co-accused before the police are inadmissible in evidence - Trial Court has framed the charges on inadmissible evidence - Order framing charges set-aside - Revision allowed : Shakir Chacha @ Sakir Khan Vs. State of M.P., I.L.R. (2009) M.P. 1178
- Section 161, Police Regulations, Regulation 744 - Criticism levelled with regard to Section 161 statements having not recorded by I.O. as per provision of Regulation 744 - Held - The reference or allusion made to the diary in the regulation is not to the statements recorded but to the entries made with regard thereto : Ashok Vs. State of M.P., I.L.R. (2008) M.P. 2997 (DB)
- Section 161, Police Regulations, Regulation 744 - 161 statements do not form an integral part of the case diary, although the I.O. is required to record substance of the statement of the witnesses examined u/s 161 of the Code : Ashok Vs. State of M.P., I.L.R. (2008) M.P. 2997 (DB)
- Section 161 - Delayed examination of witness - Effect - Incident took place on 14-4-1995 - Statements of witnesses recorded by police on 26th and 28th April - Held - No question put to Investigating Officer about delayed examination of witnesses - Factual explanation ought to have been obtained from I.O. - Defence cannot gain any advantage therefrom : Mithilesh Vs. State of M.P., I.L.R. (2008) M.P. 333 (DB)
- Section 161 - Statements recorded by police during investigation - Cannot be used for any other purpose except provided in Section 162 of Code - Any part of statement duly proved may be used by accused and with permission of Court by prosecution - Contradict such witness in the manner provided by Section 145 of Evidence Act : Dinesh Vs. State of M.P., I.L.R. (2008) M.P. 945 (DB)
- Section 161 - Delayed recording of statement of injured witness - Injured witness receiving 9 injuries including 2 incised wounds, 4 penetrating wound and 3 injuries caused by hard and blunt object - Witness remained in hospital for 26 days - Returned back to village after staying for more 4 days - Statement of witness recorded thereafter - Dying declaration of witness also recorded by Executive Magistrate within 9 hours of incident - No dent caused to the prosecution case : Kallu Singh Vs. State of M.P., I.L.R. (2007) M.P. 1434 (DB) Criminal Procedure Code, 1973 (2 of 1974) 251
- Section 161 - Evidence Act, Indian, 1872, Section 3 - Witness - Murder - Examination of witness by Investigating Officer - Delay - Statement of independent eye witness recorded after one day - For that Investigating Officer has to be categorically questioned on aspect of delayed examination - Delay in examination of witnesses by I.O. - I.O. not asked about delay - Name of witness mentioned in F.I.R. which was lodged promptly - Witness cannot be disbelieved : Kallu Singh Vs. State of M.P., I.L.R. (2007) M.P. 1434 (DB)
- Sections 161 & 162, Evidence Act, 1872, Section 3 - It is well settled that the contents of the spot map prepared by police at the instance of a witness would be considered as the statement of the witness recorded u/s 161 of the Code - Contents of the map can be used u/s 161 of the Code for impeaching the testimony of witness on whose instance it was prepared : Narayan Vs. State of M.P., I.L.R. (2008) M.P. 2401
- Sections 161 & 162 - Statement recorded u/s 161 of Code cannot be used for impeaching the credibility of defence witness - Even when defence witness was initially a prosecution witness and prosecution did not choose to examine such witness : Manoj Vs. State of M.P., I.L.R. (2008) M.P. 2093
- Sections 161 & 162(1), Evidence Act, 1872, Section 25 - Witness being tried as accused in counter case - Witness had made confessional statement in the case in which he is being tried as accused - Defence was not allowed to cross-examine the witness with regard to the confessional statement made by him in cross case - Held - Merely because a witness happens to be an accused in another case or counter case, the accused cannot be deprived of his right in the case against him to cross-examine him with respect to his confessional statement made by him u/s 161 of Cr.P.C. - Revision allowed : Rakesh Yadav Vs. State of M.P., I.L.R. (2009) M.P. 563
- Sections 161, 319, 397, 401 - Statements recorded under Section 161 Cr.P.C. are not evidence - Allegation against police that original F.I.R. was not lodged - When Investigation is defective and under cloud Court has power to join other persons as accused : Kallu Vs. State of M.P., I.L.R. (2006) M.P. 296
- Section 162 - Witness was having copy of his statement recorded under Section 161 of Cr.P.C. at the time of giving evidence in Court - Held - Evidence of witness inadmissible : Chhotelal Vs. State through C.B.I., Jabalpur, I.L.R. (2010) M.P. Note *16 (DB)
- Sections 162 - See - Evidence Act, 1872, Section 9 : State of M.P. Vs. Tidda @ Sonu, I.L.R. (2008) M.P. Note *90 Criminal Procedure Code, 1973 (2 of 1974) 252
- Section 164 - Confessional statement - Confessional statement against co- accused can be used as corroborative evidence - It can be made even during trial and evidence already recorded may be used to corroborate it : Madhu Sonkar (Smt.) Vs. State of M.P., I.L.R. (2009) M.P. 1445 (DB)
- Section 164 - Confessional statement - Taking statement of accused on oath prohibited : Madhu Sonkar (Smt.) Vs. State of M.P., I.L.R. (2009) M.P. 1445 (DB)
- Section 164 - Recording of statement of accused - Non-consideration of the same merely on the ground that some police personnels were standing outside the Court - Approach of Court not correct - Court ought to independently examine the kind of threat or pressure on the accused/witness - Even if endorsement of certificate by Magistrate below statement is not in proper form, it does not necessarily mean that any threat was given to witness : Madhu Sonkar (Smt.) Vs. State of M.P., I.L.R. (2009) M.P. 1445 (DB)
- Section 164 - Warning - It is necessary to warn accused that it was not necessary for him to make statement and it could used against him - If warning is not given, such confession cannot be acted upon : Madhu Sonkar (Smt.) Vs. State of M.P., I.L.R. (2009) M.P. 1445 (DB)
- Section 164(3) - Failure to comply with Section 164(3) will not make the confession inadmissible in evidence : Madhu Sonkar (Smt.) Vs. State of M.P., I.L.R. (2009) M.P. 1445 (DB)
- Section 167(2) - Imprisonment for life or imprisonment for a term of not less than ten years - 'Offence punishable with imprisonment for a term of not less than 10 years' in Cl. (i) of proviso (a) to S. 167(2) connotes the offence for which imprisonment is for clear period of 10 years or more - Offence of robbery (not committed on highway between sunset and sunrise) punishable with R.I. for a term which may extend to 10 years - Maximum period of detention u/s 167(2) Proviso would be 60 days and not 90 days - Application allowed : Sunder Vs. State of M.P., I.L.R. (2010) M.P. 1017
- Section 167(2) - Compulsive release - Application for grant of bail filed after expiry of 90 days - Application not decided on the same day - Charge sheet filed on the following day - Application rejected by the Trial Court - ASJ rejected the revision - Held - Applicant's right would have been extinguished only in case if he failed to furnish bail - As no bail order was passed on the same day, therefore, applicant is entitled to be released - Application allowed : Mahesh Vs. State of M.P., I.L.R. (2008) M.P. Note *46
- Sections 167(2) & 439 - Compulsive bail - For offence punishable u/s 364-A IPC accused were formally arrested on 29.01.2008 when they were detained in Jail for Criminal Procedure Code, 1973 (2 of 1974) 253 another offence - After formal arrest they were not produced before nearest Magistrate or Magistrate having jurisdiction within 24 hours - Production warrant issued by Magistrate on 14.08.2008 and the accused were produced first time before Magistrate on 29.08.2008 - Held - Entitled for bail on two grounds - First that no person shall be detained in custody beyond period of 24 hours without authority of a Magistrate - Second since investigation not complete within period prescribed u/s 167 - Bail granted : Anjay Singh Vs. State of M.P., I.L.R. (2009) M.P. 1193
- Sections 169 & 482 - See - Penal Code 1860, Sections 147, 149, 294, 341, 323, 506-B, 307 : Rajkumar Vs. State of M.P., I.L.R. (2008) M.P. 2478
- Sections 173 & 210, Penal Code, 1860, Section 394, Dakaiti Aur Vyapharan Prabhavit Kshetra Adhiniyam, M.P. 1981, Section 11/13 - Conditions for invoking powers u/s 210 of Code - Held - (1) There must be a complaint pending for inquiry or trial; (2) Investigation by the police must be in progress in relation to the same offence; (3) A report must have been made by the police officer u/s 173 of Code; and (4) The Magistrate must have taken cognizance of an offence against a person who is accused in the complaint case - Petition allowed with the direction to consider the application and on being satisfied that above conditions are fulfilled then passed a reasoned order : Vinod Dixit Vs. Satish Mishra, I.L.R. (2009) M.P. 317
- Sections 173, 482 - Further investigation - Quashing of proceedings - Charge- sheet filed against applicant before Special Judge returned back for presentation before the Court of Special Magistrate - Fresh Charge-sheet filed after recording statements of discharged accused persons as witnesses - Held - C.B.I. could have conducted further investigation only with due permission of Court - However, merely because C.B.I. had conducted further investigation without prior permission, it would not be sufficient to vitiate cognizance unless it is shown that such an investigation has caused any prejudice to applicants or had resulted in miscarriage of justice - Petition dismissed : Shamsher Singh Mangat (Lt. Col.) Vs. State of M.P., I.L.R. (2008) M.P. 2141
- Section 173(2) - Natural Justice - Complainant not heard before accepting the Final Report and not taking cognizance of the offence - Held - A report u/s 173(2) of Cr.P.C. is submitted to a Magistrate by I.O. - Magistrate chooses not to take cognizance of offence or drop the proceedings against the accused or accused persons mentioned in F.I.R. - It is obligatory for Magistrate to provide an opportunity of hearing by issuance of notice to the complainant - Admittedly, the aforesaid opportunity has not been provided - The complainant who moves the criminal law into motion is entitled to know its result : Sangeeta Sharma Smt. (Dr.) Vs. State of M.P., I.L.R. (2008) M.P. 3345
- Sections 173(2), 173(4), 173(8) & 401(2) - CJM accepted/allowed the closure report after taking statement of complainant - Later on, the police filed application for Criminal Procedure Code, 1973 (2 of 1974) 254 further investigation, which was, though rejected by CJM but allowed by revisional Court - Order of revisional Court challenged by applicant/accused on ground that no notice was given to him - Held - At the stage when the police want to investigate the matter further in terms of S. 173(8) of the Code, question of issuance of notice to the applicant would not arise - At the stage of investigation the principle of audi alteram partem do not apply - Revision dismissed : Rajendra Singh Vs. State of M.P., I.L.R. (2010) M.P. Note *68
- Sections 173(3), (8) & 158 - Where a superior officer of police appointed u/s 158 direct the officer in charge of the police station to make further investigation - Procedure after further investigation - S. 173(3) is governed and controlled by S. 158 shall continue to be applicable if the original report was required to be filed by an officer especially appointed by the State Government - Then the supplementary challan / additional report will also have to be filed by such authorised officer and none other : Prashant Pathak Vs. State of M.P., I.L.R. (2009) M.P. 3234 (DB)
- Section 173(8) - Permission/Order of Magistrate for further investigation not necessary - S.173(8) of Cr.P.C. opens with non-obstante clause - S. 173(8) nowhere provides that for further investigation permission/sanction from concerned Magistrate to whom report has already been filed, is required : Prashant Pathak Vs. State of M.P., I.L.R. (2009) M.P. 3234 (DB)
- Section 173(8) - Where officer in charge of police station himself can proceed further investigation - Procedure after further investigation - When officer in charge of police station obtains further evidence oral or documentary, he shall forward to the Magistrate a further report/reports regarding such evidence - After further investigation, officer in charge of police station would be entitled to file supplementary challan - Such supplementary challan is required to be filed in accordance with S. 173(2) of Cr.P.C. - Once the supplementary challan is treated to be a regular challan then provisions of Sub-section (2) to (6) shall apply mutatis mutandis : Prashant Pathak Vs. State of M.P., I.L.R. (2009) M.P. 3234 (DB)
- Section 173(8) - During investigation standard handwriting of accused (applicant) was collected and sent to handwriting expert but no definite opinion given by expert - Thereafter, charge-sheet filed - During trial another application filed by I.O. for collecting specimen handwriting afresh - Trial court allowed the application - Held - After charge- sheet is filed, I.O. is not precluded from obtaining and forwarding further evidence to magistrate - However, that evidence is to be forwarded by way of further report in respect of such evidence - Prosecution evidence has almost been completed - First report of expert was not favourable to prosecution - No provision under which such order can be passed - Trial court committed error in allowing application - Revision allowed : Ravi Neal Vs. State of M.P., I.L.R. (2008) M.P. 2726 Criminal Procedure Code, 1973 (2 of 1974) 255
- Section 173(8) - Further Investigation - Investigation agency filing Khatma Report which was accepted by Competent Court - Permission for further investigation granted by Special Court on application of S.P.E. - Further investigation permissible in the background of Section 173(8) of Criminal Procedure Code : N.P. Jharia Vs. State of M.P., I.L.R. (2007) M.P. 1119 (SC)
- Section 174 - Inquest - There is absolutely no requirement of law of mentioning of FIR, name of accused or names of eye witnesses in merg inquest report : Indu Bai Vs. State of M.P., I.L.R. (2010) M.P. Note *7 (DB)
- Section 174 - See - Penal Code 1860, Sections 306 & 498-A : Shriram Vs. State of M.P., I.L.R. (2010) M.P. 665
- Section 174 - Inquest - Non-mentioning of name of assailant - Not fatal for prosecution : Bhikhari @ Bhikhamsingh Vs. State of M.P., I.L.R. (2009) M.P. 3411 (DB)
- Section 174 - Inquest report - Eye witnesses claimed to be present on spot but no enquiry was made by police - Investigating Officer did not join eye witnesses of incident in inquest proceedings - Inquest proceedings were conducted before other witnesses - It is also mentioned that no eye witness was available and cause of death was also not known - Above facts cast serious doubt on the truthfulness of evidence of eye witness : Lal Bahadur Dubey Vs. State of M.P., I.L.R. (2009) M.P. 3214 (DB)
- Section 174 - Scope of proceedings u/s 174 is very limited - Non-mention of names of assailants in inquest report - No significance could be attached : State of M.P. Vs. Mohan, I.L.R. (2009) M.P. 2692 (DB)
- Section 174 - Inquest Report - Scope of Section 174 is limited in scope and is confined to the ascertainment of apparent cause of death - Details of overt act are not necessary to be recorded in inquest report : State of M.P. Vs. Gopal Singh, I.L.R. (2008) M.P. 1265 (DB)
- Section 174 - Inquest report - Absence of names of appellants - Cannot be inferred that their names were not disclosed as murderers till panchnama was completed - No requirement that inquest panchnama should contain name of accused : Lilli @ Surendra Pandey Vs. State of M.P., I.L.R. (2007) M.P. 1698 (DB)
- Section 177, Dowry Prohibition Act, 1961, Sections 4 & 6 - Jurisdiction - Complaint discloses that cause of action arose at Bhopal - Criminal Court at Guna has no jurisdiction to entertain the complaint - Complainant given liberty to institute fresh complaint before the Court of competent jurisdiction : Kirti Prakash Saxena Vs. State of M.P., I.L.R. (2010) M.P. 539 Criminal Procedure Code, 1973 (2 of 1974) 256
- Section 177 - See - Penal Code, 1860, Section 498-A : Jitendra Vs. State of M.P., I.L.R. (2009) M.P. Note *43
- Sections 177, 178, 179, Dowry Prohibition Act, 1961, Section 4 r/w Section 6 - Territorial jurisdiction - Offence alleged to have committed in Ujjain and complaint filed at Vidisha wherein non-applicant residing with her parents - Held - The venue of enquiry or trial of case is determined by averments made in complaint - The question of jurisdiction is question of law and fact and it needs enquiry - Cannot be interfered by the High Court : Neeraj Rathore Vs. Smt. Pramodin Rathore, I.L.R. (2008) M.P. 2734
- Section 178 (c), Penal Code, 1860, Section 498-A - Offence punishable U/s 498-A I.P.C. is not a continuing offence - Admittedly as many as five out of the eight applicants did not commit any act of cruelty at Bhopal, no part of cause of action against them had arisen at Bhopal and against rest three applicants cause of action accrued at Unnao where most of alleged acts of cruelty committed - Offence U/s 498- A of I.P.C. must be tried at a Court at Unnao and not at Bhopal - Contrary view taken by Magistrate and approved by ASJ set aside - Petition U/s 482 allowed by the High Court with the direction to Trial Magistrate to return the charge sheet to SHO for presentation before a Court of competent jurisdiction at Unnao : Taskeen Ahmed Vs. State of M.P., I.L.R. (2008) M.P. Note *29
- Section 178(d), Negotiable Instruments Act, 1881, Section 138 - Cheque drawn at Bank of Kota (Rajasthan) - Presented by complainant at Bank of Datia (M.P.) as he is having account in that Bank - Cheque stood dishonoured at Datia - Thereafter, notice was issued from Datia - Held - Petitioner's application that Datia Court is not having territorial jurisdiction has been rightly dismissed by trial Court - Petition dismissed : Murli Dhar Vs. Ishwar Dayal Girdhani, I.L.R. (2010) M.P. 2230
- Section 179 - Place of trial - Section 179 cannot be stretched to the extent that any act which amounts to an offence committed in any part of State can be inquired into or tried by a Court where the head office of administration of State or head office of investigating agency is situated : Vivek Aggarwal Vs. Premchand Guddu, I.L.R. (2009) M.P. 568
- Section 188 - Offence committed outside India - Sanction from Central Govt. - Applicant was wearing saree which was having design of images of flags of various countries participating in World Cup Cricket, 2007 - Image of National Flag of India was on the bottom and was touching to the legs of Applicant - Held - Offence was committed outside India i.e., West Indies - No enquiry or trial could be initiated in India except with previous sanction of Central Govt : Mandira Bedi (Smt.) Vs. Pawan, I.L.R. (2010) M.P. 1212 Criminal Procedure Code, 1973 (2 of 1974) 257
- Section 188, Prevention of Insults of National Honour Act, 1971, Section 2 - Offences committed outside India - No enquiry or trial of such offence could be initiated in India except with the previous sanction of Central Government : In reference Vs. Prakash Kumar Thakur, I.L.R. (2008) M.P. 591
- Section 190 - Cognizance - Complaint presented on 06.10.2007 - Magistrate fixed the case, on 06.11.2007 and further, for recording preliminary evidence - Held - Magistrate had taken cognizance of offences on 06.10.2007 itself by applying his mind and fixing a date for recording of preliminary evidence : In Reference Vs. Deepak Agrawal, I.L.R. (2009) M.P. 272
- Sections 190 & 197 - See - Sahkari Krishi Aur Gramin Vikas Bank Adhiniyam, M.P., 1999, Section 50(2) : Arvind Kumar Bhargava Vs. Lalit Parashar, I.L.R. (2008) M.P. 2471
- Sections 190, 319 - Charge-sheet has been filed before Magistrate for the offences exclusively triable by Court of Sessions - Application u/Ss. 190, 319(2) Cr.P.C. filed before Magistrate for proceeding against applicants - On the basis of enquiry Magistrate took cognizance against applicants - Held - Case instituted on police report which is exclusively triable by Court of Sessions, Magistrate has no option but to commit the case for trial or to order for further investigation - Holding of any enquiry by Magistrate not provided - Order taking cognizance set aside - Petition allowed : Mangilal Vs. State, I.L.R. (2008) M.P. 1549
- Section 193 - Cognizance of Offences by Sessions Court - Committal proceedings before Special Court are mandatory - Proceedings cannot be quashed in those cases where charge sheet was filed directly before Special Court in view of judgment passed in Anand Swaroop Tiwari unless occasioned failure of justice : Bhagwan Singh Vs. State of M.P., I.L.R. (2008) M.P. 1514
- Section 195 - Allegation that accused without being registered Chartered Accountant appeared before Income Tax, Sales Tax Authority, submitted documents as Chartered Accountant and cheated authorities - Held - Income Tax or Sales Tax department has not filed complaint - Cognizance of offence can be taken only on the complaint filed by the Income Tax / Sales Tax Authoriies who are falling within category of "Court" as per provision u/s 195 - Revision dismissed : Institute of Chartered Accountants of India Vs. Vimal Kumar Surana, I.L.R. (2009) M.P. 1477
- Sections 195, 211 & 340 - Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence - Enquiry - Trial Court except recording the finding that prosecution witnesses gave false evidence did not go into the question whether it was expedient that Criminal Procedure Code, 1973 (2 of 1974) 258 they should be prosecuted - It must be a case of deliberate falsehood and the Court must be satisfied that there is reasonable foundation for charge - Appeal allowed - Court directed to withdraw complaint : Meera Bai Vs. State of M.P., I.L.R. (2009) M.P. 2443
- Section 195(1)(a)(i), Penal Code, 1860, Section 188 - Complaint for violation of the Model Code of Conduct - Cognizance of such offence can be taken only on the complaint in writing of the Secretary of the Election Commission of India or of some other public servant to whom he is administratively subordinate : Gautam Kalloo (Dr.) Vs. State of M.P., I.L.R. (2010) M.P. 536
- Section 197 - Acts not done in discharge of official duty - Umbrella of S. 197 Cr.P.C. is not available : O.P. Yadav Vs. State of M.P., I.L.R. (2010) M.P. 745
- Section 197, Penal Code, 1860, Section 420 - Sanction for prosecution - Applicant availed the money of LTC without traveling - No sanction for prosecution necessary as act of applicant was not in discharge of his official duties : Ramesh Chandra Vs. State of M.P., I.L.R. (2009) M.P. 255
- Section 197, Penal Code, 1860, Sections 166, 294, 451 - Sanction of prosecution - Magistrate taking cognizance against non-applicant for offence u/s 166, 294, 451 I.P.C. - Order set-aside in revision on the ground that sanction u/s 197 of Code was not obtained - Order challenged before High Court - Held - At the time of incident, non- applicant was probationary Naib Tahsildar - He was acting in discharge of his duties - He was not removable from service except the order of State Government - Sanction of State Government necessary prior to taking cognizance of the alleged offence - The same has not been taken - Revisional court has rightly held the application of bar of Section 197 of Code - Revision dismissed : Shameem Khatoon (Smt.) Vs. R.P. Ramanwal, I.L.R. (2008) M.P. Note *89
- Section 197 - Sanction for prosecution - Applicant working as Sarpanch - Money was allotted for carrying out certain works - Neither work was completed nor money was refunded - Held - Proceedings would not be vitiated on account of non compliance of Section 197 when there are grave charges of corruption and mis-appropriation involved : Prahladsingh Vs. State of M.P., I.L.R. (2008) M.P. 1287
- Section 197 - Sanction for prosecution - Alleged act of applicant has no reasonable connection or nexus with his official duty - Sanction under Section 197 Cr.P.C. not required : Prakash Vyas Vs. Smt. Kamlesh Chauhan, I.L.R. (2007) M.P. 1721
- Sections 197, 397, 401, Penal Code Indian, 1860, Section 120-B and Prevention of Corruption Act 1988, Section 13(1)(d) (ii-iii), 13(2) - Framing of charge - Judicial Criminal Procedure Code, 1973 (2 of 1974) 259 mind has to be applied as to whether prima facie case is made out for framing charge or not - Minister and State Govt. Officers acted in official capacity - Sanction of Govt. necessary : R.P. Khare Vs. State Govt of M.P. Through The Special Police Establishment, I.L.R. (2006) M.P. 619
- Section 200 - See - Accommodation Control Act, M.P. 1961, Section 43(3) : Manisha Lalwani (Smt.) Vs. Dr. D.V. Paul, I.L.R. (2009) M.P. 2721
- Section 200 - See - Negotiable Instruments Act, 1881, Section 138 : Banshilal Vs. Abdul Munnar, I.L.R. (2009) M.P. 3032
- Section 200 - Complaint - Magistrate has to proceed and pass orders in a case on the basis of material on record of that particular case - Magistrate is not supposed to remember and pass orders on the basis of facts of any other case : In Reference Vs. Alok Singhai, I.L.R. (2009) M.P. 264
- Section 200 - Complaint filed against applicants alleging that departmental enquiry was initiated against him on false allegations and he was dismissed from service - Held - Non-applicant No.1 failed to establish that how the departmental enquiry was initiated on false allegations and that too with an ulterior motive - Taking of cognizance illegal and erroneous - Petition allowed : Saubir Bhattacharya Vs. Jai Prakash Kori, I.L.R. (2008) M.P. 1849
- Section 200 - Complaint - It is the duty of Magistrate to see as to whether criminal complaint is filed in proper form and whether any person has been made accused improperly or illegally : Saubir Bhattacharya Vs. Jai Prakash Kori, I.L.R. (2008) M.P. 1849
- Section 200 - Statement of complainant - Statement of complainant recorded and case was adjourned for recording of statement of remaining evidence of complainant - Statement of complainant recorded for the second time on subsequent dates - Recording of second statement of complainant with an intention to fill up lacunas not proper : Saubir Bhattacharya Vs. Jai Prakash Kori, I.L.R. (2008) M.P. 1849
- Sections 200 & 201 - Second/subsequent complaint - Magistrate returned the first complaint on the ground that he had no jurisdiction to entertain as commission of offence u/s 13(1)(d) of Prevention of Corruption Act alleged - Does not debar magistrate to entertain complaint again, if those allegations are omitted by complainants in second complaint : In Reference Vs. Alok Singhai, I.L.R. (2009) M.P. 264
- Sections 200, 202 - Postponement of issue of process - Trial Magistrate recorded the statement of complainant and postponed the case for recording of evidence of remaining witnesses - On next date complainant expressed that he doesnot want to Criminal Procedure Code, 1973 (2 of 1974) 260 examine any other witness - Trial Court after considering the allegations made in complaint and the statement issued process against applicants - Held - It cannot be said that Trial Court committed any illegality or irregularity : LML Limited Vs. Kailash Narain Rai, I.L.R. (2008) M.P. Note *33
- Section 202 - Nature of investigation - Object is not to envisage a fresh case on police report but to assist Magistrate in completing the proceedings already instituted upon a complaint before him : Yashpal Singh Vs. State of M.P., I.L.R. (2010) M.P. 520
- (Amendment inserted w.e.f. 23.06.2006), Section 202(1) - Accused resident of place beyond jurisdiction of Court - It is obligatory upon Magistrate that before summoning the accused residing beyond his jurisdiction, he shall enquire into the case himself, or direct investigation to be made by a police officer or by such person as he thinks fit - Applicant resident of Mumbai - Cognizance was taken and process was issued without inquiry and also without directing any investigation - Issuance of process not in accordance with law - Order quashed : Mandira Bedi (Smt.) Vs. Pawan, I.L.R. (2010) M.P. 1212
- Section 202(2) proviso - Effect of non-compliance of proviso - Statute does not expressly provide for nullification of the committal order - But provides that unless prejudice is caused, the order is not to be set-aside - This would mean that during inquiry u/s 202 of Code when magistrate examines the witnesses on oath, as far as possible proviso is to be complied with but the mandate is not absolute - Further, where objection as to how prejudice was caused, was not raised at earliest stage, fresh inquiry into Section 202 is unnecessary : Nanjiram Vs. State of M.P., I.L.R. (2008) M.P. 2737
- Sections 203 & 204 - Right of audience of accused - Complaint dismissed without registering it - Right of audience is conferred on other party only after the case is registered against him and when he is summoned u/s 204 CrPC : Manisha Lalwani (Smt.) Vs. Dr. D.V. Paul, I.L.R. (2009) M.P. 2721
- Section 204 - There cannot be any straitjacket formula for issuance of warrants but as a general rule, unless an accused is charged with the commission of an offence of a heinous crime and it is feared that he is likely to tamper or destroy the evidence or is likely to evade the process of law, issuance of non-bailable warrants should be avoided : O.P. Yadav Vs. State of M.P., I.L.R. (2010) M.P. 745
- Section 204 - Issue of Process - Issuance of process is not interlocutory order - Petitioners have efficacious alternative remedy : LML Limited Vs. Kailash Narain Rai, I.L.R. (2008) M.P. Note *33 Criminal Procedure Code, 1973 (2 of 1974) 261
- Sections 204 & 397 - Interlocutory order - Order of issuance of process and taking cognizance cannot be treated as interlocutory order and hence, no bar of sub- section (2) of S. 397 is applicable : Yashwant Singh Vs. Smt. Sita Singh, I.L.R. (2010) M.P. 2650
- Sections 204 & 397 - Complaint u/ss 420 & 468 IPC filed against accused - Magistrate after satisfaction directed registration of offence u/s 420 IPC - Revisional Court allowed the revision and acquitted the accused - Revision before High Court - Held - Magistrate having taken cognizance, it was not within the jurisdiction of revisional Court to have assessed the probative value of the material before the trial Court - The mens-rea was there or not has to be decided by the trial Court and not the revisional Court - Impugned order set-aside - Revision allowed : Ajay Kumar Vs. Vijay Kumar, I.L.R. (2009) M.P. 1493
- Section 207 - Compact Disc - CD was displayed in Court in the presence of counsel for the accused before framing of charge - No objection by Advocate that because of non-supply of CD they cannot advance arguments on the question of framing of charge - Non-supply of CD did not cause prejudice to the accused : Prakash Chattrani Vs. State of M.P., I.L.R. (2009) M.P. 3454
- Sections 211,222 - Minor Offence - Offence punishable U/s 307 of I.P.C. is not minor offence of 302 of I.P.C. - Accused cannot be convicted U/s 307 of I.P.C. in absence of charge : Dulichand Vs. State of M.P., I.L.R. (2008) M.P. Note *31
- Section 215 - See - Penal Code, 1860, Section 376(2)(g), 376 : Subhash Vs. State of M.P., I.L.R. (2009) M.P. 3226
- Section 216, Penal Code, 1860, Section 420, Negotiable Instruments Act, 1881, Section 138-A private complaint filed u/s 138 of the Act and Police Challan u/s 420 IPC was also filed on the basis of complaint for dishonour of cheques - Both cases merged by order of magistrate - No charge was framed u/s 138 of Act - Oral prayer for framing additional charge rejected - After recording of evidence of complainant, application u/s 216 Cr.P.C. for framing additional charge filed - Rejection - Held - Because the prayer was rejected once, the right to approach the court again u/s 216 of the Cr.P.C., is not curtailed as court can alter or add any charge at any time before judgment is pronounced - Court below erred in rejecting application - Revision allowed : Prakash Kanthed Vs. M/s Maheshwari Protins Ltd, I.L.R. (2009) M.P. 259
- Section 216, Prevention of Corruption Act, 1988, Section 13(1)(d), (2) - Alteration of Charges - Charge sheet filed against applicants and other accused persons u/ss 420, 467, 468, 471, 120B of IPC and Section 13(1)(d) r/w 13(2) of the Act - No charge u/s 13(1)(d), (2) of the Act framed against applicants although the same was framed against Criminal Procedure Code, 1973 (2 of 1974) 262 some of co-accused persons - Charges can be altered or added at any time - Framing of charge u/s 13(1)(d), (2) of the Act not illegal : Manjulata Tiwari (Smt.) Vs. State of M.P., I.L.R. (2008) M.P. 2731
- Sections 216, 397 - Interlocutory Order - Alteration of Charge - Prosecution filed application under Section 216 of Code for framing additional charges - Trial Court fixed the case for evidence without deciding application - Revisional Court directed Trial Court to decide the application - Held - Orders which are matters of moment and some affect or adjudicate rights of accused or a particular aspect of trial cannot be said to be interlocutory order - Revision maintainable : Sovran Singh Vs. State of M.P., I.L.R. (2008) M.P. 1527
- Section 217 - Recall of witnesses when charge altered - Charges altered or added by trial court - Interest of prosecution and defence of accused to be safeguarded by permitting them to further examining or cross-examine witnesses - Order refusing to recall witnesses set-aside : Manjulata Tiwari (Smt.) Vs. State of M.P., I.L.R. (2008) M.P. 2731
- Section 222 - When offence proved included in offence charged - When it is not clear or doubtful as to what offence is committed or made out, then the Court possess the power to convict a person in relation to a minor offence established from the evidence brought on record : Mazboot Singh Vs. State of M.P., I.L.R. (2010) M.P. 674
- Sections 223, 317(2) - Separation of Trial - Joint or Separate trial is discretion of Trial Judge - Exercise of discretion would depend upon facts and circumstances of case - Splitting of joint trial is permissible if it does not result in prejudice to any one of the affected parties - Order of separate trial not going to result into any prejudice to applicant - Application dismissed : Manoj Vs. State of M.P., I.L.R. (2008) M.P. 404
- Section 227, Penal Code, 1860, Section 307 - Attempt to murder - Framing of charge - Important factor is intention or knowledge to cause death - At the stage of framing of charge, standard of tests regarding guilt or otherwise of accused cannot be applied - Court has to be satisfied about the prima facie existence of the factual ingredients constituting the offence - Application dismissed : Sanjay Mishra Vs. State of M.P., I.L.R. (2009) M.P. 3462
- Section 227 - Framing of charges - If allegations in FIR are accepted in its entirety and in its face value, do not constitute offence - Where it constitutes offence but there is no legal evidence, High Court is justified in quashing criminal proceedings : State of M.P. Vs. Dr. Ramlakhan Singh, I.L.R. (2009) M.P. 2455
- Section 227 - Discharge of accused - Charge sheet was filed against complainant on a report lodged by bank officials - Complainant was discharged - Held - Mere Criminal Procedure Code, 1973 (2 of 1974) 263 discharge is not sufficient to make out a case - It has to be shown through oral evidence supported by documentary evidence that how the report was false - Complainant failed to establish prima facie that he was discharged by Court after coming to conclusion that report was false : Saubir Bhattacharya Vs. Jai Prakash Kori, I.L.R. (2008) M.P. 1849
- Sections 227 & 228, Penal Code (45 of 1860), Sections 32 & 304-A - The omission on the part of the applicant in leaving the tank uncovered and unsafe for the small children prima facie amounted to criminal negligence : Ramkishore Vs. State of M.P., I.L.R. (2010) M.P. 1836
- Sections 227 & 228, Penal Code (45 of 1860), Section 307 - Framing of charge - Nature of injury actually caused, by itself, would not be a decisive factor to hold that the offence under Section 307 of the IPC is not made out - Even a strong suspicion leading to presumption as to possibility as against certainty makes out a case for framing of charge : State of M.P. Vs. Habib, I.L.R. (2010) M.P. 1834
- Sections 227 & 228, Penal Code, 1860, Sections 341, 147, 332/149, 333/149 & 353/149 - Discharge - Dismissal of accused's application to discharge - Revision - Held - At the time of framing of charge, meticulous consideration of evidence and material by court is not required - Court must apply mind to the material placed on record - Court below framed charges on the basis of material placed on record - No interference in revision - Revision dismissed : Rakesh Vs. State of M.P., I.L.R. (2009) M.P. Note *10
- Sections 227, 228 - Stage of framing charges - Court to prima facie consider whether there is sufficient material against accused - Alleged custodial death of Dy. Commissioner of Commercial Tax - Charge framed under Section 304-II of I.P.C. against accused who are officers of S.P.E. (Lokayukt) - Revision challenging order framing charge - Ribs of deceased found fractured along with some other simple injuries - Clear opinion of Doctors that ribs were fractured during the course of Cardiac Pulmonary Resuscitation - Charge under Section 304-II of I.P.C. set aside - Accused could be charged only under Section 323 of I.P.C. : Smt. Indu Jain Vs. State of M.P.; I.L.R. (2006) M.P. 1691
- Sections 233 & 311 - A witness already examined as a prosecution witness cannot be later on permitted to be cited as a defence witness : Sonu Vs. State of M.P., I.L.R. (2010) M.P. 2418
- Sections 233, 312 - Expenses of defence witnesses - Sessions Trial - Discretion to direct State Govt. to make payment of expenses of defence witness is vested in the Court which has to be exercised judiciously - Rejection of prayer for such direction by Trial Court is perfectly justified - No interference called for - Revision dismissed : Nandlal Vs. State of Maharashtra, I.L.R. (2008) M.P. 1292 Criminal Procedure Code, 1973 (2 of 1974) 264
- Sections 239, 245 & 258, Negotiable Instruments Act, 1881, Section 138 - Applicability of Sections 239, 245 & 258 of Code in complaint u/s 138 N.I. Act - Applicant filed complaint u/s 138 of Act - N.A. filed an application u/s 245 of Code for dismissal of complaint as it being barred by limitation - Magistrate allowed the application and dismissed the complaint as time barred - Order challenged in High Court u/s 482 of Code - Held - Present complaint is a summon case - Provisions of Sections 239 & 245 of Code are applicable in warrant cases - Though the provisions of Section 258 of Code are applicable in summons cases but only in those summons cases which are instituted otherwise than upon complaint - Magistrate has committed error in allowing the application u/s 245 of Code - Petition allowed : Girraj Patwa Vs. Dayaram, I.L.R. (2008) M.P. 3355
- Section 240, Penal Code, 1860, Sections 304 Part II & 330 - Framing of charges - Custodial death - Charges framed against officers u/s 304 Part II but dropped u/s 330 IPC - Whereas, HC directed to frame charges u/s 323/34 IPC - Held - Deceased was asthmatic - Despite that he was detained in wholly unhygienic conditions which triggered his asthmatic attack leading to his death on account of asphyxia - Injuries found on the body of deceased - Prima facie case made out for framing of charges u/s 304 Part II & 330 IPC - Order of Sessions Judge framing charge u/s 304 Part II IPC restored - Also direction issued to frame charges u/s 330 IPC : Indu Jain Vs. State of M.P., I.L.R. (2010) M.P. 1 (SC)
- Section 243 - Defence Witnesses - Fair Trial - Includes Fair and proper opportunities allowed by law to prove innocence - Request for leading defence evidence should be considered unless Magistrate finds the object of accused is to vexatious or delaying criminal proceedings - Accused is permitted to call defence witness : Narendra Dhakad Vs. Anand Kumar, I.L.R. (2008) M.P. 1309
- Section 256 - On single default of appearance of the complainant and his advocate, the Court dismissed the complaint and discharged the accused/respondent - Held - The action taken by the Court was more harsh and strict - The case ought to have been adjourned for the evidence of the parties, the Court should not dismiss the complaint - The appellant was represented through counsel, then the Court should have adjourned the hearing of the case for some other day instead of dismissing the complaint - Order set aside and complaint restored to its original number : Vijay Singh Vs. Surendra Singh, I.L.R. (2010) M.P. 2346
- Section 265, Official Language Act, M.P. 1957, Section 3 - The accused can not be held prejudiced by filing of charge sheet and other documents in English language and not providing Hindi translation where he is well represented by the counsel, who is well versed in English - Petition dismissed : Mohd. Aslam Vs. State of M.P., I.L.R. (2010) M.P. 2428 (DB) Criminal Procedure Code, 1973 (2 of 1974) 265
- Section 282 - See - Evidence Act 1872, Section 119 : Vinod Vs. State of M.P., I.L.R. (2009) M.P. 3440
- Section 293 - Evidence Act, 1872, Section 45 - Mere exhibiting hand writing expert report is no evidence unless proved by examining hand writing expert - Such expert does not come within the category of government scientific expert shown in section 293 (4) : Ayyub Vs. State of M.P., I.L.R. (2008) M.P. 343
- Section 309 - Adjourn-ment of case - Witnesses present not examined by trial Court on defence plea that witnesses are not being examined in seriatim - Held - There is no provision in Cr.P.C. that the witnesses will be examined in a particular manner - No special reason existing for adjourning the case - Lack of knowledge of trial Court regarding the procedure laid down in Section 309 Cr.P.C. evident : State of Madhya Pradesh Vs. Mukhtyar Malik, I.L.R. (2007) M.P. 647 (DB)
- Section 310 - Making local inspection and preparing spot map by Presiding Officer - Object is to enable the judge to understand topography of the spot - Spot inspection was not necessary as topography was known - Prescribed procedure not followed - Witnesses not confronted with spot map - No reason assigned for not considering map prepared by I.O. - Map prepared by trial Court cannot be taken into consideration : State of Madhya Pradesh Vs. Mukhtyar Malik, I.L.R. (2007) M.P. 647 (DB)
- Section 311 - Powers of Court - Law discussed : Boby @ Sanjeev Singh Vs. State of M.P., I.L.R. (2010) M.P. Note *15
- Section 311 - Recall of witness - Application filed for recall of P.W. 3 on the ground that accused persons had produced impersonator in place of material witness - Statement of P.W. 3 was got recorded under Section 164 of Cr.P.C. during investigation - CSP getting the statement recorded under Section 164 of Cr.P.C. directed to conduct enquiry with regard to impersonation of P.W. 3 - C.S.P. submitted the report that the person projected as Mohd. Haleem by objectors is the same person whose statement under Section 164 of Cr.P.C. were got recorded by him - Handwriting expert also submitted report that the signatures of the person who was examined as P.W. 3 in the Court and the signature of person on his statement under Section 164 of Cr.P.C. are different - Recall of witness P.W. 3 under these circumstances cannot be said to be not an act under Section 311 for doing justice and coming to a correct conclusion - Application rejected : Boby @ Sanjeev Singh Vs. State of M.P., I.L.R. (2010) M.P. Note *15
- Section 311 - Recall of witness - Application for recall filed after more than one year on ground that the witness was previously cross-examined by junior counsel - Held - On perusal of the statement of complainant it is apparent that she has been Criminal Procedure Code, 1973 (2 of 1974) 266 cross-examined at length by petitioners' counsel - Section 311 does not confer on any party any right to examine, cross-examine and re-examine any witness - This power is given to the Court to prevent any irretrievable or immeasurable damage to the cause of Society, public interest and miscarriage of justice -Application filed to fill lacunas and loopholes cannot be permitted : Munendra Vs. State of M.P., I.L.R. (2010) M.P. Note *19
- Section 311 - Re-examination of prosecutrix - Prosecutrix already examined cannot be permitted to be re-examined on the basis of subsequent affidavit filed by her : Balveer Vs. State of M.P., I.L.R. (2010) M.P. Note *2
- Section 311 - Complaint u/s 138 Negotiable Instruments Act, 1881 filed by non- applicant through power of attorney - Application u/s 311 filed after recording of evidence for permission to examine herself as complainant - Allowed - Held - Trial has yet to complete - To permit non-applicant to adduce evidence cannot be treated as permission to fill up lacuna - No prejudice caused to applicant as he will have right to cross- examine witness - Petition dismissed : Nirmal Enterprises (M/s) Vs. Smt. Nargis Kapadiya, I.L.R. (2009) M.P. Note *33
- Section 311 - Powers of trial judge - Trial judge even before pronouncement of judgement has found that prosecution witness has given contradictory statements in cross-examination and non-performance of duty by the prosecutor to re-examine such witness - Trial judge has to exercise power u/s 311 of the Code to recall such witness for further examination on limited point to settle the ambiguity : Ramesh Vs. State of M.P., I.L.R. (2009) M.P. 1131 (DB)
- Section 311 - Recalling of witness - Witness who was examined in-Chief and cross examined fully, cannot be recalled and re-examined to deny evidence which he had already given before Court - Jurisdiction vested in Court must be exercised judicially and not capriciously or arbitrarily : Suo Motu Revision State of M.P. Vs. Vinod Mudgal, I.L.R. (2008) M.P. 1817
- Section 311 - Recalling of witness - Witness present but not cross-examined - Adjournments cannot be granted except of special reasons - Counsel engaged in another case - Cannot be a considered to be a special Reason : Babban Shah Vs. State of M.P, I.L.R. (2006) M.P. 1091
- Section 311-A - Power of magistrate to order person to give specimen signatures or handwriting - Charge-sheet filed against applicant and almost all prosecution witnesses examined - Investigation Officer also partially examined - Provision not attracted : Ravi Neal Vs. State of M.P., I.L.R. (2008) M.P. 2726 Criminal Procedure Code, 1973 (2 of 1974) 267
- Section 313 - When an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances : In Reference Vs. Mohammad Shafiq @ Munna @ Shafi, I.L.R. (2010) M.P. 2405 (DB)
- Section 313 - Accused statement - Statement made in defence by accused can only be taken as an aid to lay credence to evidence led by prosecution - Such statement cannot be made the basis for conviction : K.N. Sharma Vs. State of M.P., I.L.R. (2010) M.P. Note *13
- Section 313, Prevention of Corruption Act, 1947, Section 5(1)(d) r/w Section 5(2) - Case of prosecution that Rs.200 was demanded by accused towards bribe and the amount of Rs.200 was given by complainant - Defence of accused is that complainant took Rs.150 towards loan from him and Rs.200 were given for repayment of loan - Rs.50 was returned by accused immediately - Trap witness stated that accused was saying that he has taken money towards re-payment of loan, Rs.50 received from complainant - The defence appears to be probable and due weightage should be given : Hifazatullah @ Nasirullah Vs. State of M.P., I.L.R. (2009) M.P. 1755
- Section 313 - Probable defence taken by accused should not be compared with that of prosecution where the prosecution is obliged to prove its case beyond doubt : Hifazatullah @ Nasirullah Vs. State of M.P., I.L.R. (2009) M.P. 1755
- Section 313 - Examination of accused - Is not a mere formality - Court is required to put proper question to accused relating to material which is against interest of accused and seek explanation of accused : Bhoorelal Vs. State of M.P., I.L.R. (2008) M.P. 1229 (DB)
- Sections 313, 374(2) and Narcotic Drugs and Psychotropic Substance Act, 1985, Sections 8, 20 -Seizure of contraband articles - Seized property not produced - FSL Report not tendered in evidence nor put to accused in his statement under Section 313 Cr.P.C. - Mere oral evidence and production of panchnama do not discharge the heavy burden which lies on prosecution, particularly where offence is punishable with stringent punishment under NDPS Act - Conviction and sentence set aside : Abid Khan Vs. State of M.P., I.L.R. (2006) M.P. 1317
- Section 318 - Deaf & dumb - Accused deaf & dumb was tried alongwith others for offences punishable u/ss. 148 & 302 or 302/149 IPC - His plea of guilt not recorded and his examination u/s 313 of Code could not be possible - Trial Court found accused guilty of the offence u/s 325/34 IPC and forwarded the proceedings to HC u/s 318 of Code - Held - Accused was represented by a defence lawyer of his choice - The trend Criminal Procedure Code, 1973 (2 of 1974) 268 of cross-examination further reflected that the defence counsel on his behalf was able to question the witnesses as per instructions of the accused - The fact that the person is deaf and dumb does not necessarily mean that he cannot understand or cannot be made to understand the proceedings before a Court, though the disability is undoubtedly a serious handicap to the communication either way - His non-examination u/s 313 of Code had also not resulted into any prejudice to him - In the light of overwhelming evidence HC upheld the conviction u/s 325/34 IPC and sentence of already undergone imposed. In Reference: Boura Vs. State of M.P., I.L.R. (2009) M.P. 2724
- Section 319 - Evidence - Evidence contemplates that evidence of witnesses given in Court - Statement of witness recorded u/s 161 of Cr.P.C. cannot be taken into consideration : Shankar Yadav Vs. Basanti Bai, I.L.R. (2010) M.P. Note *89
- Section 319 - Exercise of power - It should appear to Court that some other person who is not arraigned as accused in that case has committed an offence for which he could be tried together - Some doubt about involvement of another person is not enough - It is discretion and power conferred upon the Court which should be exercised only to achieve justice : Shankar Yadav Vs. Basanti Bai, I.L.R. (2010) M.P. Note *89
- Section 319 - Plea of alibi - Application u/s 319 cannot be rejected on the ground that plea of alibi raised by applicants was investigated by police personnel and on his satisfying about substance in plea of accused about their non-involvement, directed the omission of their names - Although the names of applicants were deleted from array of accused, but their names were found in FIR and statements of witnesses - Revision rejected : Shankar Yadav Vs. Basanti Bai, I.L.R. (2010) M.P. Note *89
- Section 319 - Successive application - Maintainability - 1st application withdrawn - Evidence of witnesses recorded thereafter - 2nd application u/s 319 cannot be said to be barred on the ground of public policy : Shankar Yadav Vs. Basanti Bai, I.L.R. (2010) M.P. Note *89
- Section 319 - Evidence - On the basis of examination-in-chief of witnesses, a person can be summoned u/s 319 : Rakesh Ranpuria Vs. State of M.P., I.L.R. (2010) M.P. 749
- Section 319 - Power to proceed against other persons appearing to be guilty of offence - Court is empowered to proceed against any person not shown or mentioned as accused if it appears from evidence that such person has committed an offence - This power is conferred on Court to do real justice : Rakesh Ranpuria Vs. State of M.P., I.L.R. (2010) M.P. 749 Criminal Procedure Code, 1973 (2 of 1974) 269
- Section 319 - Proceeding under M.P. Excise Act for illegal transportation of liquor initiated against non-applicants - Application for impleading applicant alleging that he was in charge and posted at the distillery and has issued permit - Application allowed - Order challenged - Held - Order of impleading applicant as accused is passed after 9 years of offence - Trial court allowed the application on the ground of role of applicant appears to be doubtful - Not enough for impleading a person as accused who is none else but the witness of the prosecution - Order set-aside : Abdul Rauf Vs. State of M.P., I.L.R. (2009) M.P. 1534
- Section 319 - Power to proceed against other persons appearing to be guilty of offence - Public document or document of prosecution, filed along with charge sheet, can be considered at the time of taking cognizance against new person U/s 319 : Subhash Chandra Jain Vs. State of M.P., I.L.R. (2008) M.P. Note *53
- Section 319 - Power to add persons as accused not already chargesheeted - Can be invoked only after recording evidence during inquiry or trial - Power cannot be exercised while framing charge : Raghvendra Vs. State of M. P., I.L.R. (2006) M.P. 893
- Sections 319, 482 - Power of Sessions Court to proceed against a person - Power is discretionary and to be used sparingly when the court is hopeful that there is a reasonable prospect of the case ending in conviction : Ramavatar Vs. State of M.P., I.L.R. (2007) M.P. 828
- Section 320 - See - Penal Code, India 1860, Section 394 : Bharat Singh Vs. State of M.P., I.L.R. (2008) M.P. 2126
- Sections 320 & 482, Penal Code, 1860, Section 498-A - Compromise - Applicants facing trial for offence punishable u/s 498-A of IPC - Parties have already compromised the matrimonial and other disputes - Held - No useful purpose would be served if criminal proceedings continue in this background against applicants u/s 498-A of IPC and S. 4 of Dowry Prohibition Act - Proceedings quashed - Application allowed : Bhavuk Sharma Vs. Smt. Anju Sharma, I.L.R. (2010) M.P. 1493
- Section 321 - Withdrawal from prosecution - Cross cases pending in one Court - One party facing trial U/s 325 and another U/s 326 of I.P.C. - Withdrawal of one case cannot be said to be in public interest or in the interest of justice - Compelling one party to face trial and giving benefit to other party ought not to be allowed - Order permitting withdrawal from prosecution set aside - Petition allowed : Ramnaresh Vs. Arjun, I.L.R. (2008) M.P. Note *50
- Section 328 - Procedure at time of trial in the case of person of unsound mind - Act, conduct and conversation which accused had with trial judge on the date he was Criminal Procedure Code, 1973 (2 of 1974) 270 produced and on two subsequent dates showed that accused was a normal man - Application u/ss 328 & 335 was moved when the case was fixed for evidence - Held - Application was rightly rejected by trial judge as no medical record in respect of mental condition was produced and behavior of accused was quite normal : State of M.P. Vs. Koushal Prasad Jaiswal, I.L.R. (2009) M.P. 292 (DB)
- Sections 328, 374(2) and Penal Code, Indian, 1860, Section 84, 302, 325 - Murder - Insanity - Offence committed under attack of temporary insanity - General burden of proof rests on prosecution that accused committed the crime with requisite mens rea - Burden not discharged - Accused entitled to be acquitted : Mohan Lal Alias Mohan Vs. State of Madhya Pradesh, I.L.R. (2006) M.P. 1222 (DB)
- Sections 329 & 331 - Resumption of enquiry or trial - Trial of accused postponed on account of his unsoundness of mind u/s 329 - Trial can be resumed by trial court only if accused ceases to be of unsound mind - It is incumbent upon trial court to record its satisfaction that accused is ceased to be insane and is capable of making his defence - Charges were framed without recording such finding by trial court - Entire trial vitiated - Judgment of conviction set-aside - Matter remitted back to trial court to record its satisfaction that accused is of sound mind and then to put to trial - Appeal allowed : State of M.P. Vs. Dilip Bankar, I.L.R. (2009) M.P. 309 (DB)
- Section 340 - Launch of prosecution - When not warranted - Held - An inadvertent statement with no ill motive is not sufficient and cannot form the basis for launching a prosecution u/s 340 of Cr.P.C., Durga Prasad Vs. State of M.P., I.L.R. (2010) M.P. 2089
- Section 340 - See - Contempt of Courts Act, 1971, Sections 10 & 12 : Anita Karope (Smt.) Vs. Smt. Geeta Uikey, I.L.R. (2009) M.P. 31 (DB)
- Section 340 - When Court should exercise powers u/s 340, explained by the Apex Court : Mahila Vinod Kumari Vs. State of M.P., I.L.R. (2009) M.P. 332 (SC)
- Section 340, Constitution, Article 226 - False statement in writ petition - Petitioner filed first writ petition alleging that without deciding his application for amendment, the prescribed authority is proceeding with election petition - Petition disposed of by order dated 16.05.2007 with direction to decide amendment application - Second writ petition filed alleging that application has been rejected by order dated 20.04.2007 which is an antedated order - Held - Amendment application was filed on 04.05.2007 and was partly allowed on the same day and amendment was carried out by petitioner in his written statement - Petitioner has knowingly made false statement in order to gain undue favour - Registrar (Judicial) directed to send matter by making appropriate complaint to competent court for registering case : Bhavani Shankar Sharma Vs. Keshri Singh Chouhan, I.L.R. (2008) M.P. 3082 Criminal Procedure Code, 1973 (2 of 1974) 271
- Sections 340 & 344 - To deal with the case of perjury, Court of Sessions and Magistrate of the First Class has two options either take action u/s 344 or in alternative file complaint after taking the recourse to Section 340(1) : Mahila Vinod Kumari Vs. State of M.P., I.L.R. (2009) M.P. 332 (SC)
- Section 344 - Mandatory conditions for exercising the power - Explained by the Apex Court : Mahila Vinod Kumari Vs. State of M.P., I.L.R. (2009) M.P. 332 (SC)
- Sections 345(1) & 349 - Defiance to the order of the court - Appellant was posted as Police Inspector and was directed to produce the case dairy on 18.02.1994 at 11:00 a.m., but he presented the case diary in the court at 1:30 p.m. and explained his difficulty in not reaching in time - Court punished him on 22.02.1994 with fine of Rs.25/ - along with sentence till the rising of the court - Held - When any offence as enumerated in Section 345(1) of Code, is committed in the view or presence of any civil, criminal or revenue court, action as provided u/s 345(1) of Code may be taken before rising of the court on the same day - Order set-aside - Appeal allowed : Phool Singh Tekam Vs. State of M.P., I.L.R. (2009) M.P. 504
- Section 349 - Imprisonment or committal of person refusing to answer or produce document - Although appellant failed to produce the case diary on 18.02.1994 at the time of call by the court for which a reasonable explanation was also submitted by him, but failure to produce the case diary at a scheduled time fixed by the court cannot be equated with refusal to produce the case diary - It was not a case of refusal to produce the case diary or a document before the court so as to warrant imposition of penalty or action u/s 349 of Code - Order set-aside - Appeal allowed : Phool Singh Tekam Vs. State of M.P., I.L.R. (2009) M.P. 504
- Section 352 - Forming opinion on basis of cited cases - Trial Court expected to go through entire judgment cited - Forming opinion by reading stray sentences from cited case - Practice deprecated : Mahesh Vs. State of M.P., I.L.R. (2006) M.P. 1211 (DB)
- Section 354, Penal Code, 1860, Section 302 - Death Penalty - Rarest of Rare - Appellant No.1 along with other appellants killed his father and two step brothers on a land dispute - Although act of appellant No.1 was apparently quite brutal and heinous but was not committed for satisfying any kind of lust, greed or in pursuance of any antisocial activity - Appellant No.1 cannot be described as menace to society - Case does not fall in the category of rarest of rare case - Death penalty set-aside and sentenced to imprisonment for life u/s 302 IPC on all three counts - Reference answered accordingly : In Reference Vs. Sheikh Arif, I.L.R. (2009) M.P. 1807 (DB)
- Sections 354 & 482 - Judgment - Adverse remarks - Against I.O. should not be passed without providing him opportunity of hearing : S.R. Bhagwaiya Vs. State of M.P., I.L.R. (2009) M.P. Note *11 Criminal Procedure Code, 1973 (2 of 1974) 272
- Sections 354(3) & 366 - Death reference - Offence was committed under influence of extreme mental or emotional disturbances - Accused offered no such traumatic threat to the survival of social order - Present case also not rarest of rare cases - Death reference rejected - Accused sentenced to imprisonment to life : State of M.P. Vs. Koushal Prasad Jaiswal, I.L.R. (2009) M.P. 292 (DB)
- Section 357 (3) - Order of payment of compensation - Accused treated victim in proper hospital and spent considerable amount - Victim himself was partly responsible for accident as he has not taken proper care - Compensation of Rs.20,000/- would meet ends of justice : Mahesh Vs. State of M.P., I.L.R. (2008) M.P. Note *79
- Section 357(3), Penal Code, 1860, Section 287 - Order of payment of compensation - Victim suffered grievous injuries while operating thresher machine under the employment of accused - Presence of accused at spot and evidence of witnesses regarding negligence of accused - Held - Accused guilty of offence u/s 287 IPC - However - Custodial sentence reduced to period already undergone on payment of compensation : Mahesh Vs. State of M.P., I.L.R. (2008) M.P. Note *79
- Section 362 - Power of Review by Criminal Court - Is not a inherent power - No such power has been conferred by Code - Criminal Court cannot review it's own order or judgment except to the extent of correcting any clerical or arithmetical error : Sunita Jain Vs. Pawan Kumar Jain, I.L.R. (2008) M.P. 424 (SC)
- Sections 362 & 482 - Application for recalling order of dismissal of criminal revision directed against framing of charges - Held - Court can not interfere with judgment or final order after it is signed, except to correct clerical or arithmetic error - Recalling of final order not permissible - Application dismissed : Zairus Master Vs. State of M.P., I.L.R. (2009) M.P. Note *19
- Sections 362 & 482, Penal Code, 1860, Sections 68 & 69 - Inherent powers of High Court - Can the Court after pronouncing the final judgment alter, reopen or modify it in exercise of inherent powers for extending the time for deposit of the fine amount - Held -Stipulated period to deposit the amount of fine in a final order can not be extended with the aid of Section 482 of Cr.P.C. - Appropriate remedy is to avail the provision of Section 68 of I.P.C. : Prahlad Singh Vs. State of M.P., I.L.R. (2009) M.P. 1537
- Section 366 - Death sentence - The accused brutally committed the murders of his wife and two innocent minor daughters - He also attempted to cause death of two other minor daughters while all the victims were sleeping in the room - He did not appear remorseful at any stage after commission of the crime - He killed his wife when she was carrying a full term pregnancy - He committed the offence with extreme brutality against all the female members of his family at the time when his three sons Criminal Procedure Code, 1973 (2 of 1974) 273 were away - Can not be impressed by the submission that on account of extreme poverty, the offence was committed - Case comes within the category of 'rarest of rare case' - Death sentence affirmed : In Reference Vs. Mohammad Shafiq @ Munna @ Shafi, I.L.R. (2010) M.P. 2405 (DB)
- Section 374 - Appeal against acquittal - Penal Code, Indian, 1860 - Sections 147, 148, 302, 302/149 - Members of rival gangs having cross cases against each other indulging in stabbing and using firearms causing death of two members of each gang - Held - Discarding evidence on the ground of minor contradition, technical irregularities and setting stricter yardstick for appreciating eye witness account of police personnel not proper - Eye witnesses reliable - Rejection of eye witness account on the basis of spot map - Perverse conclusion - Judgment of acquittal set aside - Respondent convicted under Sections 147, 148, 302/149 IPC : State of Madhya Pradesh Vs. Mukhtyar Malik, I.L.R. (2007) M.P. 647 (DB)
- Section 374(2), Narcotics Drugs and Psychotropic Substances Act, 1985, Section 8 r/w 20(b)(iii)(b) - Appellant No.1 was convicted for the charge that on search of his house 12 Kg Ganja was found - Whereas appellant No.2 was convicted on the allegation that at the time of search he was present and weights, measures and Rs.743/- were seized from him - Appellants challenged their conviction before High Court - Held - No evidence is produced that appellant No.2 was also selling Ganja with appellant No.1 - Merely his presence is not sufficient to prove that he was dealing in Ganja - There is no evidence to connect complicity of appellant No.2 with this offence - Defence story of appellant No.2 that he suggested police officer not to use third degree methods against appellant No.1 on account of which he has been implicated in this case - Cannot be said to be unreasonable - Conviction of appellant No.2 set-aside - Appeal partly allowed : Kuldeep Sahu Vs. State of M.P., I.L.R. (2008) M.P. 2985
- Section 374(2) - See - Penal Code 1860, Section 302 : Gudda @ Raho @ Gajdhar Vs. State of M.P., I.L.R. (2008) M.P. 2394 (DB)
- Section 374(2) - See - Prevention of Corruption Act 1988, Sections 7, 13(1)(d) r/w Section 13(2) : Navkant Sharma Vs. State of M.P., I.L.R. (2008) M.P. 2425
- Section 374(2), Penal Code, Indian,1860 - Section 302 - Appeal against conviction under section 302 - Accused convicted for killing his wife by throwing her in a pond - Doctor conducting Post Mortem could not give any opinion regarding cause of death - Diatom test to confirm death by drowning not conducted - No symptoms indicating death by drowning except blood mixed froth in the nostrils and lungs - For conviction under Section 302 of I.P.C. death should be homicidal in nature - Prosecution failed to prove that death was homicidal in nature - Accused acquitted : Ashok Kumar Vs. The State of Madhya Pradesh, I.L.R. (2007) M.P. 129 (DB) Criminal Procedure Code, 1973 (2 of 1974) 274
- Section 374 (2), Evidence Act, Indian, 1872 Section 32 and Penal Code Indian, 1860, Sections 34, 307 - Attempt to murder - Death of victim after three months due to some other cause - Trial Court wrongly viewed complaint lodged by deceased as dying declaration - No other witness supported prosecution case - Conviction and Sentence set aside : Ganesh Vs. State of M.P., I.L.R. (2006) M.P. 1331
- Section 374(2) and Penal Code, Indian, 1860 Sections 34, 212, 364, 365 - Harbouring and concealing - Should be with intention to screening from legal punishment - No element of intimidation that harm would be caused if demand not met - Offence of kidnapping for ransom not made out - Boy of 12 years kidnapped, forciblly taken away and confined - Conviction and sentence of 5 years R.I. under Section 365, IPC maintained : Durgashankar @ Durgalal Vs. State of Madhya Pradesh, I.L.R. (2006) M.P. 758 (DB)
- Section 374 (2) and Penal Code Indian, 1860, Section 302 - Murder - Conviction and sentence - Appeal - Last seen together - Weak piece of evidence - In absence of corroborative evidence it would be hazardous to base conviction on 'Last seen together' - Accused deserve benefit of doubt : Subhash @ Poonamchand Patidar Vs. State of M.P., I.L.R. (2006) M.P. 1201 (DB)
- Section 374 (2) and Penal Code Indian, 1860, Sections 302, 397, 411 - Murder - Ornaments worn by deceased ceased from accused after more than a month - Accused can be convicted at the most under Section 411, IPC - Conviction and sentence under Sections 302 & 397, IPC set aside : Radheshyam S/o Narain Singh Yadav Vs. State of M.P., I.L.R. (2006) M.P. 1206 (DB)
- Sections 374,162 - Penal Code, Indian 1860, Section 331 - Appeal against acquittal - Accused charged for voluntarily causing hurt to extort confession - Acquitted by trial Court - Trial Court rejecting the testimony of star witnesses on the ground that the investigating officer had cast doubt on his reliability by obtaining his signature on his statement at the inquest - Obtaining signature of witnesses puts the court on caution, requiring in-depth scrutiny of the evidence - Signature on police statement not by itself sufficient to discard his otherwise trustworthy evidence - Judgment of acquittal set aside - Respondent convicted under Section 331 1PC and sentenced to undergo R.I. for 5 years : State of Madhya Pradesh Vs. Suresh Kumar, I.L.R. (2007) M.P. 563
- Section 378 - Appeal against acquittal - Judgment of acquittal should not be interfered when two views are possible - However High Court entitled to consider entire material for analyzing evidence - High Court can interefere with judgment of acquittal where overwhelming evidence is available : Swami Prasad Vs. State of Madhya Pradesh, I.L.R. (2007) M.P. 579 (SC) Criminal Procedure Code, 1973 (2 of 1974) 275
- Section 378 and Penal Code Indian, Section 376 - Appeal against acquittal - One of the grounds of acquittal being that age of prosecutrix not proved to be below 16 years - Determination of age - Ossification test not performed - Age may be determined from Doctor's opinion and other relevant circumstances - Lady Doctor opining her age to be about 13 years on the basis of physical features - Doctor's opinion corroborated by challan papers including F.I.R. - Even assuming a marginal error of two year, prosecutrix was below 16 years of age on the date of commission of offence - Evidence of prosecutrix reliable and supported by circumstantial and forensic evidence - Judgment of acquittal set aside - Convicted under Section 451 and 376 of the IPC - Sentence of R.I. of 1 year and 7 years respectively : State of M.P. Vs. Ratiram, I.L.R. (2006) M.P. 1564 (DB)
- Section 378 - Revision against acquittal - Complaint lodged to Lawful authority - Police filed challan but applicant acquitted on benefit of doubt - Person who made the report cannot be prosecuted under Section 500 IPC : Bashir Ulla Khan Vs. Mohd. Rafi, I.L.R. (2006) M.P. 1114
- Section 378, Rules and Orders (Criminal) Rule 255 - State Appeal - Delay - Condonation of - Requires adoption of pragmatic approach - Court should decide the matters on merits unless the case is hopelessly without merit - After delivery of judgment as soon as practicable a copy of it should be sent to District Magistrate in Sessions Trials and appeals - Rider imposed on District Magistrates to submit proposal for appeal within 15 days : State of Madhya Pradesh Vs. Manish Singh, I.L.R. (2006) M.P. 917 (DB)
- Section 378(1) - See - Penal Code 1860, Section 302 r/w Section 34 : State of M.P. Vs. Ballu @ Vinod Kumar, I.L.R. (2008) M.P. 2420 (DB)
- Section 378(3), Penal Code, 1860, Section 304B - Dowry Death - Wife of accused committed suicide within 7 years of marriage - There is no evidence about the amount having been demanded - In reply of notice sent on behalf of wife, ill treatment by husband not mentioned - Acquittal - Held - Dowry demand and cruelty on failure to conceive not proved - Prosecution failed to discharge burden - Conclusions drawn by trial court from evidence brought on record are reasonable & proper - Appeal against acquittal dismissed : State of M.P. Vs. Rajesh, I.L.R. (2008) M.P. 2670 (DB)
- Section 378 (4) - Appeal against acquittal - Findings of fact which are well based should not be interfered with - Even if two views were possible the one in favour of accused had indeed been taken : Patiram Vs. State of M.P., I.L.R. (2010) M.P. 1842 (SC) Criminal Procedure Code, 1973 (2 of 1974) 276
- Section 386 - Appeal against acquittal - Powers of appellate Court - Incident took place on 22.06.1991 - High Court being appellate Court and final Court of facts is vested with jurisdiction to reappraise evidence - Remanding matter to Trial Court for decision afresh not necessary : State of M.P. Vs. Mohan, I.L.R. (2009) M.P. 2692 (DB)
- Section 386 - Appeal - Both appellant and his counsel remained absent on various appointed days for hearing - Appeal can be heard finally on merit : Arshad @ Arsad Vs. State of M.P., I.L.R. (2008) M.P. 3278
- Section 386 - Court shall decide the appeal on mertis, cannot dismiss for default - Appeal against acquittal filed by complainant - On two dates respondent (accused) and his counsel were not present - Even after intimating the date by issuance of special post card, respondent and his counsel not present - High Court heard appeal on merit in absence of respondent as well as his counsel : Mujaffar Hussain Mansoori Vs. Devendra Trivedi, I.L.R. (2008) M.P. 2687
- Section 386 - See - Penal Code 1860, Section 324 : Bhure Singh Vs. State of M.P., I.L.R. (2008) M.P. Note *42
- Section 386 - Appeal against acquittal - Power of appellate Court - Not less then the power exercised while hearing appeal from conviction : Kallu @ Masih Vs. State of M.P., I.L.R. (2006) M.P. 167 (SC)
- Section 389, Penal Code, 1860, Section 365 - Suspension of Sentence - Appellant convicted U/s 365 of I.P.C. - Appellant is an educated person aged about 24 years - Having bright future - Bi-focal interest of justice to individual and society affected must be kept in mind - Appellant has been convicted U/s 365 - Remaining part of sentence shall remain suspended during pendency of appeal : Sohail Ali Vs. State of M.P., I.L.R. (2008) M.P. 351
- Section 391 - Accused filed application for adducing additional evidence by calling the seized opium in court and its fresh weightment at appellate stage - Held - Accused did not avail several opportunities, which were available to him during trial - Application filed after 20 years from seizure of opium with the expectation to get some sort of favour by weightment - Accused failed to explain the delay - Application is filed deliberately with mala fide intention - Provision cannot be invoked - Application dismissed : Ibrahim Vs. Union of India (CBN), I.L.R. (2009) M.P. 518
- Section 391 - Application to submit additional documents filed in appeal after dismissal of complaint - Contented that documents were in possession of previous counsel who did not file before trial court - Held - On previous occasion also on the same Criminal Procedure Code, 1973 (2 of 1974) 277 ground appellant was permitted to submit documents - Provision is not to fill up lacuna but to subserve the ends of justice - Application dismissed : Daccan Lubes Terfe (M/s) Vs. M/s. Chakradhar Construction, I.L.R. (2009) M.P. 870
- Section 391 - The provision cannot be invoked lightly - Power should be used sparingly - It is mandatory for the appellate court to record reasons while allowing the application filed u/s 391 of the Code : Ibrahim Vs. Union of India (CBN), I.L.R. (2009) M.P. 518
- Section 391 - Additional evidence - The nomination order is a material document - Appellate Court cannot refuse to take additional evidence on the grounds that - At the initial stage the partner of a firm who was wrongly prosecuted, did not mentioned the fact of nomination and - If such Additional evidence is taken on record at appellate stage trial will start denovo : Hindustan Food Products India Vs. State of M.P., I.L.R. (2008) M.P. 1313
- Section 392, Penal Code, Indian, 1860, Section 302 - Conviction and Sentence - Appeal - Difference of opinion between the judges - Reference to third Judge - Deceased cremated soon after death and parents were intimated next day - No explanation from accused - Daughter of accused deposed that accused kicked and throttled deceased - No reason why this evidence should be discarded - Conviction upheld per majority : Juzar Singh S/o Bahadur Singh Rajput Vs. State of M. P., I.L.R. (2006) M.P. 1050
- Section 395 - Reference to High Court - Whether Special Court constituted under M.P. Dakaiti Aur Vyapharan Prabhavit Kshetra Adhiniyam, 1981 is empowered to try the offence punishable under Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Police filed one charge sheet for the trial of offences under the Adhiniyam 1981 and the Act 1989 - Held - Special Court constituted under one Act cannot try the cases of other Acts for which other Special Court has been constituted - Reference answered accordingly : In Reference Vs. Radhakrishna, I.L.R. (2008) M.P. 1562
- Section 397 - Scope of powers of revision - Since applicant is also prosecuting the non-applicant u/s 138 of the Act and no charge has been framed by the trial court under that section - Therefore, even High Court can direct to frame the charge while exercising the jurisdiction u/s 397 of the Code : Prakash Kanthed Vs. M/s Maheshwari Protins Ltd, I.L.R. (2009) M.P. 259
- Sections 397 & 401 - Locus standi of State to file revision - Discussed : Yashpal Singh Vs. State of M.P., I.L.R. (2010) M.P. 520
- Sections 397 & 401 - Criminal Revision - Criminal revision filed by co-accused dismissed by Court without considering facts and by making general observation - Held Criminal Procedure Code, 1973 (2 of 1974) 278
- Said order has no binding effect : Gyanendra Tripathi Vs. State of M.P., I.L.R. (2009) M.P. 1515
- Sections 397 & 401 - Scope of Revision - Interference - Where material evidence has been overlooked by trial Court, interference can be made in exceptional cases - However, where findings lead to acquittal do not suffer from infirmity and another view on the prosecution was possible, an evidence will not be sufficient ground to warrant interference : Madhu Sonkar (Smt.) Vs. State of M.P., I.L.R. (2009) M.P. 1445 (DB)
- Sections 397, 401, Penal Code, 1860, Section 420 - Applicant was found travelling on complementary pass - On investigation pass was found to be forged - Offence of forgery established - However, applicant being government servant and incident being 18 years old, applicant deserves benefit of probation : Pramod Vs. State of M.P., I.L.R. (2008) M.P. 2466
- Sections 397, 401 - Appellants were tried for offence u/s. 302/34 - Convicted by Trial Court u/s. 323/34 - State did not file appeal - High Court in revision filed by complainant appreciated the evidence and remanded case back to pass judgment - Held - High Court should have kept in mind that while exercising its revisional jurisdiction, it exercises a limited power - Judgment of High Court demonstrates that in effect and substance the finding of trial court has been reversed - Trial Court would be bound by observations made in Judgment, and have no option but to convict appellants - High Court has exceeded its jurisdiction - Appeal Allowed : Johar Vs. Mangal Prasad, I.L.R. (2008) M.P. 1333 (SC)
- Sections 397, 401 - Revision - Interlocutory order - Charge Sheet filed u/Ss. 304 & 201 I.P.C. - Magistrate took cognizance u/Ss. 302, 201 I.P.C. - Order is interlocutory in nature - Not revisable : Mangilal Vs. State, I.L.R. (2008) M.P. 1549
- Sections 397, 401, Indian Penal Code, 1860 Section 376, Evidence Act, 1872 Section 35 - Criminal Revision against judgment of acquittal - Accused acquitted on the ground of consent of prosecutrix and she being above 16 years of age on the basis of Medical examination - Original certificate of class VIIIth examination depicting her as below 16 years not relied upon by trial Court - Madhya Pradesh Janm Tithi (Pathshala Ke Register Mein Pravishta) Niyam, 1973 provides manner for recording date of birth in school record - Presumption under Section 35 of Evidence Act available as entry is made in official course of duty - Original Primary School Examination Certificate should not have been brushed aside - It was the duty of Court to determine age after calling entire record of school and verifying whether entry of date of birth was made in accordance with rules or not - Acquittal set aside - Case remanded for recording evidence on school certificate for determination of age and for passing judgment accordingly : Ku. Shanti Vs. Raju, I.L.R. (2006) M.P. 1581 (DB) Criminal Procedure Code, 1973 (2 of 1974) 279
- Sections 397, 401 and Public Gambling Act, 1867, Sections 3,4, and 6 - Search warrant not proved - Presumption under Section 6 of the Act cannot be drawn - Accused acquitted : Rambharati Vs. State of Madhya Pradesh Through P.S. Balaghat, I.L.R. (2006) M.P. 777
- Sections 397, 401, 482 - Withdrawal of Revision - Application U/s 482 of Code is maintainable even if the revision was withdrawn : Shakuntala Sharma Vs. State of M.P., I.L.R. (2008) M.P. 1320
- Section 401 and Excise Act,M.P. 1915, Section 34(2)(I) - Revision against dismissal of appeal - Liquor seized from heap of sand in Tractor - Trolley - Applicant neither owner of Tractor - Trolley nor liquor found from his possession - No evidence that applicant was aware of liquor in heap of sand - Conviction set aside : Dashrath Singh Vs. State of M.P., I.L.R. (2006) M.P. 300
- Section 407 - Power of High Court to Transfer cases and appeals - Transfer of case sought on the ground that NA-3 was serving as District Prosecution Officer and NA-2 is practicing lawyer - Therefore, they may use influence to affect fair trial of the case - Held - Mere apprehension that the police authority are under influence of NAs cannot be ground to hold that fair and impartial inquiry or trial cannot be held in the particular court - No ground is made out for transfer of the case - Petition dismissed : Payal Chouhan @ Varsha (Smt.) Vs. State of M.P., I.L.R. (2010) M.P. 1221
- Section 407 - Transfer of case - Applicants being prosecuted u/ss. 122, 124-A, 153-A of IPC, u/ss. 3 & 13 of Unlawful Activities (Prevention) Act, 1967 and u/ss. 25 & 27 of Arms Act, 1959 at Dhar - Counsel for applicants from Ujjain who appeared before Court was beaten and threatened by some of members of Bar Association and Political Party - News also published in newspapers under heading "Dhar Mein Simi Sarganaon Ke Vakil Ko Phir Peeta" - CD also shows that Advocate was illtreated and beaten - Held - For administrative convenience and also in the interest of fair and impartial justice the matter is transferred from Dhar to Indore - Application allowed : Ansar Vs. State of M.P., I.L.R. (2010) M.P. 753
- Section 407 - Transfer of case - Where even allegation of nexus between magistrate and complainant appears to be baseless and unfounded, yet in peculiar circumstances it is appropriate for High Court to transfer case from that court to some other court : In Reference Vs. Alok Singhai, I.L.R. (2009) M.P. 264
- Sections 407, 186, 178(c) - Transfer of case - Continuance of offence - Allegations of demand of dowry made at Shivpuri - Charge-sheet filed in the court of JFMC, Ashoknagar - Two other cases pending in the courts of Shivpuri - Application for transfer of case to Shivpuri - Held - Wife stated in her statement recorded u/s 161 Criminal Procedure Code, 1973 (2 of 1974) 280 of Code and in F.I.R. lodged by her that all alleged demands of dowry were made by applicants at Shivpuri - There is no whisper of allegations about any demand of dowry or commission of any act of cruelty at Ashoknagar - That being so, the logic of Sec.178(c) of Code relating to 'continuance of offence' cannot be applied - Case directed to be transferred to Shivpuri from Ashoknagar : Kamla Bai (Smt.) Vs. State of M.P., I.L.R. (2009) M.P. Note *3
- Section 408 - Power of Sessions Judge to transfer cases and appeal - Session Trial is on the verge of conclusion and was fixed for final arguments before Sessions Judge - At that stage case was transferred to the court of third ASJ - Held - Nothing is apparent from the record that the case was transferred because, it was expedient for the ends of justice - Order set a side - Case is sent back to the court of Sessions Judge : Suleman Khan Vs. State of M.P., I.L.R. (2010) M.P. 1224
- Sections 408 & 409 - Power exercisable u/s. 408 is a judicial power whereas the power exercisable u/s 409 is an administrative power - For exercising a power u/s. 408 there is no such embargo on the Sessions Judge to see as to whether the trial of the case or the hearing of an appeal, as the case may be, has commenced or not : Suleman Khan Vs. State of M.P., I.L.R. (2010) M.P. 1224
- Section 421 - See - Muslim Women (Protection of Rights on Divorce) Act, 1986, Section 3 : Mohd. Hasib Vs. Rubina, I.L.R. (2009) M.P. 597
- Section 427 - Applicant convicted in two complaints u/s 138 of Negotiable Instruments Act, 1881 - Appeals also decided simultaneously - Application for direction to run sentences concurrently - Held - Two complaints were filed by non-applicants against applicant - Trial and appeals were decided simultaneously - Sentence awarded in both the cases should run concurrently - Petition allowed : Shafiq Vs. State of M.P., I.L.R. (2009) M.P. 1840
- Sections 427 & 428 - Applicant was undergoing sentence for another offence and was convicted for offence u/s 5/14 of M.P. Security Act - In appeal against conviction under M.P. Security Act he claimed set off period under detention during investigation and trial - Rejection - Revision - Held - The words "same case" in Section 428 do not suggest that set off would be available only if the period undergone as an undertrial prisoner in connection with the same case in which he was later convicted and sentenced to a term imprisonment - Period of set off is available irrespective of whether the period of imprisonment was undergone by accused in connection with that case or any other case - Applicant entitled to set off - Revision allowed. Basu @ Basantsingh Vs. State of M.P., I.L.R. (2009) M.P. 1489
- Sections 427 & 482 - Sentence on offender already sentenced for another offence - Inherent powers of the High Court - Applicant convicted in two cases u/s 8/ Criminal Procedure Code, 1973 (2 of 1974) 281
18 of the N.D.P.S. Act and was awarded identical sentences by the trial Court which was confirmed by the High Court in appeal - Thereafter, the prayer made u/s 482 Cr.P.C. before High Court for the sentence to run concurrently - Held - High Court is competent to issue such direction in appropriate cases u/s 482 of Cr.P.C. by invoking its inherent powers at any time subsequent to the decision in a given case even if the trial Court, appellate or revisional Court has failed to exercise its discretion u/s 427(1) of Cr.P.C : Jagdish Vs. State of M.P., I.L.R. (2009) M.P. 2126
- Sections 427, 482 - Sentences to run concurrently - Applicant convicted under Section 376/511 of I.P.C. and sentenced to 4 ½ years R.I. - Subsequently convicted under Section 302/34 and sentenced to imprisonment of life - Held - Appeals were preferred in both the cases before High Court - No prayer for making the sentences concurrent was made at that time - Separate application under Section 427 of Cr. P.C. not maintainable : Kamal Singh Vs. State, I.L.R. (2007) M.P. 1835 (DB)
- Sections 427(2) - Sentence on offender already sentence for another offence - A person already undergoing a sentence of imprisonment for life - Subsequently, sentenced to imprisonment for a term or imprisonment for life - There is no requirement for any direction of the Court as subsequent sentence will automatically run concurrently with previous sentence : Sanjeev Meena Vs. State of M.P., I.L.R. (2009) M.P. 1531
- Section 433, Prevention of Food Adulteration Act, 1954, Sections 7(1) & 16(1)(a)(i) - Sale of adulterated milk - Variance in report of Public Analyst and Central Laboratory - Both reports analyzed sample of milk adulterated - Samples were duly obtained after stirring, measured and properly sealed - Held - Conviction for offence is in accordance with law - Looking to the young age of accused and the minimum Jail sentence of six months imposed by court below - It is directed that on depositing the enhanced fine Rs.10,000 within 6 weeks the State Government may formalize the matter by passing an appropriate order u/s 433(d) of the Code : Antar Singh Vs. State of M.P., I.L.R. (2008) M.P. Note *91
- Section 433 - See - Prevention of Food Adulteration Act 1954, Section 16(1)(a) r/w Section 7(1) : Tulsiram Vs. State of M.P., I.L.R. (2008) M.P. 2462
- Section 433-A, Prisoners' Release on Probation Act, Madhya Pradesh, 1956, Sections 2, 9, Prisoners Release on Probation, Rules, Madhya Pradesh, 1964, Rule 4 - Question whether amendment in Rule 4 is ultra vires the rule making power of the State Government under section 9 of the Act - Held - The restrictions of periods of actual imprisonment introduced by the amended proviso for becoming a prisoner eligible to be considered for release under the Act is in consonance with section 433A of the Code of Criminal Procedure introduced by the Parliament which provides for restriction on powers of remission or commutation in certain cases - According to section 433A a life convict, Criminal Procedure Code, 1973 (2 of 1974) 282 for an offence for which death is one of the punishments, cannot be released from prison unless he has served at least 14 years of imprisonment : Anni @ Ramesh Vs. State of M.P., I.L.R. (2010) M.P. 1687 (FB)
- Section 436 - Grant of bail for bailable offence - The right to claim bail granted by S. 436 in a bailable offence is an absolute and indefeasible right - In bailable offences there is no question of discretion in granting bail as the words of S. 436 are imperative - The only choice available to the officer or the court is as between taking a simple recognizance of the accused and demanding security with surety : Rasiklal Vs. Kishore, I.L.R. (2010) M.P. 11 (SC)
- Section 436(2) - S. 436(2) empowers any Court to refuse bail without prejudice to action u/s 446, where a person fails to comply with the conditions of bail bond - However, bail granted in bailable offence can be cancelled on various grounds (some illustrative grounds are stated in para 8), but cannot be cancelled on the ground that complainant was not heard : Rasiklal Vs. Kishore, I.L.R. (2010) M.P. 11 (SC)
- Section 437(6) - Grant of bail - Section 437(6) is mandatory in nature - One of the prosecution witnesses could not be cross-examined as counsel for applicants was not engaged on that date - Trial could not be completed within 60 days - Valuable right was accrued to applicants for grant of bail - Bail cannot be denied - Application allowed : Ratilal Vs. State of M.P., I.L.R. (2009) M.P. Note *45
- Section 437(6), Unlawful Activities (Prevention) Act, 1967, Sections 3(10) & 13 - Unless for reasons to be recorded in writing, the Magistrate otherwise directs - Application u/s 437(6) of the Code dismissed by the Magistrate - Against the order revision also dismissed - Application u/s 482 of the Code before High Court - Held - Applicant was not produced on the fixed date by the jail authority - This can hardly be a reason for rejecting the application filed u/s 437(6) of the Code - Direction to release the applicant on furnishing bail bond of Rs.50,000 with surety - Application allowed : Aman Khan Vs. State of M.P., I.L.R. (2009) M.P. 2477
- Section 437(6) - Applicant practicing as an Advocate - Applicant advised the poor illiterate persons suffering from Gangrene or like disease to prepare their false claim cases in order to earn easy money - Poor persons admitted in hospital and their limbs were amputated and false vehicular accident cases were registered in connivance of Doctor and police personals - Applicant does not deserve for bail : Arjun Sahu Vs. State of M.P., I.L.R. (2008) M.P. 1541
- Section 437(6) - 'Unless for reasons to be recorded in writing' - Magistrate has a right to refuse bail even after expiry of 60 days from the date of framing of charges after recording reasons in writing : Arjun Sahu Vs. State of M.P., I.L.R. (2008) M.P. 1541 Criminal Procedure Code, 1973 (2 of 1974) 283
- Section 437(6) - Bail in case of non-bailable offence - Though the provision has some element of compulsion yet is not absolute or mandatory in nature - Entitlement of accused to bail is dependent upon reasons to be recorded in writing - Applicant guilty of suppression of material fact - Application for bail rejected : Surendra Kumar Lakhera Vs. State of M. P., I.L.R. (2006) M.P. 909
- Sections 437, 439 - Competent Court - Where an accused is arrested or detained by police or he appears or is brought before Court of Magistrate, in connection with any offence which may or may not be punishable with death or imprisonment for life - Application under Section 439 Cr.P.C. directly before Court of Sessions not maintainable - Competent Court would be Court of Magistrate to consider bail application under Section 437 Cr.P.C. : Yogesh Ganore Vs. State of M.P., I.L.R. (2008) M.P. 606
- Section 438 - Anticipatory bail - While considering the prayer for grant of anticipatory bail, it would not be desirable to enter into merits of the question as to whether the charge of the offence under offence would be made out - Suffice it to notice the principle that ingredients of the offence require proximity and nexus between the conduct and behaviour of the accused and the offence : Vinay Kumar Kedia Vs. State of M.P., I.L.R. (2010) M.P. Note *94
- Section 438, Juvenile Justice (Care and Protection of Children) Act, 2000, Section 12, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Section 18 - Provisions of S. 12 of the Act, 2000 can not be held to have any overriding effect over the provision of S. 18 of the Act, 1989, as the scope of the application of both the provisions is different : Kapil Durgwani Vs. State of M.P., I.L.R. (2010) M.P. 2003
- Section 438 - Anticipatory Bail - Maintainability - Applicant granted bail - Bail bonds cancelled and non-bailable warrant of arrest issued as he failed to appear before trial Court - Held - Anticipatory bail application not maintainable - He has remedy to approach the Court for recalling the order : Bheem Singh Bhadoriya Vs. State of M.P., I.L.R. (2009) M.P. 1843
- Section 438, Penal Code, 1860, Sections 420, 467 & 468 - Anticipatory Bail - Allegation that by playing fraud in affixing forged holograms the applicants have caused loss of revenue to the Government and irregularities were also found in affixing the holograms on the bottles of liquor and beer - Anticipatory bail rejected by Sessions Court, therefore, filed before High Court - Held - On inquiry, high official committee found that holograms are not fake - In regard to discrepancies, the committee recommended for issuance of show cause notice - Applicants pleaded mala fide as a criminal case has been registered against one official at the instance of applicants and the same official has lodged the report against the applicants instead of issuance of show cause notice to the applicants - Applicants have made out a case for grant of Criminal Procedure Code, 1973 (2 of 1974) 284 anticipatory bail - Application allowed : Jagdish Kumar Arora Vs. State of M.P., I.L.R. (2009) M.P. 604
- Section 438 - Period of Anticipatory Bail - Cognizance of offences u/s 406 & 420 r/w 34 I.P.C. was taken upon the complaint - Applicants granted anticipatory bail for a period of 60 days - Petition u/s 482 of Code filed to quash proceedings - High Court stayed further proceedings - Prayer made to extend the period of anticipatory bail till decision of petition u/s 482 of Code - Held - Anticipatory bail orders cannot be kept in abeyance or cannot be extended for indefinite period - In case petition u/s 482 of Code is dismissed, applicants can re-agitate prayer for extension of anticipatory bail within period of 10 days from the date of order : Gopichand Khatri Vs. Sushil Kumar Pamnani, I.L.R. (2008) M.P. Note *85
- Section 438 - Maintainability of anticipatory bail application - If an application for anticipatory bail allowed and regular bail application rejected then anticipatory bail application would not be maintainable in higher Court - However, in peculiar circumstances of the matter application u/s 438 entertained and period of anticipatory bail extended by next 45 days : Fazilat Mohammad Vs. State of M.P., I.L.R. (2008) M.P. Note *7
- Section 438 - Prima facie no case of cheating is made out against the applicant - Applicant entitled for anticipatory bail - State Govt. made a scheme for agriculturist for irrigation facilities - Applicant supplied requisite materials - Bank issued notices to the agriculturist for repayment of the loan - Agriculturists refused to repay on the ground that they did not get any benefit of the scheme - They made a complaint to the Collector - Matter enquired and on the direction of collector a criminal case registered against the applicant and Sub-Engineer u/s 420 I.P.C. - Prima facie it was not found that applicant has not supplied the required material - No case of cheating made out - Applicant deserves to be released on anticipatory bail : Ajit Kumar Vs. State of M.P., I.L.R. (2008) M.P. 400
- Section 438 - Apprehension of arrest - Accused arrested earlier for committing offences under Sections 314, 419 of I.P.C. granted regular bail by Sessions Court - Offence under Section 376 of I.P.C. added subsequently by police and charge sheet filed - Application for anticipatory bail by accused apprehending arrest rejected by Sessions Court - Accused filing anticipatory bail before High Court - Regular bail was granted by Court after considering the entire material available on record on the date of order - Evidence of graver offence if already on record, mere non mentioning the relevant section earlier and adding it Later is immaterial - Elements of rape pre-existing in case diary - No likelihood of re-arrest if the offence under Section 376 is added in the charge sheet - Application dismissed : Surendra Singh Vs. State of Madhya Pradesh, I.L.R. (2006) M.P. 1699 Criminal Procedure Code, 1973 (2 of 1974) 285
SYNOPSIS : Section 439
1. Changed circumstance 5. Non entitlement 2. Delay in trial 6. Regular Bail - Competent Court 3. Entitlement 7. Regular bail - Custody 4. Interim bail 8. Repeat bail application
1. Changed circumstance
- Section 439 - Grant of Bail - Changed circumstance - Grant of bail to co- accused by High Court amounts to change in the circumstances - It entitles identically placed another co-accused to grant of bail by Lower Court on the principle of parity : Manohar Vs. State of Madhya Pradesh, I.L.R. (2007) M.P. 837 2. Delay in trial
- Section 439 - Bail - Delay in trial - Delay in trial is not sole ground to grant bail - Other relevant facts and circumstances are also required to be seen - Application rejected : Mithla Kachhi Vs. State of M.P., I.L.R. (2009) M.P. 2480 3. Entitlement
- Section 439 - Applicant working as Sub-Registrar - He registered certain sale deeds which were forged as they were based on false documents - Offence registered U/ss 420, 467, 468, 469, 471 r/w Sections 34, 120-B of I.P.C. against applicant - Held - Sub-Registrar was only to satisfy the identity of the executant and also to see that the document was properly stamped or not - Sub-Registrar has no authority to examine question of title and to refuse registration of documents on this ground - Applicant entitled to be released on bail - Application allowed : Surendra Vs. State of M.P., I.L.R. (2008) M.P. Note *41
- Section 439 - Applicants were granted anticipatory bail by High Court - Application for regular bail U/s 439 dismissed by ASJ - High Court held after granting the anticipatory bail nothing incriminating evidence was collected by I.O. - Applications ought to have been allowed in the light of principles laid down by the High Court in Chhotelal Rai's case : Katua Patel Vs. State of M.P. I.L.R. (2008) M.P. Note *32 4. Interim bail
- Sections 438 & 439 - Regular bail - Custody - Interim bail - Court hearing regular bail application has inherent powers to grant interim bail pending its final disposal Criminal Procedure Code, 1973 (2 of 1974) 286
- If application for grant of interim bail is made on the ground of non-availability of case diary, the Court should hear and decide interim bail application on the same day : Sonu @ Shahazad Vs. State of M.P., I.L.R. (2010) M.P. 758 5. Non entitlement
- Section 439 - Bail - Applicant accused in case of murder of 2 small children and their mother - Offence was committed by husband and close relative of applicant and applicant was involved in conspiracy - Held - Merely because applicant is a lady and is having 2 small children, she is not entitled for bail - An offender, a party to the conspiracy is equally liable for the offence that is committed - Bail rejected : Sangita Vs. State of M.P., I.L.R. (2010) M.P. 1682 6. Regular Bail - Competent Court
- Sections 438 & 439, Penal Code, 1860, Sections 409 & 465 - Regular Bail - Competent Court - Applicant granted anticipatory bail for offences punishable u/s 409 & 465 of IPC with direction that applicant may move application for regular bail before competent court - Held - Offence u/s 409 IPC is punishable with life therefore, court of Sessions would be competent court for the purposes of regular bail - A.S.J. should not have dismissed application for regular bail as not maintainable : Ram Kishor Saket Vs. State of M.P., I.L.R. (2009) M.P. 270
- Sections 438, 439 - Regular bail - Competent Court - Where a persons is granted Anticipatory bail by a Court, in case where the offence is punishable with death or imprisonment for life or the Magistrate takes cognizance of such offence which is punishable with death or imprisonment for life - In such cases the court of Sessions would be the Competent Court to consider the regular bail application under section 439 Cr.P.C - Court of Magistrate would not be the Competent Court : Yogesh Ganore Vs. State of M.P., I.L.R. (2008) M.P. 606 7. Regular bail - Custody
- Sections 438 & 439 - Regular bail - Custody - Even though, an application for grant of regular bail on behalf of accused enjoying liberty of release on anticipatory bail may be presented through a Counsel, yet, it can be heard and decided only when accused is in custody : Sonu @ Shahazad Vs. State of M.P., I.L.R. (2010) M.P. 758
- Sections 438 & 439 - Regular bail - Custody - In view of precondition of custody no adjournment should be asked by Public Prosecutor on the ground of non- availability of case diary - Accused may also disclose the date of his proposed surrender to custody at least 3 days in advance : Sonu @ Shahazad Vs. State of M.P., I.L.R. (2010) M.P. 758 Criminal Procedure Code, 1973 (2 of 1974) 287
8. Repeat bail application
- Section 439 - Repeat bail application - First bail application rejected on merits by High Court - Applicant obtained temporary bail from trial court by suppressing rejection of his bail application by High Court - Held - Taking into consideration the nature of allegations as well as the misconduct - Applicant not entitled to bail : Chandu Singh Vs. State of M.P., I.L.R. (2009) M.P. Note *1
● - Section 439 (2) - Cancellation of bail - Relevant considerations - Law discussed : State of M.P. Vs. Ambaram, I.L.R. (2010) M.P. Note *21
- Section 439(2) - Cancellation of bail - Sessions Court granted bail to father in law inspite of over whelming material against him - No reasons given for granting bail - Lower Court not applied his mind while granting bail - Bail granted to respondent cancelled : State of M.P. Vs. Ambaram, I.L.R. (2010) M.P. Note *21
- Section 439(2) - Cancellation of bail - Bail cancelled on the ground that co- accused did not oppose application for cancellation - Could not have been a ground to cancel bail granted to appellant - Matter remanded back : Ram Babu Tiwari Vs. State of M.P., I.L.R. (2009) M.P. 1861 (SC)
- Section 439(2) - Cancellation of bail - Considerations - Re-appreciation of evidence as done by Court granting bail is to be avoided, the Court dealing with application for cancellation of bail can consider whether irrelevant materials of a substantial nature were taken into consideration : Ram Babu Tiwari Vs. State of M.P., I.L.R. (2009) M.P. 1861 (SC)
- Sections 439 & 439(2) - Cancellation of bail - Grounds - Cancellation of bail granted to N.A. 1 sought on the ground that bail of co-accused already rejected - Held - Rejection of bail in a non-bailable case at initial stage and cancellation of bail already granted, have to be considered and dealt with on different basis - Very cogent and overwhelming circumstances are necessary for cancellation of bail : Dashrath Singh Vs. Banti, I.L.R. (2010) M.P. 1501
- Section 441, Rules and Orders (Criminal), Rules 382 & 383 - Trial Judge while declining to accept the bail bond furnished by surety referred the question of his solvency to Tahsildar - Held - The order directing inquiry into solvency of the surety by the Tahsildar does not have any legal sanction : Laxmi Sahu Vs. State of M.P., I.L.R. (2010) M.P. 2397
- Sections 446(3) & 362 - Provision of S. 362 imposing restriction to alter or review the judgment or final order disposing of a case would not apply in passing of the Criminal Procedure Code, 1973 (2 of 1974) 288 order u/s 446(3) of the Code - Because the provision u/s 362 starts with a saving clause and the order under sub-section (1), (2) or (3) of S. 446 of the Code is not a final order disposing a case : Roop Singh Vs. State of M.P., I.L.R. (2009) M.P. 2472 (DB) SYNOPSIS : Section 451 & 457
1. Not Released 2. Released
1. Not Released
- Sections 451 & 457, Gauvansh Pratishedh Adhiniyam, M.P. 2004, Sections 4, 6 & 9, Agriculture Cattle Preservation Act, M.P. 1959, Sections 4 & 6, Prevention of Cruelty to Animals Act, 1960, Sections 10 & 11 - 27 cattle were transported by truck for slaughtering purposes which was seized by Police and offence u/ss. 4, 6 & 9 of Adhiniyam, 2004, Ss. 4 & 6 of Act, 1959 and Ss. 10 & 11 of Act of 1960 registered - Cattle were given in the temporary custody to a benevolent institution which is acting in the welfare of cattle - CJM declined to hand over the cattle in the interim custody of applicant - Held - Cattle were being carried in a very deplorable condition - Out of 27 cattle, 4 were found dead - This is clear indicative of the fact that they were being carried for slaughtering purposes - No document for purchasing these cattle have been filed - If the cattle are given in the custody of the applicant, the possibility of their slaughtering cannot be ruled out - Revision dismissed : Mohammad Ajeem Khan Vs. State of M.P., I.L.R. (2010) M.P. 1187
- Sections 451 & 457, Gauvansh Pratishedh Adhiniyam, M.P. 2004, Sections 4, 6 & 9, Agriculture Cattle Preservation Act, M.P. 1959, Sections 4 & 6, Prevention of Cruelty to Animals Act, 1960, Sections 10 & 11, Essential Commodities Act, 1955, Section 3/7 - Truck was seized by police for the offence of transporting the cattle for slaughtering purposes - CJM declined to hand over the truck in the interim custody of applicant - Held - Since the offence u/s 3/7 of E.C. Act has also been registered and the confiscation proceeding of the truck was going on before the Competent Authority, hence there was no question to give the truck on Supurdginama - Revision dismissed : Mohammad Ajeem Khan Vs. State of M.P., I.L.R. (2010) M.P. 1187
- Sections 451 & 457 - See - Motoryan Karadhan Adhiniyam, M.P., 1991, Section 16 : Hardeo Motor Transport Co. (M/s.) Vs. State of M.P., I.L.R. (2010) M.P. 852 (DB) Criminal Procedure Code, 1973 (2 of 1974) 289
2. Released
- Section 451 - Application by complainant for Supurdgi of gun subject matter of robbery, dismissed by CJM holding that the gun is subject matter of evidence during trial - Revision also dismissed by ASJ - Held - Where stolen or looted articles are seized by police it should be released on Supuradnama to the person who prima facie establish his possession over the articles - Petition allowed : Om Prakash Chaturvedi Vs. State of M.P., I.L.R. (2010) M.P. 1998
- Sections 451 & 457 - Release of vehicle - Vehicle seized in offence u/ss. 379, 408, 420 IPC r/w S. 3/7 of Essential Commodities Act - Held - No prolific purpose would be served by letting the vehicle idle in the Police Station for such a long period - Directed to be released on interim Supurdgi - Revision allowed : Mewalal Sharma Vs. State of M.P., I.L.R. (2010) M.P. 2645
- Sections 451, 457 - Interim Custody - Applicants prayed for interim custody of cattles on the ground that they are owners - Revisional Court granted interim custody to applicants but imposed the condition of depositing Rs.3000 per cattle - Held - Applicants have been prima facie found rightful owners of cattles - No one else has claimed custody - Cattles should have been given after obtaining proper security - Condition imposed by Court extremely harsh - Application allowed : Munshi Vs. State of M.P., I.L.R. (2008) M.P. 187
● - Section 452 - Disposal of property - Appellant denied seizure of property from himself - He failed to lead any evidence to establish entitlement to have possession of property - Held - For return of property the appellant has to claim property and establish that he is the person entitled for possession - Appellant not entitled for property - Cash amount directed to be returned to the society instead of complainant who was employee of that society - Judgment of trial court amended : Mahendrasingh Vs. State of M.P., I.L.R. (2008) M.P. 2989
- Section 452 - Disposal of property at conclusion of trial - Appellant tried for offences punishable under Sections 395, 397 and 396 - Appellant acquitted - Trial Court directed for retention of gun, cartridges and wrist watch seized from possession of appellant till conclusion of trial of absconding accused person - Held - Court has discretion to dispose property in any of three modes specified in Section 452 - Discretion is inherently judicial function - Manner of disposal is not to be made arbitrarily but judicially - When accused is acquitted Court should normally restore property to person from whose custody it was taken - Even if gun was used for commission of any offence for which absconding accused are to be tried, no useful purpose would be served by retaining custody for indefinite period - Property restored to appellant on certain conditions - Appeal allowed: Munnilal Yadav Vs. State of M.P., I.L.R. (2008) M.P. 150 Criminal Procedure Code, 1973 (2 of 1974) 290
- Sections 452, 454 and Penal Code Indian, 1860, Sections 34,302,394, 397 & 460 - Trial concluded recording judgment of acquittal - Accused silent about ownership of property - Also denied seizure and execution of seizure memo - Under sub-Section (2) of Section 454 Cr.P.C. Court may pass an order for delivery of property to the persons claiming and entilted to possessions of such property - Trial Court erroneously rejected the application - Appeal allowed : Govind Ram Vs. State of M.P., I.L.R. (2006) M.P. 287
- Section 454 - Accused silent about ownership of property - Also denied seizure and execution of seizure memo - Under sub-Section (2) of Section 454 Cr.P.C. Court may pass an order for delivery of property to the persons claiming and entilted to possessions of such property : Govind Ram Vs. State of M.P., I.L.R. (2006) M.P. 287
- Section 457 - Seizure - Procedure - Applicant's vehicle seized by the financer for default of non-payment of instalments - Court releasing the vehicle with one of the conditions for payment of loan amount - Action challenged - Held - While deciding application u/s 457 of Code with respect to interim custody of vehicle, the court has to pass appropriate orders and custody is to be given to the registered owner of the vehicle on furnishing requisite security or bond/Supurdginama - While dealing with such application, it is not necessary at all to impose any condition for payment of instalments alleged to be due from the applicant as it is purely a civil matter - If the instalments are due, then the financer can take civil recourse for recovery of same : Rampal Singh Vs. State of M.P., I.L.R. (2009) M.P. 321
- Sections 457, 482 - Temporary custody of seized bus denied on the ground that Road Tax is due against Vehicle - Held - Question of recovery of tax under dispute - No sufficient material at the time of seizure of vehicle - Vehicle can be called in case it is required to auction for the recovery of any outstanding amount - Matter remitted back for giving temporary custody of vehicle : Jaiprakash Sharma Vs. State of M.P., I.L.R. (2007) M.P. 283
- Section 463 - Apply to Courts of appeal, reference and revision : Madhu Sonkar (Smt.) Vs. State of M.P., I.L.R. (2009) M.P. 1445 (DB)
- Section 463 - Non-compliance fatal : Madhu Sonkar (Smt.) Vs. State of M.P., I.L.R. (2009) M.P. 1445 (DB)
- Section 464 - Appellant charged simplicitor for offence u/s 376 IPC - Section 376(2)(g) IPC and also ingredients of gang rape not mentioned in the charge - The conviction of appellant u/s 376(2)(g) altered to S. 376 of IPC - Appeal partly allowed : Shesh Upadhyaya @ Sheshmani Vs. State of M.P., I.L.R. (2010) M.P. Note *91 Criminal Procedure Code, 1973 (2 of 1974) 291
- Section 464 - Effect of omission to frame charge - Appellants convicted u/s 304-B of IPC by trial Court - Cruelty because of dowry demand established but necessary and important ingredients of Sec. 304-B not established - Held - No failure of justice has occasioned by non-framing of charge u/s 498-A of IPC - Appellants convicted u/s 498-A instead of Sec. 304-B of IPC : Chandan Vs. State of M.P., I.L.R. (2009) M.P. 2083 (DB)
- Section 464 - Effect of omission to frame, or absence of, or error in charge - Whether an accused charged with Sec.302 r/w Sec.149 IPC can be convicted u/s 302 IPC without specific charge being framed against him - Held - No, law explained : Rajaram Vs. State of M.P., I.L.R. (2009) M.P. Note *8 (DB)
- Section 464 - Effect of omission to frame, or absence of, or error in, charge - Finding of conviction cannot be held to be invalid as omission to frame, or absence of, or error in, charge did not result in any prejudice to accused nor it occasioned failure of justice : Anil Kumar Gupta Vs. State of M.P., I.L.R. (2008) M.P. 2453
- Section 464 - Effect of omission to frame, or absence of, or error in, charge - Appellants charged for offence u/s 407 I.P.C. - Convicted u/ss. 379 & 381 I.P.C. - Held - Charge contained particulars of offences and accused persons were aware of basic ingredients of offence for which they were being tried - Conviction u/ss. 379 & 381 I.P.C. is saved by provision of Section 464 as it has not resulted in failure of justice : Akbar Vs. State of M.P., I.L.R. (2008) M.P. 1531
- Section 464 - Omission to frame, or absence or error in charge - Charge did not mention particulars and specific dates of each transaction with respect of particular complaint - Held - It did not result in any prejudice nor it occasioned failure of justice to applicant - Conviction recorded by Magistrate cannot be held to be invalid : Anil Kumar Gupta Vs. State of M. P., I.L.R. (2007) M.P. 1824
- Sections 468(2)(a) & 473 - Bar to taking cognizance after lapse of the period of limitation - Non- compliance of provisions of M.P. Lottery (Niyantran Tatha Kar) Adhiniyam, 1973 - Complaint filed after 12 years of offence - Held - Maximum punishment under the Adhiniyam is Rs.500 only - Complaint ought to have been filed within period of 6 months from the date of alleged offence - No reason of delay mentioned - Court below erred in entertaining complaint - Criminal proceedings quashed - Revision allowed : Arun Dubey Vs. District Small Saving Officer, I.L.R. (2009) M.P. 559
- Sections 469, 470 and 482 - Limitation for cognizance and prosecution - Date of knowledge of offence important factor - Charge cannot be quashed as barred by limitation - If evidence is led to that effect benefit of limitation can be claimed in defence : Arun Kumar Mody Vs. State of Madhya Pradesh, I.L.R. (2006) M.P. 905 Criminal Procedure Code, 1973 (2 of 1974) 292
- Section 470(4) (b) - See - Penal Code, 1860, Section 224 : State of M.P. Vs. Shankarlal Soni, I.L.R. (2008) M.P. Note *52
- Section 473 - Powers U/s 473 are discretionary and wider than Section 5 of Limitation Act - Whenever a time bar challan is filed - Opportunity should be given to both parties to satisfy the Court for purpose of condonation of delay - Delay has to be condoned with exercise of judicial discretion as well as by speaking order - Trial Court took cognizance of offence without satisfying itself about delay - Order contrary to law - Quashed : Harishankar Vs. State of M.P., I.L.R. (2008) M.P. 977 SYNOPSIS : Section 482
1. Abuse of the process of Court 8. Quashing of investigation, 2. Causing prejudice - charge or proceedings - Investigation / Proceedings quashed No interference 3. Forfeiture of right to bail 9. Quashment of F.I.R. 4. Locus standi registered against the 5. Modification in judgment Advocate 6. Order illegal, Improper 10. Violation of Statutory contrary to law - Quashed directions 7. Principle / Scope 11. Where the cause of prosecution has already ended
1. Abuse of the process of Court
- Section 482 - Inherent power of High Court - Inherent powers are to be exercised ex-debito justiciae to prevent abuse of the process of Court but not to stifle a legitimate prosecution, when the issue involved, whether factual or legal, can not be decided without sufficient material : Ramkishore Vs. State of M.P., I.L.R. (2010) M.P. 1836
- Section 482 - Maintainability - If apparently the prosecution is found to be illegal then certainly complaint can be quashed u/s 482 - Petition can not be dismissed on this count that grounds can be raised before the Trial Court : Kailash Agarwal Vs. State of M.P., I.L.R. (2010) M.P. 1201
- Section 482 - Complaint - Quashed without petition - Four police officers filed petition seeking quashment of the private complaint and the direction to investigate against them - Addl.S.P. has not filed such petition - Held - There is no ground to Criminal Procedure Code, 1973 (2 of 1974) 293 investigate against the police officers including the Addl.S.P. - Invoking the inherent powers with a view to prevent the abuse of process of Court or to otherwise secure the ends of justice the complaint filed against the Addl.S.P. also quashed : Arun Kumar Jain Vs. Dinesh Tripathi, I.L.R. (2010) M.P. 707
- Section 482, Penal Code, 1860, Section 420 - Cheating - Applicants given C & F agency to non-applicant and on his default, agency was terminated - Magistrate took cognizance u/s 420 IPC on complaint against applicants - Held - As per the terms & conditions of agreement, the applicants were entitled to cancel the agreement in case of default on the part of non-applicant - In these circumstances, it cannot be said that any offence has been committed by the applicants - Court below committed error in taking cognizance of offence against the applicants u/s 420 IPC : TCL India Holdings Pvt. Ltd. Vs. Murtaza, I.L.R. (2009) M.P. Note *46
- Section 482, Ayurvigyan Parishad Adhiniyam, M.P. 1987, Section 24 - Quashing of charges - Applicant is having BAMS degree - Allopathic injection found in his clinic - Case u/s 24 of Adhiniyam and Section 420 of IPC registered against him and charge- sheet filed - Held - State Government issued Gazette notification wherein authorized all registered medical practitioners who are having BAMS degree to use allopathic medicine - For having possession of some allopathic medicine, applicant can not be held guilty for contravention of Section 24 of the Adhiniyam - No fruitful purpose will be served by continuing the charge-sheet against the applicant as it will cause miscarriage of justice - Charges against applicant quashed - Application allowed : Gordhan Vs. State of M.P., I.L.R. (2009) M.P. 894
- Section 482 - Stay of criminal proceeding - Pendency of writ petition against the decision of election petition shall have no bearing on criminal proceedings - Order of postponement of criminal proceeding till disposal of writ petition set-aside - Application allowed : Manorama (Smt.) Vs. State of M.P., I.L.R. (2009) M.P. 594
- Section 482, Penal Code, 1860, Sections 406, 420, 120-B - Inherent powers of High Court - Quashing of F.I.R. - Applicant No.1 entered into an agreement to sell with non-applicants - Agreement not honoured - N.A. filed a complaint u/Ss. 406, 420, 120- B I.P.C. against applicants - Magistrate ordered for investigation u/s 156(3) of Cr.P.C. - Proceedings challenged before High Court for its quashment - Held - Averments in the complaint do not show that applicants had fraudulent or dishonest intention at the time of making the promise - Mere failure to subsequently keep a promise, it cannot presume that they had a culpable intention to break the promise from the beginning - No material on record to show that applicants have misappropriated or converted the property in question to their own use - It cannot be said that applicants committed any criminal conspiracy - Complaint is an abuse of process of Court and proceedings are, therefore, liable to be quashed : Tej Singh Vs. Rewa Ram, I.L.R. (2008) M.P. 2145 Criminal Procedure Code, 1973 (2 of 1974) 294
- Section 482 - High Court is duty bound to exercise its inherent jurisdiction - To prevent abuse of process of Court or to secure the ends of justice : Larsen & Toubro Ltd. Vs. Anand Bangad, I.L.R. (2008) M.P. 600
- Section 482, Penal Code Indian, Section 420 - Quashing of Complaint - Applicants working on different posts in Bharat Sanchar Nigam - Complaint for offence punishable under Section 420 of I.P.C. against applicants on the ground of over-billing - Deceit is one of essential ingredient of offence of cheating - Over-billing by mistake or by negligence would not amount to cheating - No mens rea on the part of applicants - Mere breach of contract is not necessarily cheating - Civil Law action is only remedy - No offence of cheating is made out even accepting every word of complaint - Complaint registered under Section 420 of I.P.C. quashed : Bharat Sanchar Nigam Limited, Jabalpur Vs. Ramesh Prasad; I.L.R. (2007) M.P. 717 2. Causing prejudice - Investigation / Proceedings quashed
- Section 482, Penal Code, 1860, Section 188 - Complaint for violation of the Model Code of Conduct - Number of seats available for admission were increased after the election to the State Legislative Assembly was announced - Such declaration would not fall within ambit of Clause VII(vi) of Model Code issued by Election Commission of India - Any violation of Model Code could only give rise to an election offence - Investigation of offence punishable u/s 188 IPC quashed : Gautam Kalloo (Dr.) Vs. State of M.P., I.L.R. (2010) M.P. 536
- Section 482 and Insecticides Act, 1968, Section 18(1) (C), 22, 24, 29(1)(a) - Right to get sample re-analysed by Central Insecticides Laboratory is a valuable right - Sample directly sent to CIL, Faridabad - Defence prejudiced - Proceedings quashed : Neelesh Kumar S/o Rajkumar Jain Vs. The State of Madhya Pradesh, I.L.R. (2006) M.P. 925 3. Forfeiture of right to bail
- Sections 482 & 436 - Cancellation of bail - A person accused of a bailable offence is entitled to be released on bail pending his trial, but he forfeits his right to be released on bail, if his conduct subsequent to his release is found to be prejudicial to a fair trial - This forfeiture can be made effective by invoking the inherent powers of the High Court u/s 482 : Rasiklal Vs. Kishore, I.L.R. (2010) M.P. 11 (SC) 4. Locus standi
- Section 482 - Locus standi - Offence of murder registered at Firozabad against NA-2 on the FIR of applicant - In order to screen NA-2, police officers of Gwalior Criminal Procedure Code, 1973 (2 of 1974) 295 registered an offence under Excise Act against NA-2 - Application u/s 482 Cr.P.C. filed by applicant / informant of murder case for quashing the criminal proceedings pending against NA-2 at Gwalior - Held - Applicant has locus standi to file application u/s 482 Cr.P.C. - Inherent power can be invoked to avoid conflicting judgment of two courts - Further proceedings in excise case stayed till the final decision of the murder trial - Application allowed : Omprakash Yadav Vs. State of M.P., I.L.R. (2010) M.P. 292 5. Modification in judgment
- Sections 482 & 362 - Modification in judgment not permissible in exercise of inherent power U/s 482 - Such powers can be exercised only when no other remedy is available with the litigant and no where a specific remedy is provided in Statute : Moolchand Vs. State of M.P., I.L.R. (2008) M.P. Note *23 6. Order illegal, Improper contrary to law - Quashed
- Section 482 - The action of framing of charge upheld by HC as well as SC - Thereafter HC in exercise of inherent power u/s 482 quash criminal Proceedings - Order amounts to review its own order - Order illegal, improper, contrary to law - Set aside : Sunita Jain Vs. Pawan Kumar Jain, I.L.R. (2008) M.P. 424 (SC) 7. Principle / Scope
- Section 482 - Exercise of inherent powers - Powers of High Court u/s 482 Cr.P.C. are very wide and the very plentitude of power requires great caution in its exercise - Court must be careful to see that its decision in exercise of this power is based on sound principles : Tej Singh Vs. Rewa Ram, I.L.R. (2008) M.P. 2145
- Section 482, Penal Code, 1860, Section 498-A, Dowry Prohibition Act, 1961, Sections 4 & 6 - Quashing of criminal proceedings - When permissible - Law explained : Ankush Golecha Vs. State of M.P., I.L.R. (2009) M.P. 589
- Section 482 - It is well settled that inherent power u/s 482 of Code must be exercised in rarest of rare cases - Principle for exercising power of quashing criminal Proceedings laid down in Bhajanlal's case : Sunita Jain Vs. Pawan Kumar Jain, I.L.R. (2008) M.P. 424 (SC)
- Section 482 - Scope - Power can be exercised where allegations made in F.I.R. or complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence : Aarti Arya Vs. State of M.P., I.L.R. (2007) M.P. 1733 Criminal Procedure Code, 1973 (2 of 1974) 296
- Sections 482 & 397(3) - Scope of interference u/s 482 with a revisional order is limited - High Court may correct any mistake committed by the revisional Court only where it finds that there is grave miscarriage of justice or abuse of process of the Court or the required statutory procedure has not been complied with or there is failure of justice - The concurrent finding as to liability of the husband to pay the maintenance allowance - It is not necessary for High Court to re-examine the whole evidence threadbare under the inherent powers - Petition dismissed : Prashant Shrivastava Vs. Smt. Sushma Shrivastava, I.L.R. (2010) M.P. 1216 8. Quashing of investigation, charge or proceedings - No interference
- Section 482, Penal Code, 1860, Section 420 - Petition challenging issuance of process by JMFC on complaint of non-applicant - Allegation of cheating - Brochure- cum-advertisement published by company showing length of screen of television larger than the actual length - Held - When a person, relies upon an assurance made by the other parties, pays him money to purchase the articles and later on finds that articles sold to him is not what was assured then an offence punishable u/s 420 of IPC is made out - Issuance of process can not be condemned - Petition dismissed : General Manager Vs. State of M.P., I.L.R. (2009) M.P. 591
- Section 482 - See - Penal Code, 1860, Section 307 : Ratan Singh Vs. State of M.P., I.L.R. (2009) M.P. 1866 (SC)
- Section 482 - Quashing of charge-sheet - Quashing of charge-sheet for the offence u/s 306/34 of IPC on the ground that there is no incitement or direct involvement of applicant in commitment of suicide - Held - Suicide note and statement recorded u/s 161 of Code clearly states that deceased has taken the extreme step because the applicant used to beat and demand money forcefully - A prima facie case u/s 306/34 IPC is made out against the applicant - Application dismissed : Ashish Rindey Vs. State of M.P., I.L.R. (2009) M.P. 600
- Section 482, Negotiable Instruments Act, 1881, Section 138 - Legally enforceable debt - Prosecution cannot be quashed at threshold for dishonour of cheque issued for repayment of a time barred debt - Not possible to conclude that cheques in question were drawn in respect of debt or liability which was completely barred from being enforced : Ramprasad Vs. Smt. Sudhaben, I.L.R. (2008) M.P. Note *60
- Section 482, Penal Code, 1860, Section 406 - Quashing of complaint - Non- applicant filed complaint on the allegation that he had entrusted jewelry worth Rs. 125 crores to applicant - Applicant did not return jewelry inspite of repeated requests - Applicant alleged that property was handed over to him by way of security of loan - Criminal Procedure Code, 1973 (2 of 1974) 297
Held - It is not in dispute that property belonging to non-applicant is in possession of applicant - It is not a case in which allegations do not disclose commission of any offence or allegations are absurd and inherently improper or there is an express legal bar to the institution - No case made out for quashing of complaint - Application dismissed : Chandanmal Vs. Suryakant, I.L.R. (2008) M.P. 1554
- Section 482, Penal Code, 1860, Sections 406, 409, 420, 424 - Quashing of FIR - Applicants, a manufacturer of Indian made foreign liquor appointed N.A.-3 as marketing consultant - Police registered offence against applicants u/ss 406, 409, 420 & 424 of IPC on the basis of complaint made by N.A.-3 - Applicants challenged the said FIR on the ground that FIR lodged to escape from the consequences of criminal case u/s 138 of Negotiable Instruments Act by applicants - Held - It is not appropriate to interfere in the investigation of the police, as investigation is in progress - Petition dismissed : V.C. Raam Sukaesh Vs. State of M.P., I.L.R. (2008) M.P. Note *70
- Section 482, Penal Code, 1860, Section 420 - Quashing of proceedings - Prosecution cannot be quashed merely because civil remedy is available - Such powers can be exercised by High Court when continuance of the proceedings would be a total abuse of the process of Court - Whether allegations made in complaint are correct has to be ascertained on the basis of evidence led at the time of trial - Petition dismissed : LML Limited Vs. Kailash Narain Rai, I.L.R. (2008) M.P. Note *33
- Section 482, Prevention of Corruption Act, 1988, Section 13(1)(d) - Quashing of Proceedings on the ground of delay in lodging F.I.R. - F.I.R. lodged in the year 2006 i.e., after 6 years of incident - Applicant found guilty in departmental enquiry which had culminated in the year 2004 - Held - No general or wide proposition of law can be formulated that whenever there is inordinate delay on the part of investigating agency in completing investigation such delay would provide ground for quashing F.I.R. - Considering nature of allegations and defence in enquiry it cannot be said that delay in lodging F.I.R. would cause any prejudice to Applicant in his defence or occasion failure of justice - Petition dismissed : H.S.S. Raghuvanshi Vs. State of M.P., I.L.R. (2008) M.P. 1569
- Section 482 - Quashing of F.I.R. - Accessory Liability - Revenue officers merely acted as per the orders of Registrar, Public Trust - Considering the concept of accessory liability, officials though not charged for having received trust income or assets for their own benefit can also not escape liability for having acted as an accessory to a breach of trust by carrying out mutations : Suresh Kumar Agrawal Vs. State of M.P., I.L.R. (2008) M.P. 1328
- Section 482 - Quashing of F.I.R. and investigation - Inherent powers are to be exercised to prevent abuse of the process of Court but not to stifle a legitimate prosecution Criminal Procedure Code, 1973 (2 of 1974) 298
- Registrar, Public Trust granted permission to sell property of Public Trust - Trust was constituted for welfare of orphans and helpless children - Registrar was required to consider that how the sell of land adjacent to school, temple and residential accommodations was in the interest of trust - He was required to scrutinized each and every sale transaction - F.I.R. and investigation cannot be quashed - Petition dismissed : Suresh Kumar Agrawal Vs. State of M.P., I.L.R. (2008) M.P. 1328
- Section 482 - Scope - The inherent powers U/s 482 of Code can only be exercised sparingly and in very rare cases - Trial Court has rightly took the cognizance on the basis of FIR lodged at P.S. Chhatarpur - Prima Facie offence U/s 498 -A of I.P.C. made out - Proceedings can not be quashed : Shakuntala Sharma Vs. State of M.P., I.L.R. (2008) M.P. 1320
- Section 482 - See - Negotiable Instruments Act 1881, Section 138 : Mridula Kalpiwar (Smt.) Vs. Mridial Pathak, I.L.R. (2008) M.P. Note *67
- Section 482 - See - Penal Code, 1860, Section 420/34, 120-B : Suresh Goel Vs. Grasim Industries Ltd., I.L.R. (2008) M.P. 1841 9. Quashment of F.I.R. registered against the Advocate
- Section 482 - Quashment of F.I.R. registered against the Advocate - Whether a criminal case can be registered against an Advocate who had filed a civil suit on the instructions of his client - Held - FIR lodged by complainant against her husband and one Girija Devi that both of them made a conspiracy and filed a civil suit u/s 9 of Hindu Marriage Act, 1955 and obtained forged decree from Court - No allegation and iota of evidence that Advocate was also involved in conspiracy - Registration of case against Advocate illegal and erroneous - Petition allowed : Mahesh Singh Tomar Vs. State of M.P., I.L.R. (2010) M.P. Note *9
10. Violation of Statutory directions
- Section 482 - Quashing of complaint - Where a statute provide a thing to be done in particular manner for a particular remedy, then appropriate action should be taken thereunder - If AICTE is of opinion that affidavit is false, it should have taken action for cancellation of approval of the year 2009 - Registration of offence by CBI unwarranted : Meena Rathore (Smt.) Vs. CBI, ACB, Bhopal, I.L.R. (2010) M.P. Note *30
- Sections 482 & 200, Negotiable Instruments Act, 1881, Section 138 - Magistrate taking cognizance u/s 138 of Act without examining the complainant u/s 200 Cr.P.C. - Held - Magistrate has not complied with statutory mandatory procedure - The order Criminal Trial 299 directing issuance of process deserves to be interfered with under the inherent powers but it would not be possible to quash the complaint in its entirety - Order set-aside - However, the Magistrate shall be at liberty to make an inquiry u/s 200 & 202 of Cr.P.C. to ascertain as to whether there exists sufficient ground for proceeding against the accused in respect of offence u/s 138 of Act : Banshilal Vs. Abdul Munnar, I.L.R. (2009) M.P. 3032 11. Where the cause of prosecution has already ended
- Section 482, Income Tax Act, 1961, Sections 276C, 278B - Criminal case initiated on ground that petitioner firm made payment of interest without deduction of tax at source - Tax not deposited in department - Quashment of proceeding on ground that tribunal has set-aside penalty which was levied by Assessing Officer - Held - Since assessee had deducted TDS and deposited the same in department, though late, but it has already suffered interest - Tribunal set-aside the penalty, therefore, basis of prosecution has already gone - Prosecution quashed : Harkawat & Company (M/s) Vs. Union of India, I.L.R. (2008) M.P. Note *77
● - Schedule- I as amended by (M.P. Amendment) Act 2007 w.e.f. 22.2.2008 - By the amendment some serious offences of IPC (as shown in amendment) were made triable by "Court of Session" instead of "Magistrate of the First Class" - "Pending cases not affected" - New law or amendment bringing about change of forum does not affect pending cases unless a provision is made in it for change over of proceedings or there is some other clear indication in new law or the amendment that pending cases are affected - Cases pending in the court of JMFC as on 22/2/2008 are not affected and will be continued to be tried by JMFC - Reference answered accordingly : In Reference, I.L.R. (2008) M.P. 1035 (FB)
- Chapter VII-A (Sections 105-A to 105-L) - The whole chapter is specific chapter relating to the specified offences therein and has nothing to do with the local offences or the properties earned out of those : State of M.P. Vs. Balram Mihani, I.L.R. (2010) M.P. 2243(SC) Criminal Trial
- Absconding - Absconding by itself is not conclusive either of guilt or of a guilty conscience : Sanjay Gour Vs. State of M.P., I.L.R. (2008) M.P. 390 (DB)
- Appreciation of evidence - Cruelty not restricted to a particular instance but normally refers to a course of conduct spread over a period of time - Absence of direct or specific evidence not fatal under the facts and circumstances of case : Lakhan Singh Vs. State of M.P., I.L.R. (2007) M.P. 271 Criminal Trial 300
- Appreciation of Evidence - Evidence of witness declared hostile - Before being declared hostile, the witness had corroborated of the material facts of the prosecution case excepting witnessing manhandling of deceased by respondent - There is no legal bar to base a conviction upon the testimony of hostile witness if corroborated by other reliable facts: State of M.P. Vs. Suresh Kumar, I.L.R. (2007) M.P. 563
- Appreciation of Evidence - Reliance on Video clipping of enacted drama of incident in writing judgment - Video Cassette not exhibited by either party - Trial court writing judgment of acquittal opining that cassette prepared in order to tutor witnesses - Judgment should have been based on evidence on record - Video cassette viewing created bias in the mind of Court : State of Madhya Pradesh Vs. Mukhtyar Malik, I.L.R. (2007) M.P. 647 (DB)
- Circumstantial Evidence - Held - Circumstance put forward must be satisfactorily proved and those circumstances should be consistent only with the hypothesis of the guilt of the accused - Again those circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved - In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused : Babloo Vs. State of M.P., I.L.R. (2009) M.P. 1780 (DB)
- Counter Cases - Same Public Prosecutor / Additional Public Prosecutor appearing in both the cases - Held - Same Public Prosecutor cannot appear in both the cases from the side of the prosecution, which are the cross cases of each other - District Magistrate is directed to appoint separate Public Prosecutor in both the sessions trial : Balaram Vs. State of M.P., I.L.R. (2010) M.P. 2438
- Criminal Trial - Principle of vicarious liability having no application in a prosecution which is to be lodged against superior officers : Arun Kumar Jain Vs. Dinesh Tripathi, I.L.R. (2010) M.P. 707
- Duty of prosecution - Oral dying declaration was not challenged in cross- examination of a witness - Therefore it is not necessary for prosecution to ask to autopsy surgeon that despite deceased having injuries whether he was able to give dying declaration : State of M.P. Vs. Ashok, I.L.R. (2008) M.P. 1503 (DB)
- Practice & Procedure - Counter case - The basic principle of criminal jurisprudence is that each case is to be decided on the basis of its own oral & documentary evidence adduced by either party and not extraneous material (i.e. evidence produced in counter case) can be taken into consideration : Narayan Vs. State of M.P., I.L.R. (2008) M.P. 2401 Debts Due to Bank and Financial Institutions Act,(LI of 1993) 301
- Punchanama & memorandum - Proof and evidentiary value - Contains not admissible in evidence unless proved by witness in Court - Can be used for refreshing the memory and to corroborate the version of its author as per provision under Sections 157 and 159 of Evidence Act : Dashrath Vs. State of M.P., I.L.R. (2008) M.P. 360 (DB) Criminalization of Politics
- Any form is impermissible in democracy - The Citizens in democratic setup should not be compelled to suffer criminalization on the ground that they are helpless - A convict cannot be allowed to occupy an elected post where a statute clearly prohibits : Shiv Singh Rawat Vs. State of M.P., I.L.R. (2008) M.P. 491 (DB) Dakaiti Aur Vyapharan Prabhavit Kshetra Adhiniyam, M.P. (36 of 1981)
- Section 2(f) - Specified offence - The Charged offence must not only a "Specified Offence" but it should arise out of commission of Dacoity and the offence must have a nexus with the commission of Dacoity : Sumitra Vs. State of M.P., I.L.R. (2010) M.P. 1196
- Section 5 - Regulation of bail - Affected person entitled to move bail application at four stages - (i) Immediately after arrest where he can demonstrate that no reasonable suspicion of his being involved/concerned exist, (ii) Upon completion of 24 hours, during currency of investigation, where he can demonstrate that accusation is not well founded against him, (iii) After completion of investigation where he can demonstrate that no sufficient and prima facie proof is available against him, (iv) When the investigation is not completed within 120 days : Sumitra Vs. State of M.P., I.L.R. (2010) M.P. 1196
- Sections 11 & 13 - See - Penal Code, 1860, Section 216-A : State of M.P. Vs. Veeru @ Veer Singh, I.L.R. (2010) M.P. 2187
- Section 11/13 - See - Criminal Procedure Code, 1973, Sections 173 & 210 : Vinod Dixit Vs. Satish Mishra, I.L.R. (2009) M.P. 317 Debts Due to Bank and Financial Institutions Act,(LI of 1993)
- Sections 2(d), 2(e), 2(o), 17, 18 and 34 - Co-operative Bank - Section 34 of 1993 Act has no application - Dues on account of loans advanced in priority sector under a state sponsored and socially desirable scheme - Can be recovered as arrears of land revenue through RRC : Manoj Tarwala Vs. State of Madhya Pradesh, I.L.R. (2006) M.P. 980 (DB) Delimitation Act (33 of 2002) 302
Debts Recovery Tribunal (Procedure) Rules, 1993
- Rule 5A - See - Recovery of Debts Due to Banks and Financial Institutions Act, 1993, Section 22(2)(e) : Suresh Sharma Vs. Punjab & Sindh Bank, I.L.R. (2010) M.P. 1371 (DB) Defence of Accused
- Defence of Accused - If the defence is found probable, due weightage should be given to it : Navkant Sharma Vs. State of M.P., I.L.R. (2008) M.P. 2425 Delhi Special Police Establishment Act (25 of 1946)
- Section 6 - Consent - By letter dated 5-2-1957 State Government had accorded consent to the members of Delhi Special Police Establishment exercising powers and jurisdiction within State - Letter sets out all particulars required by Section 6 - It refers to file/reference number, name of department, authority from whom it was issued, and communicated to concerned department - It cannot be said that State Government has not granted consent U/s 6 : M. Balakrishna Reddy Vs. Director, CBI, New Delhi, I.L.R. (2008) M.P. 1001 (SC)
- Section 6 - Consent - Form of - Delhi Special Police Establishment exercising powers and jurisdiction within State - U/s 3 notification and U/s 5 order requires to be issued - U/s 6 consent is required - Mode, method or manner for granting consent not specified - Though in Sections 3 & 5 such mode was provided - It depends on facts of each case whether consent has been given by State or not : M. Balakrishna Reddy Vs. Director, CBI, New Delhi, I.L.R. (2008) M.P. 1001 (SC) Delimitation Act (33 of 2002)
- Section 9(2) - Delimitation of constituencies - Mhow was to be included in Indore parliamentary constituency as per notification dated 19.01.2007 - Residents of Mhow did not file any objection - Commission decided to include Mhow in Dhar parliamentary constituency instead of Indore parliamentary constituency - Held - No provision requiring Delimitation Commission to again publish proposal or invite objections and suggestions and hold public meetings if the Commission decides to change the original proposal as published - Commission was not required to publish its decision and invite objections and hold one or more public meetings - Petition dismissed : Association of the Resident of Mhow Vs. Delimitation Commission of India, I.L.R. (2008) M.P. 2809 (DB)
- Sections 9 & 10(1), Constitution, Articles 327 & 329 - Delimitation - Delimitation Commission after inviting suggestions, objections and after conducting public hearings Doctrine of merger 303 included Mhow in Dhar parliamentary constituency instead of Indore parliamentary constituency - Held - Once the order made by Commission is published in Gazette of India, it has the force of law and cannot be called in question in any Court : Association of the Resident of Mhow Vs. Delimitation Commission of India, I.L.R. (2008) M.P. 2809 (DB) Development Authority Services (Officer and Servants) Recruitment Rules, M.P. 1987
- Rules 2(b), 8 & 53 - See - Service Law : Ramesh Singh Thakur Vs. Jabalpur Development Authority, I.L.R. (2010) M.P. 827
- Rules 7, 8 & 17 - See - Service Law : Devendra Kumar Tripathi Vs. State of M.P., I.L.R. (2009) M.P. 341
- Rules 7 & 17 - See - Service Law : Devendra Kumar Tripathi Vs. State of M.P., I.L.R. (2009) M.P. 341 Dharma Swatantrya Adhiniyam, M.P. (27 of 1968)
- Sections 3 & 5 - Petition claiming handing over the dead body to perform funeral according to Hindu rites - No specific averments about forcible conversion - Deceased lived three years without objection after accepting Christianity - Relief of handing over for funeral can not be granted - Petition dismissed : Prabhat Balotiya Vs. State of M.P., I.L.R. (2009) M.P. 2799
- Section 5 - Intimation to District Magistrate about conversion from one religion to another within 7 days of ceremony - Absence of intimation does not vitiate the conversion - It is only a forcible conversion and not merely conversion which is prohibited : Prabhat Balotiya Vs. State of M.P., I.L.R. (2009) M.P. 2799 Doctrine of Election
- As per housing policy 20% of developed plots out of land acquired or in alternative monetary compensation to be offered to land owner - A valid and precise offer of option is prerequisite for invoking doctrine - Since no offer had ever been put by Development Authority - Adverse inference against land owners for non- exercise of option would be contrary to norms of equity, good conscious and fair play : Mahavir Grih Nirman Sahkari Sanstha Maryadit Vs. State of M.P., I.L.R. (2008) M.P. 1603 Doctrine of Merger
- Doctrine of merger - Where the appeal against original order of assessment was on limited point and the appellate authority without touching any other ground Drugs and Cosmetics Act (XXIII of 1940) 304 though set-aside the order of assessment but the remand was confined to give opportunity to appellant to file Form B and appendix declaration and to pass a fresh appropriate assessment order, the entire assessment order is not merged in the assessment order which passed after remand : Vikram Cement Vs. Commissioner of Commercial Tax, I.L.R. (2010) M.P. 2443(FB) Dowry Prohibition Act (28 of 1961)
- Section 2 - Dowry - Meaning - Any money, property or valuable security given, as a consideration of marriage, before, at or after the marriage would be covered by the expression 'dowry' u/s 2 of the Act : Govind Singh Vs. State of M.P., I.L.R. (2009) M.P. Note *13
- Section 3 - Dowry - Dowry is a demand for property or valuable security having an inextricable nexus with marriage - No dowry was settled at the time of marriage - Question of abatement of giving dowry does not arise - Appellant cannot be convicted under Section 3 : Bhairon Singh Vs. State of M.P., I.L.R. (2008) M.P. 893
- Section 3 & 4 - Penalty for giving or taking dowry and penalty for demanding dowry - U/s 4 of the Act, mere demand of dowry is punishable - If such demand is satisfied, then that act will be punishable u/s 3 of the Act, which provides graver sentence : Govind Singh Vs. State of M.P., I.L.R. (2009) M.P. Note *13
- Sections 4 & 6 - See - Criminal Procedure Code, 1973, Section 177 : Kirti Prakash Saxena Vs. State of M.P., I.L.R. (2010) M.P. 539
- Sections 4 & 6 - See - Criminal Procedure Code, 1973, Section 482 : Ankush Golecha Vs. State of M.P., I.L.R. (2009) M.P. 589
- Section 4 r/w Section 6 - See - Criminal Procedure Code, 1973, Sections 177, 178, 179 : Neeraj Rathore Vs. Smt. Pramodin Rathore, I.L.R. (2008) M.P. 2734 Drugs and Cosmetics Act (XXIII of 1940)
- Sections 18(a)(i), (iii), (vi), 27(d), Criminal Procedure Code, 1973, Section 482 - Quashing of Criminal Proceedings - Applicants are Non - Executive Directors of Pharmaceutical Company - Tablet manufactured by Company found to be sub-standard - Complaint filed by Drug Inspector - Held - Nothing specifically averred in complaint against the applicants - No averments that petitioners are in charge and having active role in day to day affairs of Company - Merely petitioners being directors of the company are not criminally liable - Proceedings against petitioners quashed : P.V. Nayak Vs. State of Madhya Pradesh, I.L.R. (2007) M.P. 713 Easements Act (5 of 1882) 305
- Sections 18(a) (i), 25 (3), 27(d) - Sub-standard drug - Conviction & sentence - Revision against - Complaint filed in court after 5 months of communicating intention to challenge the report of Public Analyst - Accused served after three years thereafter when shelf life of drug expired - Grave prejudice caused and accused deprived of valuable right to get another part reanalyzed - Conviction & Sentence cannot be sustained : Pravinchandra S/o Vallabhdas Ji Vora Vs. State of M.P., I.L.R. (2006) M.P. 640 Due service of summons
- Barely handing over the summons without proof of handing over the copy of the plaint - Not a valid service - Ex parte decree liable to be set aside: Indermal Vs. Shambhu Lal, I.L.R. (2007) M.P. 266 Duty of the Government as model employer
- Need for promptitude - All efforts are required to be made to act in quite promptitude in the matters of disciplinary proceedings - A model employer is under obligation to conduct itself with high probity and expected candour - Disciplinary authority cannot get into slumber or sleep and the enquiry cannot be allowed to continue at snail's speed - Respondent advised to conduct appositely in future keeping in view the doctrine of legitimate expectations of the employee : State of M.P. Vs. Nirankar Singh, I.L.R. (2007) M.P. 592 (DB) Easements Act (5 of 1882)
- Section 13(a) - See - Civil Procedure Code, 1908, Order 6 Rule 2 : Phula Bai (Smt.) Vs. Krishna, I.L.R. (2009) M.P. 1721
- Section 13(c), Civil Procedure Code, 1908, Order 39 Rule 1 & 2 - Temporary injunction - Plaintiffs' land acquired and compensation also paid - They filed a suit for injunction that their easement right of way are hindered - Trial Court declined the injunction but the appellate court granted the injunction - Held - As defendants themselves have prepared the plan for ingress and egress of agriculturists and trial Court has also observed that way shall be as per prepared plan - After acquisition of land defendants cannot be compelled by the plaintiffs to provide the way which they have pointed out in the plaint - Reasonable way can always be set out in such circumstances - Balance of convenience can also not be said to be in favour of plaintiffs as Oil Refinery is being constructed at huge costs - Larger public interest requires that it should not be hindered : Bharat Oman Refinery Ltd., Mumbai Vs. Padam Singh, I.L.R. (2009) M.P. 953 (DB)
- Section 15 - Light and air is need of day to day life - Cannot be measured in terms of money - If deprived irreparable loss will be caused - In case suit is dismissed defendent can be compensated in terms of money - Prima facie case made out : Smt. Shashi Agrawal Vs. Smt. Usha Agrawal, I.L.R. (2006) M.P. 339 Election Symbols (Reservation and Allotment) Order, 1968 306
- Section 52 - License - Ingredients - License is personal to grantor and licensee (grantee) - It is not annexed to the property in respect of which it is enjoyed and it is neither transferable nor heritable - It creates no duties and obligations upon the person making the grant - It also does not create an interest in the property : R.V. Infrastructure Engineers Pvt. Ltd. Vs. State of M.P., I.L.R. (2010) M.P. 608 (DB) Educational Service (Collegiate Branch) Recruitment Rules, M.P. 1967
- Rule 12(5) - See - Service Law : State of M.P. Vs. Dr. Smt. Sandhya Prasad, I.L.R. (2010) M.P. 1259 (DB) Educational Service (Collegiate Branch) Recruitment Rules, M.P., 1990
- Rule 5 - Classification, Scale of pay of librarian - Petitioner was appointed temporarily as officiating librarian - She continued on the post and worked as librarian - Petitioner claimed benefit of higher pay scale without acquiring minimum educational qualification - Held - Recruitment Rules came into force in the year 1990 which provided minimum educational qualification - Circular dated 16.10.1990 issued by State Govt. providing that Librarians already having minimum educational qualification will be eligible for 3 tier pay scale - Librarians not having minimum qualification to be kept in pay scale of Rs.2200-4000 till they acquire minimum educational qualification - Petitioner not acquiring minimum educational qualification - Not entitled for higher pay scale - Petition dismissed : Smt. Sudha Malviya Vs. The State of M.P., I.L.R. (2007) M.P. 882 (DB) Election Rules, 1968
- Rule 31 - Wrong mentioning of serial number in ballot paper - Petitioner contested the election for the post of member, Bar Council of M.P. - Serial number of appellant was wrongly mentioned in column 5 although it was correctly mentioned in ballot paper - Petitioner challenged the election process after more than a month of voting - Held - When name of a person is mentioned in ballot paper and everybody knows that he is contesting election, wrong mention of serial number would not amount to rejection of nomination paper - Voters are Law Graduates, therefore, misprint in column No.5 was not likely to mislead the literate voters - Appeal dismissed : Aniruddh Pandey Vs. Advocate General, I.L.R. (2008) M.P. 2532 (DB) Election Symbols (Reservation and Allotment) Order, 1968
- Order 13 - See - Constitution, Articles 329(b) & 226 : Jaswant Singh Vs. Chief Election Commission, I.L.R. (2009) M.P. 717 Electricity Act, Indian (IX of 1910) 307
Electricity Act (36 of 2003)
- Sections 37 & 42, Municipalities Act, M.P. 1961, Section 5 - Supply of electricity to Bheraghat - By order, State Government directed different schedules for supply of electricity for urban and rural areas - Notification u/s 14 of Electricity Act provides that smaller urban area or transitioned area specified u/s 5 of Municipalities Act is not a rural area for the purpose of Electricity Act - Bheraghat being transitional area u/s 5 of Municipalities Act notified as Nagar Panchayat - Bheraghat has to be treated as urban area and has to be supplied electricity subject to regulations in urban areas - Petition allowed : Siyabai Thakur (Smt.) Vs. M.P. State Electricity Board, I.L.R. (2009) M.P. 1947 (DB)
- Section 151, Electricity (Amendment) Act, 2007 - Cognizance - Retrospective Effect - Amendment made by Amendment Act, 2007 in respect of investigation of offences and procedure for their trial would operate retrospectively - Investigation conducted by police and cognizance taken by Court on report filed by police cannot be held to be illegal - Revision dismissed : Fareed Baig Vs. State of M.P., I.L.R. (2007) M.P. 1713 Electricity Act, Indian (IX of 1910)
- Section 3, M.P. Vidyut Sudhar Adhiniyam, 2000, Sections 2(d), 18(1) (b), 18(2), 18(4), M.P. Cooperative Societies Act, 1960 - Revocation of license of Gramin Vidyut Co-operative Societies by M.P. Electricity Regulatory Commission challenged - Gramin Vidyut Co-operative Societies had licensed to transmit, supply and distribute electric energy - License revoked on the ground of the inefficiency on the part of Societies - In revoking license, Commission did not inquire into the conduct or functioning of the Licensee Societies and failed to form the opinion about the existence of public interest - 30 days' show-cause notice stating the grounds on which license is proposed to be revoked also not given - License revoked in complete deviation from the requirements of Section 18(1) (2) and (4) of Vidyut Sudhar Adhiniyam - Order of commission revoking license set aside : Chandra Vallabh Vs. State of M.P., I.L.R. (2007) M.P. 254
- Section 23(3), Electricity Act, 2003, Section 56, 56 (2) - Recovery of Electricity Charges - Premises of Petitioner raided thrice during the period 1990-1998 - Petitioner deposited part of electricity charges found recoverable from him - Petitioner claimed that no recovery can be made after a period of two years as provided under Section 56 (2) of Electricity Act, 2003 - Held - Demand was raised prior to coming into force of Electricity Act, 2003 - Demand cannot be said to be due under Section 56 - Limitation provided under Section 56 (2) would come into force only when demand is covered under Section 56 - Section 56 (2) not attracted - Petition dismissed : Gendlal Agrawal Vs. State of M.P., I.L.R. (2007) M.P. 526 Electricity Duty Rules, M.P. 1949 308
Electricity Duty Act, M.P. (10 of 1949)
- (as amended by the Act of 1985), Section 3, Table - Rates of Duty, Part-B, Clause 5 & Clause 8 - Levy of Duty - Whether residential Colony or Township attached to a factory is a part of industry - Duty is levied at a different rate for cement industry and at a different rate for non-industrial purposes - Held - Law does not provide that residential colony/township would become part of industry and would become such an integral part of industry without which it would not be possible to run industry : Jaypee Rewa Cement Vs. State of M.P., I.L.R. (2008) M.P. 681 (DB)
- Section 5, Electricity Duty Rules, M.P. 1949, Rule 5 - Recovery of interest on delayed payment - Petitioner was enjoying certain exemption extended by State Govt. - Exemption were withdrawn later on - Petitioner instead of making payment as per demands under the head of electricity duty, challenged the order of demand - Order of demand was stayed however, petition was dismissed and S.L.P. was also dismissed - Held - When Court grants stay against execution of any order, it acts in favour of party who had secured such order - Equity and fairplay provide that if man secures certain privileges or benefits flowing from an order of Court, then such person should be required to return the benefit after vacation or rejection of order - Petitioner liable to pay interest on delayed payment - Petition dismissed : Vikram Cement Vs. State of M.P., I.L.R. (2008) M.P. 1660 (DB)
- Section 5, Electricity Duty Rules, M.P. 1949, Rule 5(2) - Recovery of duty and interest - Notification issued by State Govt. provides for payment of interest @ 12% if the delay is 3 months or less - 15% if the delay is more than 3 months and less than 6 months - 20% if delay is more than 6 months but less than 12 months - 24% if delay is more than 12 months - Held - Government has taken into consideration the true spirit of Section 5 - It cannot be said that there is any discrimination between the classes of defaulters : Vikram Cement Vs. State of M.P., I.L.R. (2008) M.P. 1660 (DB)
- Section 5, Electricity Duty Rules, M.P. 1949, Rule 5(2) - Whether recovery of interest @ 24% p.a. is penal in nature - Held - Section 5 of Act does not put any cap on the rate of interest - Rule provides for a cap of 24% - Rule in fact serves the interest of public and defaulters - When Rule provides that rate of interest shall not go beyond 24%, one cannot argue that rate of interest is penal in nature : Vikram Cement Vs. State of M.P., I.L.R. (2008) M.P. 1660 (DB) Electricity Duty Rules, M.P. 1949
- Rule 5 - See - Electricity Duty Act, M.P., 1949, Section 5 : Vikram Cement Vs. State of M.P., I.L.R. (2008) M.P. 1660 (DB) Electricity Supply Code, M.P. 2004 309
- Rule 5(2) - See - Electricity Duty Act, M.P., 1949, Section 5 : Vikram Cement Vs. State of M.P., I.L.R. (2008) M.P. 1660 (DB) Electricity (Supply) Act (54 of 1948)
- Section 49 - Deletion of condition of payment of interest on Security deposit - Appellant Board deleted the clauses 21(f) and (g) of Board's General Conditions for Supply of Electricity Energy and the Sale of Miscellaneous and General Charges which relates to agreement for payment of interest on security deposits - Single Judge held that such a course is permissible - Division Bench reversed the judgment of Single Judge - Held - Security Deposit is an adjustable advance payment of consumption charges - Board is required to make advance payment of material required for working of thermal plants - Board also required to make advance payments for purchase of power from Central Projects also - High Court has not considered the observations of Supreme court regarding permissibility to delete provisions for payment of interest on security deposits - Matter remanded back to High Court for a fresh consideration in the light of what has been stated regarding Board's powers to delete provision relating to payment of interest on security deposits : M.P. State Electricity Board Vs. Grasim Industries Ltd., I.L.R. (2008) M.P. 16 (SC) Electricity Supply Code, M.P. 2004
- Section 4.17 - Application for new electric connection by house purchaser - Arrears of electricity due or other dues with regard to the same premises against erstwhile owner - Held - House purchaser could not get any benefit if the arrears of electric connection be not paid - Petition dismissed : Mahila Kamla Dubey Vs. M.P. Vidyut Mandal, Gwalior, I.L.R. (2010) M.P. 598
- (As amended w.e.f. 11.08.2006), Clause 4.17 - Effect of amendment in Rules - Petitioner purchased premises in auction - The presmises carried a liability of electricity charges of Rs.46084/- - Petitioner requested for grant of fresh electricity connection relying upon Clause 4.17 of Code - Respondents declined to grant connection - Action challenged - Respondents contended that substitution of clause 4.17 in the Code has been brought into existence w.e.f. 11.08.2006 whereas the application for grant of new connection was prior to the amendment and is governed by unamended clause - Held - When a statute provides new remedies for enforcement of existing rights will apply to future as well as past causes of action, because they do not affect existing rights and are classified as procedural : Uma Shukla (Smt.) Vs. M.P. Poorva Kshetra Vidyut Vitran Co., I.L.R. (2008) M.P. 2915
- (As amended w.e.f. 11.08.2006), Clause 4.17 - New electricity connection denied on the ground that electricity dues of the previous owner were outstanding - Employees' State Insurance Act (34 of 1948) 310
Held - The new electricity connection cannot be denied on the anvil that previous consumer did not clear the electricity dues - Petition allowed : Uma Shukla (Smt.) Vs. M.P. Poorva Kshetra Vidyut Vitran Co., I.L.R. (2008) M.P. 2915
- Clause 4.17 - New electricity connection by auction purchaser - Petitioners purchased a flat in public auction - Applied for new electricity connection - New connection denied on the ground that certain dues were outstanding against previous owner - Held - Petitioners bonafide auction purchaser - Release of new electricity connection cannot be denied - Petitioners entitled for new connection - Petition allowed with cost of Rs.10,000/- : Satish Gangrade Vs. M.P. Madhya Kshetra Vidyut Vitran Company Ltd., I.L.R. (2008) M.P. 1678
- Clause 4.17 and 4.18 and Clause 22-A of the General Terms and Conditions for Supply of Electricity - Electricity dues remaining against original owner - Owner transferring premise to other person - Purchaser denied fresh electricity connection owing to unpaid electricity dues to original owner - Board not empowered to refuse fresh connection to purchaser who has no contractual liability against the board - M.P. Electricity Supply Code, 2004 applicable from 10.6.2004 - Premises in question purchased well before 10.6.2004 - Provisions of the code are in applicable - Clause 22-A applies only when the supply of electricity is discontinued and meter is there on the premises : Durgesh Agarwal Vs. M.P. State Electricity Board, I.L.R. (2006) M.P. 1409 Employees Regulation, 1950
- Regulations 31 & 31-C - See - Employees' State Insurance Act, 1948, Sections 39, 40, 75, 82, 85-B : Employees' State Insurance Corporation Vs. M/s. Reliable Carriers Private Ltd., I.L.R. (2008) M.P. 2973 Employees' State Insurance Act (34 of 1948)
- Sections 2(8) & 51A - Whether death arising out of and in course of employment - Employee was a driver - After coming back from service he felt difficulty in breathing, after some rest proceeded to home but on the way fell down on the road and died - Statement of doctor indicates death due to Cardio-respiratory failure - Doctor has deposed that such Cardio-respiratory failure may be possible in exceptional circumstances due to stress or strain - No evidence regarding exceptional circumstances causing stress - Held - Presumption of accident arising in course of insured person's employment can not be drawn - Dependents failed to prove employment injury out of or in course of employment - Not entitled to get benefit of ESI - Judgment passed by Labour Court set- aside - Appeal allowed : Employees State Insurance Corporation Vs. Jameela Bi, I.L.R. (2008) M.P. 3218 Entry Tax Act, M.P. (52 of 1976) 311
- Sections 2(9), 2(13) - Employee and Immediate Employer - Appellant Company engaged in manufacturing of articles made of rubber used in Surgical, Medical and Laboratory, Soda Water, Accessories and Articles used in various industrial units - Manufacturing process starts with mixing of raw rubber with chemicals - Mixture thereafter goes to different process known as molding, extruding, vulcanizing and thereafter product undergo finishing process - Cutting and polishing of rubber items is being given on contract basis to different contractors - Demand notice issued by respondent in regard to contribution for the workers engaged in cutting and polishing of rubber items challenged before ESI Court - Held - Cutting and Polishing of rubber items being given on contract basis to different contractors - Appellant/Company having no control or supervision over employees of Contractors - Company also having requisite sanction from Central Excise Department in this regard - Employees of Contractors would not come under ambit of Employee of Appellant/Company - Appellant/Company not immediate employer - Demand notice quashed - Appeal allowed : National Indian Rubber Works Ltd. Katni Vs. The Employees State Insurance Corporation, Indore, I.L.R. (2007) M.P. 798
- Sections 39, 40, 75, 82, 85-B, Employees Regulation, 1950, Regulations 31 & 31-C - Damages - Employer not deposited the contribution within prescribed period - E.S.I. Corporation imposing damages to the extent of 100% of the contribution after giving an opportunity of hearing - E.S.I. cum Labour Court reducing it to 25% - Order challenged before High Court - Held - Amount of contribution was deposited by employer after 4 to 7 years delay from the due dates of such payment - Notice was served in spite it was not replied on behalf of employer - E.S.I. Corporation's order imposing the damages was passed in consonance of Section 85-B of Act r/w Regulations 31 & 31- C - The case of employer was also not covered any of the proviso or exception - E.S.I. cum Labour Court has committed grave error in setting-aside the order passed by E.S.I. Corporation for imposing the 100% damages - Appeal allowed : Employees' State Insurance Corporation Vs. M/s. Reliable Carriers Private Ltd., I.L.R. (2008) M.P. 2973 Entry of name in Municipal Record
- Effect - Record of Municipal Corporation does not confer any right or title in the property - Such record is maintained by the local authority only for fiscal purpose to pay the taxes - It is just like the revenue record : Gaya Prasad Vs. Pradumn Prasad, I.L.R. (2010) M.P. 2343 Entry Tax Act, M.P. (52 of 1976)
- Section 3(1)(b) - Manufacture - The process of taking out of the chicks amounts to process of manufacture : Phoenix Poultry (M/s.) Vs. State of M.P., I.L.R. (2010) M.P. 2301 (DB) Essential Commodities Act (10 of 1955) 312
- Section 3(1)(b) - Petitioner, running hatchery, purchased poultry ingredients from various dealers for feeding of parental mother birds and not for feeding new born one day chicks - Challenged liability of Rs.3809198/- as entry tax on plant & machinery and poultry feed ingredients - Held - Since, poultry feeds is being used for survival of parental flocks which are instrumental and for upbringing of layer birds, cockerel and culled birds, petitioner has been rightly saddled with liability to make the payment of entry tax : Phoenix Poultry (M/s.) Vs. State of M.P., I.L.R. (2010) M.P. 2301 (DB)
- Sections 7, 14, Entry Tax Rules, 1976, Rule 7 - Entry Tax - Burden of proof - How discharged by dealer - By producing bill which does not contain rubber stamp endorsement as required to be affixed by selling dealer U/s 7 - Absence of stamp is prima facie proof of fact that goods sold by selling dealer were not of local origin : Goel Coal Co. through Partner Motilal Goel Vs. Additional Commissioner of Commercial Tax, I.L.R. (2008) M.P. 794
- Sections 7, 14, Entry Tax Rules, 1976, Rule 7 - Entry Tax - Whether non affixture of seal by selling dealer on bills as required U/s 7 of Act r/w Rule 7 would absolve dealer for payment of entry tax - Yes, in absence of any proof to the contrary : Goel Coal Co. through Partner Motilal Goel Vs. Additional Commissioner of Commercial Tax, I.L.R. (2008) M.P. 794 Essential Commodities Act (10 of 1955)
- Section 3(3D) & (3E), Sugar (Control) Order, 1966, Clause 4 & 5 - Levy Sugar - Restriction imposed on sale of Sugar to the extent of 20% - Permissibility - Held - The restriction has been imposed to ensure that the consumer get adequate sugar throughout the year at fair price and the cane growers who provide sugar cane also get fair price - It has been applied uniformly to all the sugar mills in the country in public interest, is a reasonable restrictions : Barwani Sugar Vs. Union of India, I.L.R. (2010) M.P. Note *40
- Section 3(1)(2) - Power to control production, supply, etc. of essential commodities - State Government is under duty to exercise discretion whenever it is found that foodstuff is not available at fair price and its equitable distribution particularly to weaker section of society is not possible : Nagrik Upbhokta Margdarshak Manch Vs. Secretary, Food, Civil Suplies & Consumer Protection Department Bhopal, I.L.R. (2007) M.P. 441(DB)
- Section 3/7, Food Stuffs (Civil Supply & Distribution) Scheme, M.P. 1991, Clause 9(1) & 9(2) - Appellants, the salesmen of fair price shop failed to maintain and produce the distribution register for inspection before the Food Inspector - Being a matter covered u/s 3(2) Clause (h)(i) of E.C. Act is liable to be convicted u/s 7(1)(a)(i), and not u/s 3/7 Essential Commodities Act (10 of 1955) 313 of the E.C. Act - Conviction modified to that extent : Ravindra Kumar Vs. State of M.P., I.L.R. (2010) M.P. 2176
- Section 3/7, Food Stuffs (Civil Supply & Distribution) Scheme, M.P. 1991, Clause 9(1) & 9(2) - Scheme of 1991 was formulated and is a part of Food Stuff Distribution Control Order, 1960, made u/s 3 r/w S.5 of the Act and so breach of any condition of scheme is punishable under the Act : Ravindra Kumar Vs. State of M.P., I.L.R. (2010) M.P. 2176
- Section 3 r/w 7, Motor Spirit and High Speed Diesel (Prevention of Malpractices in Supply and Distribution) Order, 1990, Clause 5 - Tanker filled with kerosene parked at the HSD Pump - A pipe for discharging kerosene from the tanker into the HSD tank was duly fitted in the corresponding nozzle - Appellants convicted u/s 3/7 of the Act for making an attempt to commit adulteration in HSD - Held - Sample drawn from HSD tank was not found to be adulterated - Appellants had made preparation to commit the violation of Order, 1990 - However, possibility of commission of offence was not relevant as it is the actual commission of act in attempting to commit offence that constitutes offence of attempt - Conviction & sentences set-aside - Appeal allowed : Mohd. Shamim Vs. State of M.P., I.L.R. (2009) M.P. 3201
- Sections 3 & 7, Food Stuffs (Distribution Control) Order, M.P. 1960, Clauses 2(d) & 4, Food Stuffs (Civil Supply & Distribution) Scheme, M.P. 1991 - Earlier Scheme of 1981 was merely an executive order of the State Government, breach whereof was not punishable u/s 3/7 of Act - State Government inserted Clause 4 in Order 1960 w.e.f. 21.02.1991 - It has given power to State Government to make scheme and under this provision Scheme 1991 was formulated - Scheme of 1991 is part of Order 1960 - Breach of any condition of the Scheme of 1991 would be punishable u/s 3/7 of Act : Kishore Kumar Vs. State of M.P., I.L.R. (2009) M.P. 1184
- Section 3/7 - See - Sugar Dealers Licencing Order, M.P. 1963, Clause 3(1) : Shivnath Dhobhi Vs. State of M.P., I.L.R. (2009) M.P. 879
- Sections 3,7, (Khadya Padarth) Sarvajanik Nagrik Purti Vitran Scheme, M.P. 1991, Clause 6(5), 12 - Violation of Scheme - Appellant convicted for violating provisions of Scheme - Held - Scheme was not made in exercise of any power conferred by order U/s 3 of Act - Scheme is made in exercise of Executive Power of State - Appellant cannot be convicted for violating provisions of Scheme - Appellant acquitted - Appeal allowed : Arvind Kumar Vs. State of M.P., I.L.R. (2008) M.P. 1479
- Sections 3, 7, Cement (Quality Control) Order 1962, Clause 3, M.P. Cement Prevention of Adulteration Act, 1981 - Procedure for sampling and analyzing cement - Food Inspector collected the samples from the cement purported to have been supplied Essential Commodities Act (10 of 1955) 314 by appellant to the Contractor - Report of FSL reveals that cement was adulterated - Appellant prosecuted and convicted under Sections 3, 7 of Essential Commodities Act for violating Cement (Quality Control) Order, 1962 - Held - No procedure provided for drawing sample, its sealing and forwarding to authorized analyst under Order, 1962 - Rules framed under M.P. Cement Prevention of Adulteration Act, 1981 not applicable as they came into force after the date of incident - Contractor admitted that Cement was also supplied by another authorized dealer - Samples not taken in the presence of appellant - No identification mark of bags mentioned - Food Inspector not authorized to draw samples - Status of Forensic Science Laboratory as Cement Quality Control Laboratory also questionable - Conviction of appellant set aside - Appeal allowed : Gopaldas Vs. State of Madhya Pradesh, I.L.R. (2007) M.P. 804
- Section 6(A), Public Distribution System Control Order, 2001 - Truck and rice was seized by police as BPL rice which was to be supplied at the Fair Price Shops of some villages was not carried there and diverted the route and breached the Order, 2001 - Collector passed order of confiscation of the truck and rice - Sessions Judge upheld the order - The defence of the truck owner that he was having no knowledge about it - Held - Driver has clearly stated that he talked with the truck owner and at his instructions only he loaded the rice in the truck to be transported at some place at Chhattisgarh State - The rice was being transported at night and there were no labourer on this truck to unload the same - The Fair Price Shops remaine closed at night - This also negatives the possibility that the rice was being transported to Fair Price Shops - Defence contentions are not acceptable - Order of confiscation affirmed - Revision dismissed : Mohd. Shahabuddin Vs. State of M.P., I.L.R. (2010) M.P. 1191
- Section 6-A - Confiscation of essential commodity - Held - U/s 6-A of the Act, before passing any order of confiscation, Collector has to give an option to the owner of the vehicle to pay, in lieu of its confiscation, a fine not exceeding the market price of the essential commodity sought to be carried by said vehicle and not to the price of the vehicle concerned : Rajmohan Kapoor Vs. State of M.P., I.L.R. (2009) M.P. 1497
- Section 6-B - Issue of show-cause notice before confiscation of essential commodity - Held - U/s 6-B of the Act, no order for confiscation of vehicle etc. can be passed by the Collector, if the owner of the vehicle etc. proves to the satisfaction of the Collector that vehicle etc. was used in carrying the essential commodity without his knowledge or connivance by his agent : Rajmohan Kapoor Vs. State of M.P., I.L.R. (2009) M.P. 1497
- Section 6-C(2) - Interest - Petitioners were allotted fair price shops - Prosecuted for violation of provisions of Scheme - Prosecution ended in acquittal, however articles were confiscated - Order of confiscation was set aside in appeal - Articles were already sold during the pendency of criminal case - Price of the articles was paid as per order Essential Commodities (Price Exhibition and Price Control) Order, M.P. 1977 315 of Court, however, interest thereon was denied - Held - Entitlement to interest is by virtue of a statutory provision - Court is not vested with any kind of discretion to deny interest - Absence of grant of interest in criminal appeal will not deprive right to receive interest - Respondents directed to pay interest at reasonable rate - Petition allowed : Prathmik Mahila Sahakari Upbhokta Bhandar, Shahpura, Distt. Dindori Vs. State of M.P., I.L.R. (2008) M.P. 1969
- Sections 7(1) and 10, M.P. Scheduled Commodities Trading (License and Jama - Khori Par Nibandhan) Order, 1991, M.P. Essential Commodities (Price Exhibition and Price Control) Order, 1977 - Mens Rea - Whether proof of Mens Rea required before confiscating the commodity - Petitioner shop was searched by Food Inspector and certain violations were found - Seized articles confiscated and petitioner directed to pay dues amounting to Rs. 17.000/- - The confiscation challenged on the grounds that Mens Rea not proved before passing order - The word ''whether knowingly, intentionally or otherwise'' were introduced by Amending Act 36 of 1967, Essential Commodities Act deleted again by Amending Act of 1974 - Further, new provision of Section 10(c) (I) introduced - New provision raises presumption of culpable mental State - Petitioner not rebutting the presumption against him - Explanation for not making entries in daily register not reliable - No illegality committed in passing order of confiscation - Petition dismissed : Rajendra Mahajan Vs. State of M.P., I.L.R. (2007) M.P. 353
- Sections 7(1)(a)(ii) & 10-A, Criminal Procedure Code, 1973, First Schedule, Appendix "A" r/w S. 2(a) - Classification of offences against other laws - Under the E.C. (Special Provisions) Act (18 of 1981), the offences were made non-bailable by amending S. 10-A of E.C. Act - Now, the Act, 1981 is not in force and the amendment stands deleted automatically - Therefore, the provisions of Cr.P.C. are applicable - As per First Schedule, Appendix "A" r/w S. 2(a) of Cr.P.C., offences fall u/s 7(1)(a)(ii) of E.C. Act are cognizable and non-bailable : Hariom Vs. State of M.P., I.L.R. (2010) M.P. 764 Essential Commodities (Price Exhibition and Price Control) Order, M.P. 1977
- Clause 6(2), M.P. Motor Spirit and High Speed Diesel Oil (Licensing and Control) Order, 1980 - Clause 6,10 - Issuance of Receipt or Invoice - Control Order 1977 requires a dealer to issue correct receipt or invoice to every purchaser - Licence issued under Order, 1980 requires licensee to issue to every customer, correct receipt or invoice if so demanded - Order issued by Collector in exercise of power under Clause 6(2) of Order, 1977 directing all Petrol and Diesel pump owners to supply cash memos to customer challenged - Matter referred to larger bench for reconsideration of judgment passed in Virendra Singh V. Collector, Indore and others holding that it is not necessary to issue Evidence Act (1 of 1872) 316 receipt or invoice unless demanded in case of sale of motor spirit - Held - Control Order, 1977 applicable to Petrol and Diesel (H.S.D.) - Control Order, 1980 applies to Motor Spirits and High Speed Diesel Oil only - Elaborate provisions including licensing of dealer have been made in Control Order, 1980 to regulate sale and supply of Motor Spirits and High Speed Diesel Oil - Clause 8 of term of licence provides that licensee shall issue receipt or invoice to customer if so demanded by him - Whether a dealer to whom Control Order, 1980 applies has to comply with provisions of Control Order, 1977 - Dealer as defined in Clause 2(b) of Control Order, 1980 means person engaged in business of purchase, sale or storage of sale of motor spirit and or high speed diesel oil or both on the basis of agreement with Oil Company - Dealer who carries on business in Motor Spirit and High Speed Diesel Oil has to sell in accordance with instructions of Government or Public Sector Companies with regard to prices at which product is to be sold - Thus, dealer cannot be asked to comply with provisions of Control Order, 1980 as well as Control Order, 1977 - Decision passed in Virendra Singh V. Collector, Indore and others holding that it is not necessary to issue receipt or invoice unless demanded was correct in facts of the case - However, authorities mentioned in Clause 10 of Control Order, 1980 can issue any direction in addition to those contained in terms and conditions of licence : Surjeet Singh Saloja Vs. The State of Madhya Pradesh, I.L.R. (2007) M.P. 1158 (FB) Estate Duty Act (XXXIV of 1953)
- Sections 64(3), 73-A - Limitation for commencing proceedings for assessment or re-assessment - Return filed beyond 5 years - Provision is unambiguous to bar commencement of any proceeding to levy estate duty after five years : Controller of Estate Duty Vs. Surendra Shanker Singh, I.L.R. (2006) M.P. 899 (DB) Evidence Act (1 of 1872)
- Accomplice - The law has developed that the corroboration of the evidence of an accomplice is a rule of prudence : Navkant Sharma Vs. State of M.P., I.L.R. (2008) M.P. 2425 SYNOPSIS : Section 3
1. Age of prosecutrix 13. Identification Parade 2. Appreciation of evidence 14. In respect of Co-accused In Appeal 15. Maxim - falsus in uno, 3. Change of version at different falsus in omnibus stages of examination 16. Medical Evidence Evidence Act (1 of 1872) 317
4. Circumstantial evidence - 17. Name of Eye witness not in F.I.R. Not Proved 18. Omission / Discrepancies 5. Circumstantial evidence - / Inconsistency Proved 19. Plea of alibi 6. Contradiction in Ocular and 20. Principle medical evidence 21. Sniffer dog 7. Cruelty and harassment 22. Statement of I.O. 8. Custodial death - Evidence of 23. Testimony of Food Inspector fellow police personnel 24. Witness 9. Delayed case diary Statement 25. Miscellaneous 10.Effect of non-examination of Prosecutrix 11. Evidence of prosecutrix held not reliable 12. Evidence of prosecutrix held reliable
1. Age of prosecutrix
- Section 3 - It is settled principle of law that if authentic date of birth of the prosecutrix that is to say, evidence in respect of age of prosecutrix is available then opinion of doctor on the basis of ossification test can be discarded : Vinod Kumar Vs. State of M.P., I.L.R. (2008) M.P. 3327
- Section 3, Entry in school register - Though not conclusive but has evidentiary value - Prosecutrix proved to be minor - Order of acquittal reversed : State of Chhattisgarh Vs. Lekhram, I.L.R. (2006) M.P. 1119 (SC) 2. Appreciation of evidence In Appeal
- Section 3 - Appreciation of evidence - The trial Court based its judgment of acquittal on facts that (i) oral dying declaration given to witnesses and not supported by doctor, is doubtful, (ii) the FIR is belated and not forwarded to the Magistrate promptly, (iii) the evidence of sole eye-witness is not believable and natural - In appeal, the High Court reversed the acquittal - Held - It is now well settled that if the trial court's judgment is well based on the evidence and the conclusion drawn in favour of the accused was possible thereof, the High Court would not be justified in interfering on the premise that a different view could also be taken and though the High Court was entitled to reappraise Evidence Act (1 of 1872) 318 the evidence there should be substantial and compelling reasons for setting aside an acquittal order and making one of conviction : Gopal Singh Vs. State of M.P., I.L.R. (2010) M.P. 1847 (SC) 3. Change of version at different stages of examination
- Section 3 - Appreciation of evidence - Material prosecution witnesses in examination in-chief deposed against the accused persons - Were not cross examined by the defence counsel on the date of recording of their evidence - They were recalled and cross examined after lapse of 10 months - In cross examination they changed their version and turned hostile - In re- examination they were confronted with their earlier version by prosecutor - They admitted that their earlier version was correct - Thereafter no further cross examination was done by defence - Earlier version in their examination in-chief is reliable : Kamal Vs. State of M.P., I.L.R. (2008) M.P. 1214 (DB) 4. Circumstantial evidence - Not Proved
- Section 3 - Circumstantial evidence - Case based on - Conviction u/s 302 & 201 of IPC - Held, - Doctor did not depose positively that injuries of deceased were homicidal in nature - The evidence of alleged extra-judicial confession was doubtful and also inadmissible in evidence - Fact that appellant was last seen in company of deceased also not established beyond periphery of doubt - Injuries on person of appellant did not necessarily rise to inference that these injuries were sustained in assaulting the deceased - The conviction recorded by the trial Court set aside : Gendaua (Smt.) Vs. State of M.P., I.L.R. (2010) M.P. 1973 (DB)
- Section 3 - Circumstantial evidence - Law discussed : State of M.P. Vs. Shankarlal, I.L.R. (2010) M.P. 717 (DB)
- Section 3 - See - Penal Code, 1860, Sections 302, 366, 364 & 376 : State of M.P. Vs. Shankarlal, I.L.R. (2010) M.P. 717 (DB)
- Section 3 - See - Penal Code, 1860, Section 302 : Sadhu Singh Vs. State of M.P., I.L.R. (2009) M.P. 1137 (DB) 5. Circumstantial evidence - Proved
- Section 3, Penal Code, 1860, Sections 302 & 201 - Appreciation of evidence - Murder - Deceased the wife of accused/appellant was last seen in company of the accused on same day - Accused Previously maltreated the deceased - The car used by accused was got washed, its seat covers were changed and car repaired by denting & painting soon after occurrence - Medical evidence confirmed that death by gun shot injury and bullet recovered from the spot could be fired by gun recovered at the instance Evidence Act (1 of 1872) 319 of accused - All the circumstances proved by prosecution had clear tendency to indicate that it was accused/ appellant who had committed the offence. Conviction & sentence passed by trial court affirmed - Appeal dismissed : Suryakant Singh Vs. State of M.P., I.L.R. (2010) M.P. Note *55 (DB)
- Section 3, Penal Code 1860 - Sections 302, 376 - Rape and murder - Case based on circumstancial evidence - Held - Accused was seen going towards place of incident - T-Shirt recovered on instance of accused, found having blood stains of more than one person - Similar male D.N.A. profile in the blood sample of accused, nail clipping of accused and vaginal smear slide of deceased, - Accused was also injured and an abrasion was found by doctor - It is well established that it was the appellant who only and non else committed murder and rape. Conviction u/s 376 & 302 of I.P.C. is affirmed : In Reference Vs. Rahul, I.L.R. (2010) M.P. 2206 (DB)
- Section 3 - See - Penal Code, 1860, Sections 363, 366, 376(2)(f) & 302 : Haricharan Vs. State of M.P., I.L.R. (2010) M.P. 2201 (DB)
- Section 3, Penal Code, 1860, Section 302 - Appellant husband found in his house with a bloodstained knife beside the dead body of his wife and minor children - Medical evidence supported the prosecution case - Held - Circumstances forming a chain even stronger than an eye-witness account - Conviction of appellant on the charge of multiple murders was fully justified - Conviction and death sentence upheld - Appeal dismissed : Jagdish Vs. State of MP, I.L.R. (2010) M.P. 310 (SC)
- Sections 3, 7 & 8 - See - Penal Code, 1860, Section 302 : Devendra Singh @ Pappu Vs. State of M.P., I.L.R. (2009) M.P. Note *47 (DB) 6. Contradiction in Ocular and medical evidence
- Section 3 - Witness - Oral & medical evidence - Contradiction - Version of eye witness should be believed in case there is contradiction in the statement of eye witness and medical evidence regarding injuries and weapons : Bhikhari @ Bhikhamsingh Vs. State of M.P., I.L.R. (2009) M.P. 3411 (DB)
- Section 3 - Appreciation of evidence - Conflict between ocular evidence and medical evidence - Reliability - Held - If there is a conflict between ocular evidence of the eye witness and the medical evidence, then ocular evidence prevails over medical evidence as the medical evidence is only as an expert evidence, while the deposition of the eye witness speaks about the real incident : Jamuna Vs. State of M.P., I.L.R. (2009) M.P. 2425
- Section 3, 45 - Ocular and Medical Evidence - Acquitted persons alleged to have caused injuries by means of sharp edged weapons - 26 injuries were found which Evidence Act (1 of 1872) 320 were caused by hard and blunt object - This discrepancy creates serious doubt about participation of acquitted accused persons - Trial Court rightly acquitted accused persons who allegedly caused injuries by sharp edged weapons: Kanhaiya Lal Vs. State of M.P., I.L.R. (2007) M.P. 1704(DB) 7. Cruelty and harassment
- Sections 3 & 113-B - See - Penal Code, 1860, Sections 304-B & 498-A : Durga Prasad Vs. State of M.P., I.L.R. (2010) M.P. 1853 (SC) 8. Custodial death - Evidence of fellow police personnel
- Section 3 - Appreciation of evidence - Custodial death - Evidence of fellow police personnel - All of them refrained from admitting that injuries were caused by appellants during interrogation of deceased at police station - Their case diary statements indicating active involvement of the appellants - Deviation from their case diary statements did not assume much significance : Ashok Kumar Jain Vs. State of M.P., I.L.R. (2008) M.P. 934
- Section 3 - Custodial death - If there is an evidence that a fatal injury was caused during the period when the person was in the police custody - Court may presume that police officer having custody of that person, was the author of such an injury : Ashok Kumar Jain Vs. State of M.P., I.L.R. (2008) M.P. 934 9. Delayed case diary Statement
- Section 3 - Appreciation of evidence - Delay in recording statement u/s 161 Cr.P.C. - Statement of eye-witness recorded after 22 days of the incident - No inimical relations with the accused persons or any animosity against them - Plausible explanation given by the witness that on account of illness of his father he had gone to out of city and came back after 20-22 days, then he gave statement to the police - His evidence cannot be discarded and doubted on the ground of his delayed examination by the I.O. : Pillu @ Prahlad Vs. State of M.P., I.L.R. (2010) M.P. 1181 (DB)
- Section 3, Penal Code, 1860, Section 302 - Delay in examination of witness - Effect - Statements of material and important witnesses were recorded on next day by I.O. though he reached to the place of occurrence on the same night - Held - No questions were put to I.O. as to why the statements of material and important witnesses could not be recorded in the same night of the incident or at the earliest point of time - No opportunity was given to these witnesses to explain the delay in recording the statements - Defence cannot get any benefit on this count : Rama @ Ramlal Vs. State of M.P., I.L.R. (2009) M.P. 2660 (DB) Evidence Act (1 of 1872) 321
10. Effect of non-examination of Prosecutrix
- Section 3 - Prosecutrix dead - Effect of non-examination - Merely because the prosecutrix was dead and consequently could not be examined, can never be a ground to acquit accused if there is evidence otherwise available proving the criminal act of the accused : Mohammad Hafeez Vs. State of M.P., I.L.R. (2010) M.P. 261
- Section 3 - See - Penal Code, 1860, Section 376 : Suresh Vs. State of M.P., I.L.R. (2008) M.P. 3324 11. Evidence of prosecutrix held not reliable
- Section 3, Penal Code, 1860, Section 376(1) - Accused convicted upon basis of sole testimony of prosecutrix and conviction affirmed by the High Court - Held - In the case the accused/appellant had received 6 injuries including one grievous injury, the witnesses who were allegedly reached at spot soon after did not support the prosecutrix and declared hostile, the prosecution story that the appellant a young man of 31 years had been overpowered by a much older woman is rather difficult to believe, the I.O. did not verify the defence of accused that he had gone to prosecutrix house to recover his cow and in a quarrel that followed both had received injuries, the husband of prosecutrix who had accompanied her to police station did not come to witness box and doctor was also unable to confirm the factum of rape, makes the case rather unusual one.
There can be no quarrel with the proposition that the evidence of prosecutrix is liable to be believed save in exceptional circumstances. But on the other hand a prosecutrix must be believed irrespective of the improbabilities in her story, is an argument that can never be accepted. The test always is as to whether the given story prima facie inspires confidence - Conviction set aside : Dinesh Jaiswal Vs. State of M.P., I.L.R. (2010) M.P. 1839 (SC)
- Section 3 - See - Penal Code, 1860, Sections 363 & 366 : Ghanshyam @ Ghanshu Vs. State of M.P., I.L.R. (2010) M.P. Note *42 12. Evidence of prosecutrix held reliable
- Section 3 - Appreciation of evidence - Attempt to rape on a minor girl - Evidence of witnesses recorded after lapse of 3-4 years, as the accused had absconded - Therefore, some discrepancy in the timing or sequence of events was natural and bound to occur due to lapse of memory and passage of time - Despite extensive cross- examination, nothing has been elicited in the evidence of witnesses so as to indicate any reason for false implication - Ordinarily parents of the victim would not concoct a false case at the stake of modesty, honour and reputation of their minor daughter of tender age : Nandan @ Shivnandan Vs. State of M.P., I.L.R. (2009) M.P. Note *21 Evidence Act (1 of 1872) 322
- Section 3 - See - Penal Code, 1860, Section 376 : Randhir Singh Vs. State of M.P., I.L.R. (2010) M.P. 485
- Section 3, Penal Code, 1860, Section 376 r/w 511 - Appreciation of evidence - Attempt to rape on a minor girl - Evidence of child witness - Conviction challenged on the ground that it is based on tutored and fabricated evidence without any corroboration and medical evidence - Held - Prosecutrix given a vivid description of the incident and categorically stated that accused had sexually assaulted her - Her evidence does not appear to be tutored or fabricated and is found to be cogent & credible - It inspires confidence - Her evidence cannot be discarded on the score that she is a child witness - Evidence of prosecutrix also stands fortified by her medical report which remained virtually unchallenged in the cross-examination - Appeal dismissed : Nandan @ Shivnandan Vs. State of M.P., I.L.R. (2009) M.P. Note *21
- Section 3 - See - Penal Code, 1860, Section 376(2)(f) : Angad Vs. State of M.P., I.L.R. (2009) M.P. Note *24
- Section 3 - See - Penal Code, 1860, Section 376 : Bhanu Singh Vs. State of M.P., I.L.R. (2009) M.P. 224
- Section 3 - See - Penal Code 1860, Section 376 : Annu @ Anoop Kumar Vs. State of M.P., I.L.R. (2008) M.P. 2435 13. Identification Parade
- Section 3, Penal Code, 1860, Sections 302, 392, 397, 411, 413 & 414 - Circumstantial evidence - Conviction for robbery and murder based on (1) Deceased allegedly seen with accused in jeep on relevant date by three witnesses, (2) On instance of one accused parts of stolen jeep were recovered from other accused, (3) One accused was identified by witnesses during T.I. Parade - Held - Witnesses not previously known to the accused and they had also seen the accused in police station and C.I.D. office prior to T.I. Parade - The parts of jeep recovered had no identification, forming part of stolen jeep - Conviction & sentence set aside : Ramesh Chandra Vs. State of M.P., I.L.R. (2010) M.P. 2368 (DB)
- Sections 3 & 9 - Test identification parade - Failure to hold - Effect - Incident took place in broad day - One of eye witness actually chased accused for some distance - Accused named in dying declaration and Dehati Nalishi - There was no necessity to hold identification parade : State of M.P. Vs. Koushal Prasad Jaiswal, I.L.R. (2009) M.P. 292 (DB) 14. In respect of Co-accused
- Section 3 - Appreciation of evidence - Murder - Co-accused catching hold of victim while other caused stab injury - No evidence that catching hold from behind and Evidence Act (1 of 1872) 323 stabbing were simultaneous - Co-accused cannot be said to have knowledge that other co-accused would go to the extent of causing death - Cannot be held guilty of causing death with the aid of section 34, IPC : Virendra Vs. State of M.P., I.L.R. (2006) M.P. 1322 (DB)
- Section 3 - Murder - Appreciation of evidence - Co-accused allegedly seen running from place of occurrence with blood stained sickle - Sickle though seized but not sent for chemical examination - It would be perilous to sustain conviction on basis of suspicion evoked : Malsingh Vs. State of M.P., I.L.R. (2006) M.P. 1196 (DB) 15. Maxim - falsus in uno, falsus in omnibus
- Section 3, Penal Code, 1860, Section 326, Maxim falsus in uno, falsus in omnibus - Applicability - Held - The maxim is not acceptable as a sound principle in our country - A person can be disbelieved on a particular part of his statement may not be disbelieved for rest of his statement - The Court is required to separate the grain from the chaff instead of rejecting whole statement - Conviction can be based on such statement : Ashok Vs. State of M.P., I.L.R. (2008) M.P. Note *71
- Section 3 - 'Falsus in uno falsus in omnibus' has no application in India - Prosecution witnesses were disbelieved as against co-accused (since acquitted) on ground that their statement were inconsistent on material point - Not sufficient to reject the evidence of these witnesses its entirety - Duty of Court to separate grain from chaff : Ashok Kumar Jain Vs. State of M.P., I.L.R. (2008) M.P. 934 16. Medical Evidence
- Section 3 - Appreciation of evidence of doctor - It is well settled legal position that evidence of doctor has to be appreciated like an other fact - Medical expert has admitted the defence suggestion that if the deceased would have fallen on a pointed object (iron line angle), he could sustain injuries on abdomen - Held - Looking to the nature of injuries the same could not be sustained by falling on an iron fencing : Kamal Vs. State of M.P., I.L.R. (2008) M.P. 1214 (DB)
- Section 3 - See - Penal Code, 1860, Section 302 : State of M.P. Vs. Habib Ahmad, I.L.R. (2009) M.P. 3187 (DB) 17. Name of Eye witness not in F.I.R.
- Section 3, Criminal Procedure Code, 1973, Section 154 - Appreciation of evidence - Effect of non-mentioning the name of eye-witness in FIR - There was crowd on the place of occurrence - Therefore, it cannot be reasonably expected from the first informer Evidence Act (1 of 1872) 324 that the name of every onlooker should be mentioned in the FIR - Testimony of eye- witness cannot be disbelieved on the ground that he was not named in the FIR : Pillu @ Prahlad Vs. State of M.P., I.L.R. (2010) M.P. 1181 (DB)
- Section 3 - Appreciation of Evidence - Evidence of mother of deceased cannot be disbelieved merely on the ground that she was not mentioned as an eye witness in FIR - More so, her presence on the place of occurrence as an eye witness is also borne out from the testimony of another witness : Rajendra Vs. State of M.P., I.L.R. (2008) M.P. Note *59 (DB) 18. Omission/Discrepancies/Inconsistency
- Section 3 - Appreciation of evidence - In the complaint no date of receipt of cheque is mentioned - Complainant was not confronted with the contents of complaint and no opportunity was given to explain this omission in the complaint - The omission cannot be taken into consideration against the complainant and omission is also not material one and does not amount to contradiction : Kishanlal Vs. Murlidhar, I.L.R. (2008) M.P. 1237
- Section 3 - Appreciation of evidence - Discrepancies - Main theme to be seen whether it goes to the root of the matter - Even honest and truthful witness may differ in some details unrelated to main incident : Amritlal Vs. State of M.P., I.L.R. (2006) M.P. 276 (DB)
- Section 3 - Failure to name all who gave blows and exact nature of injury caused - Minor inconsistency - Not sufficient to disbelieve injured eye witnesses : Amritlal Vs. State of M.P., I.L.R. (2006) M.P. 276 (DB)
- Section 3 - Appellant convicted u/s 307 IPC on the allegation that he fired at the police patrolling party - Held - No prosecution witness identified the appellant and his name also not mentioned in FIR - Incident is of early morning when there was darkness everywhere in the winter season and it was not possible to see as to which of the miscreants fired and that is the main reason of omission of such fact in FIR - Prosecution has failed to prove the case beyond reasonable doubt - Appellant is entitled for acquittal - Appeal allowed : Indresh Singh Vs. State of M.P., I.L.R. (2009) M.P. 1109 19. Plea of alibi
- Section 3 - Appreciation of evidence - Defence plea of alibi and alternative plea that accused was invited to her house by the prosecutrix only - These inconsistent and alternative pleas cannot be accepted - However, they strengthened the prosecution case : Mohammad Hafeez Vs. State of M.P., I.L.R. (2010) M.P. 261 Evidence Act (1 of 1872) 325
- Section 3 - Plea of alibi - Generally viewed with suspicion - Onus to establish is on the accused - If not discharged appellate Court will not interfere : Amritlal Vs. State of M.P., I.L.R. (2006) M.P. 276 (DB) 20. Principle
- Section 3 - Appreciation of evidence - The duty of the Judge is to consider the evidence objectively and dispassionately, examine it in the light of probabilities and decide which way the truth lies - The impression formed by the Judge about the character of evidence will ultimately determine the conclusion which he reaches : D.K. Shrivastava Vs. State of M.P., I.L.R. (2010) M.P. 1865 (SC)
- Section 3 - Witness - Principles dealing with appreciation of evidence in criminal matter - Law discussed : Baijnath Vs. State of M.P., I.L.R. (2009) M.P. 3041 (SC)
- Section 3 - Witness - It is not the number quantity but quality that is material : Jhamsingh Vs. State of M.P., I.L.R. (2007) M.P. 1691 (DB) 21. Sniffer dog
- Section 3, 45 - Murder - Death sentence - reference - Missing child found murdered - Use of sniffer dog - Reliability - Tracker dog must pass test of scrutiny and reliability by examining dog trainer - Evidence regarding past performance, achievements of Sniffer dog should be proved by documents - No evidence that tracker dog nabbed accused appellant - Evidence regarding sniffer dog suspicious : Mahesh Vs. State of M.P., I.L.R. (2006) M.P. 1211 (DB) 22. Statement of I.O.
- Section 3 - Appreciation of evidence - It is not the law that statement of I.O. cannot be believed - If the statement of I.O. inspires confidence, such statement must be believed : Laxmi Narayan Vs. State of M.P., I.L.R. (2008) M.P. 2115 23. Testimony of Food Inspector
- Section 3 - Appreciation of evidence - Testimony of Food Inspector - Corroboration of main witness by independent witness is a rule of prudence - Not requirement of law - Testimony of Food Inspector cannot be rejected for want of corroboration : Shankar Vs. State of M.P., I.L.R. (2008) M.P. Note *69
- Section 3 - Evidence - Sole Testimony of Food Inspector - Corroboration of main witness by independent witness is a rule of prudence and not requirement of law Evidence Act (1 of 1872) 326
- Testimony of Food Inspector cannot be rejected for want of corroboration by independent witness : Radhika Prasad Gupta Vs. State of M.P., I.L.R. (2008) M.P. Note *58 24. Witness
(i) Chance witness (vii) Injured witness (ii) Child witness (viii) Interested / Related witness (iii) Deaf & Dumb witness (ix) Sole witness (iv) Eye witnesses (x) Tutored witnesses (v) Hostile witness (xi) Witness not declared hostile, (vi) Independent witness Despite two kind of statements (i) Chance witness
- Section 3 - Chance witness - Testimony of witness cannot be discredited merely because he is a chance witness : Balkishan (Deleted) Vs. State of M.P., I.L.R. (2010) M.P. 1473 (DB)
(ii) Child witness
- Section 3 - Child witness - Boy of Seven years kidnapped for ransom - Since, the child witness himself was the victim of the offence and the natural manner and confidence with which, he narrated the incident in the court - He cannot be disbelieved merely on the ground that he was a child witness : Irfan Vs. State of M.P., I.L.R. (2010) M.P. 1170
- Section 3 - Child witness - Evidence of child witness must be evaluated more carefully and with greater circumspection - It is not law that if witness is child, his evidence shall be rejected even if it is found reliable : Dagdulal Vs. State of M.P., I.L.R. (2010) M.P. Note *6
- Section 3 - Child witness - Reliability - Child witness has understood the true meaning of oath and necessity of speaking truth and has given rational answers to all the questions put to her - Not exhibited any intellectual incapacity to understand the nature of questions - No iota of doubt exist about tutoring by prosecution - Evidence reliable : Mazboot Singh Vs. State of M.P., I.L.R. (2010) M.P. 674
- Section 3 - Child witness - When there exists a reliable and trustworthy testimony of daughter of prosecutrix, it becomes difficult for Court to brush aside the testimony of the child witness : Mazboot Singh Vs. State of M.P., I.L.R. (2010) M.P. 674 Evidence Act (1 of 1872) 327
- Section 3 - See - Penal Code, 1860, Section 302 : Madan Singh Vs. State of M.P., I.L.R. (2008) M.P. 3299 (DB)
(iii) Deaf & Dumb witness
- Sections 3 & 119, Penal Code, 1860, Section 376(2)(g) - Appreciation of evidence of deaf & dumb witness - Signs and gestures made by prosecutrix are not recorded by trial Court - Therefore, cannot be examined by appellate Court while appreciating her evidence - Apart from that, it appears that no oath was administered to the Instructor, Deaf & Dumb Welfare Society - Evidence of the prosecutrix cannot be said to be legal evidence : Vinod Vs. State of M.P., I.L.R. (2009) M.P. 3440 (iv) Eye witnesses
- Section 3 - Appreciation of evidence - Eye witnesses saw the appellant adjusting his trouser with the prosecutrix in half-naked condition, in the bushes near temple - Mobile phone of appellant was recovered by police from the spot - Defence of appellant/ accused that he was falsely implicated, found improbable - Held - The trial Court did not commit any illegality in holding that the appellant was found with the prosecutrix in semi naked condition, in bushes : Prakash Dabar Vs. State of M.P., I.L.R. (2010) M.P. 2349
- Section 3, Penal Code, 1860, Sections 307, 148, 302 & 326 r/w 149 - Appreciation of evidence - FIR recorded after consultation with complainant party and mentioning maximum persons belonging to opposite faction - Number of injuries (3) on person of deceased would be more if 12 persons/accused would have assaulted - Place of incident not clear - Eye-witnesses who are partisan & close relatives of deceased - Witnesses changed the prosecution story time to time - Injuries of 3 accused not explained by prosecution witnesses - Conviction and sentence set aside by giving benefit of doubt - Appeal allowed : Champalal Vs. State of M.P., I.L.R. (2010) M.P. Note *25 (DB)
- Section 3, Penal Code, 1860, Section 302 - Witness - Eye-witnesses did not go to Police Station to lodge F.I.R. - Their explanation that they went to the house of deceased does not find place in their statement under Section 161 of Cr.P.C. - Alleged eye- witnesses were detained by police and subsequently, they became eye-witness - Evidence of Eye-Witnesses not reliable : Anwar @ Annu Vs. State of M.P., I.L.R. (2010) M.P. 1800 (DB)
- Section 3 - Appreciation of evidence - Three eye witnesses reached the place of occurrence together after getting the information regarding quarrel - Their presence on the scene of occurrence is not reflected in the FIR lodged soon after the occurrence - Held - It becomes highly doubtful and unnatural that by the time these witnesses reached Evidence Act (1 of 1872) 328 the place of occurrence they would have seen the 4 accused still assaulting the deceased - Statement of these eye witnesses cannot be believed and deserves to be discarded : Shyam Singh Vs. State of M.P., I.L.R. (2009) M.P. 2415 (DB)
- Section 3 - See - Penal Code, 1860, Section 323 : Madho Rao Vs. State of M.P., I.L.R. (2009) M.P. Note *25
(v) Hostile witness
- Section 3 - Hostile witness - First informer turned hostile to prosecution and resiled from the contents of the FIR but he admitted his signature on the FIR and the factum of lodging the report at the police station - Evidence of eye-witness clearly reflects the presence of both the accused persons on the place of occurrence - As also their complicity in the commission of the crime - First informer was declared hostile by the prosecution - The evidence of such witness cannot be treated as effaced or washed off from the record altogether - But, the same can be accepted to the extent the version of such witness is found to be dependable on a careful scrutiny thereof : Pillu @ Prahlad Vs. State of M.P., I.L.R. (2010) M.P. 1181 (DB)
- Section 3 - Appreciation of evidence - Husband of deceased declared hostile - Husband was not in the house, he was not an eye witness of incident and was summoned by his daughter - No dent was caused in the dying declaration of the deceased - Held - Hostility of husband of deceased is of no consequence : Yuvraj Vs. State of M.P., I.L.R. (2009) M.P. 214 (DB)
- Section 3 - Reliability of hostile witness - The evidence of a hostile witness cannot be treated as effaced or washed off from the record altogether, but the same can be accepted to the extent the version of such witness is found to be dependable on a careful scrutiny thereof : Ramsiya Vs. State of M.P., I.L.R. (2008) M.P. 3010 (DB)
(vi) Independent witness
- Section 3 - Independent witness - Even if independent witnesses were not examined by I.O., it would not be a sole ground to discard the testimony of eye-witnesses : Balkishan (Deleted) Vs. State of M.P., I.L.R. (2010) M.P. 1473 (DB)
- Section 3 - Evidence - Murder trial - 'Independent witnesses' - Evidence of - Incident took place on road - Incident could have been witnessed by independent witnesses - Cannot be discredited merely because they are chance witnesses : Lilli @ Surendra Pandey Vs. State of M.P., I.L.R. (2007) M.P. 1698 (DB) Evidence Act (1 of 1872) 329
(vii) Injured witness
- Section 3, Penal Code, 1860, Sections 294, 323 & 34 - Appreciation of evidence - Complainant deposed against the applicants but having contradictions and omissions in his statement - His statement not supported by any independent witness - Medical evidence stating that injuries may come by falling - Held - As the ocular evidence not reliable, therefore, the applicants cannot be held guilty as the prosecution could not prove the case beyond reasonable doubt - Applicants acquitted - Revision allowed : Indu Vs. State of M.P., I.L.R. (2009) M.P. Note *34
- Section 3, Penal Code, 1860, Sections 326, 304 Part I, 34 - Appreciation of evidence - Partisan witness - Reliability - Testimony of an injured witness to the incident has its own efficacy and relevancy - His presence at the spot could not be doubted as, in the same transaction he had also sustained grievous injuries - His statement recorded after a month when he became conscious - No motive to falsely implicate the appellants was alleged against him - His straight forward deposition drew ample support from the recovery of bloodstained earth from the place of occurrence - The infirmities in the statement of the first informant and the eye witnesses also had no bearing on the credence of his testimony : Sheikh Sultan Vs. State of M.P., I.L.R. (2009) M.P. 1769
- Section 3 - Testimony of interested and partisan witness - Testimony of an injured eye witness was not supported by independent witnesses and independent witnesses were declared hostile - Held - Various injuries were found on the person of injured eye witness - His presence on the scene of occurrence not doubted - Merely because independent witnesses have turned hostile cannot be a ground to reject the reliable portion of the testimony of an injured eye witness - Such evidence cannot be wipeded out in the absence of corroboration : Shyam Singh Vs. State of M.P., I.L.R. (2009) M.P. 2415 (DB)
- Section 3 - Injured given blows on various parts of the body - Eye witnesses also received injuries - Their evidence cannot be rejected on ground of previous enmity when enmity is not denied and prosecution case is that accused persons came to beat injured : Kallu @ Masih Vs. State of M.P., I.L.R. (2006) M.P. 167(SC)
(viii) Interested / Related witness
- Section 3 - Interested witness - Testimony of witnesses if found trustworthy, reliable and cogent cannot be discarded only on the basis that they are alleged to be interested witness : Balkishan (Deleted) Vs. State of M.P., I.L.R. (2010) M.P. 1473 (DB) Evidence Act (1 of 1872) 330
- Section 3 - Witness - Injured was taken to Doctor by P.W. 2 which is corroborated by evidence of Doctor - P.W. 2 cannot be said to be a planted witness : State of M.P. Vs. Mohan, I.L.R. (2009) M.P. 2692 (DB)
- Section 3 - Witness - Related or interested witness - Witnesses examined by prosecution are interested witnesses but their interestedness is confined to bring the real culprit to book - They were not interested in implicating innocent persons absolutely on false grounds - Minor inconsistencies were not sufficient to make the eyewitnesses unreliable : State of M.P. Vs. Mohan, I.L.R. (2009) M.P. 2692 (DB)
- Section 3 - Appreciation of evidence - Relative witnesses - Reliability - Appellants convicted on the testimony of wife and son of the deceased - Ground of near relationship of the eye witnesses with the victim or the deceased could not be a sole ground to discard their testimonies, if the same appear to be reliable in other circumstances of the case - Court is under obligation to scrutinize such evidence carefully and cautiously : Jamuna Vs. State of M.P., I.L.R. (2009) M.P. 2425
- Section 3 - Appreciation of evidence - Departmental witness - The time tested principle that a departmental witness is likely to support the prosecution - In any case, if the departmental witnesses are witnesses of truth then on the qualitative analysis of the statements of a departmental witness the prosecution can rest and ask the court to convict the accused : Indraveer Singh Vs. State of M.P., I.L.R. (2009) M.P. 548
- Section 3 - Appreciation of evidence of relative witness - Ordinarily, the near relative of the deceased would not falsely named the accused and save the real culprit/ assailant of the deceased : Gopya @ Gopal Vs. State of M.P., I.L.R. (2009) M.P. 508 (DB)
- Section 3 - Related witness - Relationship is not a factor to affect credibility of witness - A relation would not conceal actual culprit and make allegations against innocent person - Foundation has to be laid if plea of false implication is made : Ram Singh Vs. State of M.P., I.L.R. (2009) M.P. 609 (SC)
- Section 3 - Appreciation of evidence of relative witness - Evidence of relatives cannot be discarded simply on the ground that they are interested witnesses - As according to case diary statements they were not the eye witnesses and in the court they have improved their version and became the eye witnesses of the incident - Their evidence is not reliable : Ganga Prasad Vs. State of M.P., I.L.R. (2008) M.P. 1774 (DB)
- Section 3 - Evidence - Related and interested witness - Evidence of mother of deceased cannot be discarded merely on the ground that she is closely related to deceased - If it is otherwise found to be trustworthy and credible : Rajendra Vs. State of M.P., I.L.R. (2008) M.P. Note *59 (DB) Evidence Act (1 of 1872) 331
- Section 3 - Related witness - Relationship cannot affect credibility of witness - Such witness would not conceal actual culprit and make allegation against innocent person - However Court should adopt careful approach : Salim Sahab Vs. State of Madhya Pradesh, I.L.R. (2007) M.P. 307 (SC)
(ix) Sole witness
- Section 3 - Sole witness - Court can convict relying on testimony of sole witness provided he is wholly reliable : Munna @ Pooran Yadav Vs. State of M.P., I.L.R. (2009) M.P. 899 (SC)
(x) Tutored witnesses
- Section 3 - Tutored witnesses - When tutoring or reading over the police statement is admitted by witnesses - Denial of giving statement on the basis of tutoring, is of no consequence - Trial court wrongly discarded admission of tutoring : Nathu Vs. State of M.P., I.L.R. (2008) M.P. 2682
(xi) Witness not declared hostile, Despite two kind of statements
- Section 3 - See - Penal Code, 1860, Section 302 : Ramesh Vs. State of M.P., I.L.R. (2009) M.P. 1131 (DB) 25. Miscellaneous
Benefit of doubt
- Section 3 - Benefit to the accused - It is clear that on the basis of evidence two views of the story appears to be probable hence, one view that was contended by the accused and favourable to the accused be accepted : Chhota @ Chhotelal Vs. State of M.P., I.L.R. (2008) M.P. 3019
Conduct of Accused
- Section 3 - Circumstancial Evidence - It is the bounden duty of accused to exaplain the conduct - In case no explanation is offered or the explanation offered is found to be false - That provides additional link in the chain of circumstances so as to fasten the guilt of the accused : Ramchandra Kahar Vs. State of M.P., I.L.R. (2010) M.P. 256 (DB)
Defence plea
- Section 3 - Appreciation of evidence - Defence plea - Love letters of accused recovered from the house of prosecutrix was suggestive that she was in love with the Evidence Act (1 of 1872) 332 accused - Held - Such plea was neither raised by the accused in his examination u/s 313 of Cr.P.C. nor in the cross-examination of prosecution witnesses - Further, no love letter said to have been written by prosecutrix to the accused was tendered in evidence - Defence plea cannot be accepted : Mohammad Hafeez Vs. State of M.P., I.L.R. (2010) M.P. 261
Dying declaration
- Sections 3 & 32, Penal Code, 1860, Section 302 - Appeal against conviction based on dying declaration - Deceased made two dying declarations, one to doctor implicating the accused and her mother and another to Executive Magistrate implicating the accused/appellant only - Very close relation of deceased viz. mother-in-law and husband who met the deceased first, did not say that deceased disclosed to them that it was the accused who set fire to her - The evidence of dying declaration is not wholly reliable - Conviction and sentence set aside : Shabana Bi (Smt.) Vs. State of M.P., I.L.R. (2010) M.P. Note *52 (DB)
Evidence to be considered in totality
- Section 3 - Appreciation of evidence - The evidence of the witnesses must be read as a whole and the cases are to be considered in totality of the circumstances and while appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the core of the prosecution case, should not be taken into consideration as they cannot form grounds to reject the evidence as a whole : Vijay @ Chinee Vs. State of M.P., I.L.R. (2010) M.P. 2257 (SC)
Intention of the accused
- Section 3 - Appreciation of evidence - It has to be borne in mind that the intention of the accused is gathered from the nature of the weapon used, the part of the body chosen for assault and other attending circumstances : Ramesh Kumar Vs. State of M.P., I.L.R. (2010) M.P. 1843 (SC)
Last Seen
- Section 3 - See - Penal Code, 1860, Section 302 : Goru @ Goriya Vs. State of M.P., I.L.R. (2009) M.P. 2994 (DB)
Motive
- Section 3 - Circumstancial evidence - Motive - It is true that in a case of circumstancial evidence, motive does have extreme significance but to say that in the Evidence Act (1 of 1872) 333 absence of motive, the conviction based on circumstancial evidence cannot, in principle, be made is not correct : Jagdish Vs. State of M.P., I.L.R. (2010) M.P. 310 (SC)
News paper clippings
- Section 3 - Appreciation of evidence - News paper clippings reflecting the press release made by S.P. and the public reaction thereto - However news paper reports, not proved by evidence aliunde by the maker of the corresponding statement, are apparently inadmissible : Ashok Kumar Jain Vs. State of M.P., I.L.R. (2008) M.P. 934 Offence inside the privacy of a house
- Section 3 - See - Penal Code, 1860, Section 302 : Ram Bhadra Tiwari Vs. State of M.P., I.L.R. (2010) M.P. 2625 (DB)
Offence involving a large number of offenders and a large number of victims
- Section 3 - See - Penal Code, 1860, Section 302 : Bhaskar Rao Vs. State of M.P., I.L.R. (2009) M.P. 3401 (DB)
Spot map
- Section 3 - See - Criminal Procedure Code, 1973, Sections 161 & 162 : Narayan Vs. State of M.P., I.L.R. (2008) M.P. 2401 Uncrossed statement
- Section 3 - Evidence - Examination-in-Chief of witness could not be completed as original documents were not available - Witness not produced for cross-examination - As opportunity of cross-examination not given to appellant therefore, statement of witness cannot be read over in evidence : State of M.P. Vs. Shankerlal Soni, I.L.R. (2008) M.P. Note *52
● - Section 5 - Discrepancy in evidence - Distance of firing - P.W. 2 is a witness from rural area - Could hardly be expected to have marked the precise distance at which the person shooting with Katta was standing : State of M.P. Vs. Mohan, I.L.R. (2009) M.P. 2692 (DB)
- Section 5 - Evidence of police officer - None of Panch witnesses came forward to corroborate prosecution version - In absence of any motive for false implication, evidence of I.O. cannot be underestimated merely because he is a police officer : Mohd. Shamim Vs. State of M.P., I.L.R. (2009) M.P. 3201 Evidence Act (1 of 1872) 334
- Section 6 - Res gestae - Eye witness PW-4 informed PW-3 about the incident who further informed Kotwar PW-2, who lodged the FIR - Evidence of PW-4 corroborated by PW-3 & PW-2 - Statement of PW-3 is admissible as res gestae evidence : Baijnath Vs. State of M.P., I.L.R. (2009) M.P. 3041 (SC)
- Section 8, Penal Code, 1860, Sections 498-A, 306 - Cruelty - Letters written by deceased to her brother - A bare reading of these letters would reveal that deceased had been persistently subjected to physical & mental torture during the corresponding period - Last letter that appears to have been written a few days before the incident in question, the appellant was referred to as a Neech (mean) and Gira Hua (degraded) person whereas in earlier letter she had expressed intention to commit suicide - Genuineness of none of these letters was challenged specifically by the appellant at any stage of trial - Cruelty proved : Prahlad Tanwani Vs. State of M.P., I.L.R. (2008) M.P. 3284
- Section 9 - Test Identification Parade - It is used only to corroborate the evidence recorded in the Court - Therefore, it is not substantive evidence - The actual evidence is what is given by the witnesses in the Court : Vijay @ Chinee Vs. State of M.P., I.L.R. (2010) M.P. 2257 (SC)
- Section 9 - Test Identification Parade - Boy of Seven years kidnapped for ransom - He had remained with accused persons for 7 days and had correctly identified all the four accused persons - It was not necessary to have held the test identification proceeding for him : Irfan Vs. State of M.P., I.L.R. (2010) M.P. 1170
- Section 9 - Test Identification Parade - T.I.P. conducted after 2 months and 19 days - Delay in holding T.I.P. not explained - I.O. has also nowhere stated that precaution was taken by him to hide the identity of the appellants - P.W. 8 claimed that he knew the assailants then why he was asked in T.I.P. to identify the assailants - Test Identification not reliable - Appeal allowed - Appellants acquitted : Anwar @ Annu Vs. State of M.P., I.L.R. (2010) M.P. 1800 (DB)
- Section 9 - See - Penal Code, 1860, Section 376 : Subhash Vs. State of M.P., I.L.R. (2009) M.P. 3226
- Section 9 - Identification parade after 11 months of incident - Held - Accused were arrested after lapse of 9-10 months and after arrest within reasonable period identification parade was held - No question was put to I.O. for giving explanation for delay - Delay simplicitor is not sufficient to discard the evidence led by any party and same can be taken into consideration only after affording opportunity to explain : Shakir Vs. State of M.P., I.L.R. (2009) M.P. 2409 (DB) Evidence Act (1 of 1872) 335
- Section 9 - Relevant fact - Identification in Court for first time - Police did not conduct test identification parade of assailant - Evidence as to identification of accused for first time in Court is not totally irrelevant and inadmissible - Witness who is a well qualified Doctor received number of injuries - Looking to number and situs of injuries it was not expected that she would forgot faces of the assailants - Identification in Court relevant : Ganesh Singh Vs. State of M.P., I.L.R. (2009) M.P. 2101
- Section 9 - Test identification parade - Accused not kept Baparda - Delay in conducting test identification parade - Effect - Held - Identification by witness is doubtful because there is no evidence to indicate that the accused was kept Baparda and there is delay of nine months in conducting the said identification parade : Babloo Vs. State of M.P., I.L.R. (2009) M.P. 1780 (DB)
- Section 9 - Dock identification - Appellants identified by witness in dock - Held - No reliance can be placed as witness had admitted that he cannot say that they are the same persons who came to his work place to hire taxi : Pradeep Kumar Singh Vs. State of M.P., I.L.R. (2009) M.P. 1117 (DB)
- Section 9 - Test identification parade - Second test identification parade - Witness failed to identify appellants in first test identification parade - Second test identification parade conducted on application of witness in which he identified appellants - Held - Second test identification parade has no authenticity and it would be hazardous to place reliance on second test identification parade : Pradeep Kumar Singh Vs. State of M.P., I.L.R. (2009) M.P. 1117 (DB)
- Section 9 - Test identification parade - Witness stating that as appellants had come 9-10 months ago, he cannot say with certainly that they are the same person who had come to his work place to hire taxi - Held - Hazardous to hold that appellants are acquainted with witness and are the same persons who had gone to the work place of witness : Pradeep Kumar Singh Vs. State of M.P., I.L.R. (2009) M.P. 1117 (DB)
- Section 9, Criminal Procedure Code, 1973, Sections 162 - Test identification parade - Test identification parade conducted by police officer is not admissible in evidence - Any statement made by identifying witness to the police officers during investigation would be hit by Section 162 of Code and will not be admissible in evidence - Identification parade of the accused was to be conducted by some magistrate : State of M.P. Vs. Tidda @ Sonu, I.L.R. (2008) M.P. Note *90
- Section 9, Penal Code, 1860, Section 307 - Identification - Complainant and all the three eye witnesses admitted that accused was not known to them before the incident - Accused was shown to them in police station - I.O.'s explanation that accused person were arrested in the presence of complainant and witnesses because of which Evidence Act (1 of 1872) 336 test identification parade was not held - This statement is not corroborated by any eye witness - Therefore, dock identification of the accused is not sufficient to establish identity of the accused : Nathu Vs. State of M.P., I.L.R. (2008) M.P. 2682
- Section 9, Penal Code, 1860, Sections 395 & 397 - Test identification parade - Dacoity - Identification parade after more than 2 month of incident - No evidence lead by prosecution that after arrest till holding of identification parade, investigating agency observed requisite precautions to hide identity of accused - Witnesses did not disclose personality, description and special feature of accused in F.I.R. - Held - Evidence of solitary witness can not be relied upon for fixing the identity of accused - Appellants acquitted - Appeal allowed : Mahendrasingh Vs. State of M.P., I.L.R. (2008) M.P. 2989
- Section 9, Penal Code, 1860, Sections 395 & 397 - Test identification of articles - Dacoity - Recovery of articles from appellants - Cash without any specific mark of identification seized from appellants - No evidence adduced that other seized articles purchased from looted cash - Held - Prosecution failed to prove its case beyond all reasonable doubts against appellants - Appellants acquitted - Appeal allowed : Mahendrasingh Vs. State of M.P., I.L.R. (2008) M.P. 2989
- Section 9 - Delay in holding Test Identification Parade - Some accused persons are still at large - Test Identification could not have been conducted in respect of only some of accused persons - No question of delay was put to Investigating Officer - If there was any delay in holding identification parade, it is insignificant in the peculiar facts of present case : Pravin Vs. State of M.P., I.L.R. (2008) M.P. 1023 (SC)
- Section 9 - Recovery of Mobile Phone and golden ring - Complainant has nowhere stated about snatching of golden ring - Complainant admitted that seized articles were shown to him prior to holding of Test Identification Parade - Held - Evidence of Test Identification Parade and identification of articles in Court looses its sanctity and evidentiary value - Conviction of appellants set aside - Appeal allowed : Sachin Vs. State of M.P., I.L.R. (2008) M.P. 1242
- Section 9 - Test Identification Parade - Branch Manager, although had taken part in test identification parade, did not in his substantive evidence refer to that fact - Held - No cross examination of this witness particularly his identification of accused in Court - No suggestion that accused persons had covered their faces - Witness had full opportunity in broad day-light to be with accused - Magistrate conducting identification parade confirming identification - Witness rightly relied upon by both the Courts : Pravin Vs. State of M.P., I.L.R. (2008) M.P. 1023 (SC)
- Section 9 - Test Identification Parade - Golden chain recovered from possession of appellant was identified by complainant in test identification parade conducted by Evidence Act (1 of 1872) 337
Tahsildar - Neither chain was produced nor was it identified in Court - Held - Evidence of test identification parade is not a substantive piece of evidence and can be used only for contradiction and corroboration purposes - Trial Court erred in relying on evidence of identification of golden chain - Appellant acquitted - Appeal allowed : Ganpat Vs. State of M.P., I.L.R. (2008) M.P. 1235
- Section 9 - Test Identification Parade - No Bar that Doctor cannot conduct T.I.P. - Substantive Evidence is identification in Court - T.I.P. only provides corroboration to identification by witness in Court, if required : Bhure Singh Vs. State of M.P., I.L.R. (2008) M.P. Note *42
- Section 9 - Test Identification Parade - Test Identification Parade conducted by Naib Tahsildar is not substantive peace of evidence - Complainant not identified appellants in Court - Court relied upon evidence of test identification parade as substantive piece of evidence - Held - Substantive evidence is the statement of witnesses given in Court on oath - Complainant did not identify the appellants in Court - Identification not proved : Sachin Vs. State of M.P., I.L.R. (2008) M.P. 1242
- Section 11 - Plea of alibi - Burden to proof is on accused but it stands discharged by showing preponderance of probability in favour of the plea on the basis of the material on record : Pavinder Ahluwalia Vs. State of M.P., I.L.R. (2009) M.P. 3426 (DB)
- Section 21 - Proof of admissions against persons making them, and by or on their behalf - Relevancy - Held - Person claiming independently and not through predecessor is not bound by the admissions of predecessor : Ishwar Dayal Vs. Mohan Singh, I.L.R. (2010) M.P. 1625
- Section 24 - Extra Judicial Confession - Confession made by accused to the police in presence of the witnesses - Cannot be said to be an Extra Judicial Confession : Ashok Kumar Vs. State of M.P., I.L.R. (2007) M.P. 129 (DB)
- Section 25 - See - Criminal Procedure Code, 1973, Sections 161 & 162(1) : Rakesh Yadav Vs. State of M.P., I.L.R. (2009) M.P. 563
- Section 27 - How much of information received from accused may be proved - Law discussed : State of M.P. Vs. Shankarlal, I.L.R. (2010) M.P. 717 (DB)
- Section 27 - How much of information received from accused may be proved - Place where dead body was lying was already in the knowledge of the investigating agency - Recovery of empty liquor bottle from open and accessible place to everybody - Both circumstances are not incriminating circumstances : State of M.P. Vs. Shankarlal, I.L.R. (2010) M.P. 717 (DB) Evidence Act (1 of 1872) 338
- Section 27 - How much of information received from accused may be proved - Recovery of blue underwear - Seized underwear was not got identified by parents or other relatives of deceased by holding T.I.P. - Underwear not produced in Court and not got identified in Court - Recovery of blue underwear of no consequence - Appeal allowed : State of M.P. Vs. Shankarlal, I.L.R. (2010) M.P. 717 (DB)
- Section 27 - Recovery of the body and other material at the behest of accused - Effect - Held - Evidence about recovery of dead body at the instance of appellants as well as recovery of ornaments is doubtful because the police was already aware of the fact that the dead body is lying in the well - At the same time, the witness to the recovery of the ornaments has not supported the case of the prosecution : Babloo Vs. State of M.P., I.L.R. (2009) M.P. 1780 (DB)
- Section 27 - Recovery of gold chain - Seizure witnesses did not support prosecution case - Recovery of gold chain from appellant is not proved because simply it has been so stated by I.O. - This piece of evidence would not prove recovery : Pradeep Kumar Singh Vs. State of M.P., I.L.R. (2009) M.P. 1117 (DB)
- Section 27 - Confessional Statement - Memorandum prepared under Section 27 not admissible in evidence - Only so far as it relates to information about recovery or discovery would only be admissible in evidence : Bhoorelal Vs. State of M.P., I.L.R. (2008) M.P. 1229 (DB)
- Section 30 - Confessional Statement of co-accused - Statement of co-accused who was juvenile recorded under Section 164 - Co-accused not being tried together - Held - Confessional statement of co-accused neither produced nor proved - Co-accused not being tried together by same Judge - No question put to accused under Section 313 regarding confessional statement - Confessional statement of co-accused cannot be relied upon : Bhoorelal Vs. State of M.P., I.L.R. (2008) M.P. 1229 (DB)
- Section 31 - Admission is the best evidence that an opposite party can rely upon : Parmal Singh Vs. Hallu, I.L.R. (2010) M.P. 1456 SYNOPSIS : Section 32
1. Absence of signature or thumb 7. Medical report can impression of deceased be proved if doctor not 2. D.D. recorded during available - How investigation and relied upon 8. Mode of recording by the accused - It's value 9. More than one dying Evidence Act (1 of 1872) 339
3. Deceased died after 17 declaration days of his discharge 10. D.D. Not reliable 4. Fit state of mind 11. Percentage of burns 5. It should be accepted 12. Principle with caution 13. Question and answer form 6. Letters written by the 14. D.D. Reliable deceased 15. What statement is D.D.
1. Absence of signature or thumb impression of deceased
- Section 32 - Dying declaration - Absence of signature or thumb impression of deceased - Deceased suffering lacerated wounds with multiple fractures in his both hands - Naib Tahsildar who recorded dying declaration could not obtain signature or thumb impression due to fractures - Held - No animus or ill-will of Naib Tahsildar towards the appellants - Dying declaration could not be discarded : Dayaram Vs. State of M.P., I.L.R. (2009) M.P. 1422 (DB) 2. D.D. recorded during investigation and relied upon by the accused - It's value
- Section 32 - Dying Declaration -Proof - Police recorded statement of deceased during investigation - Carbon copy of same produced by accused in his defence - Burden to prove on accused is lighter than that of prosecution - When dying declaration relied upon by accused shows that it was case of accident, it is for prosecution to explain the circumstances under which it was recorded and to establish as to why it should be discarded - Nothing of this kind done by prosecution - Trial Court wrongly disbelieved the dying declaration : Rajesh Vs. State of M.P., I.L.R. (2008) M.P. 166 3. Deceased died after 17 days of his discharge
- Section 32(1) - See - Penal Code, 1860, Section 302 : Kunwar Singh Vs. State of M.P., I.L.R. (2009) M.P. 1128 (DB)
4. Fit state of mind
- Section 32 - Dying Declaration - Fit state of mind - If person recording dying declaration is satisfied that deceased was in fit state of mind, dying declaration can be acted upon without examination of doctor : Indu Bai Vs. State of M.P., I.L.R. (2010) M.P. Note *7 (DB) Evidence Act (1 of 1872) 340
- Section 32 - Dying Declaration - Certificate of fitness - Certificate of fitness of deceased by Doctor is not necessary - If evidence on record is satisfying that deceased was in fit condition to give statement : Nasir Vs. State of M.P., I.L.R. (2008) M.P. 907(DB)
- Section 32 - See - Penal Code, 1860, Section 302 : Raju @ Rajendra Singh Vs. State of M.P., I.L.R. (2008) M.P. 3015 (DB) 5. It should be accepted with caution
- Section 32 - Dying declaration - An oral dying declaration made to a person who had very serious enmity with the accused should be accepted with a little hesitation and reservation : Gopal Singh Vs. State of M.P., I.L.R. (2010) M.P. 1847 (SC)
6. Letters written by the deceased
- Section 32(1), Penal Code, 1860, Section 306 - Law is well settled on the point that even in a case of suicide, letters written by the deceased which are directly connected with or related to death in question would fall within four corners of Section 32 of the Act - Letters written by the deceased to her elder brother were rightly admitted in evidence as statements relating to circumstances culminating into her death : Prahlad Tanwani Vs. State of M.P., I.L.R. (2008) M.P. 3284 7. Medical report can be proved if doctor not available - How
- Sections 32(2) & 67 - Medical report - How can be proved if doctor not available - Medical report should be proved by examining doctor who medically examined the victim - In case doctor was not available, the report can be proved by examining any other employee of the same hospital like ward boy or nurse who were acquainted with the handwriting & signature of the doctor - Same could have been admissible in evidence as per provision u/s 32(2) of Act because the medical report was given by the doctor in discharging his professional duty : Subhash Vs. State of M.P., I.L.R. (2009) M.P. 3226
- Section 32(2) & 67 - Statement made in discharge of professional duty - Proof of signature & handwriting of doctor - Treating Surgeon not traceable - Therefore, not examined - Medical reports proved by other doctors - Held - Medical report admissible in evidence in view of S. 32(2) of Act - Signatures and handwriting of a person can be proved u/s 67 of Act - Medical report admissible : Pardeshi @ Peetambhar Vs. State of M.P., I.L.R. (2009) M.P. 2706 Evidence Act (1 of 1872) 341
8. Mode of recording
- Section 32(1) - Dying declaration - There is no requirement of law that dying declaration should necessarily be recorded by the Magistrate or it should be in a particular form : Gopya @ Gopal Vs. State of M.P., I.L.R. (2009) M.P. 508 (DB) 9. More than one dying declaration
- Section 32, Penal Code, 1860, Section 302 - Appellant convicted for murder of his wife/deceased (died due to burn injuries) on ground of her second dying declaration, rejecting the first one - Conviction challenged on ground that the first dying declaration, which was recorded by Executive Magistrate, should have been accepted as compared to second, recorded by ASI unauthorisedly - Held - The trial Court and the High Court rightly discarded the first dying declaration in view that the deceased was taken to hospital by her father-in-law & mother-in-law and the medical report does not support her first dying declaraion, on the contrary the second dying declaration fully stands corroborated not only by the medical evidence but oral dying declarations made by the deceased to her parents also and she was not in a precarious condition - Appeal dismissed : Lakhan Vs. State of M.P., I.L.R. (2010) M.P. 2018 (SC)
- Section 32 - Dying declaration - More than one dying declaration - If some inconsistencies are noticed between one dying declaration and the other, the Court has to examine the nature of inconsistencies, namely whether they are material or not : Bharat Singh Vs. State of M.P., I.L.R. (2009) M.P. 1427
- Section 32 - Multiple dying declarations - When there are multiple dying declarations and there are several inconsistencies therein, the same cannot be relied upon for basing conviction : Ramesh Vs. State of M.P., I.L.R. (2009) M.P. 2680 (DB)
- Section 32(1) - See - Penal Code, 1860, Sections 449 & 302: Yuvraj Vs. State of M.P., I.L.R. (2009) M.P. 214 (DB)
- Section 32(1) - Dying Declaration - Three dying declarations of deceased recorded - In first dying declaration no allegation made against sister-in-law - As per subsequent dying declarations sister-in-law brought the match box - Allegations of harassment by her made by relatives after death of deceased - Allegations of harassment appears to be after thought - Inconsistency in first dying declaration and subsequent dying declarations is significant - Conduct of sister-in-law in taking the deceased to Doctor and the fact that she is married and is living separately indicates that she was not culprit - Sister in-law acquitted : Reeta Sonkar Vs. State of M.P., I.L.R. (2007) M.P. 1255 (DB) Evidence Act (1 of 1872) 342
10. D.D. Not reliable
- Section 32 - Dying declaration - Deceased stated that she was forcibly taken to Atari by all family members including accused persons and set fire to her - Investigating Officer deposed that there was no regular staircase for going into Atari and there was only a ladder by which at a time only one person could climb up or down - Held - It appears improbable and impossible that accused persons could have taken a healthy woman forcibly on Atari by climbing ladder - Possibility that out of frustration and infuriation deceased might have committed suicide and because she decided to end her life, due to insulting behaviour of accused persons, out of rancour, she might have made accusation of setting fire by them cannot be ruled out - Appeal allowed : Charan Singh Vs. State of M.P., I.L.R. (2010) M.P. 1649 (DB)
- Section 32 - Dying Declaration - Deceased suffered 80% 2nd and 3rd degree burn injuries - Looking to serious condition dying declaration recorded by Doctor immediately when she was admitted in Hospital - She survived for five days after incident - No intimation given to police - Dying declaration not recorded by Magistrate though sufficient time was there - No certificate affixed as to fit state of mind or she remained fully conscious - It cannot be held that doctor was satisfied that dying person is making conscious, voluntary and true statement - Dying Declaration not reliable : Kamlesh Jain Vs. State of M.P., I.L.R. (2008) M.P. 885 (DB)
- Section 32 - See - Penal Code, 1860, Sections 304-B & 498-A : Srikant Vs. State of M.P., I.L.R. (2010) M.P. 683
- Section 32 - Dying Declaration - Dying declaration recorded by Police Officer - Dying declaration does not contain certificate of Doctor - Officer recording dying declaration admitted that she was not in a fit state to depose - Recital of note inserted in red ink in between statement and thumb impression - Deceased was an educated lady she would have signed on dying declaration - There was no occasion to obtain thumb impression - Police officer has not properly recorded dying declaration - Dying Declaration cannot be relied upon : Shashi Kumar Vs. State of Madhya Pradesh, I.L.R. (2007) M.P. 1449
- Section 32(1) - Dying declaration - Reliability - After receiving message, A.S.I. immediately reached to the place of incident and at the instance of deceased recorded Dehati Nalishi and statement u/s 161 Cr.P.C. - Held - In view of modulated statement given by A.S.I. regarding receiving message about the incident - It is not conceivable that after sustaining such serious injuries damaging several vital organs the deceased could remained in full conscious condition after about 2 hours without any medical aid to give a graphic and minute details of incident not only once but twice - Dying declaration do not inspire confidence for placing reliance on them against all seven accused persons : Rama @ Ram Lal Vs. State of M.P., I.L.R. (2009) M.P. 2660 (DB) Evidence Act (1 of 1872) 343
- Sections 32 & 114(g) - Dying declaration - Dying declaration implicating appellant recorded by Naib Tahsildar - However, written suicide note recovered from the pocket of the deceased not produced by prosecution - It must have to be held that suicide note was unfavourable to prosecution - Investigating agency found two sets of contradictory evidence during investigation - Evidence or interpretation favouring accused must relied upon - Dying declaration not relied - Appeal allowed - Appellant acquitted of charge u/s 302 IPC : Mukesh Vs. State of M.P., I.L.R. (2009) M.P. 1774 (DB) 11. Percentage of burns
- Section 32 - Dying Declaration - Extent of burns - 98% - Percentage of burns alone would not determine the probability or otherwise making the dying declaration - Much would depend upon the nature of burn, part of the body affected, impact of burn on the faculties to think and convey the idea or facts coming to mind and other relevant factors : Rajiya Bi Vs. State of M.P., I.L.R. (2010) M.P. 1804 (DB)
- Section 32 - Dying declaration - Evidentiary value - Deceased had suffered 70- 80% burns however was in a position to speak - No motive on part of deceased to falsely implicate accused - Difference of 5-10 minutes interval between Dehati Nalishi and dying declaration not sufficient ground to hold the dying declaration to be suspicious : State of M.P. Vs. Koushal Prasad Jaiswal, I.L.R. (2009) M.P. 292 (DB) 12. Principle
- Section 32 - Dying declaration - Evidentiary value of - Though, it cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated, yet the rule requiring corroboration is a rule of prudence : Shabana Bi (Smt.) Vs. State of M.P., I.L.R. (2010) M.P. Note *52 (DB)
- Section 32 - Dying Declaration - Dying Declaration alone can form basis for conviction if it is found reliable : Kamalsingh Vs. State of M.P., I.L.R. (2010) M.P. 1797 (DB)
- Section 32 - Dying declaration - Conviction can be based only on the basis of dying declaration if the same is given voluntarily and truthfully - Need of corroboration is not requirement of law : Ramesh Vs. State of M.P., I.L.R. (2009) M.P. 2680 (DB)
- Section 32 - Dying Declaration - Conviction can be based upon oral dying declaration if same is found to be trustworthy and reliable : State of M.P. Vs. Ashok, I.L.R. (2008) M.P. 1503 (DB)
- Section 32 - Dying declaration - On the basis of a reliable dying declaration, conviction can be based : Basantlal Vs. State of M.P., I.L.R. (2009) M.P. 1431 (DB) Evidence Act (1 of 1872) 344
- Section 32(1) - Dying Declaration - Provision of Section 32(1) of the Act is an exception to the rule against admissibility of hearsay rule and if the dying declaration is reliable, conviction can be based thereon : Ganga Prasad Vs. State of M.P., I.L.R. (2008) M.P. 1774 (DB) 13. Question and answer form
- Section 32 - Dying Declaration - Injured suffered 90% burn injuries - Doctor and Magistrate recording dying declaration certified that She was in fit state of mind and was able to make dying declaration - It is not necessary that dying declaration should always be in question and answer form - Dying declaration cannot be discarded - Appeal dismissed : Kamalsingh Vs. State of M.P., I.L.R. (2010) M.P. 1797 (DB) 14. D.D. Reliable
- Section 32 - Dying Declaration - Dying Declaration recorded by Doctor - Certificate given by him that She was fully conscious during recording of dying declaration - No suggestion given to Doctor that deceased was not in fit condition or otherwise was incapable of making statement - Dying declaration also not challenged that it was recorded in-correctly or that doctor had animus against the accused persons - Dying declaration recorded by Doctor reliable : Rajiya Bi Vs. State of M.P., I.L.R. (2010) M.P. 1804 (DB)
- Section 32 - Dying Declaration - Authenticity - Nothing on record to indicate that Doctor who gave certificate and Executive Magistrate who recorded dying declaration had any animus or ill will against appellant - No reasons to suspect that Government Officials would manipulate dying declaration : Indu Bai Vs. State of M.P., I.L.R. (2010) M.P. Note *7 (DB)
- Section 32 - Dying declaration - Absence of certificate of Doctor - Naib Tahsildar admitted that declarant was fully conscious and fit to give statement - Doctor also certified at the foot of declaration that declarant remained fully conscious during his statement - It cannot be said that dying declaration cannot be accepted : Dayaram Vs. State of M.P., I.L.R. (2009) M.P. 1422 (DB)
- Section 32 - See - Penal Code, 1860, Section 302 : Dayaram Vs. State of M.P., I.L.R. (2009) M.P. 1422 (DB)
- Section 32 - See - Penal Code 1860, Section 302 : Avinash @ Gudda Vs. State of M.P., I.L.R. (2008) M.P. 2431 (DB)
- Section 32, Indian Penal Code, 1860, Section 302 - Dying Declaration - Deceased married with someone else, later on accepted accused to be her husband - Accused Evidence Act (1 of 1872) 345 used to met out ill treatment to deceased - Accused inflicted injuries on deceased by baka while she was returning after answering call of nature - Witnesses reached on the spot after hearing her hue and cry - Oral dying declaration made by deceased to witnesses - Deceased taken to police station where she lodged F.I.R. - Dying Declaration also recorded by Naib Tahsildar in Hospital - Held - Five incised wounds were inflicted on deceased - F.I.R. was lodged promptly within 1½ hours of incident - Naib Tahsildar recorded dying declaration - Doctor certified at the beginning that deceased was in fit state to make statement - Doctor again certified that deceased remained conscious while her statement was recorded - Dying declaration which was recorded with promptitude finds corroboration by medical evidence - Nothing has been brought on record with the help of medical evidence that deceased not in position to make dying declaration - No motive attributed to Doctor and Naib Tahsildar that why they would make any wrong statement - Dying Declaration reliable - Conviction of appellant under Section 302 of I.P.C. proper - Appeal dismissed : Latora Vs. State of M.P., I.L.R. (2007) M.P. 1675 (DB)
- Section 32(1) - Dying declaration - Nothing on record to indicate that the dying declaration was the result of any tutoring or prompting or product of imagination - No reason to doubt or suspect the dying declaration - Conviction based on the dying declaration affirmed by High Court : Gopya @ Gopal Vs. State of M.P., I.L.R. (2009) M.P. 508 (DB)
- Section 32(1), Penal Code, 1860, Section 302 - Trial court convicted the appellant for committing murder of deceased by setting him ablaze - Dying declaration made by the deceased accusing the appellant for commission of offence recorded by the Doctor - Conviction challenged on the ground that identity of appellant was not established from dying declaration - Held - It is undisputed that appellant was known as Gopya - No suggestion or whisper in cross-examination of prosecution witnesses that Gopya was some other person than appellant or any other person in the village known as Gopya - Appellant was familiar and well known to deceased - No room for doubt about the identity of the appellant and his complicity in the crime - Appeal dismissed : Gopya @ Gopal Vs. State of M.P., I.L.R. (2009) M.P. 508 (DB)
- Section 32(1) - Dying Declaration - Deceased assaulted on 16-4-1987 by appellants - Deceased lodged F.I.R. in police station and was thereafter admitted in Hospital - He received 18 injuries and was examined by Doctor at 1 P.M. - Deceased had not gone in shock - Later on shocks started developing resulting in fall of blood pressure and vomiting as recorded in bed head ticket - On 27-4-1987 at 11.15 p.m. general condition of deceased was recorded to be satisfactory and was also conscious - Deceased breathed his last on 30-4-1987 - Held - Dying Declaration is admitted in evidence on the principle that a man will not meet his maker with a lie in his mouth - No Evidence Act (1 of 1872) 346 material to show that dying declaration was result of product of imagination, tutoring or prompting - It appears to have been made voluntarily - Appellants rightly convicted by Trial Court and High Court - Appeal dismissed : Dashrath @ Champa Vs. State of M.P., I.L.R. (2007) M.P. 1488 (SC) 15. What statement is D.D.
- Section 32 - A statement given by deceased (the wife) to the D.I.G. (Police) in a previous enquiry may be treated as a dying declaration against accused (husband) : Sulabh Jain Vs. State of M.P., I.L.R. (2010) M.P. 2433
- Section 32 - See - Penal Code, 1860, Sections 302, 323 : Aslam Vs. State of M.P., I.L.R. (2009) M.P. 1764 (DB)
- Section 32 - Dying declaration - The statement made by the deceased to his wife as to the circumstances of the transaction resulting in his death is admissible as dying declaration : State of M.P. Vs. Suresh Kumar, I.L.R. (2007) M.P. 563
- Section 32(1) - Just after the incident and before suicide, prosecutrix had described misdemeanour of the accused to eye-witness - Entire statement made by prosecutrix to eye-witness soon before her death was admissible u/s 32(1) of Act : Mohammad Hafeez Vs. State of M.P., I.L.R. (2010) M.P. 261
- Section 32(1) - See - Penal Code, 1860, Section 498-A : Bhairon Singh Vs. State of M.P., I.L.R. (2010) M.P. 301 (SC)
- Section 32(1) - See - Penal Code, 1860, Sections 304-B & 498-A : Rammilan Vs. State of M.P., I.L.R. (2009) M.P. 2999
● - Section 32(3) - Statement of relevant fact by person who is dead is relevant - Against interest of maker - Statement of an accused u/s 27 of Evidence Act who subsequently died - Cannot be used against third person for his criminal prosecution : Laxmi Narayan Vs. State of M.P., I.L.R. (2008) M.P. 2115
- Sections 33, 138 - Cross Examination of witness - Witness could not be cross examined solely due to any inaction or lapse on the part of defendants - Subsequently, witness became incapable of giving evidence - Examination in chief of witness could not be read in evidence : Ghasitibai Vs. Ramgopal Singh, I.L.R. (2008) M.P. 872
- Sections 35, 62, 63 & 65 - Birth and Death Register - Witness bringing original birth and death register maintained at police station regularly and proved entry regarding date of birth of prosecutrix - Held - Death and birth register regularly maintained at police station - Entries are made on the basis of Kotwari book - Entry in original register Evidence Act (1 of 1872) 347 was made in 1975 by a public servant - Entry made in register by public servant in discharge of his official duty in respect of relevant fact is primary evidence - Original register cannot be treated as secondary evidence : Viond Kumar Vs. State of M.P., I.L.R. (2008) M.P. 3327
- Sections 40, 41, 43 - Relevancy of previous Order, Judgment, Decree in a litigation - Held - As per Section 40 of the Act a previous judgment is relevant if it creates a bar for second suit such as res judicata - As per Section 41 previous judgment in a suit for probate, matrimonial, admiralty or insolvency can be relevant for subsequent suit - As per Section 42 previous judgment is relevant in a subsequent suit if previous judgment is of public nature - As per Section 43 previous judgment is relevant in a subsequent suit if previous judgment is a fact in issue - Appeal dismissed : Kallu Vs. Antulal, I.L.R. (2008) M.P. 2381
- Sections 40 to 44 - Trial of appellant who had absconded but was apprehended later - Effect of acquittal of other accused persons involved in the same incident in an earlier trial - Judgment of acquittal of other accused persons is totally irrelevant - Every case has to be decided on the evidence adduced therein : Prema Vs. State of M.P., I.L.R. (2006) M.P. 1556 (DB)
- Section 43 - Judgment - Appellant was convicted on his pleading guilty in criminal case - Appellant admitted in civil proceedings that he had made admission in criminal proceedings - Held - Judgment in a criminal case was not relevant for the purpose of proving civil liability but his admission in civil suit was admissible : Seth Ramdayal Jat Vs. Laxmi Prasad, I.L.R. (2009) M.P. 1847 (SC)
- Section 43 - Judgment passed in criminal case - Judgment passed in a criminal case is admissible for a limited purpose - Relying on the basis thereof, civil proceeding cannot be determined, but that would not mean that it is not admissible for any purpose whatsoever : Seth Ramdayal Jat Vs. Laxmi Prasad, I.L.R. (2009) M.P. 1847 (SC)
- Section 45 - Evidence of Handwriting Expert - Expert's opinion must always be received with great caution and it is unsafe to pass a conviction solely on the expert opinion without substantial corroboration : K.N. Sharma Vs. State of M.P., I.L.R. (2010) M.P. Note *13
- Section 45 - When expert's evidence not helpful - Plaintiff's prayer to appoint an expert for comparison of signature of defendant on receipt was disallowed by the trial Court - Held - There was so many material contradictions in the plaintiff's version and that of his witnesses - Receipt is so much manipulated one and its due execution by defendant has also not been proved - In these circumstances, the expert evidence would not have tilted the balance at all in favour of plaintiff : Shanti Rathore (Smt.) Vs. Radheshyam, I.L.R. (2010) M.P. 932 (DB) Evidence Act (1 of 1872) 348
- Section 45 - Age of prosecutrix - Margin of error - Age of prosecutrix assessed above 14 and below 16 years on the basis of findings of radiological examination of joints comprising radius, ulna & femur bones and crest of ilium - Admission of doctor of margin of error of 2 years on both sides was misconceived as ossification test was not confined to x-ray examination of a single bone only - Margin of error could be 6 months : Nanda Vs. State of M.P., I.L.R. (2009) M.P. 3221
- Section 45 - Expert opinion - Rigor mortis - Presence of rigor mortis varies from person to person - There is no barometer in order to indicate that when the process of rigor mortis would start : State of M.P. Vs. Habib Ahmad, I.L.R. (2009) M.P. 3187 (DB)
- Section 45 - Non-examination of Doctor - Effect - Lady Doctor, who examined the prosecutrix, could not be examined as witness as she was dead - Though her medical report was proved to be in her handwriting by her husband - Held - Non-examination of the Doctor would not be fatal to prosecution case : Nandan @ Shivnandan Vs. State of M.P., I.L.R. (2009) M.P. Note *21
- Section 45 - See - Negotiable Instruments Act 1881, Section 138 : Meena Tiwari Vs. Satya Prakash Capital Investment Ltd., I.L.R. (2008) M.P. Note *47
- Section 58 - Facts admitted need not be proved - Written statement containing admissions not withdrawn until closure of plaintiff's evidence - Defendant denying his signature on the written statement while appearing as witness of another defendant - Held - Plaintiff entitled to take benefit of admissions and not required to prove the sale deed which was admitted in the written statement to have been executed : Sunil Kumar Vs. Dr. Om Prakash Garg, I.L.R. (2010) M.P. 960
- Section 60 - Hearsay evidence - PW-2 stated that he was informed by PW-7 that deceased was seen in the company of appellants - PW-7 has nowhere stated that he gave information to PW-2 - Statement of PW-2 hit by Sec. 60 of Act : Nasir Vs. State of M.P., I.L.R. (2009) M.P. 2078 (DB)
- Section 60 - Hearsay Evidence - Prosecution witnesses say that they were informed by the eye witness regarding incident - Eye Witness did not depose that he had informed other prosecution witnesses - Held - Evidence of Prosecution witnesses not admissible as hit by Section 60 of Act : Ganpat Vs. State of M.P., I.L.R. (2008) M.P. 1235
- Section 60 - Hearsay Evidence - Dehati Nalishi got proved by its Scribe and not by Complainant - Dehati Nalishi cannot be considered in evidence - Being hit by law of hearsay evidence : Nan Singh Vs. State of M.P., I.L.R. (2008) M.P. 903 (DB) Evidence Act (1 of 1872) 349
- Sections 61, 62 & 64, Public Gambling Act, 1867, Section 5 - Search warrant obtained but not produced before the court - Circumstance explained when it will not affect the prosecution case : Indraveer Singh Vs. State of M.P., I.L.R. (2009) M.P. 548
- Sections 61, 67 & 81 - Document how to be proved - Plaintiff has admitted the fact of publication of the magazine but has denied the contents of magazine - In this background it becomes absolutely necessary for the defendant to summon the magazine and the prayer for calling the editor/publisher/maker of the magazine - Because without calling the maker the contents could neither be proved nor a presumption could be drawn in terms of S. 81 of the Evidence Act - Trial Court erred in not allowing the application - Petition allowed : Jogendra Singh Pal Vs. Omprakash Gupta, I.L.R. (2010) M.P. 896 (DB)
- Sections 61 & 73 - Presumption of signature on a document - Held - When a person signs a document, there is a presumption, unless there is proof of force or fraud, that he has read the document properly and understood it and only then he has affixed his signatures thereon, otherwise no signature on a document can ever be accepted : Grasim Industries Ltd. Vs. Agarwal Steel, I.L.R. (2009) M.P. 3252 (SC)
- Section 63(2) - Whether conviction can be based on secondary evidence (photocopy of original complementary pass) to hold that the original pass was forged - Held - Yes, as original complementary pass is being in possession of the applicant (accused) and complementary pass was handed over by the applicant himself to the conductor who got the photocopy made : Pramod Vs. State of M.P., I.L.R. (2008) M.P. 2466
- Sections 63 & 65 - The question of admissibility, reliability and the probative value of its evidence can be judged by the trial Court subsequently at appropriate stage - Shutting out of relevant evidence would serve no purpose.
Trial Court allowed the application and permitted the complainant to produce a copy of the cassette subject to condition that the admissibility and the probative value of the cassette shall depend upon the proof of requisite conditions as provided in the provisions. Order challenged by petitioner on grounds that (1) it was not established by the complainant that the original cassette had been destroyed or lost, therefore, no secondary evidence by way of producing another copy of cassette can be made, (2) Since it was not established that the cassette contained the voice of accused and the complainant, and since it was not kept intact in any proper custody, the permission to produce the same in evidence can not be granted after about seven years of the alleged occurrence, (3) There was nothing on record to indicate that the cassette sought to be produced by way of secondary evidence was prepared from the original cassette on the Evidence Act (1 of 1872) 350 directions of officers of Lokayukta Department. In these circumstances, the possibility that the cassette might have been tampered, could not be ruled out.
Held - The question of admissibility, reliability and the probative value of its evidence can be judged by the trial Court subsequently at appropriate stage. Shutting out of relevant evidence would serve no purpose. The trial Court kept in mind all the necessary precautions and permitted the complainant to produce the copy of the cassette in evidence, therefore, no interference is called for in the said order. Petition dismissed : Suresh Kumar Singh Vs. State of M.P., I.L.R. (2010) M.P. 2237 (DB)
- Sections 63 & 65 - Secondary evidence - Unless the existence of original is proved, secondary evidence of a document cannot be given as a matter of course - Signatory of document has denied the existence of original - Secondary evidence cannot be led : Rajesh Kumar Vs. Rakesh Kumar, I.L.R. (2009) M.P. 402
- Section 64 - Objection as to admissibility of document - Certificates issued by army authorities were exhibited by trial Court as no objection with regard to their admissibility was raised by respondents - Question regarding admissibility of documents cannot be raised at appellate stage : Pavinder Ahluwalia Vs. State of M.P., I.L.R. (2009) M.P. 3426 (DB)
- Section 65 - See - Stamp Act, 1899, Section 35 : Vijay Choudhary Vs. Union of India, I.L.R. (2010) M.P. 376 (DB)
- Section 65 - Power of attorney - Proving of - Secondary evidence - No relaxation can be granted on ground that plaintiff is public sector Company : The New India Assurance Co. Ltd. New Delhi Vs. Transport Corporation of India Ltd. Andhara Pradesh, I.L.R. (2006) M.P. 1183
- Section 67, Specific Relief Act, 1963, Section 20 - Agreement to sell executed by an illiterate person - Proof of execution - No specific denial that the sale agreement bears thumb impression of illiterate person - Plaintiff's husband stated on oath that he had paid the amount to the illiterate person and after counting the money illiterate person had put his thumb impression on the sale agreement - In absence of cross-examination on this point, it would be presumed to be correct - It may also be presumed that illiterate person was well aware of the contents of the document on which he puts his thumb impression, unless he pleads and proves that the money received by him was for some another particular purpose : Omprakash Vs. Dharma Bai, I.L.R. (2009) M.P. 3177
- Section 67 - Proof of signature and handwriting - Inquest report written and signed by SDOP - Neither SDOP examined before Court nor signature and handwriting proved by witnesses acquainted with his handwriting and signature - Held - Contents of Evidence Act (1 of 1872) 351 that inquest report can not be looked into : Chandan Vs. State of M.P., I.L.R. (2009) M.P. 2083 (DB)
- Section 67 - Exhibit of document - Mere marking a document as exhibit does not dispense with its proof : Ghasitibai Vs. Ramgopal Singh, I.L.R. (2008) M.P. 872
- Section 68 - Proof of Execution of Document - Will executed by testator in presence of witnesses - Attesting witness stating that testator had signed in his presence - Merely because attesting witness does not know the language in which will is written, the same cannot be disbelieved : Goverdhandas (Dead) Vs. Smt. Gopibai, I.L.R. (2007) M.P. 1644
- Section 73 - Signature - Evidence of Expert - Reliability - Is a weak type of evidence - Court should weigh the reasons on which it is based - Two contrary reports by two handwriting experts - On consideration of the entire evidence, the report of handwriting expert which was discarded by Trial Court appears to be correct - Findings recorded by Trial Court as to signatures not sustainable : Mohd. Yunus Vs. Ramesh Chouksey, I.L.R. (2007) M.P. 544
- Section 76 - See - Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Section 3(1)(x) : Mangal Singh Vs. State of M.P., I.L.R. (2009) M.P. 2671
- Section 90 - Presumption as to document thirty years old - Will being 30 years old document and have come from proper custody - Presumption regarding signature of testator and other part of it could be drawn in favour of beneficiary/defendant : Goverdhandas Agrawal (Deceased) Vs. Smt. Gopibai Agrawal, I.L.R. (2007) M.P. 1644
- Section 91 - See - Specific Relief Act, 1963, Section 20 : Ammilal Vs. Kamla Bai, I.L.R. (2010) M.P. 243
- Section 91 - Exclusion of oral evidence - Held - Once it is proved that the appellant signed the agreement of sale after reducing the same in writing then as per provision of Section 91 of the Act - Oral evidence led by appellant contrary to the terms of such agreement cannot be considered as admissible evidence : Shivcharan Vs. Mohanlal, I.L.R. (2008) M.P. 3183
- Sections 91 & 92 - Admissibility of evidence - Whenever anything is in writing between the parties and such document in original is neither produced nor proved by admissible evidence then mere on the basis of pleadings or oral evidence no inference could be drawn regarding the veracity of such document : Golman Vs. Muniya Bai, I.L.R. (2010) M.P. 2588 Evidence Act (1 of 1872) 352
- Section 101 - Burden of proof - When not necessary - Held - Any rule of burden of proof is irrelevant when the parties have led evidence and that evidence has been considered : Hiralal Vs. Mangilal, I.L.R. (2010) M.P. 1960
- Section 102 - On whom burden of proof lies - Tenant contented consent of plaintiff for installation of STD/PCO centre - Tenant failed to prove factum of having obtained consent - It was not necessary for the plaintiff to appear in witness box for denial of fact which itself has not been proved at all : Sahibram Dhingra (Died) Through L.R. Narendra Dhingra Vs. Shivshankar Goyal, I.L.R. (2009) M.P. 3151
- Section 102 - Civil Procedure Code, 1908, Section 151, Order 26 Rule 4, Hindu Marriage Act, 1955, Section 13 - Burden of proof - Divorce - Impotency - Husband filed a case for divorce on the ground of impotency of wife - Husband got certain doctors examined, but since their evidence did not favour the husband, an application u/s 151 CPC was filed for getting the wife examined by doctor - Application was rejected by trial Court - Order challenged - Held - The burden of proof to discharge is on the person, who alleges and base his claim on the facts narrated therein - Husband having availed the said opportunity and having allegedly failed to bring home his case, cannot be permitted to collect evidence through Court - High Court does not find any infirmity in the approach of trial Court : Kunji Lal Lodhi Vs. Smt. Lata Bai Lodhi, I.L.R. (2009) M.P. 956
- Section 102 - Medical negligence - Burden of proof - Patients died who were operated for family planning - Held - Burden was on the State to prove that there were no negligence on part of State i.e. treating doctor and all the efforts were made to save life - State was further required to plead & prove that at the time of operation the State was well equipped with all the facilities to meet out all the eventualities - State failed to prove the circumstances in which death occurred - State liable for payment of compensation : Radheshyam Vs. State of M.P., I.L.R. (2009) M.P. 1031
- Section 102 - Mother & sister of deceased filed suit to recover debt due to deceased against debtor/defendant - Defendant came with the case that no transaction between the parties and cheque was issued in security for debt given to one Narayan - Defendant failed to discharge burden to prove that there was no liability - Held - Trial court rightly granted decree - Appeal dismissed : Manak Chand Jain Vs. Pukhraj Bai (Smt.), I.L.R. (2008) M.P. 2619
- Section 102 - See - Motor Vehicles Act 1988, Section 166 : National Insurance Company Ltd. Vs. Smt. Setubai, I.L.R. (2008) M.P. 2367 (DB)
- Section 102, Insurance Act, 1938, Section 45 - Burden of proof on insurer - Burden of proof that suppression was made fraudulently by the policy holder and the Evidence Act (1 of 1872) 353 policy holder was knowing the fact that the statement which he was making is false on insurer : Narmada Bai Chouhan Vs. Regional Manager, LIC of India, I.L.R. (2008) M.P. 1746
- Section 104 - Medical negligence - Burden of proof - Burden to prove that in what circumstances appellants lost their mother was on the respondents - As the deceased was 30 years only and before two days of her death she delivered a healthy baby - Even if deceased was also willing for T.T. operation then it could not have been permitted in absence of anaesthetist - Mody's Medical Jurisprudence lays down that in case of death from anaesthesia, the surgeon or anaethetist should at once report the matter to police to hold a public enquiry - No report was lodged by the respondents and dead body was not sent for postmortem report - Medical negligence proved : Bharti (Ku.) Vs. State of M.P., I.L.R. (2008) M.P. 2935
- Section 105 - See - Penal Code, 1860, Section 84 : Hari Singh Gond Vs. State of M.P., I.L.R. (2008) M.P. 2764 (SC )
- Section 106 - Burden of proving fact especially within knowledge - Appellant and the deceased family members were the only occupants of the room - It was incumbent on the appellant to have tendered some explanation in order to avoid any suspicion as to his guilt : Jagdish Vs. State of M.P., I.L.R. (2010) M.P. 310 (SC)
- Section 106 - Burden of proving the fact which is especially within the knowledge of any person - Wife and daughter of accused died due to burn injuries - At the time of their death the accused was there in their company - It was incumbent upon the accused to have explained the facts which were in his exclusive knowledge as provided u/s 106 of Act - Prosecution by the evidence has not only established the presence of the accused in the company of deceased persons but the evidence also discloses the immediate conduct of the accused which unerringly points out that it was not a case of commission of suicide by deceased persons but accused has commited murder of them : Ramchandra Kahar Vs. State of M.P., I.L.R. (2010) M.P. 256 (DB)
- Section 106 - See - Penal Code, 1860, Section 318 : Fareeda Vs. State of M.P., I.L.R. (2009) M.P. 3437
- Section 106, Negotiable Instruments Act, 1881, Sections 138 & 141 - Dishonour of cheque - Partnership firm - In charge of and were responsible to the firm - Burden of proving fact especially within knowledge - Partner of the firm who signed the cheque died - No notice issued to other partners - Complaint filed against the other partners - Mintainability - Held - Other partners were in charge of and were responsible to the firm for the conduct of it's business in the context of Sec. 141 of the Act of 1881 could be decided only during the trial - On perusal of Ss. 138 & 141 of the Act of 1881 it is Evidence Act (1 of 1872) 354 revealed that if other elements of the offence u/s 138 are satisfied - The burden would be on the partners of the firm to show that they were not liable to be convicted - Any restriction on their power or existence of any special circumstance exonerating them would be the fact exclusively within their knowledge, therefore, it would be for them to establish at the trial that at the relevant time they were not in charge of the affairs of the firm : Mahaveer Traders (M/s.) Vs. M/s Gangadhar Sharma & Sons, I.L.R. (2009) M.P. 286
- Section 106 - Burden of Proof - Circumstantial Evidence - When death has taken place in the house, it is necessary for husband to explain the circumstances how the death took place : Sanjay Vishwakarma Vs. State of M.P., I.L.R. (2008) M.P. 2693 (DB)
- Section 106 - See - Penal Code, 1860, Section 302 : Bihari Vs. State of M.P., I.L.R. (2008) M.P. 2666 (DB)
- Section 109 - Burden of proof as to relationship in the cases of partners, landlord and tenant, principal and agent - During pendency of litigation, counsel for a party purchased suit property by a registered sale deed - Held - In view of the provisions of S. 109 of the Act, the burden was on the respondents to prove that no litigation was pending on the date when the sale deed took place, which they utterly failed to do so : Amar Singh Vs. Balmukund, I.L.R. (2010) M.P. 1427
- Section 112 - Presumption of legitimacy of child born during continuance of marriage - Application for conduction of DNA test of child allowed by trial Court - Held - Documents show that child was born in 1992 and wife has allegedly deserted husband in 1992 - Section raises a conclusive presumption regarding paternity and the presumption is yet to be rebutted in the case by leading evidence - Trial Court erred in allowing application for conducting DNA test - Petition allowed : Geeta Mishra (Smt.) Vs. Krishna Mohan Mishra, I.L.R. (2009) M.P. 1638 (DB)
- Section 112 - See - Criminal Procedure Code, 1973, Section 125 : Premlal Vs. Leelabai, I.L.R. (2009) M.P. 2129
- Section 113-A - See - Penal Code, 1860, Sections 306 & 498-A : Shriram Vs. State of M.P., I.L.R. (2010) M.P. 665
- Section 113-A - See - Penal Code, 1860, Sections 306, 498-A : Anamika (Smt.) Vs. State of M.P., I.L.R. (2009) M.P. 3003
- Section 113-A, Penal Code, 1860, Section 306 - Presumption - When invoked - The mere fact that a woman committed suicide within 7 years of her marriage and that she had been subjected to cruelty by her husband or any other relative of her husband, Evidence Act (1 of 1872) 355 does not automatically give rise to the presumption that the suicide had been abetted by her husband or by any relative of her husband - The court is required to looked into all the other circumstances of the case - One of the circumstances which has to be considered by the court is whether the alleged cruelty was of such nature as was likely to derive the woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman : Raj Babu Vs. State of M.P., I.L.R. (2009) M.P. 1 (SC)
- Section 113-A, Penal Code, 1860, Section 306 - Presumption - When not invoked - The presumption is not mandatory and the court shall have to have regard to all the other circumstances of the case - Deceased died because of burn injuries received by her in her matrimonial home - A letter which was allegedly written by the deceased - The letter reflects the attitude of the in-laws towards the deceased - In the said letter, there was no reference of any act or incident whereby the appellants were alleged to have committed any wilful act or omission or intentionally aided or instigated the deceased to commit suicide - On such slender evidence, presumption u/s 113-A of the Act cannot be invoked to find the appellant guilty of the offence u/s 306 IPC : Raj Babu Vs. State of M.P., I.L.R. (2009) M.P. 1 (SC)
- Section 113-A - See - Penal Code 1860, Sections 107 & 306 : Manoj Vs. State of M.P., I.L.R. (2008) M.P. 2093
- Section 113-A - See - Penal Code, 1860, Section 306 : Dinesh Vs. State of M.P., I.L.R. (2008) M.P. 1785
- Section 113-B - See - Penal Code, 1860, Sections 304-B & 498-A : Ram Bhadra Tiwari Vs. State of M.P., I.L.R. (2010) M.P. 2625 (DB)
- Section 113-B - See - Penal Code, 1860, Section 304-B : Jamna Prasad Vs. State of M.P., I.L.R. (2009) M.P. 2686
- Section 113-B - Prosecution failed to show that soon before her death deceased had been subjected to cruelty or harassment for or in connection with any demand for dowry by the husband - Provisions of S. 113-B cannot be attracted : Baddu @ Jham Singh Vs. State of M.P., I.L.R. (2009) M.P. 2437
- Sections 113-B, 114(g) - Presumption against accused - Prosecution has to prove that deceased was being subjected to cruelty or harassment in connection with demand of dowry soon before her death : Ram Krishan Vs. State of M.P., I.L.R. (2006) M.P. 407
- Section 114 - Where a man and woman are proved to have lived together as man and wife, the law will presume, unless contrary be clearly proved that they were living together in consequence of a valid marriage, and not in a state of concubinage : Bhagwandas Yadav Vs. Rohit Tiwari, I.L.R. (2010) M.P. Note *11 Evidence Act (1 of 1872) 356
- Section 114 - Presumption - Suit filed for bonafide requirement of son - Son examined as witness - Plaintiff could not examine herself on account of her old age and ill-health - Held - Extensive evidence has been brought on record through oral and documentary evidence - No withholding of evidence - Non-examination of plaintiff not fatal : Sujata Sarkar (Smt.) Vs. Anil Kumar Duttani, I.L.R. (2009) M.P. 1374
- Section 114 - Presumption of marriage - Partners living together for long spell as husband and wife - There would be presumption in favour of wedlock - However, presumption rebuttable - Heavy burden lies on the person who seeks to deprive the relationship of legal origin to prove that no marriage took place : Tulsa Vs. Durghatiya, I.L.R. (2008) M.P. 981 (SC)
- Section 114 - Presumption - Stolen Property recovered from possession of appellant - Presumption raised by Section 114 can be drawn : Pravin Vs. State of M.P., I.L.R. (2008) M.P. 1023 (SC)
- Section 114 - See - Prevention of Food Adulteration Act, 1954 - Section 13 (2) : Shankar Vs. State of M.P., I.L.R. (2008) M.P. Note *69
- Section 114-A - See - Penal Code, 1860, Section 376(2)(g), : Rajesh Vs. State of M.P., I.L.R. (2010) M.P. 1814
- Section 114(g) - Adverse inference when may be drawn - Suit for specific performance of agreement to sale - Courts below in concurrent manner have found proved that plaintiff was put into possession of the suit land as per recital in sale deed - Existence of dispute with the plaintiff on account of possession of the suit land is already established - Subsequent purchaser who stated as per W.S. to have obtained possession pursuant to the registered sale deed has not appeared in the witness box to establish his possession despite being defendant - Thus, adverse inference is liable to be drawn against him about possession as well as about absence of knowledge of earlier agreement: Parwat (Dead) Through L.Rs. Smt. Kesar Bai Vs. Pyarelal, I.L.R. (2010) M.P. 1146
- Section 114(g) - Adverse inference - Non-examination of I.O. - First information report was lodged in the presence of appellant Chatra and a case u/s 366, 392, 376 r/w 34 IPC was registered - Appellant was available and the F.I.R. was disclosing a cognizable and non-bailable offence against him - Appellant was not arrested then and there - This circumstance could be explained by I.O./S.H.O. - But, was not examined by prosecution - Appellant was deprived of his right of cross-examination on this important aspect - Court constrained to draw adverse inference against the prosecution : Chatra Vs. State of M.P., I.L.R. (2008) M.P. 2674 Evidence Act (1 of 1872) 357
- Section 114(g) - Adverse inference - Non-examination of material witness - Prosecutrix and appellant Chatra found sitting on a cot in his house - Chhotu, relative of prosecutrix along with brother of prosecutrix entered into the house and they have beaten prosecutrix & appellant both - Chhotu and brother of prosecutrix both were facing prosecution which was institured on the basis of report lodged by appellant - Chhotu was a material witness - On examination of the witness, unfavourable evidence to the prosecution would have come on record - Therefore, deliberately withheld by the prosecution - Adverse inference should be drawn : Chatra Vs. State of M.P., I.L.R. (2008) M.P. 2674
- Section 114 Illustration (f) - See - Negotiable Instruments Act, 1881, Section 138 : Mujaffar Hussain Mansoori Vs. Devendra Trivedi, I.L.R. (2008) M.P. 2687
- Section 115 - Estoppel - There can be no estoppel on a pure question of law and question of jurisdiction is pure question of law : Hameeda Begum (Smt.) Vs. Smt. Champa Bai Jain, I.L.R. (2009) M.P. 2328 (DB)
- Section 116 - Estoppel of tenant - It is settled proposition of the law that once the rent is paid by the tenant to a person who acquired the right over the property then subsequent to it, the tenant has no right to deny the title or landlordship of the person to whom he paid the rent : Ram Vishal @ Vishali Kachhwaha Vs. Dwarka Prasad Jaiswal, I.L.R. (2009) M.P. 3390
- Section 118 - Child witnesses - Witnesses aged 11 & 4 years (the daughters of the accused), who got injured in the same incident and admittedly present in the single room house of accused can be relied - Especially when the presence of accused at the scene of occurrence is not challenged and the evidence of these two witnesses is supported by medical and other evidence : In Reference Vs. Mohammad Shafiq @ Munna @ Shafi, I.L.R. (2010) M.P. 2405 (DB)
- Section 118, Mental Health Act, 1994, Section 23(1)(a)(b) - After evaluating the extent of the disorder, evidence of a mentally retarded witness can be recorded with the help of an expert in the field or the person with whom he or she is able to communicate by words or by way of gestures : Prakash Dabar Vs. State of M.P., I.L.R. (2010) M.P. 2349
- Section 119, Criminal Procedure Code, 1973, Section 282 - Examination of dumb & deaf witness - Procedure & precautions for recording evidence - Explained : Vinod Vs. State of M.P., I.L.R. (2009) M.P. 3440
- Section 120 - Competent witness - Husband holding special power of attorney of wife/plaintiff - Husband is competent to depose for his wife as provided under Section Evidence Act (1 of 1872) 358
120 - No adverse inference can be drawn due to non examination of plaintiff/wife : Murlidhar Pinjani Vs. Smt. Sheela Tandon, I.L.R. (2007) M.P. 785
- Section 137 - See - Civil Procedure Code, 1908, Order 8 Rule 5 : Rajendra Nagrath Vs. Col. V.L. Vohra, I.L.R. (2009) M.P. 1004 (DB)
- Sections 137 & 138 - Charge u/ss. 452, 327 & 506-B of IPC framed, and after evidence, case was fixed for judgment - Later on, additional charge of Ss. 325/34 & 323/34 of IPC were framed and witnesses were recalled for further cross-examination - Out of them, two witnesses could not be produced - It was contended on behalf of State that the Court should have considered the evidence of these two witnesses for charge u/ss. 452, 327 & 506-B IPC as the cross-examination was already over - Held - As per settled proposition of law the deposition of witnesses could not be taken into consideration if the same is not complete in accordance with the provision of Ss. 137 & 138 - Appeal against acquitted dismissed : State of M.P. Vs. Pappoo @ Saleem, I.L.R. (2010) M.P. 2383
- Sections 145 & 157 - Complaint - Complainant not supporting prosecution case - Complaint made by him to CBI cannot be treated as substantive evidence - Former statement can be used for contradiction or corroboration - When complainant did not support prosecution story that demand was made by appellant, there was no substantive evidence - It was wrong on the part of trial Court to base decision on complaint made to CBI: Sanjay Kumar Vs. State of M.P., I.L.R. (2010) M.P. 490 (DB)
- Sections 145 & 157 - Contents of complaint - Would not be a substantive piece of evidence - Can be used for contradiction and corroboration to its author/complainant as per provisions U/s 145 & 157 of the Act : Kishanlal Vs. Murlidhar, I.L.R. (2008) M.P. 1237
- Section 154 - Hostile Witness - Seizure witnesses did not support seizure of Ganja from Accused - Prosecution did not declare them hostile - Defence can rely upon the evidence of these witness and it would be binding upon prosecution : Halku Vs. State of M.P., I.L.R. (2008) M.P. 574
- Section 157 - Statement of injured, recorded by doctor as dying declaration, is not inadmissible and it can be used as a former statement to corroborate the testimony of its maker : In Reference Vs. Mohammad Shafiq @ Munna @ Shafi, I.L.R. (2010) M.P. 2405 (DB)
- Section 157 - The evidence of such witnesses to whom the incident is narrated soon after the incident, is admissible as corroborative evidence u/s 157 of the Act : Ramsiya Vs. State of M.P., I.L.R. (2008) M.P. 3010 (DB) Excise Act, M.P. (2 of 1915) 359
- Section 165 - Duty of trial judge - When witness deposed contradictory statements in examination-in-chief and in cross-examination - Trial Court has to exercise its power u/s 165 of the Act to fix the witness on a particular fact, whether his statement given in examination-in-chief was correct or contradictory statement given in cross- examination - Trial judge is not only to act as an umpire but to take effective part in the trial during the course of whole proceedings to dig out the truth : Ramesh Vs. State of M.P., I.L.R. (2009) M.P. 1131 (DB)
- Section 165 - If Considered necessary court may require production of evidence and witnesses - Failure to do so can be set right in exercise of revisional or appellate jurisdiction : Jarina Bi Vs. M.P.S.R.T.C., Bhopal, I.L.R. (2006) M.P. 1172 Excellent Player Certificate
- Cancellation - Permissibility - Excellent Player Certificate granted to the petitioner cancelled for the alleged irregularity in the selection process - Action challenged - Held - Merely on the basis of the finding of certain irregularities in the procedure whereunder the players had no role to play, extreme steps were taken by cancelling the entire selection not warranted - Order quashed : Ashit Verma Vs. State of M.P., I.L.R. (2010) M.P. Note *58 Excise Act, M.P. (I of 1872)
- Section 34(2)(I) - Presumption - Applicant neither owner of Tractor - Trolley nor liquor found from his possession - No evidence that applicant was aware of liquor in heap of sand - Conviction set aside : Dashrath Singh Vs. State of M.P., I.L.R. (2006) M.P. 300 Excise Act, M.P. (2 of 1915)
- Section 17, General Licence Conditions, Clause I, VI - Transfer or sub-lease of Licence - Licence was allotted to petitioner to run liquor shops for the excise year 2005-06 - Licence was renewed for the excise year 2006-07 - Petitioner transferred the contract of retail sale in favour of respondent No.4 for the excise year 2006-07 - Respondent No.4 got the licence renewed for the year 2007-08 - Respondent No.4 transferred the licence in favour of respondent No.5 - Petitioner claimed that as privilege was transferred therefore, the renewal clause was available to petitioner and not to respondent No.4 - Held - Lesser degree of right is enjoyed when a person has a privilege to deal in trade - Once, the right is relinquished by petitioner, he cannot say that he still holds back the right to trade in such privilege - Petitioner cannot be allowed to turn around and reclaim privilege - Petition dismissed : Sivanand Damahe Vs. State of M.P., I.L.R. (2009) M.P. 653 Excise Act, M.P. (2 of 1915) 360
- Sections 17, 28 - License - Auction of liquor shops for the financial year 2000- 01 took place on 23rd March 2000 - Petitioner did not participate however on 29th March 2000 submitted application expressing willingness to offer amount 10% more than bid submitted by successful bidder for the remaining period - Excise Commissioner cancelled the auction held on 23rd March and directed for re auction which took place on 10th April 2000 - Licence was issued to Petitioner on 21st April as petition filed by successful bidder of first auction was pending - Petitioner prayed for remission of license fee for the period 1st April to 20th April as shops were run by Deptt. - Held - Re-auction took place at the instance of Petitioner for the remaining period of financial year - Petitioner not entitled for remission in license fees : Shambhoo Marketing Pvt. Ltd. Vs. State of M.P., I.L.R. (2008) M.P. 1104
- Sections 25,28, General Licence Conditions, Liquor Policy 2006-2007 - Clause 8.4 of Liquor Policy provides that licencee shall not be entitled to lift liquor against belatedly deposited licence fee - No provision that such belatedly deposited licence fee shall be liable to be forfeited - Forfeiture of money deposited with State Govt. has stringent consequences and same cannot be permitted without any express and enabling provision - Neither in Excise Laws nor in liquor policy the word forfeiture has been used - Amount lying with respondents against which no liquor was supplied is liable to be refunded - Petition allowed : Rajendra Singh Wadhwa Vs. State of M.P., I.L.R. (2008) M.P. 696
- Sections 34(1)(A), 49A(1)(A) - Liquor seized from applicant - On chemical examination sample found unfit for human consumption - No evidence available regarding sealing of sample and sending the same for chemical examination - Held - Conviction u/s 49A(1)(A) set-aside - However, liquor found from applicant - Applicant covicted under converted Section 34(1)(A) - Revision Partly allowed : Murlidhar Vs. State of M.P., I.L.R. (2008) M.P. 1814
- Section 34(1)(a)(2) - Conspicuous possession - Applicant registered owner of Tractor & Trolley - Liquor seized from Trolley and at the time of seizure no one was present with Tractor concerned - Prosecution failed to prove that from conspicuous possession of the applicant, the contraband article was seized - Applicant cannot be held guilty - Revision allowed : Sobran Singh Vs. State of M.P., I.L.R. (2010) M.P. Note *10
- Section 39(c) - Renewal of licence for sale of liquor was denied on basis of violation of terms & conditions of the licence - The petitioners who were granted licence in individual capacity were partners of the Company - Certain liquor belonging to Company was seized and fine of Rs.1,00,000/- was imposed on the petitioners - The petitioners contended that for breach of licence conditions committed by Company the petitioners cannot be penalized - Held - Right to renewal of existing licence is not a statutory right, Exoneration of Insurer 361 but a right created under the policy which is in the nature of executive instructions - Petitioners do not have any indefeasible right to seek renewal of licence : K.K. Jhariya Vs. State of M.P., I.L.R. (2010) M.P. 1585 (DB)
- Sections 46, 47 (Prior to amendment) - Confiscation - Truck driver convicted under Section 34 of Act for transporting 294 boxes of foreign liquor - Trial Court ordered for confiscation of truck of appellant after due inquiry - Order of confiscation maintained by First Appellate Court as well as High Court - Held - Burden is on owner to establish that he had no reason to believe that offence was being or likely to be committed - Appellant failed to establish his lack of knowledge - On the facts of case in lieu of confiscation, vehicle be released to appellant on payment of sum of Rs. 30,000/- as fine - Appeal allowed : Kailash Chandra Vs. State of M.P., I.L.R. (2008) M.P. 421 (SC)
- Section 64 - Recovery on account of loss to the Government due to re-auction of licence for liquor shop - Petitioner was highest bidder in auction but department proceeded with re-auction as bid was below reserve price - Re-auction also failed - Within 15 days i.e. validity of offer, department accepted petitioner's offer - On failure to execute agreement by petitioner, department re-auctioned the shop and initiated proceeding for recovery of loss suffered - Held - In terms of clause of auction, the offer of petitioner was valid for 15 days and during that period the same can not be withdrawn by petitioner and later on offer of petitioner was accepted within validity period - It can not be said that since there was no concluded contract between the parties, the amount can not be recovered - Order of recovery not void - Petition dismissed : Ramlal Jharia Vs. State of M.P., I.L.R. (2010) M.P. Note *14 (DB) Excise Policy 2010-2011
- Foreign Liquor Rules, M.P. 1996, Rule 8(1)(a), Country Spirit Rules, M.P. 1995, Rule 9 - Applications are being invited under new excise policy also - Provisions of new policy are not violative of M.P. Foreign Liquor Rules, 1996 and M.P. Country Spirit Rules, 1995 : Chingalal Yadav Vs. State of M.P., I.L.R. (2010) M.P. 788 (FB)
- Foreign Liquor Rules, M.P. 1996, Rule 8(1)(a), Country Spirit Rules, M.P. 1995, Rule 9 - It is open to State Government to renew the licence of existing licensee on such condition - New policy is a valid policy as same is not in contravention of Rule 8(1)(a) of M.P. Foreign Liquor Rules, 1996 and Rule 9 of M.P. Country Spirit Rules, 1995 : Chingalal Yadav Vs. State of M.P., I.L.R. (2010) M.P. 788 (FB) Exoneration of Insurer
- Driver was not holding any kind of license as on the date of accident - The insurer has been rightly exonerated and given the liberty to recover the amount from the Explosives Act, Indian (IV of 1884) 362 owner after making the payment to the claimant - In the light of decision of Apex Court in Pramod Kumar Agrawal & anr. v. Mushtari Begum & anr. (2004) 8 SCC 667 : Aditya Soni Vs. Sanjay Gulati, I.L.R. (2008) M.P. Note *2 (DB) Explosive Substances Act (6 of 1908)
- Section 3 - Appellant was convicted for all of sudden hurled a country made bomb at his father - Bomb ultimately landed on a wall - Explosion resulted into injuries in father's scapular reason - Conviction challenged in appeal - Held - Evidence of parents of appellant suffered from serious infirmities about the bomb had exploded at the wall - Chemical examiner indicated presence of pellets in the remnants whereas no pellet injury was found on body of appellant's father - Forensic & medical evidence also not corroborate the prosecution version - Appellant entitled to benefit of doubt - Appeal allowed : Ajay Kumar Notwani Vs. State of M.P., I.L.R. (2008) M.P. 2409
- Section 5 - Appellant convicted for keeping explosive substance in his temporary house - Seizure witnesses interested and not of locality - Discrepancy in evidence of seizure officer and witnesses - No evidence that seized articles were sealed at spot, impression seal was affixed at the draft memo to FSL or sealed articles were kept in safe custody in the Maalkhana - The evidence not collected to the effect that house was in exclusive possession of appellant - No evidence to show that the appellant was having explosive substance for unlawful object - Held - Essential ingredient to prove the offence is lacking - Conviction and sentence of appellant set aside : Kishori Lal Vs. State of M.P., I.L.R. (2010) M.P. 2172 Explosives Act, Indian (IV of 1884)
- Section 6-B, 6-C - Licence for possession and sale of explosives or any specified class of explosives - Licensing Authority if deems necessary for the security of public peace or for public safety can suspend, refuse to renew or revoke license even if licenced depot is located beyond the distances mentioned in Rules and licence conditions - Public Safety is the overriding consideration for licensing authority and not distances - If licensing authority finds that location of LPG Cylinder Depot is too near a school so as to affect the safety of the school children, he is empowered to refuse to renew, suspend or revoke the licence even though godowns are situated beyond the distances - Licensing Authority directed to apply his mind and decide LPG Cylinder Depots and godowns in respect of which licences have to be suspended, revoked or not renewed - Compliance report be filed within two months - Petition disposed of : Smt. Mamta Shah Vs. State of M.P., I.L.R. (2007) M.P. 1105 (DB)
- Section 7, Gas Cylinder Rules, 1994, Rule 71 - Powers of inspection, search, seizure, detention and removal - Rule 71 provides that any officer specified therein can Family Courts Act (66 of 1984) 363 exercise power specified in Section 7(1) - All District Magistrates, Magistrates subordinate of District Magistrate directed to ensure that LPG Cylinders are not used in vehicles contrary to the provisions of Act and Rules made there under : Smt. Mamta Shah Vs. State of M.P., I.L.R. (2007) M.P. 1105 (DB) Factories Act (63 of 1948)
- Section 2(M) - See - Industrial Disputes Act, 1947, Sections 25-K, 25-L, 25-N: M.P. Housing Board Vs. Smt. Jyoti Chitnis, I.L.R. (2008) M.P. 1442
- Sections 9, 92 & 105 - Powers of Factory Inspector - Maintainability of Complaint - Petitioner No.1 working as Chief Workshop Manager and Petitioner No. 2 working as Deputy Chief Mechanical Engineer in Deep Paint Plant in Gwalior - They are Occupiers as per definition of the Act - A small explosion took place on 05.04.2002 - Factory Inspector appointed u/s 8 of the Act - On the basis of his report prosecution u/s 92 launched against petitioners - Held - Factory Inspector is empowered to visit factory within the local limits for which he is appointed along with assistants i.e. experts - He went alone in the factory - His report was not based on the reports of Assistants - Factory Inspector was not an Expert - He violated provision of Section 9 and thus prosecution on the basis of his report liable to set aside - Petition Allowed : H.K. Kala Vs. State of M.P., I.L.R. (2008) M.P. 1699 False affidavit before HC
- Respondent No. 9 filed affidavit on 23-10-07 stating that his appeal against conviction is still pending before HC - However appeal was dismissed on 24-04-02 - HC deprecate the conduct of respondent no. 9 : Shiv Singh Rawat Vs. State of M.P., I.L.R. (2008) M.P. 491 (DB) Family Courts Act (66 of 1984)
- Section 7, Guardians and Wards Act 1890, Section 7 - Permission to operate Bank Account of Mentally ill person - Appellant appointed as Guardian of mentally ill person - However, Family Court declined permission to operate bank account on the ground that it has no jurisdiction to grant permission - Held - It is within jurisdiction of Family court to pass orders regarding operation of bank account of mentally ill person - However, such exercise would be subject to provisions contained in Mental Health Act, 1987 : B. Raman Vs. To whom so ever, I.L.R. (2008) M.P. 1177 (DB)
- Section 7(1), explanation (e) - Jurisdiction of Family Court - Question pertaining to status of a child - Can be gone into by Family Court - Direction to undergo DNA test - Discretionary - Petitioner gave her consent - Discretion exercised by Family Court Family Courts Act (66 of 1984) 364 cannot be termed as perverse : Smt. Seema Sharma Vs. Amar Sharma, I.L.R. (2006) M.P. 798
- Section 7(1) Explanation (g) - See - Juvenile Justice (Care and Protection of Children) Act, 2000 [As amended by Act No.33 of 2006), Section 41 : Sanjay Mehta Vs. Superintendent of Matrachhaya, I.L.R. (2009) M.P. 2728
- Section 7(1) Explanation (g) - Guardianship of a minor girl - Child staying with her grandmother after death of her father - Child on being asked declined to go with her mother - Mother did not have good marital relationship with her husband - FIR was lodged in connection with demand of dowry - During serious ailment of husband, respondent did not come to see him - Grandmother has good financial status - Child looks healthy and happy - She would suffer immense depression and there may be emotional setback if she is taken away from her grandmother - Grandmother appointed as custodian of child - However, mother is at liberty to visit the child at the house of Grandmother - Appeal allowed : Chhoti Bai (Smt.) Vs. Smt. Sunita Kushwah, I.L.R. (2009) M.P. 2388 (DB)
- Section 7(1) Explanation (g) - Guardianship of a minor girl - Mother is a natural guardian and minor child ordinarily should be in custody of mother - However, while dealing with facet of custody of child, welfare of child is of paramount consideration: Chhoti Bai (Smt.) Vs. Smt. Sunita Kushwah, I.L.R. (2009) M.P. 2388 (DB)
- Section 7(1)(f) - See - Muslim Women (Protection of Rights on Divorce) Act, 1986, Sections 3 & 4 : Shabana Bano (Smt.) Vs. Imran Khan, I.L.R. (2009) M.P. 276
- Sections 7,8,20, Mental Health Act 1987, Sections 52, 53 - Applicability of provisions of Mental Health Act - Provisions of Mental Health Act which are not inconsistent with that of Act, 1984 are applicable and within jurisdiction of Family Court: B. Raman Vs. To whom so ever, I.L.R. (2008) M.P. 1177 (DB)
- Section 10, Civil Procedure Code, 1908, Order 26, Rule 10A - Family Court ordered for a second DNA test keeping in view letter of Director, C.D.F.D. wherein it was requested to the Court for taking resampling of blood for conducting re- test - However, Family Court was not justified in ordering for DNA test from a place of choice of husband - It is clarified that the report of first DNA test cannot be taken on record, the same has to be ignored in toto : Amar Sharma Vs. Smt. Seema Sharma, I.L.R. (2008) M.P. 2008
- Sections 19, 20 & 21, Civil Procedure Code, 1908, Order 43 Rule 1(a) - Appeal or Miscellaneous Appeal - Family Court directed to return of the plaint for presentation Fisheries (Gazetted) Service Recruitment Rules, M.P. 1987 365 before the competent Court - Held - In view of the non-obstante clause incorporated in S. 19(1) of Act and the overriding effect of the Act as prescribed u/s 20 and conferral of power on High Court to make Rules for carrying out the purpose of Act - Appeal u/s 19 of Act shall lie and not miscellaneous appeal under Order 43 Rule 1(a) CPC : Kamla Patel Vs. Neeraj Prasad Patel, I.L.R. (2010) M.P. 253 (DB) Finance Act (32 of 1994)
- Section 65(76b) [As amended by Finance Act, 2005], Central Excise Act, 1944, Section 2(f) - Manufacture - Service Tax - Packaging and bottling of liquor come within the ambit and sweep of manufacture - There can be no levy of service tax on manufacture in view of clear postulate u/s 65(76b) of Act, 1994 - Decision rendered in M/s Vindhyachal Distilleries does not state law correctly - Decision rendered in Som Distilleries upheld : Maa Sharda Wine Traders (M/s.) Garahakota, Sagar Vs. Union of India, I.L.R. (2009) M.P. 1568 (FB)
- Section 65(72) - Clause z (b) - Taxable Service - Service provided to customer by Photo Studio or Agency relating to Photography - Photography is an inclusive definition and not restrictive - Any negative used for taking photograph would come under the inclusive definition of photography - When a part of work is done by Photographer and part of work is assigned to colour laboratory would in fact be a photography studio or agency - Colour laboratories are amenable to service tax - Petition dismissed : Colorway Photo Lab Vs. Union of India, I.L.R. (2008) M.P. 1397 (DB) Financial Code, M.P. (Vol. I)
- Rules 22 & 23 - Amount deposited before the trial Court by the tenant, not deposited in treasury and defalcated by Nazir - The petitioner/landlord when applied for withdrawal, he was declined to payment - Held - In case of defalcation or misappropriation of the amount, such amount has to be paid by the State by debiting it to the Head "S- Special Advance" and thereafter the aforesaid amount shall be recovered and deposited in the said head by the said Governement officials - The person who is entitled for the refund of the amount cannot be directed to file a civil suit for the recovery of the aforesaid amount from the estate of such employee, as explained by State Government vide circulars Nos. E-3/2/89/C-IV Dt. 30.12.1995 and M.P.F.D. Memo No.1220/IV-B- 6/72 dt. 2.11.1972 - Petition allowed : Mehmooda Bai (Smt.) Vs. Central Bank of India, I.L.R. (2010) M.P. 2310 (DB) Fisheries (Gazetted) Service Recruitment Rules, M.P. 1987
- Rule 15(3) - Promotion - Promotion of appellant by DPC to the post of Joint Director considering him to be man of exceptional merits and suitability in comparison Foreign Exchange Regulation Act, (XLVI of 1973) 366 to his seniors - Held - DPC did not observe anything except observing that appellant is of exceptional merits and suitability - There is no justification behind such observations - The material which could prima facie satisfy is not produced before the HC - The selection process was contaminated and stood corrupted because of non-application of mind and non-granting of reason - Learned Single Judge was justified in holding that appellant could not be promoted as Officiating Joint Director - WA dismissed with cost : H.S. Sidhu Vs. Devendra Bapna, I.L.R. (2009) M.P. 2760 (DB)
- Rule 15(3) - Merit has to be given preference and not the seniority - Person who is junior but is of exceptional merit and suitability has to be placed above to his senior in the merit list so that the chances of promotion are not adversely effected because of seniority : Devendra Bapna Vs. State of M.P., I.L.R. (2008) M.P. 1942 Flag Code of India, 2002
- Flag Code is not a statute and cannot regulate fundamental right to fly National Flag : Aamir Khan Vs. State of M.P., I.L.R. (2010) M.P. 736
- Flag Code is not a statute and cannot regulate fundamental right to fly National Flag : J.P. Dutta Vs. Ravi Antarolia, I.L.R. (2010) M.P. 729
- Sections 2(B)(5), 3, 5, 6 & 11 - See - Prevention of Insults to National Honour Act, 1971, Sections 2 & 3 : Aamir Khan Vs. State of M.P., I.L.R. (2010) M.P. 736 Food Stuffs (Civil Supply & Distribution) Scheme, M.P. 1991
- Clause 9(1) & 9(2) - See - Essential Commodities Act, 1955, Section 3/7 : Ravindra Kumar Vs. State of M.P., I.L.R. (2010) M.P. 2176
- Food Stuffs (Civil Supply & Distribution) Scheme, M.P. 1991 - See - Essential Commodities Act, 1955, Sections 3 & 7 : Kishore Kumar Vs. State of M.P., I.L.R. (2009) M.P. 1184 Food Stuffs (Distribution Control) Order, M.P. 1960
- Clauses 2(d) & 4 - See - Essential Commodities Act, 1955, Sections 3 & 7 : Kishore Kumar Vs. State of M.P., I.L.R. (2009) M.P. 1184 Foreign Exchange Regulation Act, (XLVI of 1973)
- NRE Account - Original deposit made in accordance with FERA Act & Rules - Interest on NRE FDR exempted under Section 10 (4) (ii) of the Act : Commissioner of Income Tax Vs. Asandas Khatri, I.L.R. (2006) M.P. 264 (DB) Forest Act, Indian (XVI of 1927) 367
Foreign Liquor Rules, M.P. 1996
- Rule 8 - Sale of foreign liquor - It was argued that provision after words "or in such other manner as the State Government may direct from time to time", is only applicable for draw of lottery and not for exempting from inviting applications - Held - If one reads the latter provision of Clause 8(1)(a) after the word 'or', it would be clear that the same provides the power to the State Government to deal the subject in any other manner as the State Government may direct from time to time - These words cannot be read in isolation but they have to read in generality as they control the earlier provisions which includes the grant of licence on individual basis on fixed basic fee and licence fee by inviting the applications : Madan Mohan Chaturvedi Vs. State of M.P., I.L.R. (2008) M.P. 2776 (DB)
- Rule 8 - See - Constitution, Article 19 : Madan Mohan Chaturvedi Vs. State of M.P., I.L.R. (2008) M.P. 2776 (DB)
- Rule 8(1)(a), Country Spirit Rules, M.P. 1995, Rule 9 - Grant of licence in such other manner as directed by general or special order - "In such procedure which may be prescribed by the State Government from time to time" means that it empowers the Government to prescribe the mode of disposal of applications for grant of licence by renewal of applications submitted by existing licensees : Chingalal Yadav Vs. State of M.P., I.L.R. (2010) M.P. 788 (FB) Forest Act, Indian (XVI of 1927)
- Sections 2(3), 2(4)(a), 2(6), 41, 42, 52, Madhya Pradesh Transit (Forest Produce) Rules, 2000, Rules 3,22 - Confiscation - Crane owned by Petitioner found lifting and loading Koha trees - Order of confiscation of crane was passed as it was found involved in commission of forest offence - Order of confiscation challenged on the ground that trees were being lifted from revenue land therefore, no forest offence was committed - Held - Forest produce includes timber whether found in, or brought from a forest or not - Timber pieces were being lifted and loaded without any transit pass - Order of confiscation proper - Petition dismissed : Smt. Harbhajan Kaur Vs. State of Madhya Pradesh, I.L.R. (2007) M.P. 529
- Sections 2(3), 2(4), 42 & 55 - Transit (Forest Produce) Rules, M.P., 2000, Rules 3, 14 and 22 - Confiscation - Arjun Trees were being loaded on trucks with the help of crane - Eight and four logs were already loaded in two trucks - Police seized logs together with crane and trucks - Authorized officer issued show cause notice for confiscation of crane - Petitioner took stand that crane was used to lift the truck which had fallen in nallah - Authorized officer came to conclusion that crane was used for lifting and loading Arjun Trees for transportation without transit pass - Order of Forest Act, Indian (XVI of 1927) 368 confiscation challenged in writ petition that Arjun Trees were lifted from revenue land and not from forest land, therefore, no offence under Section 41 of Forest Act made out - Held - Rule 3 of Rules provides that no forest produce shall be moved into or outside the State or within State without a transit pass - Forest produce includes timber whether found in, or brought from forest land or not - Transportation has to be given proper meaning and once timber is loaded it is meant for transportation and if there is no transit pass offence under Section 41 of the Act is committed - No evidence that petitioner had no knowledge that vehicle is being used for commission of forest offence - Appeal Dismissed : Smt. Harbhajan Kaur Vs. State of M.P., I.L.R. (2007) M.P. 1073 (DB)
- Section 2(4), Forest Produce (Conservation of Biodiversity and Sustainable Harvesting) Rules, M.P. 2005, Rule 5 - Forest Produce - Salai Gum - Held - Salai Gum is a Forest Produce and a notification in respect of it can be issued under Rule 5 : Hargovind Nagaich Vs. State of M.P., I.L.R. (2010) M.P. 1916
- Section 52 - Confiscation of Truck - Show Cause Notice to Registered Owner - Registered owner/petitioner executed power of attorney in favour of her husband - Husband present in truck when boulders were seized - He had contested the proceedings - No prejudice caused to petitioner who was adequately represented : Hadiya Begum Vs. State of M.P., I.L.R. (2008) M.P. 452
- Section 52 - Confiscation of Truck - Transit Pass not produced at the time of seizure - Transit Pass which was produced by petitioner in course of enquiry bore different number - No illegality committed by Departmental Authorities as well as Revisional Court by not accepting transit pass : Hadiya Begum Vs. State of M.P., I.L.R. (2008) M.P. 452
- Section 52 - Forest Produce - Boulders - Findings recorded by appellate authority that vehicle carrying boulders was chased by forest officials and was caught up on the road belonging to P.W.D. - No shadow of doubt that loading of boulders originated in forest land - Petition dismissed : Hadiya Begum Vs. State of M.P., I.L.R. (2008) M.P. 452
- Section 52-A - "Person aggrieved" - Mean a person who has suffered legal injury or one who has been deprived with something which he would have entitled to obtain in usual course - Range Officer who initiated proceeding for confiscation U/s 52 of Act may be a person aggrieved - But not entitled to file an appeal U/s 52-A of Act - As such appeal has not been provided U/s 52-A of Act : Umashankar Usrete Vs. State of M.P., I.L.R. (2008) M.P. 779
- Section 52-A - Provided an appeal against order of confiscation and not provided appeal against order of release of property - Appeal is a creature of statute and until Forest Produce (Conservation of Biodiversity and Sustainable Harvesting) 369 Rules, M.P. 2005 and unless such appeal is provided under the act - Appellate authority has no jurisdiction to entertain appeal : Umashankar Usrete Vs. State of M.P., I.L.R. (2008) M.P. 779
- Section 52-B - Appellate authority remanding the matter by reversing the order of confiscation of vehicle with a direction to pass a fresh order - Order challenged in revision - Revisional Court ordered to release the vehicle on furnishing bank guarantee - Order challenged - Held - After passing the order by the appellate authority, no order of confiscation was in existence - In the facts & circumstances, order of release of the vehicle was proper and revisional Court did not exceed its jurisdiction : State of M.P. Vs. Bhanu Pratap Singh, I.L.R. (2009) M.P. 1249
- Section 52 (5) - Confiscation - Burden of proof - Burden to prove that owner of vehicle had no knowledge is on the owner - Owner also requires to satisfy that all necessary precautions were taken against such use - No affidavit filed by Petitioner denying the knowledge of use of vehicle for committing forest offence - Nothing on record to suggest that she had taken any precaution against the use of vehicle in commission of crime - Petitioner failed to discharge the burden of lack of knowledge - Order of confiscation proper : Smt. Harbhajan Kaur Vs. State of M.P., I.L.R. (2007) M.P. 529
- Sections 52, 52-A & 52-B - In exercise of power u/s 52-A(6), appellate authority remanding the matter by reversing the order of confiscation with a direction to the authorized officer to pass a fresh order - Held - Order would tantamount to attaching finality to the proceedings before appellate authority - Therefore, against the order revision u/s 52-B is maintainable : State of M.P. Vs. Bhanu Pratap Singh, I.L.R. (2009) M.P. 1249 Forest (Conservation) Act (69 of 1980)
- Section 2 - Excavation of forest land - No forest land can be broken by excavation without approval of Central Government - State to ensure that no illegal excavation takes place and also to prosecute those doing illegal excavation : Shamim Modi (Ms.) Vs. Ms. Sudha Chowdhary, District Collector Betul, I.L.R. (2009) M.P. 84 (DB) Forest Produce (Conservation of Biodiversity and Sustainable Harvesting) Rules, M.P. 2005
- Rule 5 - Power to declare Closed Area - Divisional Forest Officer issuing a notification prohibiting of extraction of Salai Gum for more than singular area - Held - It is mandatory under the Rule to specify the area, but to say that composite area cannot be included, is not the object of Rule 5 - The notification issued for entire Protected and Reserved Forest is in consonance to Rule 5 : Hargovind Nagaich Vs. State of M.P., I.L.R. (2010) M.P. 1916 Fundamental Rules, M.P. 370
- Rule 5 - Power to declare Closed Area - Divisional Forest Officer issuing a notification prohibiting of extraction of Salai Gum - Notification challenged on the ground that DFO has no jurisdiction to issue notification - Held - It is thus within the powers of the DFO posted in a territorial Forest Division, being an official authorized under Rules, 2005 to issue notification u/r 5 : Hargovind Nagaich Vs. State of M.P., I.L.R. (2010) M.P. 1916 Fundamental Rules, M.P.
- Rule 27 Fundamental Rule - Two advance increments for family planning operation - Constitutes personal pay' : State of Madhya Pradesh Vs. R.K. Chaturvedi; I.L.R. (2006) M.P. 655 (FB)
- Rule 54-B - Payment of Salary and allowances on re-instatement - Appellant placed under suspension as she was found absent from duty - Appellant was re-instated and thereafter disciplinary proceedings were initiated - Charge of absence was found proved and D.E.O. ordered that appellant shall not be entitled for pay and allowances during period of her suspension on principle of "no work no pay" - Writ petition dismissed on the ground that appeal is pending - Held - When competent authority finds some justification for suspension of Government servant he has to pass specific order indicating what amount of pay and allowances he would be entitled to during period of suspension after giving notice to government servant of quantum of pay and allowances proposed - Competent authority has to pass specific order in that regard after considering the representation submitted by Government Servant - Provisions of F.R. 54-B not followed before issuing- direction that appellant shall not be entitled to pay and allowances during period of suspension - Direction quashed - However appellant shall pursue her appeal against finding of guilt - Competent Authority to pass fresh orders in accordance with F.R. 54-B within one month - Appeal allowed : Mahmoodan Khan Vs. State of M.P., I.L.R. (2008) M.P. 36 (DB)
- Rule 56(3) - Compulsory Retirement - Petitioner working as Executive Engineer - His service record was very good and his integrity was not doubtful - But, he was compulsorily retired on the ground of pendency of D.E. and a criminal case against him - Held - Compulsory retirement is resorted to only for removing officers who have outlived their utility or have become dead wood or their continuance in service is not in public interest - Pendency of D.E. and a criminal case cannot be made a basis of compulsory retirement as it would amount to penalty - Order of compulsory retirement quashed - He would be deemed to have been in service till age of his superannuation - Also entitled for full back wages, revised pension and all consequential benefits - Petition allowed : S.C. Tantia Vs. State of M.P., I.L.R. (2008) M.P. 2594 General Clauses Act (10 of 1897) 371
- Rule 56(3) - Compulsory Retirement - Service record of petitioner was good and under no circumstances can a prudent man come to conclusion that service record of petitioner warranted his compulsory retirement in pubic interest - Pendency of three departmental enquiries against petitioner would not warrant his compulsory retirement as pendency of D.E. have not reflected upon petitioner's performance - Compulsory retirement of petitioner on the basis of pendency of departmental enquiries per se illegal: Suresh Chand Pandya Vs. State of M.P., I.L.R. (2008) M.P. 2318 Gauvansh Pratishedh Adhiniyam, M.P. 2004
- Sections 4, 6 & 9 - See - Criminal Procedure Code, 1973, Sections 451 & 457: Mohammad Ajeem Khan Vs. State of M.P., I.L.R. (2010) M.P. 1187 General Clauses Act (10 of 1897)
- Section 3(31) - See - Land Acquisition Act, 1894, Section 6 Proviso : Vineet Kabra Vs. State of M.P., I.L.R. (2010) M.P. 2533
- Section 3(35) - Month - shall mean month reckoned according to the British Calender and not 30 days - Calculation of 30 days by Executing Court erroneous : The New India Assurance Co. Ltd., Bhopal Vs. Ram Vilash Vijayvargiya, I.L.R. (2007) M.P. 148
- Section 3 Clause 22 - See - Sahkari Krishi Aur Gramin Vikas Bank Adhiniyam, M.P., 1999, Section 50(2) : Arvind Kumar Bhargava Vs. Lalit Parashar, I.L.R. (2008) M.P. 2471
- Section 9 - See - Negotiable Instruments Act, 1881, Section 138 : Sanjay Gawalani Vs. Sunil Satwani, I.L.R. (2009) M.P. 2731
- Section 14 - Power conferred to be exercisable from time to time - Once the Central Government has power to postpone the elections for a period of 40 days under the proviso to Rule and there is no prohibition decipherable from the Rule, therefore, the power may be exercised by Central Government on repeated occasions, from time to time, if condition enumerated in the proviso exists : Azmatullah Vs. Union of India, I.L.R. (2009) M.P. 1311
- Section 27 - See - Negotiable Instruments Act, 1881, Section 138 : Mujaffar Hussain Mansoori Vs. Devendra Trivedi, I.L.R. (2008) M.P. 2687
- Section 27 - See - Prevention of Food Adulteration Act, 1954, Section 13(2) : Gulab Vs. State of M.P., I.L.R. (2008) M.P. 1535 General Sales Tax Act, M.P. 1958 (II of 1959) 372
- Section 27 - See - Prevention of Food Adulteration Act, 1954, Section 13 (2) : Shankar Vs. State of M.P., I.L.R. (2008) M.P. Note *69 General Clauses Act, M.P., 1957 (30 of 1958)
- Section 16 - See - Service Law : Ashok Noronha Vs. M.A. Khan, I.L.R. (2009) M.P. 662 General Licence Conditions
- Clause I, VI - See - Excise Act, M.P., 1915, Section 17 : Sivanand Damahe Vs. State of M.P., I.L.R. (2009) M.P. 653 General Provident Fund Rules, M.P.
- Rule 14(7) - Interest payable by subscriber on overdrawn amount - Amount of Rs. 15,858/- directed to be recovered on account of overpayment in G.P.F. account - Statement of account of G.P.F. not refuted or controverted by Petitioner - Held - State Govt. under statutory obligation to pay interest to subscriber of G.P.F. - No reason why subscriber would not pay interest on amount of overdrawals - Prayer for exoneration from interest liable to be rejected - Petition dismissed : Sitaram Vyas Vs. State of M.P., I.L.R. (2008) M.P. 243 General Sales Tax Act, M.P. 1958 (II of 1959)
- Section 2(bb) and 2(d) and M.P. Vanijiyak Kar Adhiniyam, 1994, Section 2(h) - Liability of petitioner to pay sales tax - Petitioner engaged in business of tyre repairing - Petitioner contending that their earlier application for registration under M.P. General Sales Tax Act was rejected by Commercial Tax Officer on the ground that petitioner, carrying on the work of tyre repairing, could not be termed as 'dealer' - Petitioner having to buy rubber, chemicals in connection with repair of tyres - Petitioner is a 'dealer' and is liable to pay sales tax - Petitioner may however raise objections in respect of assessment of tax : M/s Tip Top General Agencies Pvt. Ltd.Vs. Commercial Tax Officer, Sidhi, I.L.R. (2007) M.P. 76
- Section 2(hh) - Incidental goods - Assessing Authority imposing entry tax on plants and machinery treating them as incidental goods - Imposition of tax set aside by Board of Revenue holding that plant and machinery entered in the local area are not in the course of business - Board of Revenue also refused to refer the question for answer - Held - Goods which are incidental in nature are subject to entry tax - Plant and Machinery are main goods for manufacture and cannot be classed as Incidental Goods - They are capital goods - No Entry tax payable - Board of Revenue rightly did not refer General Sales Tax Act, M.P. 1958 (II of 1959) 373 the question for answer : Commissioner of Commercial Tax, Indore Vs. M/s Rewa Gases (P.) Ltd. Gwalior, I.L.R. (2007) M.P. 705 (DB)
- Section 12 and entry 41 - Exemption from payment of Sales tax - "Preparation of Sutli and Rope" - Not exempted - material not specified - Intent is clear to include all types of twine or rope made of all kind of materials - Twine made of natural strands or synthetic strands - Not eligible for exemption : M/s Surya Plastic Industries Vs. The General Manager, I.L.R. (2006) M.P. 968
- Sections 12, 44 - Reference - Purchase Tax - Exemption from - Goods purchased from exempted new industrial units and utilized as raw material in manufacture of goods for sale - Generally exempted - Not liable for purchase tax : Commissioner of Sales Tax, M.P. Vs. M/s Eastern Air Products Ltd, Bhopal, I.L.R. (2006) M.P. 428 (DB)
- Section 19(1) - Where the entire assessment order (dt. 19.03.1991) was not merged in the assessment order (dt. 26.10.1994) which was passed after remand, the initiation of proceedings u/s 19(1) of the Act (dt. 23.09.1997) for re-opening of the alleged escaped assessment of the items regarding which no appeal was filed could not have been ordered being barred by limitation : Vikram Cement Vs. Commissioner of Commercial Tax, I.L.R. (2010) M.P. 2443 (FB)
- Sections 22(6) and 24(2-A) - Tribunal holding that extra demand created under Entry Tax could not be adjusted against the refund allowed under State Act, before the expiry of mandatory 30 days time - Reference made by President, Board of Revenue as to the justifiability of the order of Tribunal - The non-obstante clause of Section 24(2- A) does not oust requirement of notice - Notice is necessary before adjustment also - Reference answered accordingly : Commissioner of Sales Tax Vs. M/s Kasda Rolling Mill, I.L.R. (2006) M.P. 1419 (DB)
- Section 43(1) - Whether imposition of penalty u/s 43(1) of the Act without establishing mens rea would be justified - Held - An existence of a guilty mind with inaccurate return would lead to imposition of penalty and not alone the inaccurate return - Petition dismissed : Food Corporation of India Vs. Assistant Commissioner of Sales Tax, I.L.R. (2008) M.P. 3141
- Section 44 - Reference - Whether an Aadhatiya is liable to pay entry tax - Held - An Aadhatiya is nothing but a commission agent and he causes entry of the goods in the local area and he is liable to be taxed : Sales Tax Commissioner Vs. M/s. Pannalal Narendra Kumar, Jabalpur, I.L.R. (2010) M.P. 725 (DB)
- Section 44 and Entry Tax Act, Section 3(1)(b), 13 - Reference - Whether gunny bags used for filling in cement are raw material not liable to entry tax or packing material Gram Panchayat (Powers and Functions of the Secretary) Rules, M.P., 1999 374 liable to entry tax - Gunny bags are packing material and cannot be treated either as container or raw material - Dealer liable to pay entry tax on it - Bags sold as packing material of cement - Dealer not entitled for set-off - Reference answered accordingly: M/s Diamond Cement Vs. Commissioner of Sales Tax, I.L.R. (2007) M.P. 96 (DB) Geology and Mining Class-I and Class-II Service Recruitment Rules, 1965
- Rule 14 - Promotion - Merit-cum-Seniority - Criteria for promotion to the post of Superintending Geologist was merit-cum-seniority - Respondents applying the criteria of seniority-cum-merit promoted respondent No.3 & 4 - Indore Bench in similar circumstances directed in case of petitioner therein that although the criteria is merit- cum-seniority but as criteria of seniority-cum-merit has been applied, the same benefit be extended to the petitioner therein - Held - Relying on the judgment passed by the Indore Bench respondents were directed to apply the criteria of seniority-cum-merit and extend the benefit to the petitioner for promotion and determine the inter-se seniority and all other monetary benefits - Petition allowed : R.S. Mehta (Dr.) Vs. State of M.P., I.L.R. (2008) M.P. 1912 Government of India Act, ( 1915)
- Section 106 - See - Constitution, Articles 216, 225, 226 : S.P. Anand Vs. The Registrar General, M.P. High Court, Jabalpur, I.L.R. (2008) M.P. 2172(FB) Grah Nirman Mandal Adhiniyam, M.P. 1972 (3 of 1973)
- Section 15 - See - Civil Services (Pension) Rules, M.P., 1976 : Satya Narayan Gupta Vs. M.P. Housing Board, I.L.R. (2008) M.P. 2046 Gram Panchayat (Powers and Functions of the Secretary) Rules, M.P., 1999
- Rule 4(1) - Official duties of Secretary - Petitioner appointed as Panchayat Karmi and subsequently notified as Secretary - Samajik Suraksha Pension sanctioned in favour of Parmo Bai - After her remarriage Gram Panchayat by resolution diverted Nirashrit Pension in favour of another lady namely Parmo Bai - Held - Gram Panchayat not empowered to sanction Nirashrit Pension - Petitioner being Secretary merely carried out resolution - Resolution passed in 1996 - Rules, 1999 came into force in 1999 - Nothing on record to show that Panchayat Karmi at that time had to use his own wisdom contrary to resolution - Petitioner has not misused his post : Kailash Babu Rai Vs. State of M.P., I.L.R. (2008) M.P. 2278 Guardians and Wards Act (8 of 1890) 375
Gram Tatha Raksha Samiti Niyam, M.P. 2003 - See - Service Law - State of M.P. Vs. Shyam Sunder Savita, I.L.R. (2009) M.P. 2168 (DB) Gramin Dak Sewak (Conduct and Employment) Rules, 2001
- Rule 4(3) - See - Service Law : Union of India Vs. Sidd Prakash Singh, I.L.R. (2009) M.P. 714 (DB) Gramodyog Adhiniyam, M.P. 1978
- Section 29 - See - Service Law : Ashok Noronha Vs. M.A. Khan, I.L.R. (2009) M.P. 662 Guardians and Wards Act (8 of 1890)
- Section 7 - See - Family Courts Act 1984, Section 7 : B. Raman Vs. To whom so ever, I.L.R. (2008) M.P. 1177 (DB)
- Sections 7, 8 - Custody of child - Son of applicant/respondent died in a road accident leaving behind his 12 years and 10 years old daughters and wife - Wife took the youngest daughter with her - Wife remarrying and started living separately - Youngest daughter living with her maternal grand father at a different place where there is no educational facility - Maternal grand father of the girl also convicted in a case of murder of which appeal is pending - Held - Remarriage does not disqualify mother for claiming custody of child - However mother cannot always claim superior custody rights - Mother has not claimed custody of the girl - Mother residing separately in a different village - No educational facility where girl is residing - Proper education is one of the main consideration - Grand Father residing at Sehore which is District Head Quarter having educational facilities - Elder daughter already living with her grand father and getting proper education - It is proper that they should not part with company and it is in their welfare if they live together - Court below rightly handed over the custody of girl to her grand father - Appeal dismissed : Ramdayal Vs. Harisingh, I.L.R. (2007) M.P. 961
- Sections 7, 13 & 17 - Custody of minor female child - Ordinarily, the natural guardians of the child have the right to the custody of the child, but that right is not absolute - Courts are expected to give paramount consideration to the welfare of the minor child - Held - Child has remained with the grandmother for a long time and is growing up well in an atmosphere which is condusive to her growth - Therefore, it is desirable to allow the grandmother to retain the custody of the child - Grandmother is permitted to have the custody of child till she attains the age of majority : Anjali Kapoor (Smt.) Vs. Rajiv Baijal, I.L.R. (2010) M.P. 1027 (SC) High Court Rules and Orders, M.P., 376
- Sections 7, 25, Hindu Minority and Guardianship Act, 1956, Section 6(b) - Custody of minor illegitimate child - In case of illegitimate boy or an illegitimate unmarried girl - The mother, and thereafter, the father is natural guardian - Boy living with mother and getting education - Mother willing to keep son - Son also feels comfortable with mother - Held - In case of guardianship of minor child, the paramount consideration is welfare of the child - Son will reside with mother the natural guardian - Appeal allowed : Saudarabai (Smt.) Vs. Shri Ram Ratan, I.L.R. (2008) M.P. 2617
- Section 25 and 7 - Custody of minor - Order for returning minor to guardian - Can not be passed unless it is established that he was taken away from custody of guardian - Legal right of guardian is always subordinate to question of welfare of the minor - Minor expressed desire to live with grandfather - Not willing to go with mother - Natural guardian - Grandfather entitled to custody of minor : Ram Kishore Singh Vs. Nirmala Devi Kushwaha, I.L.R. (2006) M.P. 1036 (DB) High Court of Madhya Pradesh Rules, 2008
- Rules 15 & 22 - Non-obstante clause in Rule 22 of Chapter IV of the High Court of M.P. Rules, 2008 does not overrides the guideline, as incorporated in Rule 15 of the same Chapter, for listing of a subsequent application for suspension of sentence/ grant of bail : Ram Pratap Vs. State of M.P., I.L.R. (2010) M.P. 1896 (FB)
- Chapter IV, Rules 15 & 22 - Subsequent bail applications - Rule 22 is proviso to the preceding Rules contained in Chapter IV including Rule 15 - Rule 22 contains non-obstante clause - Rule 22 will have overriding effect over the other Rules - Regular bench has jurisdiction to hear bail application in view of order passed by Hon'ble Chief Justice on administrative side - Objection to the jurisdiction of Regular Bench overruled : Jagga @ Jagat Singh Vs. State of M.P., I.L.R. (2009) M.P. 2643 (DB)
- Rules 1(11), 2(7)(d) of Chapter IV - Tribunals - Word 'tribunals' used in Rule 2(7)(d) of Rules is restricted to tribunals which have judicial members - Writ petitions against orders interlocutory or final passed by tribunals having judicial members are to be heard by Division Bench - Writ petitions against orders interlocutory or final passed by other tribunals are to be heard and disposed of by a judge sitting alone : J.S.J. Real Estate Pvt. Ltd Vs. Collector, Dewas, I.L.R. (2009) M.P. 915 (FB) High Court Rules and Orders, M.P.,
- Section 3 - See - Constitution, Articles 216, 225, 226 : S.P. Anand Vs. The Registrar General, M.P. High Court, Jabalpur, I.L.R. (2008) M.P. 2172 (FB) Hindu Law 377
Hindu Adoptions and Maintenance Act (78 of 1956)
- Section 10 - Person who may be adopted - Appellant had already crossed age of 15 years and was married at the time of adoption - No pleading to the effect that there was any custom or usage permitting adoption of married boy or a body of more than 15 years of age - Appellant failed to prove custom or usage - Necessary requirements of Section 10 for valid adoption not complied with : Madan Lal Vs. Vinod Kumar, I.L.R. (2008) M.P. 868
- Section 16 - Registration of Adoption Deed - Presumption - Presumption would arise only when general conditions as laid down in Section 10 of Act are fulfilled : Madan Lal Vs. Vinod Kumar, I.L.R. (2008) M.P. 868 Hindu Law
- Applicability of School - Sagar District previously formed part of erstwhile Central and Berar Provinces - Mitakashara Law administered by Bombay School applicable in Central Provinces : Mohammad Nisar Vs. Rajesh Kumar, I.L.R. (2007) M.P. 623
- Coparceners property - Right of coparceners - Whereas the ancestral property is inherited by the Karta or member of any branch of such family in his name even then the other male member of his branch the sons being coparcner and if they are / he is predeceased then their/his natural heirs has their vested right in such property and on arising the occasion the same be partitioned between them according to their share as coparceners of such family : Golman Vs. Muniya Bai, I.L.R. (2010) M.P. 2588
- Joint family property - Factum of proof - Determination - Plaintiff is required to establish that there was a sufficient nucleus which could have been the source of acquisition of property - Whole of the money required for the purchase of the property is not required to be proved : Shyamlal Vs. Babulal, I.L.R. (2010) M.P. 225
- Partition of ancestral property - Who is entitled to file suit for partition - Held - When under a partition by father unequal shares are given to the sons and if the partition is unequal and unfair, it is open to the sons if they are majors to repudiate the partition - Any one or several members of the joint family is entitled to require partition of joint family property and therefore it cannot be said that plaintiffs have no right to file a suit for partition : Choudhary Chhatar Singh (Dead) Vs. Smt. Harsh Kumar, I.L.R. (2009) M.P. 2623
- Self acquired property - Factum of proof - Determination - It is sufficient in law that there is proof about the nucleus which could have been the source of the Hindu Marriage Act (25 of 1955) 378 acquisition - Once the existence of such a nucleus is proved obviously it is for the person asserting his self acquired property to prove affirmatively that he acquired it from his own self acquired funds : Shyamlal Vs. Babulal, I.L.R. (2010) M.P. 225 Hindu Marriage Act (25 of 1955)
- Section 9 - See - Criminal Procedure Code, 1973, Section 125 : Rewalal Vs. Smt. Urmila, I.L.R. (2009) M.P. 2111
- Section 9 - Restitution of Conjugal Rights - Decree for restitution of conjugal rights challenged by wife - Wife did not agree to live with husband and not even agreed to live with her sons - It can be presumed that there is something panic which compelled her to live abandoned life - She cannot be compelled to live together against her wishes - A decree for restitution of conjugal rights to give a tool to husband to harass her through the process of Court - Therefore decree set aside : Milan Vs. Sunil, I.L.R. (2008) M.P. Note *36
- Section 9 - Restitution of Conjugal Rights - Respondent is legally wedded wife of appellant - However owing to differences they left the company of each other voluntarily - It could not be said that appellant is only person who left the company of respondent without any sufficient cause - No decree of restitution of conjugal rights can be granted - Appeal allowed : Virendra Vs. Rajni, I.L.R. (2008) M.P. 1191
- Section 9 - Restitution of Conjugal Rights - Plaintiff filed suit for restitution of conjugal rights on the ground of desertion - Defendant denied the factum of marriage - Plaintiff proved by oral and documentary evidence that marriage was solemnized in accordance with customary rites and usage including Saptapadi and also proved that defendant deserted the plaintiff without any sufficient cause - Defendant did not appear for cross examination after filing his examination in chief on affidavit - Defendant's evidence cannot be read in evidence - Fails to rebut evidence of plaintiff - Suit rightly decreed - Appeal dismissed : Devendra Kumar Patle Vs. Manjushri Patle, I.L.R. (2008) M.P. Note *6 (DB)
- Section 12(1)(a) - Voidable marriage - Impotency - Husband filed a petition that the marriage has not been consummated owing the impotency of the wife - Trial Court dismissed the petition as husband failed to prove his case - Held - Husband deposed that he tried to commit sexual intercourse several times with the wife but on account of excuses and refusal by the wife the marriage was not consummated - Medical evidence showing that wife's vagina was not developed and there was no uterus - Even after treatment she cannot be a fully competent woman - Oral evidence of husband finds support by the medical evidence - It is fully established that the marriage was not consummated on account of incapability and impotency of wife - Appellant entitled to Hindu Marriage Act (25 of 1955) 379 get decree u/s 12(1)(a) - Appeal allowed : Vinay Kumar Vs. Smt. Jaya, I.L.R. (2009) M.P. Note *55 (DB)
- Sections 12(1)(d) & 12(2)(b) - Voidable marriage - Application for dissolution of marriage on ground of Section 12(1)(d) has to be preferred within one year from the date of marriage and not from the date of discovery of the fact that wife was pregnant from someone else at the time of performance of marriage - Application preferred after 19 months from the date of marriage - Application rightly dismissed by trial court as barred by limitation : Vijay Jaiswal Vs. Smt. Nisha Jaiswal, I.L.R. (2009) M.P. 490 (DB)
- Sections 12(2)(b)(ii) & 12(2)(b)(iii) - Section 12(2)(b)(iii) is not independent provision and it has to coexist with the requirement of other sub-clauses of Section 12(2)(b) of the Act - The provision of Section 12(2)(b)(iii) has no effect on the question of limitation dealt with in Section 12(2)(b)(ii) : Vijay Jaiswal Vs. Smt. Nisha Jaiswal, I.L.R. (2009) M.P. 490 (DB)
- Section 13 - Desertion - Burden is always upon petitioner spouse to prove beyond any reasonable doubt that non-petitioner abandoned him without reasonable cause and there was no bona fide attempt on non-petitioner's part throughout the statutory period of two years : Manju Rajak (Smt.) Vs. Parvinder Singh, I.L.R. (2010) M.P. Note *44
- Section 13 - See - Evidence Act, 1872, Section 102 : Kunji Lal Lodhi Vs. Smt. Lata Bai Lodhi, I.L.R. (2009) M.P. 956
- Sections 13 & 13-B - Irretrievable break down of marriage - No decree for divorce can be granted on that ground by Family Court : Manju Rajak (Smt.) Vs. Parvinder Singh, I.L.R. (2010) M.P. Note *44
- Sections 13, 13-B - Conversion of petition - Divorce to divorce by mutual consent - Supreme Court can, in exercise of its extraordinary powers under Article 142 of the Constitution, convert a proceeding under S. 13 of the Act into one u/s 13-B and pass a decree for mutual divorce, without waiting for the statutory period of six months - None of the other Courts can exercise such powers : Anil Kumar Jain Vs. Maya Jain, I.L.R. (2009) M.P. 2739 (SC)
- Sections 13, 13-B - Doctrine of irretrievable break down of marriage is not available - Neither the civil courts nor even the High Courts can, therefore, pass orders before the periods prescribed under the relevant provisions of the Act or on grounds not provided for in S. 13 & 13-B of the Act : Anil Kumar Jain Vs. Maya Jain, I.L.R. (2009) M.P. 2739 (SC) Hindu Marriage Act (25 of 1955) 380
- Sections 13, 13-B - The doctrine of irretrievable break down of marriage is not one of the grounds indicated whether u/ss 13 or 13-B of the Act - Doctrine can be applied to a proceeding under either of the two provisions only where the proceedings are before Supreme Court - In exercise of its extraordinary powers under Article 142 of the Constitution, the Supreme Court can grant relief to the parties without even waiting for the statutory period of six months stipulated in S. 13-B of the Act : Anil Kumar Jain Vs. Maya Jain, I.L.R. (2009) M.P. 2739 (SC)
- Section 13-B - Divorce by mutual consent - Civil Court or High Court are not competent to pass a decree for mutual divorce, if one of the consenting parties withdraws his/her consent before the decree is passed - Only the Supreme Court, in exercise of its extraordinary powers under Article 142 of the Constitution, can pass orders to do complete justice to the parties : Anil Kumar Jain Vs. Maya Jain, I.L.R. (2009) M.P. 2739 ( SC)
- Section 13-B - Divorce by mutual consent - Joint petition u/s 13-B of Act for divorce by mutual consent - After 6 months, on the date of consideration of the petition, wife withdrew her consent - Held - Parties are living separately for more than 7 years - As part of agreement between the parties, husband had transferred valuable property rights in favour of wife and it was after registration of such transfer of property that wife withdrew her consent for divorce - Wife still continues to enjoy the property and insists on living separately from husband - Supreme Court, in special circumstances of the case, by exercising the powers under Article 142 of the Constitution allowed the petition u/s 13-B of the Act : Anil Kumar Jain Vs. Maya Jain, I.L.R. (2009) M.P. 2739 (SC)
- Section 13(i-a) - Cruelty - What amounts to - Wife levelling allegation with respect to demand of dowry, harassment, torture by husband and potency of husband - There is no evidence to draw inference about such allegation - False allegations causes grave mental agony and pain amounts to cruelty : Vandhana Gupta (Smt.) Vs. Rajesh Gupta, I.L.R. (2008) M.P. 3213 (DB)
- Section 13(1) - Divorce - Broken marriage - The Act do not provide for divorce merely on the ground of broken marriage : Vijay Prakash Chaturvedi Vs. Preeti Chaturvedi, I.L.R. (2009) M.P. 3158 (DB)
- Section 13(1)(i) - Divorce - Decree of divorce on the ground that after the solemnization of the marriage appellant had voluntary sexual intercourse with any person other than her spouse - Held - Satisfactory and convincing circumstantial evidence that appellant indulged in illicit sexual relationship with other than husband - She went to Surat along with him and they stayed there together in one room for more than one month - Decree of divorce u/s 13(1)(i) justified : Neelam Tiwari Vs. Sunil Tiwari, I.L.R. (2009) M.P. 2382 Hindu Marriage Act (25 of 1955) 381
- Section 13(1)(i) - Necessary party - Divorce - Adultery - Whether the person with whom allegation of adultery are made is a necessary party - Held - No - There is no provision in the Act or rules framed by the High Court for impleading such person as a party : Neelam Tiwari Vs. Sunil Tiwari, I.L.R. (2009) M.P. 2382
- Section 13(1)(i) - Standard of proof - Petition on ground u/s 13(1)(i) - Held - The general standard and degree of proof required in such cases need not reach certainty but it must carry a high degree of probability because of gravity of the issue : Neelam Tiwari Vs. Sunil Tiwari, I.L.R. (2009) M.P. 2382
- Section 13(1)(i) - Voluntary sexual intercourse with any person other than his or her spouse - Wife had been residing separately from her husband from last 10-12 years - She did not meet her husband or had any access to him since she became separate from him - However, she had a child aged about 8 years - It was sufficient to lead credence to the statement made by husband that wife had illicit relations with number of persons - Finding that wife had voluntarily sexual intercourse with persons other than the husband not perverse or hypothetical : Laxmi Sondhiya (Smt.) Vs. Shiv Saran Sondhiya, I.L.R. (2009) M.P. 1055 (DB)
- Section 13(1)(ia) - Cruelty - Husband was Captain in Indian Army at the time of marriage - Allegation that wife wanted the husband to leave his job and join her father engaged in the business of contractor - Held - Husband did not produce & prove his father-in-law's registration as contractor - Husband also not furnished details of sites and copies of work orders - No iota of evidence to establish that his father-in-law was engaged in business of contractor - Trial Court rightly concluded that it was not probable that wife would insist the husband to leave a well salaried and well reputed permanent job of Indian Army - Curelty not proved : Vijay Prakash Chaturvedi Vs. Preeti Chaturvedi, I.L.R. (2009) M.P. 3158 (DB)
- Section 13(1)(ia) - Cruelty - Threat of implicating husband and his family members in criminal case - No witness examined for corroboration of such bald allegations - Allegation not found proved : Vijay Prakash Chaturvedi Vs. Preeti Chaturvedi, I.L.R. (2009) M.P. 3158 (DB)
- Section 13(1)(ia) - Cruelty - What amounts to - Held - Wife refused from the very beginning to have sexual intercourse by the husband with her - This amounts to mental cruelty - Ground of cruelty proved - Entitled for decree of divorce : Raman Kumar Vs. Smt. Bhawna, I.L.R. (2009) M.P. Note *44
- Sections (13)(1)(i-a) & (i-b) - Cruelty - Desertion - Pleadings - Evidence - Trial court dismissed the suit of divorce for lack of proper evidence - Held - The grounds of cruelty and desertion are specifically pleaded and in support of the same the elaborate Hindu Marriage Act (25 of 1955) 382 evidence has been adduced at trial by the wife - As per settled proposition, the material facts are required to be pleaded and not the evidence - Appeal allowed : Kanta Raikwar (Smt.) Vs. Kailash Chandra Verma, I.L.R. (2009) M.P. 197
- Sections (13)(1)(i-a) & (i-b) - Pleadings & Proof - Facts pleaded by the wife are denied by the husband in his WS - On recording the deposition of wife, wife and her witnesses have neither been cross-examined by the husband nor any evidence in support of the objection taken in the WS was adduced by the husband - Mere pleadings of the parties are not sufficient to draw any inference unless the same is supported by adducing the evidence - In the lack of ocular evidence, the husband was not entitled to get any relief merely on the basis of pleadings - Appeal allowed : Kanta Raikwar (Smt.) Vs. Kailash Chandra Verma, I.L.R. (2009) M.P. 197
- Sections 13(1)(ia) & 13(1-A)(ii) - Husband filed application for decree of divorce on the grounds of cruelty and of non-compliance of the decree for restitution of conjugal rights - Court awarded decree for judicial separation u/s 10 of the Act - Decree challenged by the husband before High Court - Held - When it was not a case of either of the parties before the trial court then in the absence of any positive prayer and pleadings in that regard the trial court did not have any occasion to deviate from the pleadings and the available evidence for passing the decree of judicial separation instead to pass the decree of divorce - Decree passed by the trial court is not sustainable and deserves to be set-aside: Rakesh Dharamdas Rai Vs. Smt. Lata @ Shakuntala Rai, I.L.R. (2009) M.P. 466
- Sections 13(1) (i-a) (i-b), 28 - Divorce - Cruelty and desertion - Wild, unsubstantiated allegation made by wife - Wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party : Smt. Kavita W/o Harish Raisen Vs. Harish Raisen S/o Munnalaji Raisen, I.L.R. (2006) M.P. 837
- Section 13(1)(ib) - Desertion - Desertion has not been defined in any statute - However, the essential ingredients of desertion are (i) the factum of separation, and (ii) the intention to bring cohabitation permanently to an end (animus deserendi) : Raman Kumar Vs. Smt. Bhawna, I.L.R. (2009) M.P. Note *44
- Section 13(1)(ib) - Desertion - Essential Conditions - (i) factum of separation (ii) intention to bring cohabitation permanently to an end (animus deserendi) - Essential conditions for deserted spouse - (i) absence of consent (ii) absence of conduct giving reasonable cause to the spouse leaving matrimonial home to form necessary intention : Vijay Prakash Chaturvedi Vs. Preeti Chaturvedi, I.L.R. (2009) M.P. 3158 (DB)
- Section 13(1)(ib) - Desertion - What amounts to - After marriage wife remained with husband only for 23 days - Then she went to her parental house and never returned Hindu Marriage Act (25 of 1955) 383
- She lodged the report u/s 498-A IPC and also filed an application u/s 125 Cr.P.C - Held - Wife deserted husband without any cause for a continuous period of more than 2 years - Circumstances indicate that marriage between the parties has been irretrievably broken down completely and practically there is no chance of revival, making them possible to live together in future - Ground of desertion proved - Entitled for decree of divorce : Raman Kumar Vs. Smt. Bhawna, I.L.R. (2009) M.P. Note *44
- Section 13(1)(ib) - Desertion - Wife had been living separately from her husband for last 10-12 years - Admittedly, she never made any efforts to go back to her husband and did not take any recourse to legal action against husband for restitution of conjugal rights - Wife had been living separately from her husband without any reasonable cause for a long span of time i.e. more than 2 years preceding the presentation of the petition for divorce - A ground u/s 13(1)(ib) of the Act was proved - Trial Court's decree does not call for any interference : Laxmi Sondhiya (Smt.) Vs. Shiv Saran Sondhiya, I.L.R. (2009) M.P. 1055 (DB)
- Section 19 - Court to which petition shall be presented - Territorial jurisdiction - Maintainability - Issue relating to maintainability of proceedings on the ground of lack of territorial jurisdiction is a mixed question of law & facts and can only be decided after recording of evidence : Anjali Shukla (Smt.) Vs. Sunil Kumar Shukla, I.L.R. (2010) M.P. 515
- Section 19 - Court to which petition shall be presented - Territorial jurisdiction - Prayer of rejection of the plaint at the threshold - Scope of the scrutiny is extremely limited and only averments made in the plaint have to be seen : Anjali Shukla (Smt.) Vs. Sunil Kumar Shukla, I.L.R. (2010) M.P. 515
- Section 19 - Court to which petition shall be presented - Territorial jurisdiction - Preliminary issue - Issue relating to maintainability of proceedings on the ground of lack of territorial jurisdiction cannot be dealt with as preliminary issue : Anjali Shukla (Smt.) Vs. Sunil Kumar Shukla, I.L.R. (2010) M.P. 515
- Section 19 - Residence - Meaning - The expression 'residence' does not mean temporary residence but the habitual residence or a residence which is intended to be permanent for future as well and apart from the actual period of stay, the intention of the parties is also required to be seen : Anjali Shukla (Smt.) Vs. Sunil Kumar Shukla, I.L.R. (2010) M.P. 515
- Section 21-A - Matrimonial suit - Inter state transfer - High Court can transfer suit pending in subordinate court to a court subordinate to another High Court : Smt. Lakshmi Nagdev Vs. Jitendra Kumar Nagdev, I.L.R. (2006) M.P. 1230 Hindu Marriage Act (25 of 1955) 384
- Section 21-A - Wife's convenience has to be looked at - Wife having small child - Parents are old and infirm - Prayer to transfer cannot be rejected merely because husband deposited traveling expenses : Smt. Lakshmi Nagdev Vs. Jitendra Kumar Nagdev, I.L.R. (2006) M.P. 1230
- Section 23(2) - Any relief - Would only mean substantial relief and does not include an incidental and ancillary relief : Sidharth Vs. Smt. Kanta Bai, I.L.R. (2007) M.P. 41 (DB)
- Sections 23(2), 24 - Maintenance Pendente Lite - Grant of maintenance pendente Lite is an incidental and ancillary relief - Can be granted without taking up the proceedings for reconciliation as contemplated under Section 23(2) : Sidharth Vs. Smt. Kanta Bai, I.L.R. (2007) M.P. 41 (DB)
- Section 24, Criminal Procedure Code, 1974 - Section 125 - Maintenance U/s 125 of Code and alimony pendente lite U/s 24 of Act can be claimed by resorting to both these provisions - The Court is competent under these provisions to grant relief to person concerned : Ashok Singh Pal Vs. Manjulata, I.L.R. (2008) M.P. 749
- Section 24, Criminal Procedure Code, 1974 - Section 125 - Question of adjustment - When competent Court granted relief in both the provisions i.e. maintenance U/s 125 of Code and alimony U/s 24 of Act - There is no thumb-rule that adjustment to amount is to be granted in each & every case - Question of adjustment to be decided after taking into consideration totality of circumstances, amount granted and capacity of person directed for making payment - Family Court rejected application after evaluating totality of circumstances - Held - High Court not found any error of law or jurisdiction - Petition dismissed : Ashok Singh Pal Vs. Manjulata, I.L.R. (2008) M.P. 749
- Section 24 - Maintenance Pendente Lite can be granted even in a proceeding for setting aside ex parte decree and restoration of original suit : Sidharth Vs. Smt. Kanta Bai, I.L.R. (2007) M.P. 41 (DB)
- Section 25 - Permanent Alimony - 'At the time of passing of any decree' - Suit for grant of divorce dismissed by Trial Court - Permanent alimony to wife U/s 25 cannot be granted - Though her claim to maintenance stands preserved U/s 18(1) of the Hindu Adoptions and Maintenance Act and Section 125 Cr.P.C : Shyamlal Vs. Durgabai, I.L.R. (2008) M.P. 1472
- Section 27, Civil Procedure Code, 1908, Section 151, Order 7 Rule 7 - Suit for return of Stridhan - Decree of divorce granted - Thereafter, respondent instituted suit for return of Stridhan u/s 27 of the Act & O. 7 R. 7 r/w S. 151 CPC - Submissions put forth that such powers can be exercised by the matrimonial Court and not in a proceeding Hindu Marriage Act (25 of 1955) 385 subsequently initiated - Held - O.7 R. 7 r/w S. 151 CPC permits a Court in passing a decree in favour of wife or husband as the case may be for return of the property, which may exclusively belong to either of them - There is no provision under the Act which bars the application of O.7 R. 7 CPC - Suit maintainable - Appeal dismissed : Manish Nema Vs. Sandhya Nema, I.L.R. (2009) M.P. 2057 (DB) Hindu Minority and Guardianship Act, (36 of 1956)
- Section 6(b) - See - Guardians and Wards Act, 1890, Sections 7, 25 : Saudarabai (Smt.) Vs. Shri Ram Ratan, I.L.R. (2008) M.P. 2617 Hindu Succession Act (30 of 1956)
- Section 6(1) proviso [As amended by Hindu Succession (Amendment) Act, 2005 w.e.f. 09.09.2005] - Effect - Held - A daughter in joint Hindu family governed by Mitakshara Law now becomes a coparcener and thus enjoys right as hitherto enjoyed by a son as coparcener - The legislature has added a proviso to sub-section (1) providing that any disposition or alienation, including a partition or testamentary disposition entered into before 20.12.2004 are not effected : Choudhary Chhatar Singh (Dead) Vs. Smt. Harsh Kumar, I.L.R. (2009) M.P. 2623
- [As amended by Hindu Succession (Amendment) Act, 2005 w.e.f. 09.09.2005], Sections 6 & 23, General Clauses Act, 1897, Section 6 - Amendment Act 2005 does not contain the saving clause which would mean that omitted Section 23 of the Act of 1956 is not saved for pending cases - In view of the decision of S.C. in Kolhapur Canesugar Works Ltd [AIR 2000 SC 811], Section 6 of the General Clauses Act has no application - Appeal is a continuance of the suit, therefore, amended Section 6 would be applicable - Plaintiff is also entitled to sue for partition in respect of a dwelling house of a Joint Hindu Family being a coparcener : Prabhudayal (Dead) through LRs. Vs. Smt. Ramsiya, I.L.R. (2009) M.P. 1351
- [As amended by Hindu Succession (Amendment) Act, 2005 w.e.f. 09.09.2005], Sections 6 & 23 - Section 23 of the Act has been omitted by Section 4 of the Amendment Act of 2005 - From the date of enforcement of amended provision to the Act the female heir of a coparcener can ask for partition of the dwelling house because according to Section 6 of the Act her status is also that of a coparcener : Prabhudayal (Dead) through LRs. Vs. Smt. Ramsiya, I.L.R. (2009) M.P. 1351
- Section 23, Hindu Succession (Amendment) Act, 2005 - Right of female in succession - Bar to file a partition suit - Held - A perusal of the Amendment Act, 2005, it is clear that intention of the legislature is to bring female and male heirs on equal footing - By omitting Section 23 of the Act, 1956 no new right is created in favour of Housing Board Regulations, M.P., 1977 386 female, but only a bar of filing a suit is lifted - The female had a share in the property even before coming into force of Hindu Succession (Amendment) Act, 2005, but only restriction of their right shall bar for filing a suit for partition in the property which is kept by the family members, and the said bar is lifted - In view of this fact the said bar will operate retrospective and benefit of the said omission can be extended to the present appellant - Appeal allowed : Shakuntala Devi Singhal Vs. Goverdhan Das, I.L.R. (2008) M.P. 2641 (DB) Hindu Succession (Amendment) Act, 2005
Hindu Succession (Amendment) Act, 2005 - See - Hindu Succession Act, 1956, Section 23 : Shakuntala Devi Singhal Vs. Goverdhan Das, I.L.R. (2008) M.P. 2641 (DB) Homicidal death
- Proof - Can be proved by examining the autopsy surgeon : Dashrath Vs. State of M.P., I.L.R. (2008) M.P. 360 (DB) Hostel Rules, 1966-67
- Rule 17 - Expulsion from Hostel - Natural Justice - Appellants were expelled from hostel - Collector was directed to pass fresh order - Collector after hearing appellants passed fresh orders of expulsion - Held - Elaborate enquiry is not necessitous - Mere non-recording of independent opinion that if appellants stay in hostel, it will be objectionable from the point of discipline or harmful effect to other students of hostel will not vitiate order - Appeal dismissed : Lalita Jharia (Ku.) Vs. State of M.P., I.L.R. (2009) M.P. 1913 (DB) Housing Board Regulations, M.P., 1977
- Regulation 3 - See - Civil Services (Pension) Rules, M.P., 1976 : Satya Narayan Gupta Vs. M.P. Housing Board, I.L.R. (2008) M.P. 2046 Importance of prompt execution of sentence
- It is seen that accused continue to enjoy liberty even after dismissal of appeal against conviction or after State appeal against acquittal is allowed - District Judges and CJMs directed to pay attention - Judgment to be circulated throughout the state : State of M.P. Vs. Ratiram, I.L.R. (2006) M.P. 1564 (DB) Income Tax Act (43 of 1961) 387
Imposing costs
- Personal anxiety should not be permitted to create a concavity in the justice dispensing system, for such litigants irrefragably waste the time of Court and also pave the path of abuse of the process of law - Compelled to impose costs of Rs 5000/- : Suman Vs. State of M.P., I.L.R. (2008) M.P. 499 (DB) Income Tax Act (43 of 1961)
- Section 4 - Charge of Income Tax - Whether TDS is attracted on stipend paid to PG students - Held - Stipend is not being paid for any kind of service rendered by a PG student - Stipend paid is to meet the cost of education and would be in nature of scholarship - TDS not attracted in respect of stipend paid to PG students - Petition allowed : Junior Doctors Association Vs. The Chief Commissioner of Income Tax, I.L.R. (2008) M.P. 1992
- Sections 10 (4) (ii), 132, 260-A-158BB and Foreign Exchange Regulation Act, 1973 - Search & seizure - Undisclosed income - Income below taxable limits after deduction under Section 80-L - Shall not be included in undisclosed income in assessment years in which return was not filed before search - NRE Account - Original deposit made in accordance with FERA Act & Rules - Interest on NRE FDR exempted under Section 10 (4) (ii) of the Act : Commissioner of Income Tax Vs. Asandas Khatri, I.L.R. (2006) M.P. 264(DB)
- Sections 10(20)(Explanation), 10(29) [As amended w.e.f. 01.04.2003], Sections 11, 11A - Intention behind the amendment - Before amendment, Sections 10(2) & 10(29) of the I.T. Act provide for blanket exemption to all local authorities without fulfilling any condition - Section 11 provides for exemption on fulfillment of certain conditions - Thus, the intention behind the amendment was to remove blanket exemption to local authorities and provide exemption, only if they fulfill the conditions u/s 11A : Commissioner of Income Tax Vs. Krishi Upaj Mandi Samiti, Morena, I.L.R. (2008) M.P. 1735 (DB)
- Sections 10(20) (Explanation), 10(29) [As amended w.e.f. 01.04.2003], 11, 12, 12A, 12AA(1)(b)(ii), Krishi Upaj Mandi Adhiniyam, M.P. 1972 (24 of 1973), Sections 7, 19, 38, 39 - Exemption from payment of Income Tax to Market Committee - Only those assessee are entitled to registration u/s 12A & 12AA of I.T. Act who are entitled to exemption u/s 11 & 12 of the I.T. Act - Marketing committees are not entitled for exemption u/s 12 after the amendment w.e.f. 01.04.2003 - However, marketing committees fulfill all the requirements of Section 11 to get exemption, therefore, are entitled to registration u/s 12A & 12AA of the I.T. Act : Commissioner of Income Tax Vs. Krishi Upaj Mandi Samiti, Morena, I.L.R. (2008) M.P. 1735 (DB) Income Tax Act (43 of 1961) 388
- Sections 11, 12A, 12AA, 260A - Whether a Krishi Upaj Mandi is entitled for registration u/s 12A & 12AA and exemption u/s 11 - The object of establishment of Krishi Upaj Mandi is to protect the interest of farmers and ensure that they are not exploited - Fees charged has nexus with service rendered - Mandi does not have any commercial activity - Mandi charges 2% from farmers and out of that 1.2% is directly transferred to State - Held - Mandies entitled for registration and exemption - Order of Income Tax Appellate Tribunal upheld - Appeal dismissed : Commissioner of Income Tax Vs. Krishi Upaj Mandi Samiti, I.L.R. (2008) M.P. 3045 (DB)
- Section 48 - Assessee who is running a dairy and sells cow milk - Income from the sale of calves - Can not be regarded as capital gain since the cost of acquisition is not a ascertainable : Deputy Commissioner of Income Tax Vs. Suniti Singh, Bhopal, I.L.R. (2008) M.P. 594 (DB)
- Section 80G(5)(vi) - Exemption from income tax - Denied by the Commissioner - Object of the trust to promote and improve social or moral or material condition of a community - Held - Object can not be considered as charitable in nature - Petition dismissed : Gujrati Samaj, Ujjain Vs. Commissioner of Income Tax, Ujjain, I.L.R. (2008) M.P. 1690
- Sections 80-HHA, 80-I - Income of Industry - Petitioner company engaged in manufacture and supply of prestressed concrete sleepers to Railways - Petitioner deposited sales tax on the raw material purchased by it - Sales Tax Deptt giving incentive/ refund of amount, to the petitioner due to purchase of raw material from within the State - Income Tax Appellate Tribunal holding that such incentive cannot be treated as income of Industry as the amount by way of refund is not derived from manufacturing activity and, therefore deductions under Section 80-HHA and 80-I not available to petitioner - Petition before High Court - Sales Tax was paid by Petitioner on raw material - Any incentive or refund would go in the accounts of industry towards manufacturing activities - Such incentive will be income of industry - Petitioner entitled for deduction of such amount under Section 80-HHA and 80-I of the Act - Appeal allowed : Econ Antri Limited Vs. Dy. Commissioner of Income Tax, I.L.R. (2007) M.P. 232 (DB)
- Section 127 (2) - Power to transfer cases - Petitioner's cases transferred from Indore to Bhopal circle of Income Tax Department without giving opportunity of hearing and assigning any reason - Held - Concerned authority has not complied the provisions of Section 127(2) - Order transferring cases quashed - However, concerned authority may take necessary steps as per provision of Section 127(2) : Manohar Sweets Vs. Commissioner of Income Tax, I.L.R. (2008) M.P. 1465
- Section 131 - Power regarding discovery, production of evidence etc. - Witness summoned and examined by Assessing Officer - Prayer to cross examine him rejected Income Tax Act (43 of 1961) 389
- Witness later on filing affidavit in variance of original statement - Held - Assessing Officer relied heavily on the statement of witness - It was obligatory on the part of assessing officer to allow the prayer for cross examination - Reference answered accordingly : Prakash Chand Nahta Vs. Commissioner of Income Tax, Jabalpur, I.L.R. (2008) M.P. 967 (DB)
- Section 131 (1)(d) - Issuance of Commission - Petitioner Company is a builder and developer - Constructed a multi-storeyed building in the year 1994 - Value of the building was assessed - Assessment was made upto accounting year 1997-98 - No proceeding was pending thereafter - Deputy Commissioner of Income Tax issued commission on 22.5.2001 to value the cost of building constructed by the Petitioner - Held - No proceedings pending at the time of issuance of commission - Order of Deputy Commissioner issuing commission bad hence quashed - Petition allowed : M/s. Choudhary Builders Pvt. Ltd. Vs. The Principal Secretary, Union of India, I.L.R. (2007) M.P. 738
- Sections 132, 131, 142(1) - Search and Seizure - Petitioner/Assessee Cooperative Society engaged in banking transactions - A search held by Income Tax Department at its business premises - Action challenged on the ground that search and seizure was not in consonance with provisions of Section 132 - Held - Large amount of income of Society remained unaccounted and escaped from assessment/taxation - Investment and valuable will never be revealed if notice u/s 142(1) or 131 are issued - Sufficient material available and the action is with due application of mind - Information not taken from third source thus action cannot be said to be malafide or having no rational nexus - Petition dismissed: Gwalior Citizen Sakh Sahakarita Maryadit Vs. Union of India, I.L.R. (2008) M.P. 2022
- Sections 132, 245, 245(1), 245-C(1), 245-D(3), 245-D(4) - Power of Income Tax Settlement Commission u/s 245 of the Act - I.T. Department carried out a search operation and seized some documents and assets - Petitioner filed application for settlement u/s 245-C(1) of the Act before Settlement Commission and admitted fact of undisclosed income - Department issued number of letters for submission of detailed information - Petitioner did not submit any reply - The Commission directed that an enquiry be conducted by the Department - Order challenged on the ground that direction for an enquiry is against the provisions of Section 245 - It is obligatory on the part of Commission to accept the income disclosed by the petitioner and there is no provision under the Act to direct the department for enquiry or verification - Held - The petitioner did not submit any reply to the Department - In such circumstances it would not be possible for the Commission to determine that whether the petitioner has made full & true disclosure of his income - It is the important point which has to be decided by the Commission because the benefit of section can only be given by the Commission after Income Tax Act (43 of 1961) 390 recording a finding that the assessee has made full and true disclosure of his income - Petition dismissed : Ashok Kumar Goyal Vs. Income Tax Settlement Commission, I.L.R. (2008) M.P. 3161
- Sections 132(A), 293 - See - Criminal Procedure Code, 1973, Sections 41(2), 102, 451, 457 : Director of Income Tax (Investigation) Vs. State of M.P., I.L.R. (2008) M.P. 2483
- Section 142(2-A) - Order of assessment and bill of special auditor challenged - The wrong and improper posting made the account complex, thus, it was considered necessary to resort to special audit - It can not be said that provision has been violated in any manner - Petition dismissed : Jabalpur Co-operative Milk Producers Union Ltd. Vs. Union of India, I.L.R. (2010) M.P. Note *60 (DB)
- Section 147 - Income escaping assessment - Resp. No.2 holding Public post - Resp. No.2 claims himself to be a part of HUF - Not filing return on the ground that he was not under obligation to file return as entire income is agricultural income - Resp. No.2 purchasing property in the names of his family members - Held - Resp. No.2 has public accountability - Basic characteristics of Rule of Law do not make distinction between weakest and mightiest - Income Tax Commissioner to initiate proceeding against resp. No.2 and facts mentioned in petition should be treated as reasons to believe as required u/s 147 of Act - Petition disposed off : Anil Bansal Vs. Central Bureau of Investigation, I.L.R. (2008) M.P. 1952 (DB)
- Section 148 - Reopening of assessment - Condition precedent - Held - Two conditions must exist; (1) the Income Tax Officer has reason to believe that income, chargeable to Income Tax had been under-assessed; and (2) that he has also reason to believe that such "under assessment" had occurred by reason of either (i) omission or failure on the part of an assessee to make a return of his income (ii) omission or failure on the part of an assessee to disclose fully and truly all material facts necessary for his assessment for that year : Satish Vishwakarma Vs. Asstt. Commissioner of Income Tax Circle 1(1), Bhopal, I.L.R. (2010) M.P. Note *51 (DB)
- Section 148 - Reopening of assessment - Power of Assessing Officer - The Assessing Officer has power to reopen, provided there is "tangilb1e material" to come to the conclusion that there is escapement of income from assessment : Satish Vishwakarma Vs. Asstt. Commissioner of Income Tax Circle 1(1), Bhopal, I.L.R. (2010) M.P. Note *51 (DB)
- Section 148 - Reopening of assessment - When not permissible - lf an Income Tax Officer draws an inference which appears subsequently to be erroneous, mere change of opinion with regard to that inference would not justify initiation of action for Income Tax Act (43 of 1961) 391 reopening assessment : Satish Vishwakarma Vs. Asstt. Commissioner of Income Tax Circle 1(1), Bhopal, I.L.R. (2010) M.P. Note *51 (DB)
- Section 158 BC - Section 254(2) - Kar Vivad Samadhan Scheme, 1998 and Finance Act, 1998 - Section 90 - Impact of settlement under K.V.S.S. on the appeal pending before Income Tax Appellate Tribunal - Tribunal holding that the appeal be treated as dismissed since assessee had paid the taxes under K.V.S.S., 1998 - Department contending that the appeal was void ab-initio and may not be treated as withdrawn - Held - When the order under Section 90(1) of Finance Act was passed by the designated authority, appeal of the assessee was pending before Tribunal and as per the provision of Section 90(4) of the Act, the said appeal is deemed to have been withdrawn : M/s Malwa Texturising Private Limited, Indore Vs. The Commisioner of Income Tax, Indore, I.L.R. (2007) M.P. 32 (DB)
- Section 256(1) - Reference on the question of nature of receipt - Whether Revenue receipt or Capital receipt - Assessee Company having agreement with Union Carbide India Ltd. for supply of industrial gases - UCIL agreed to purchase gases worth Rs. 20 lacs per year - In case of failure UCIL agreed to pay the difference between the sum of Rs. 20 lacs and value of goods purchased - UCIL making payment of Rs. 6,69,619 by way of differential amount to assessee - Assessee claimed that such amount should be treated as capital receipt and not revenue receipt - Held - No clause in agreement providing for compensation in case of repudiation of contract or foreclosure due to any other event - Differential amount cannot be said to be compensation for destruction of capital assets - Assessee had claimed such amount as differential sum from UCIL - Amount so received was a revenue receipt and not capital receipt - Reference answered in affirmative in favor of revenue and against assessee : Eastern Air Products Pvt. Ltd., Bhopal Vs. Commissioner of Income Tax, Bhopal, I.L.R. (2007) M.P. 681 (DB)
- Section 260A, Limitation Act, 1963, Sections 4 to 24 - Applicability of provisions of Limitation Act - Whether High Court can condone the delay in filing appeal u/s 260A of Act, 1961 - Held - Act, 1961 is a self contained Code - There need not be mandatory exclusion of applicability of provisions of Limitation Act - There can be necessary exclusion by language in which provision is couched and intention of legislature - Section 260A does not allow High Court to condone delay - High Court has no power to condone the delay - Appeal dismissed as barred by time : Assistant Commissioner of Income Tax Vs. M/s. Shubhash Traders, I.L.R. (2009) M.P. 2395 (DB)
- Sections 271(1)(c), 246(1)(L) & 273A - Penalty - Alternative remedy of appeal - Against the order of penalty, petitioner has alternative remedy of filing appeal but has also remedy of filing application u/s 273A : Shrinath Caramics (M/s.) Vs. Commissioner Income Tax-II, Indore, I.L.R. (2009) M.P. 1984 (DB) Income Tax Act, 1981 392
- Sections 271(1)(c) & 273A - Waiver of penalty - Survey of business premises of petitioner was carried out on 06.10.1995 - Petitioner filed revised returns of income for assessment years 1992-93, 1993-94 and 1994-95 - Penalty was imposed as revised returns were filed after survey and they were not voluntary - Held - Revision of return was for the assessment years 1992-93, 1993-94 and 1994-95 and not for the assessment year 1995-96 - Order passed by Commissioner suffers from non-application of mind - Matter remanded back to reconsider application u/s 273A and pass fresh orders : Shrinath Caramics (M/s.) Vs. Commissioner Income Tax-II, Indore, I.L.R. (2009) M.P. 1984 (DB)
- Section 271 (1)(c) (iii) and explanation 4 - Reference - Whether tribunal justified is not levying penalty when no positive income could be assessed - Held, evasion of tax is sine qua non for imposition of penalty - Concealment of income not found - Losses found to be justified and cannot be reduced - Hence, positive income cannot be assessed - Tribunal justified in not levying penalty - Reference answered accordingly : Commissioner of Income Tax, Bhopal Vs. M/s Morena Re-Rolling Industries Dev. Co. (P) Ltd. Morena, I.L.R. (2007) M.P. 700 (DB)
- Sections 276C, 278B - See - Criminal Procedure Code, 1973, Section 482 : Harkawat & Company (M/s.) Vs. Union of India, I.L.R. (2008) M.P. Note *77
- Sections 276-C, 277, 278-B - Concealment of Income - Complaint lodged by respondent against applicants for prosecution U/s 276-C, 277 and 278 B - Order of assessing officer set aside by ITAT - Held - Finding of Tribunal is conclusive and prosecution cannot be sustained - It will be an idle and empty formality to require applicants to have order of Tribunal exhibited as defence document and thereafter to wait for the judgment of acquittal - Prosecution quashed : Ssr Pirodia (M/s) Vs. Union of India, I.L.R. (2008) M.P. 408 Income Tax Act, 1981
- Section 32 (1)(ii) - Depreciation - Question whether Tribunal was justified in holding 100% depreciation is allowable on the gas cylinder as cost of each cylinder is below Rs. 5000 even though the cylinders were used for less than 180 days - Held - Section 31 (1)(ii) provides that where actual cost of any plant does not exceed Rs. 5000/-, actual cost thereof shall be allowed as deduction in respect of previous year in which such machinery or plant is first put to use by assessee for the purposes of his business or profession - Gas cylinders treated as plants under table of rates on which depreciation is admissible - Assets did not form part of block assets therefore, Section 32 (1)(ii) would be applicable - Tribunal was justified in holding 100% depreciation - Reference answered accordingly : Commissioner, Income-Tax, Jabalpur Vs. M/s Central India Gases (P) Ltd., Jabalpur, I.L.R. (2007) M.P. 1830 (DB) Industrial Disputes Act (14 of 1947) 393
Indian Administrative Service (Cadre) Rules, 1954
- Rule 5, M.P. Reorganization Act, 2000, Section 67(4) - Inter Cadre Transfer - Inter Cadre Transfer can be made on grounds of extreme Hardship - Case of Petitioner not covered under any of the categories mentioned in the instructions issued under the rules - Court can interfere only if the order is made in violation of any mandatory statutory rule or on the ground of Malafides - Petition dismissed : Smt. M. Geetha Vs. Union of India, I.L.R. (2007) M.P. 511 (DB) Industrial Disputes Act (14 of 1947)
- Sections 2-A, 25-F - Retrenchment - Petitioner working continuously for period of 18 years with notional breaks - The appointment not extended - Labour Court rejecting the claim that as the contract has not been extended, the provision of Section 25-F of Act shall not apply - Held - Workman was not appointed for a fixed term and the project is not over - The services would not be brought to an end without following the due process of law particularly when the appointment was not a contract or a fixed term appointment : Pritam Singh Vs. Cancer Hospital and Research Institute, I.L.R. (2008) M.P. 3106
- Sections 2(oo) & 25-F -Retrenchment - Employees worked for more than 240 days continuously and that too continuously for more than nine years - Services terminated without complying with the provisions of the Act - Employer alleged that it was a contractual appointment and contract was extended from time to time and on the conclusion of the project, it cannot be said to be a case of retrenchment - Held - For a long period of ten years the services were taken which goes to show that need was continuous - Work was not of temporary duration - It has not been established that project has come to an end - Thus, it amounted to unfair labour practice, to retrench the services of employees - Employees were entitled for protection of Sec. 25-F of Act : M.P. Urja Vikas Nigam Ltd. Vs. Satosh Kumar Dubey, I.L.R. (2009) M.P. 1928 (DB)
- Sections 2 (oo), 25-O, 25-F - 'Retrenchment' - Interpretation - Workman's application for classification under the provisions of M.P. Industrial Relations Act, pending before Labour Court, who has been in continuous service as daily wager clerk w.e.f. 6- 8-1992 to 1999 - Employer terminated his services on the ground that the center was closed - Labour Court held that since the center was closed the workman will be entitled for retrenchment compensation in accordance with Section 25-FFF of Act - Held that employer has not taken permission for closure as per provisions of Section 25-O of Act and not lead cogent evidence to prove this fact - Therefore instead of retrenchment compensation High Court ordered for reinstatement of workman : M.P. Rajya Beej Evam Farm Vikas Nigam Vs. Ashok Kumar, I.L.R. (2008) M.P. 474 Industrial Disputes Act (14 of 1947) 394
- Section 10 - See - Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, M.P., 2005, Section 2(1) : General Manager, Bank Note Press, Dewas Vs. Bank Note Press Office Staff Association, Dewas, I.L.R. (2008) M.P. 2218 (DB)
- Section 10(1) - Reference of Dispute - Whether stale claims can be rejected by Central Government on the ground that Industrial Dispute doesnot exist - 152 Contract Workers removed in the year 1984 - Dispute raised before Conciliation Officer in the year 1995 - Conciliation proceedings failed - Central Government referred the dispute that whether action of management in not regularizing services of 152 contract workers is legal and justified to Central Industrial Tribunal - Order of reference Challenged on the ground that dispute is a stale one - Held - If appropriate Government finds that Industrial dispute exists at the time of making reference notwithstanding that claim is belated such order cannot be interfered on the ground of incompetence or without jurisdiction - Appropriate Government may also refuse to refer Industrial Dispute which exits but has become stale if it is no expedient to refer the same - Reference answer accordingly : Dy. C.M.E./Sub Area Manager,Ramnagar R.O., SECL Shahdol Vs. Union of India, I.L.R. (2007) M.P. 1187 (FB)
- Section 11(1), (3), Industrial Disputes (Central) Rules, 1957, Rule 10B(6) - Examination of witnesses on affidavit - Application filed for oral examination of witnesses as they are illiterate - Application rejected by Tribunal - Held - Whoever swears affidavit must swear that contents of affidavit are true to his knowledge - Deponent must understand the facts stated in affidavit - Finding of tribunal that witnesses although illiterate, but they can understand the facts sworn by them in affidavits is fallacious - Tribunal directed to record oral evidence - Appeal allowed : Ispat Khadan Janta Mazdoor Union Vs. Steel Authority of India Ltd., I.L.R. (2008) M.P. 2508 (DB)
- Sections 14 & 15, Industrial Disputes (Central) Rules, 1957, Rule 10B(9) - Reference of dispute by appropriate Government to Labour Court - Dismissal on the ground of non-appearance passing "no dispute award" - Application for setting aside also dismissed - Held - Labour Court has no power to dismiss the reference in defaults - Petition allowed : Satendra Singh Gujar Vs. Bank of India, I.L.R. (2010) M.P. 2321 (DB)
- Section 24-F - See - Labour Law : Commissioner, Municipal Corporation, Katni Vs. Laxmi Narayan Jaiswal, I.L.R. (2009) M.P. 994 (DB)
- [As amended by Industrial Disputes (Amendment) Act, 1964 w.e.f. 19.12.1964], Sections 25-B, 25-A - Oral termination of workman - Petitioner worked for more than 240 days in 12 months from date of termination - Held - It is not necessary that an employee must have in employment during the preceding 12 calendar months in order to qualify within terms of S. 25-B - It is sufficient, if the workman has actually Industrial Disputes Act (14 of 1947) 395 worked for not less than 240 days in a period of 12 months - Petitioner has established that she has worked for more than 240 days in 12 months from date of termination - Termination without following S. 25-F void - Petitioner entitled for reinstatement - Petition allowed : Sunita Gupta (Smt.) Vs. Nagar Palika Parisad, Sabalgarh, I.L.R. (2010) M.P. 1600 (DB)
- Section 25-F - Termination of petitioner quashed being without following S. 25- F - Petitioner worked only for 300 days on daily wages basis - It would not be just and proper to grant back wages : Sunita Gupta (Smt.) Vs. Nagar Palika Parisad, Sabalgarh, I.L.R. (2010) M.P. 1600 (DB)
- Section 25-F - Once it is found that the termination order is violative of S. 25-F of Act then the said order is ab initio void and the employee is entitled to reinstatement with full back wages - However, the Court can refuse to grant relief of reinstatement for a particular reason which will depend on the facts & circumstances of each case - There is no hard and fast rule that the Court should grant the relief of reinstatement with full back wages in each and every case - Reference answered accordingly : Munshi Singh Vs. Nagar Panchayat Joura, I.L.R. (2009) M.P. 2748 (FB)
- Section 25-F - Badlidar daily wager employee worked for more than one year continuously i.e. for more than 240 days in one year - Termination without enquiry or one month prior notice or wages in lieu of such notice - Held - Badli employee is entitled for protection u/s 25-F of Act - Order of Labour Court and Tribunal, finding termination illegal and directing reinstatement, upheld - Petition dismissed : M.P. Road Transport Corporation Vs. Anil Yadav, I.L.R. (2008) M.P. 2867
- Section 25-H - Re-employment of retrenched workmen - The benefit of Section 25-H is available to all retrenched workmen and not only to those who were legally retrenched - Respondent was illegally retrenched w.e.f. 1-3-2001 - On 2-2-2004, employer without offering employment to respondent engaged 56 employees - Respondent is entitled for re-employment : Ayukt Indore Nagar Palika Nigam, Indore Vs. Jagdish, I.L.R. (2008) M.P. 1125
- Section 25-H - Labour Laws - Back wages - Gainful employment is material factor - Tribunal not considered this aspect while awarding back wages - Award set aside only to that extent : Employers in Relation to the Management of Western Coalfields Pench Area, P.O. Parasia, District Chhindwara Vs. Samyukta Khadan Mazdoor Sangh (AITUC) Post Chamdameta, I.L.R. (2006) M.P. 10
- Sections 25-K, 25-L, 25-N, Factory Act, 1948, Section 2(M) - Industrial Establishment - Services of respondent No. 1 terminated without the permission from the Government - Held - Construction of houses by the petitioner for the purpose of Industrial Disputes (Central) Rules, 1957 396 selling comes within definition of manufacturing process - As per Provision of Chapter V(B) of Act, 1947 no permission sought from Government before termination of services - Order of Tribunals directing re-instatement proper - However, respondent No.1 entitled for 25% back wages instead of 50% as directed by Tribunals : M.P. Housing Board Vs. Smt. Jyoti Chitnis, I.L.R. (2008) M.P. 1442
- Section 25-O - Closure - Closure of industrial unit challenged - Held - The Division Bench while affirming the findings of the learned Single Judge held that the appropriate Government, after making such enquiry as it thinks fit and after giving a reasonable opportunity of being heard to the employer, the workmen and persons interested in such closure may, having regard to genuineness and adequacy of reasons stated by the employer, the interests of the general public and all other relevant factors, by order and for reasons to be recorded in writing, grant or refuse to grant such permission for closure of the unit - Writ Appeal Dismissed : M.I.S.C. Karmchari Sangh Vs. State of M.P., I.L.R. (2008) M.P. 2197 (DB)
- Section 25-O - Procedure for closing down an undertaking - Petitioner applied to State seeking permission to close down industrial undertaking - Intended date for closure given was 15.03.2004 which was beyond 90 days - State Govt. did not consider application - Matter referred by State Govt. to Industrial Tribunal - Tribunal held that closure is justified - However directed for payment of full wages to workmen till date of order i.e. 06.07.2005 - Held - Section 25-O is a complete Code - Wherever decision is taken by State Govt. or Tribunal, intended date of closure specified by employer cannot be changed - Fixing of date of closure upto date of order by Tribunal is beyond its jurisdiction - Petition allowed : Hind Syntex Ltd. Vs. Dewas Mazdoor Sangh, I.L.R. (2008) M.P. 1410 Industrial Disputes (Central) Rules, 1957
- Rule 10B(6) - See - Industrial Disputes Act, 1947, Section 11(1), (3) : Ispat Khadan Janta Mazdoor Union Vs. Steel Authority of India Ltd., I.L.R. (2008) M.P. 2508 (DB)
- Rule 10-B(6) - The examination of witness in every case is not mandatory - The Rule is applicable only when the tribunal decides to examine a witness : M.P. Hasta Shilpa Hathkargha Vikash Nigam Maryadit Vs. Om Prakash Kori, I.L.R. (2010) M.P. 2562 (DB)
- Rule 10B(9) - See - Industrial Disputes Act, 1947, Sections 14 & 15 : Satendra Singh Gujar Vs. Bank of India, I.L.R. (2010) M.P. 2321 (DB) Industrial Relations Act, M.P. (27 of 1960) 397
Industrial Employment (Standard Standing Orders) Rules, M.P. 1963
- Rule 2(i) - Classification as permanent employee - Requirements - Two conditions must be fulfilled i.e., satisfactory service for six months and availability of vacant post - Both the requirements were fulfilled, therefore, Labour Court rightly directed for classification of respondents as permanent employees : Nagar Palik Nigam, Sagar Vs. Anand Mangal Guru, I.L.R. (2009) M.P. 2542 (DB)
- Rule 2(i) - Difference of back wages - Workmen claiming that difference of wages ought to have been granted w.e.f. the date the right had accrued to them of being classified on permanent basis - Held - There was initial lapse on the part of workmen to adduce evidence with respect to vacant posts - Labour Court granted the wages on being classified - Difference of wages from back date rightly denied : Nagar Palik Nigam, Sagar Vs. Anand Mangal Guru, I.L.R. (2009) M.P. 2542(DB)
- Clause 2(vi) - Classification - Respondent holding post of Chowkidar - Was asked to perform duties of Time Keeper on ad hoc basis to meet emergent requirement of additional work - Post of Time Keeper is higher and pay scale is also higher than that of post of Chowkidar - Respondent cannot claim classification to such higher post - Order passed by Industrial Court quashed - Employer's petition allowed : State of M.P. Vs. Gangaram Porwal, I.L.R. (2008) M.P. 775 Industrial Relations Act, M.P. (27 of 1960)
- Entry 16 - Engineering Industry - Food Processing Industry - Engineering cannot be confined to be an industry which produces plants and machinery - Food processing is also a process of engineering and industry is covered within entry 16 : Godrej Beverages & Foods Limited Vs. Ramashankar Yadav, I.L.R. (2009) M.P. 2027 (DB)
- Entry 16, Industries (Development and Regulation) Act, 1951, Schedule - Food processing industry separately defined in entry 27 of the Act of 1951 - Entries of the Act of 1951 cannot be relevant for interpreting entries of the Act of 1960 - Act of 1951 cannot control the expression engineering which finds place in entry 16 of the Act of 1960 : Godrej Beverages & Foods Limited Vs. Ramashankar Yadav, I.L.R. (2009) M.P. 2027 (DB)
- Sections 27, 31, 33 & 97 - All employees including office bearers of petitioner Union have filed affidavits and accepted the agreements and stated that the award in terms of agreements be passed - Though the petitioner Union has seriously contended that the agreements are no agreements in eye of law and could not be accepted as they Industrial Relations Act, M.P. (27 of 1960) 398 were neither signed by their office bearers nor were they legally tenable in view of the provisions of Section 31 & 33 of Act - Held - It has neither opposed these agreements before Registrar at the time of registration u/s 33 of Act nor did it raise any dispute under various provisions of Act under Chapter XVI before any of the authorities under the Act - Therefore, issues as to whether the agreements were valid or not or obtained by fraud or a nullity, were neither subject matter of dispute before Industrial Court nor this court - Once agreements are registered u/s 33 of Act, they are binding on all concerned as per the provisions of Section 97 of Act - There is no legal infirmity or illegality in the award : Katni Pottery Karamchari Sangh Vs. M/s. Associated Cement Companies Ltd., I.L.R. (2008) M.P. 2870
- Sections 27, 31, 33 & 97 - Award challenged on the ground that it was passed in terms of the settlement arrived at between the parties without answering or adjudicating upon the disputes that were referred to Industrial Tribunal by State Government - Held - If a settlement is arrived at between the disputing parties even during the pendency of a reference before the Industrial Tribunal, the tribunal has power to pass an award in terms of the settlement and tribunal was not bound to answer the reference : Katni Pottery Karamchari Sangh Vs. M/s. Associated Cement Companies Ltd., I.L.R. (2008) M.P. 2870
- Section 31, Industrial Employment (Standing Orders) Act, 1961 and Standard Standing Orders made thereunder clauses 2(i) and (vi) - Permanent employee - With a view to obtain status of permanent employee one must be appointed in terms of statutory rules : M.P. Housing Board Vs. Manoj Shrivastava, I.L.R. (2006) M.P. 303 (SC)
- Section 51 - Where a dispute is referred in accordance with Section 51 of Act to the Industrial Court for arbitration by the Government and during pendency of reference a settlement of industrial dispute is arrived at between the employer and the employees - Industrial Court must give due weight to the terms of the settlement unless it is satisfied that the settlement was not just or fair or was vitiated by mala fides or absence of consent of the parties - The contention of the employer that the direction in the order of Industrial Court to regularise the services of 16 to 18 Temporary Substitute Pool employees in terms of Clause 9 of the settlement dated 20.10.1999 was beyond the jurisdiction of the Industrial Court and was a nullity, is misconceived : Everest Industries Ltd., Kyomore Vs. Asbestos Karmchari Sangh, I.L.R. (2008) M.P. 3075 (DB)
- Section 108-A, Industrial Employment (Standing Orders) Rules, M.P., 1963 - Payment of salary to a classified employee - Respondent worked on daily wages basis as Chowkidar for 6 months - Under the standing orders he has been classified as permanent for the post of Chowkidar with salary for the post - But, pay scale of Chowkidar denied by employer - Application u/s 108-A of Act filed before Labour Court for recovery of amount as per pay scale of Chowkidar which was allowed - Insurance Act (4 of 1938) 399
Order challenged by employer in writ petition - Held - Admittedly, there is no pay scale prescribed of the employee who has been classified as permanent under standing orders - However, pay scale of Chowkidar has been prescribed - When the respondent (employee) has been classified as Chowkidar then certainly he is entitled to get the pay scale of Chowkidar : State of M.P. Vs. Hariram, I.L.R. (2008) M.P. 1997 Industrial Training (Gazetted) Services Recruitment Rules, M.P. 2008
- Rule 8 - See - Service Law : Sanjeev Kumar Batham Vs. State of M.P., I.L.R. (2010) M.P. 1931 Industries (Development and Regulation) Act ( of 1951)
- Industries (Development and Regulation) Act ( of 1951), Schedule - See - Industrial Relations Act, M.P., 1960, Entry 16 : Godrej Beverages & Foods Limited Vs. Ramashankar Yadav, I.L.R. (2009) M.P. 2027 (DB) Information Technology Act, 2000
- Section 67 - See - Penal Code, 1860, Sections 506 & 509 : Prakash Chattrani Vs. State of M.P., I.L.R. (2009) M.P. 3454 Insurance Act (4 of 1938)
- Section 45 - Insurance Policy - Appellants' claim repudiated by respondents on the ground that insured had concealed material facts and made some false statements regarding his health in proposal form - Held - No evidence on record to show that suppression of disease was fraudulent by insured - Insured was examined by Panel Doctor of respondents prior to issuance of policy and was found fit - No justification in dismissing the claim of appellants - Suit decreed - Appeal allowed : Narmada Bai Chouhan Vs. Regional Manager, LIC of India, I.L.R. (2008) M.P. 1746
- Section 45 - See - Evidence Act, 1872, Section 102 : Narmada Bai Chouhan Vs. Regional Manager, LIC of India, I.L.R. (2008) M.P. 1746 Interpretation of documents
- Recital - Recitals in a document can never be conclusive - Substance of the term agreed upon and not the nomenclature given to the deed by the parities is material : R.V. Infrastructure Engineers Pvt. Ltd. Vs. State of M.P., I.L.R. (2010) M.P. 608 (DB) Insurance Act (4 of 1938) 400
Interpretation of Statute
- A statute must be read as a whole and one provision of the Act should be construed with the provisions in the same Act so as to make a consistent enactment of the whole statute - It is the duty of the Courts to avoid "head on clash" between two sections of the same Act and, whenever it is possible to do so to construe provisions which appear to conflict so that they harmonise : Prashant Kumar Sahu Vs. M/s. Optel Telecommunications Ltd., I.L.R. (2008) M.P. 1753 (DB)
- Comma ( , ) - Comma ( , ) used between two words has to have its signification and each word has to be treated as separate word and thereby a separate category : Akhil Bhartiya Upbhokta Congress, Bhopal Vs. State of M.P., I.L.R. (2009) M.P. 2233 (DB)
- Conflicting statutes - When two statutes or rules are conflicting or appear to be conflicting, the duty of Court is to find out which of the two apparent conflicting provisions is more general and which is more specific - In case of inconsistency between provisions of two enactments both of which can be regarded as special in nature, the conflict has to be resolved by reference to the purpose and policy underlying the two enactments and clear intendment conveyed by language of relevant provisions therein : State of M.P. Vs. Raghvendra Sohgaura, I.L.R. (2009) M.P. 623 (DB)
- Executive construction - Policy of renewal of existing licence has been in vogue since 2006-07 - Construction placed on ambiguous rule by State Government and continuing for a long period of time is an admissible aid to its interpretation and cannot be disregarded except for cogent reasons : Chingalal Yadav Vs. State of M.P., I.L.R. (2010) M.P. 788 (FB)
- Executive construction - Principle of executive construction is relevant as admissible aid for construction of a statutory provision which suffers from ambiguity : Chingalal Yadav Vs. State of M.P., I.L.R. (2010) M.P. 788 (FB)
- Expropriatory Legislation - Held - It is well settled proposition of law that when an Act is an expropriatory legislation, provisions of such an Act should be strictly construed as it deprives a person of his valuable right to property as envisaged under Article 300-A of the Constitution : Indore Development Authority Vs. Rajesh Lalwani, I.L.R. (2010) M.P. 1044 (DB)
- Harmonious construction - When there are two provisions in enactment which cannot be reconciled with each other, effect should be given to both : J.S.J. Real Estate Pvt. Ltd Vs. Collector, Dewas, I.L.R. (2009) M.P. 915 (FB) Irrigation Engineering Services (Gazetted) Recruitment Rules, M.P., 1968 401
- Illustration - Unlike marginal note, an illustration is to be considered as part of Section itself - It is to be accepted as being both relevant and valuable for construction of section : Sharad Kumar Vs. State of M.P., I.L.R. (2009) M.P. 229 (DB)
- Legislative Intent - When words are clear, plain and unambiguous, Courts are bound to give effect to that meaning only : Orient Paper and Industries Ltd. Vs. State of M.P., I.L.R. (2007) M.P. 170 (SC)
- Once the validity of a provision or statute is challenged, all the grounds ought to have been raised and it would be presumed that all grounds which could validly be raised were raised and considered by the Court. A litigant or a party cannot be permitted to challenge the validity or vires of the provision on the plea that the ground being raised was not decided or a particular aspect was not expressly considered in the earlier proceeding : Bhopal Citizen's Forum Vs. State of M.P., I.L.R. (2010) M.P. 2111 (DB)
- Word should be construed so as to best attain the purposes of statute : Godrej Beverages & Foods Limited Vs. Ramashankar Yadav, I.L.R. (2009) M.P. 2027(DB) Intra Court Appeal
- Jurisdiction of Division Bench - Held - The Division Bench, sitting as a Court of Correction, corrects its own orders in exercise of the same jurisdiction as was vested in the Single Bench - Such is not an appeal against an order of a subordinate court - In such appellate jurisdiction the High Court exercises the powers of a Court of Error : Indore Development Authority Vs. Rajesh Lalwani, I.L.R. (2010) M.P. 1044 (DB) Irrigation Engineering Services (Gazetted) Recruitment Rules, M.P., 1968,
- Rule 15(1) - Eligibility for Promotion - Petitioner appointed as Sub-Engineer on 19.10.1984 - Completed B.E. degree in the year 1991 - Not considered for promotion after completion of 8 years of service - Learned Single Judge dismissed the petition that petitioner did not complete 8 years of service after completing B.E. Degree - Held - As per rule 15(1) the seniority for promotion has to be counted from the date of appointment and not from the date of acquiring the required qualification - Case for promotion is to be considered after completion of 8 years of qualifying service as Sub-Engineer : Sanjay Verma Vs. State of M.P., I.L.R. (2008) M.P. 1592 (DB) Judges (Protection) Act (LIX of 1985) 402
Jail Manual
- Release - State Government's order dated 24.01.2004 whereby convicts of 65 years of age or above who underwent 4 years or excess punishment on 26.01.2004 were directed to be released unconditionally - Held - The benefit of Government's order cannot be snatched away from petitioner - Merely on account of absence of his proposal in the year 2004 - Petitioner was not a author of such a mistake and no fault could be found with him for denying him release pursuant to Government's order - It is not a case of granting retrospective benefits to the petitioner - It rather amounts to ractify the mistake which was committed by Jail Authority : Chhiddu alias Kanchhedi Lal Vs. State of M.P., I.L.R. (2008) M.P. 2860
- Rule 361(1) & 361(6), Penal Code, 1860, Section 302 - Release - Petitioner was undergoing sentence for offence punishable u/s 302 I.P.C. - As per Jail Superintendent's order u/r 361(1) of Manual, he was released on ground of sickness - State Government issued an order that convicts of 65 years of age or more who have undergone 4 years imprisonment or more should be released - At the relevant time, when the Government's order was in force petitioner was on release and thus his case could not be proposed for consideration - Action challenged - Held - Object of Government's order was of beneficial nature for the convicted prisoners who were 65 years of age - As per rule 361(6), the period of release would be deemed to be the period in imprisonment - Petitioner having been released u/r 361(1) could not be deprived of the benefit of Government's order : Chhiddu alias Kanchhedi Lal Vs. State of M.P., I.L.R. (2008) M.P. 2860 Jiwaji University
- Ordinance 38, Clause (9) & (10) - Permission to appear in examination - Appellant not permitted to appear in the fourth semester examination of M.Sc. (Computer Science) as he didn't get aggregate 36% marks in theory and laboratory courses in second semester examination - Held - Court interpreted first and second proviso of Clauses (9) & (10) and held that unless the appellant clears the second semester examination by obtaining 36% in aggregate in both theory and laboratory courses separately, he cannot be permitted to appear in the fourth semester examination : Sudheer Singh Tomar Vs. Jiwaji University, I.L.R. (2009) M.P. 3254 (DB) Judges (Protection) Act (LIX of 1985)
- Section 3(1) - Additional Protection to Judges - Alleged act of applicant cannot be termed as same was done by him in acting or purporting to act in discharge of his official or judicial duty - Applicant not entitled for protection : Prakash Vyas Vs. Smt. Kamlesh Chauhan, I.L.R. (2007) M.P. 1721 Judges (Protection) Act (LIX of 1985) 403
Judicial Discipline
- Conflicting judgments - If learned Single Judge was of the opinion that the judgment in the matter of Shakuntala Singh [2003(3) MPLJ 414] was not deciding correct law or did not take into consideration all provisions of law then he should refer the matter to the Chief Justice for constituting a larger bench - A judgment by coordinate bench cannot be ignored on the ground that the judgment though takes a legal view but is not binding because it does not take into consideration the other legal aspects or provisions of law : Kalam Scooter Service Vs. Shri Shri 1008 Jagat Guru Shankaracharya Swami Swaroopanand Ji Maharaj, I.L.R. (2009) M.P. 41 (DB)
- Order passed against the principles settled by higher Courts amounts to contempt of Court : Manohar Vs. State of M.P., I.L.R. (2007) M.P. 837 Judicial Propriety & Decorum
- Execution Court, as per direction of the High Court, after leading evidence, concluded that respondent No.1 was the proprietor of respondent No.2 - Order challenged in revision - High Court held that Executing Court could not have decided the issue regarding identity of the proprietor, in exercise of its jurisdiction u/s 47 CPC - Held - While dealing with the second revision petition, the High Court failed to take into consideration the earlier order passed by Single Judge of High Court - Judicial propriety and decorum requires that if a Single Judge, hearing a matter, feels that earlier decision of a Single Judge needs reconsideration, he should not embark upon that inquiry sitting as a Single Judge but should refer the matter to a larger bench : Century Textiles Industries Ltd. (M/s) Vs. Deepak Jain, I.L.R. (2009) M.P. 3241 (SC) Judicial restraint
- All judicial minds may not react in the same way to the said evidence and it is not unusual that evidence which appears to be respectable and trustworthy to one Judge may not appear to be respectable and trustworthy to another Judge - That explains why in some cases Courts of Appeal reverse conclusions of facts recorded by the trial court on its appreciation of oral evidence - The knowledge that another view is possible on the evidence adduced in present case should have acted as a sobering factor and led to learned Judges of the appellate court to the use of temperate language in recording judicial conclusions : D.K. Shrivastava Vs. State of M.P., I.L.R. (2010) M.P. 1865 (SC) Juvenile Justice (Care and Protection of Children) Act (56 of 2000) 404
Juvenile Justice Act (53 of 1986)
- Section 2(h), Juvenile Justice (Care and Protection of Children) Act, 2000, Section 2(k) - Juvenile - Appellant failed to raise any objection about his age before the committal court or the trial court - The fact of age cannot be considered at the appellate stage because the objection in respect of age, is raised for the first in appellate court - This argument is not tenable that appellant was juvenile on the date of incident and juvenile court was competent to try case : Annu alias Anoop Kumar Vs. State of M.P., I.L.R. (2008) M.P. 2435 Juvenile Justice (Care and Protection of Children) Act (56 of 2000)
- Section 2(k) & 7-A - Juvenile - Opinion of Medical Board - When the opinion of the Medical Board is in confirmation with the established norms in the field of Medicine and Radiology, its opinion becomes primary evidence - Ossification test and exact opinion of Medical Board in relation to fusion of iliac bone gives conclusive evidence for reaching the conclusion about the age of person : Banti @ Santosh Vs. State of M.P., I.L.R. (2010) M.P. 280
- Section 12 - See - Criminal Procedure Code, 1973, Section 438 : Kapil Durgwani Vs. State of M.P., I.L.R. (2010) M.P. 2003
- Section 2(k) - See - Juvenile Justice Act 1986, Section 2(h) : Annu alias Anoop Kumar Vs. State of M.P., I.L.R. (2008) M.P. 2435
- Sections 2(k) & 4(2) - JMFC has passed the order that applicant is not juvenile - Order challenged - Held - As per Section 4(2) of the Act a Board consist of a Metropolitan Magistrate or a Judicial Magistrate First Class and two social workers of whom atleast one shall be a woman forming a bench and such bench shall have the powers conferred by the Cr.P.C. - Order passed by JMFC not by the Board - Order set-aside : Lakhan Vs. State of M.P., I.L.R. (2009) M.P. 2116
- Section 41 [As amended by Act No.33 of 2006), Juvenile Justice (Care and Protection of Children) Rules, 2007, Rules 32 & 33, Family Courts Act, 1984, Section 7(1) Explanation (g) - Adoption of orphan - As per Rule 33(3) of Rules, 2007 for the purpose of S. 41(3) of Act of 2000 'court' implies a civil court which has jurisdiction in the matter of adoption - Explanation (g) of S. 7(1) of the Family Courts Act includes the proceedings in relation to the guardianship of the person or the custody of or access to any minor, but it does not include the proceedings relating to adoption - Civil Court has jurisdiction to entertain petition u/s 41 of Act of 2000 and not Family Court : Sanjay Mehta Vs. Superintendent of Matrachhaya, I.L.R. (2009) M.P. 2728 Kashtha Chiran (Viniyam) Adhiniyam, M.P. (13 of 1984) 405
- Section 49 - Enquiry - School certificate reveals that applicant was more than 18 years of age - Applicant in counter case disclosed his age as 19 years in deposition - Ossification test shows that applicant was 17 years & 6 months of age - Held - School record has been maintained in regular course of business - Ossification test is merely opinion of radiologist and not conclusive proof of age - Two years margin can be given in either side - Applicant was not juvenile on the date of incident - Revision dismissed : Narendra Yadav @ Mantoo Vs. State of M.P., I.L.R. (2009) M.P. 2450
- Sections 52 & 53 - Criminal cases were pending against the applicant before Sessions Court - It was alleged that applicant was juvenile on the date of offence - Matter referred to Juvenile Justice Board - After inquiry Board held that the age of applicant is more than 18 years - Order challenged before High Court - Held - No opportunity was given to the applicant to cross-examine medical evidence which was adduced and also no opportunity given to adduce further evidence to prove his date of birth - Orders set-aside with certain directions : Lakhan Vs. State of M.P., I.L.R. (2009) M.P. 2116
- Sections 52 & 53 - JMFC after holding the inquiry passed the order that applicant is not juvenile - Order challenged before High Court by way of revision - Objection about maintainability - Held - Though appeal u/s 52 of the Act is maintainable - However, an aggrieved person can approach High Court direct as well by challenging the propriety of any order - Objection relating to maintainability of revision overruled : Lakhan Vs. State of M.P., I.L.R. (2009) M.P. 2116 Juvenile Justice (Care and Protection of Children) Rules, 2007
- Rules 32 & 33 - See - Juvenile Justice (Care and Protection of Children) Act, 2000 [As amended by Act No.33 of 2006], Section 41 : Sanjay Mehta Vs. Superintendent of Matrachhaya, I.L.R. (2009) M.P. 2728 Kashtha Chiran (Viniyam) Adhiniyam, M.P. (13 of 1984)
- Renewal of license - Denial - When not proper - It is evident that the Apex Court has not issued any order or direction to that effect that existing license should not be renewed and, therefore, the respondents cannot reject the case of the petitioner for grant of renewal on the ground that his name was not included in the list forwarded to the Apex Court : Kanshiram Kushwaha Vs. Chief Conservator of Forest, I.L.R. (2010) M.P. Note *28
- Renewal of license - Denial - When not proper - The petitioner's licence was not renewed for the reason that his name was not included in the list sent to the Apex Court in the case of T.N. Godawarman - The petitioner was very much having a licence (Khadya Padarth) Sarvajanik Nagrik Purti Vitran Scheme, M.P. 1991 406 when the order was passed by the Apex Court and, therefore, mistake was on the part of the officers in not forwarding the name of the petitioner pursuant to order passed by the Hon'ble Supreme Court - Petitioner cannot be victimised for a mistake/lapses committed by the D.F.O. or by the Conservator of Forest : Kanshiram Kushwaha Vs. Chief Conservator of Forest, I.L.R. (2010) M.P. Note *28
- Section 6 - Grant of license to run saw mill - Application for licence to run saw mill rejected for the reason that saw mill was purchased during the ban period as per the interim order in T.N. Godavarman case and there was no renewal of licence to run the saw mill nor any return was submitted - Held - Doctrine of English Law of feeding the estoppel, which means that when a person sells a property of which he is not the owner or has no right to sell but later becomes the owner or competent to sell and the sale in the interim period is not rescinded, the transferee acquires a good title - In India also this principle is enacted in S. 43 of the Transfer of Property Act - Orders quashed - Matter remanded to appellate authority for reconsideration : Ravendra Prasad Verma Vs. State of M.P., I.L.R. (2010) M.P. 2525
- Sections 9, 12(1), 13(1) - Confiscation of Saw Mill - Teak wood kept in the saw mill of the appellant was seized on the ground that the same has been obtained illegally - Licensing authority confiscating the saw mill -Order of confiscation challenged on the ground that the teak wood belonged to land owner and was not obtained illegally - Presumption under Section 9 can be drawn only if the wood stocked is not accounted for satisfactorily - District Judge while dismissing appeal did not give any specific finding as to whether the teak wood belonged to the land owner or the State Govt. - In absence of any such finding, order of confiscation is bad and hence quashed - Matter remanded back to District Judge to decide appeal afresh alter giving finding as regards the ownership of the teak wood : Mukesh Kumar Jaiswal Vs. State of Madhya Pradesh, I.L.R. (2007) M.P. 539 (DB) Khadi and Gramodyog Regulation, M.P. 1980
- Khadi and Gramodyog Regulation, M.P. 1980 - See - Service Law : Ashok Noronha Vs. M.A. Khan, I.L.R. (2009) M.P. 662 (Khadya Padarth) Sarvajanik Nagrik Purti Vitran Scheme, M.P. 1991,
- Clause 6(5), 12 - See -Essential Commodities Act 1955, Sections 3,7 : Arvind Kumar Vs. State of M.P., I.L.R. (2008) M.P. 1479
- Clause 13(4) - Penalty - Suspension of fair price shop - Natural Justice - Held - The impugned order by which fair price shop has been placed under suspension has Krishi Upaj Mandi Adhiniyam, M.P., 1972, (XXIV of 1973) 407 been passed without affording an opportunity of hearing to the petitioner, the same deserves to be quashed as suspension is one form of penalty contemplated in sub- clause (1) of clause 13 of the Scheme : Navjyoti Sakh Sahkari Samiti Mydt., Khandwa Vs. State of M.P., I.L.R. (2010) M.P. 2295 Kramonnati Policy,
- Clause 2(Kha) - See - Constitution, Article 226 : Nathulal Vs. State of M.P., I.L.R. (2010) M.P. 1721 Krishi Prayojan Ke Liye Upayog Ki Ja Rahi Dakhal Rahit Bhoomi Par Bhoomiswami Adhikaron Ka Pradan Kiya Jana (Vishesh Upabandh) Adhiniyam, M.P. (30 of 1984)
- Section 7 - Appellant member of Scheduled Caste and landless person - Found in settled possession of Government land - Does not possess any other land except Government/suit land - He may file application u/s 7 of Adhiniyam to authorized officer : Prahlad Vs. State of M.P., I.L.R. (2008) M.P. 2069 Krishi Upaj Mandi Adhiniyam, M.P., 1972, (XXIV of 1973)
- Market fee - Sugarcane Act and Control Order together cover the entire field - (Market Act) is excluded - Market fee cannot be levied on transaction of sale and purchase of sugarcane between factory owners in M.P. and the sugarcane growers or growers' Co-operative Societies : Gwalior Sugar Co. Ltd. Vs. State of M.P., I.L.R. (2006) M.P. 999 (DB)
- Sections 2(1)(mmm) & 6 - Petitioner is neither selling, purchasing nor processing tobacco and has not subjected the tobacco to any of the process mentioned in the definition clause u/s 2(1)(mmm) which is a notified agricultural produce within the market area - Therefore, is also outside the purview of S. 6 of the Act : J.P. Tobacco Products Vs. Krishi Upaj Mandi, I.L.R. (2009) M.P. 3291
- Sections 2(1)(mmm) & 19 - Tobacco is used for the purpose of preparing Bidi, which is distinct, separate and different marketable commodity - Process of utilization of tobacco for preparation of Bidi amounts to manufacture and falls outside the purview of S. 19 and can not be subject to levy of market fee - Petition allowed : J.P. Tobacco Products Vs. Krishi Upaj Mandi, I.L.R. (2009) M.P. 3291
- Sections 2(1)(a), 2(1)(mmm) & 19 [As amended by Krishi Upaj Mandi (Sanshodhan) Vidheyak, M.P. 1990] - Petitioners in the business of manufacture and sale of tobacco Choor, tobacco Rawa, tobacco dust, tobacco Kandy - Mandi Samiti Krishi Upaj Mandi Adhiniyam, M.P., 1972, (XXIV of 1973) 408 levying Mandi fees on it - Action challenged by them - Held - The object of amendment in the Act of 1972 to drop out the word 'processed' was to exempt the processed goods from Mandi fees - The tobacco Choor, tobacco Rawa, tobacco dust and tobacco Kandy cannot be classified as 'processed goods', but they are 'agriculture produce' - Hence, aforesaid products cannot be exempted from payment of Mandi tax or fees - Mandi Samiti is entitled to levy Mandi fees on the aforesaid agriculture produce - Petition dismissed : Tapa Traders, Gwalior (M/s) Vs. Krishi Upaj Mandi Samiti, I.L.R. (2008) M.P. 2906
- Sections 7, 19, 38, 39 - See - Income Tax Act, 1961, Sections 10(20) (Explanation), 10(29) [As amended w.e.f. 01.04.2003],11,12,12A,12AA(1)(b)(ii) : Commissioner of Income Tax Vs. Krishi Upaj Mandi Samiti, Morena, I.L.R. (2008) M.P. 1735 (DB)
- Section 9(3) Proviso, Municipal Corporation Act, M.P. 1956, Sections 135 & 136 - Recovery of property tax from Krishi Upaj Mandi Samiti - In view of proviso to S. 9(3) of Act, 1972 the area of market yard and market committee are outside the limit of Municipal Corporation - Corporation has no authority to recover property tax from market committee - Demand notice and recovery quashed - Petition allowed : Secretary, Krishi Upaj Mandi Samiti, Jabalpur Vs. Administrator, Municipal Corporation, Jabalpur, I.L.R. (2010) M.P. 1420
- Sections 11, 40, 41(1)(B), Krishi Upaj Mandi (Mandi Samiti Ka Nirvachan) Rules, M.P. 1997, Rules 14(b),80,82 - Representatives of traders holding licence - Nomination of 4th respondent as member to Board under category of representatives of traders holding licence - 4th respondent is trader but not elected as representative of traders holding licence - Held - Post of representatives of traders holding licence can only be held on being elected as provided under rules - Nomination of 4th respondent quashed - Petition allowed : Anil Vs. State of M.P., I.L.R. (2008) M.P. 1469
- Section 19 - Power to levy market fee - Held - If the goods are used for manufacturing purpose as raw material, therefore, the question of passing on the tax liability to the consumer would not arise : Krishi Upaj Mandi Samiti Vs. M/s. Agro Solvent Products (P) Ltd., I.L.R. (2010) M.P. Note *29 (DB)
- Section 19 - Power to levy market fee - Unjust enrichment - Learned Single Judge held that goods which are being used as raw material for manufacturing purpose would not be liable to pay market fees but declined refund of the tax already levied on the principle of unjust enrichment - Held - The principle of doctrine of unjust enrichment is not applicable where the goods are used as raw material for manufacturing and the company is liable for refund of the money collected as Mandi fee by the Mandi : Krishi Upaj Mandi Samiti Vs. M/s. Agro Solvent Products (P) Ltd., I.L.R. (2010) M.P. Note *29 (DB) Kashtha Chiran (Viniyam) Adhiniyam, M.P. (13 of 1984) 409
- Section 19, Krishi Upaj Mandi (Payment of Market Fees) Rules, M.P. 1990, Rule 3 - Petitioner purchased notified agriculture produce from other market area - On the basis of requisite permit required for dispatching and removing agriculture produce claimed exemption of market fees - Subsequently, permits were found forged - Levy of market fees on five times value of agriculture produce - Held - It is imperative for a trader seeking exemption to pay market fees to be sure that at first instance the agriculture produce had suffered market fees - Merely because the trader has been permitted to take the agriculture produce from market area in itself will not be a prove that market fees has been paid - Petitioner held liable to pay market fees - Petition dismissed : Shyam Trading Co., Itarsi Vs. State of M.P., I.L.R. (2009) M.P. 2219
- Section 19 - Constitution of India, Aritcles 226, 227 - Levy of Market fee - Petitioners engaged in business of Hatching, Breeding and sale of hybrid chicks - Using maize as essential ingredient of poultry feed - Purchasing huge quantity of maize from outside the State - Levy of Market Fee by Krishi Upaj Mandi on such purchase - Held - No market fee leviable on agricultural produce brought from outside of State for self consumption, use or processing - Maize brought from outside is being processed for self consumption for the birds in poultry farm - Krishi Upaj Mandi cannot recover market fee - Petition allowed : Central Hatcheries Private Ltd. Jabalpur Vs. State of Madhya Pradesh, I.L.R. (2007) M.P. 741
- Section 19 - Levy of market fee - Appellant having paper manufacturing plant - Bringing bamboo, a notified product, within market area of Krishi Upaj Mandi for manufacturing purposes - Market Fee levied by Krishi Upaj Mandi on the ground that bamboo is being used for processing - Held - Words used for processing in Section 19(1)(ii) of the Act shows emphasis is on end-user - Where the notified agriculture produce is brought within market area and the end-user is "manufacture", market fee is not leviable - "Manufacturing" means that new commodity comes in existence having distinctive use, name and character - Bamboo being used for manufacturing paper - Not liable to market fee as end-user is manufacturing and not processing - Appeal allowed : Orient Paper & Industries Ltd. Vs. The State of M.P., I.L.R. (2007) M.P. 170 (SC)
- Sections 25, 46-F & 59 - Power of Managing Director to look into legality or proprietary of decision taken or order passed - Mandi committee would be entitled to enter into agreement relating to purchases, sale, lease, mortgage or other transfer of, or acquisition of, interest in immovable property - Section does not refer service contract - Mandi Committee would not be entitled to enter into agreement of providing security guard without permission of Managing Director/Board : Safe Guard, GF-3 Vs. M.P. State Agriculture Marketing Board, I.L.R. (2009) M.P. 2769 (DB)
- Section 26, State Mandi Board Service Regulations, 1998, Regulation 35 - Petitioner holding post of Assistant Sub-Inspector - Order of suspension by Dy. Director Krishi Upaj Mandi (Mandi Nidhi Lekha Tatha Rajya Vipnan Sewa Ka Gathan 410 Ki Riti Tatha Anya Vishay) Niyam, M.P. 1980
- S. 26 of Act authorizes Board to frame regulations with regard to service conditions of members of State Mandi Board Services - By virtue of amended Regulation 35 power to place an employee under suspension to the category of Assistant Sub-Inspector is vested with Dy. Director - Held - Order suspending petitioner not without jurisdiction - Petition dismissed : Badri Prasad Yadav Vs. State of M.P., I.L.R. (2010) M.P. 1581
- Sections 31 & 32 - See - Agricultural Warehouse Act, M.P., 1947, Section 3 : Jai Baba Devpuri Warehouse, Morena (M/s.) Vs. State of M.P., I.L.R. (2010) M.P. 335 (DB)
- Section 40-A - Power of State Government to issue direction to Board and market committee - Considering the facts and to avoid anomalous situation State should take action : Safe Guard, GF-3 Vs. M.P. State Agriculture Marketing Board, I.L.R. (2009) M.P. 2769 (DB)
- Section 66-A Krishi Upaj Mandi Rules, M.P. 1974, Rules 15 & 43 - Election of representation of agriculturist - Election Petition - Dismissal on the ground of presentation by counsel - Held - In the Rules for mode of presentation there is no command that election petitioner should present the election petition - In absence of any consequential mandate to the effect that non-presentation of the election petition filed by the election petitioner before the competent authority shall entail in dismissal of the petition, the provision can not be construed as mandatory - Order dismissing election petition quashed - Petition allowed : Manohar Lal Gole Vs. Dilip, I.L.R. (2009) M.P. 2804 (DB)
- Section 67, Civil Procedure Code, 1908, Section 80(2) - Benefit of S.80(2) of CPC cannot be extended to suits against Krishi Upaj Mandi Samiti and the suit, without serving statutory notice under the Adhiniyam, is not maintainable : Krishi Upaj Mandi Samiti Banapur Vs. Chandra Shekhar Raghuvanshi, I.L.R. (2009) M.P. 3019 (DB)
- Section 67, Municipalities Act, M.P. 1961, Section 319 - The provision of S. 67 of M.P. Krishi Upaj Mandi Adhiniyam is pari materia to S. 319 of M.P. Municipalities Act : Krishi Upaj Mandi Samiti Banapur Vs. Chandra Shekhar Raghuvanshi, I.L.R. (2009) M.P. 3019 (DB)
- Section 67 - Notice u/s 67 is mandatory and suit without serving a notice is not maintainable : Krishi Upaj Mandi Samiti Banapur Vs. Chandra Shekhar Raghuvanshi, I.L.R. (2009) M.P. 3019 (DB) Krishi Upaj Mandi (Mandi Nidhi Lekha Tatha Rajya Vipnan Sewa Ka Gathan Ki Riti Tatha Anya Vishay) Niyam, M.P. 1980
- Rule 83 - The decision of the Committee constituted u/R 83 will only have prospective effect and the action in granting retrospective seniority to the employees Land Acquisition Act (1 of 1894) 411 working in a lower cadre post is wholly impermissible : Umakant Mudgal Vs. State of M.P., I.L.R. (2010) M.P. 2552 Krishi Upaj Mandi (Mandi Samiti Ka Nirvachan) Rules, M.P. 1997
- Rules 14(b), 80, 82 - See - Krishi Upaj Mandi Adhiniyam, M.P. 1972, Sections 11, 40, 41(1)(B) : Anil Vs. State of M.P., I.L.R. (2008) M.P. 1469 Krishi Upaj Mandi (Payment of Market Fees) Rules, M.P. 1990
- Rule 3 - See - Krishi Upaj Mandi Adhiniyam, M.P., 1972, Section 19 : Shyam Trading Co., Itarsi Vs. State of M.P., I.L.R. (2009) M.P. 2219 Krishi Upaj Mandi Rules, M.P. 1974,
- Rules 15 & 43 - See - Krishi Upaj Mandi Adhiniyam, M.P., 1973, Section 66-A : Manoharlal Gole Vs. Dilip, I.L.R. (2009) M.P. 2804 (DB) Labour Law
- Industrial Disputes Act (14 of 1947), Section 24-F - Retrenchment - Employees were retrenched by Corporation without complying with the provisions of Sec. 25-F - Held - Employees have rendered services for more than two years, consequently it was necessary to comply with the provisions of Sec. 25-F - Even if the appointment was not valid, it could not rescue the Corporation : Commissioner, Municipal Corporation, Katni Vs. Laxmi Narayan Jaiswal, I.L.R. (2009) M.P. 994 (DB) Labour Laws (Amendment) and Miscellaneous Provisions Act, M.P. 2002 (26 of 2003)
- Constitution, Articles 14 & 21 - Power to try offences under Labour Laws - By amendment, power to try offences under labour laws was taken away from Labour Court and conferred on regular Courts - Held - Provisions of Act 2002 struck down being ultra-vires as it failed to achieve purpose - They are arbitrary and rather defeats the provisions of existing enactment - Petition allowed : Labour Bar Association, Satna Vs. State of M.P., I.L.R. (2009) M.P. 1207 (DB) Land Acquisition Act (1 of 1894)
- Rehabilitation package - Parts of 2007 rehabilitation package and those parts of rehabilitation package prepared by respondent company that are most beneficial to Land Acquisition Act (1 of 1894) 412 persons whose land is acquired must be implemented - Company gave undertaking to provide employment to one of family based on their skill and eligibility : Ramdin Vs. State of M.P., I.L.R. (2009) M.P. 1994
- Section 4 - Mention of locality - Mentioning of the name of village in which the land is situated is sufficient indication of locality : Ramdin Vs. State of M.P., I.L.R. (2009) M.P. 1994
- Section 4 - Acquisition of Land - Availability of alternative Government Land - Question whether alternative land is available for the purposes or whether Govt. should not acquire land only because oustees preferred the same, are matters of subjective satisfaction of Government : Yogesh Neema Vs. State of M.P., I.L.R. (2008) M.P. 1878 (DB)
- Section 4(1) - Publication of Preliminary Notification - Requirements - Only locality is required to be mentioned and not the survey numbers or the names of the owners of the land : Executive Engineer, M.P. Housing Board Vs. Shri Kant Mishra, I.L.R. (2009) M.P. 21 (DB)
- Sections 4 & 6 - Public purpose - Acquisition for Corporation/Company owned by Government and purpose of acquisition clearly for public purpose - Non-mention of fact that acquisition is for Company, not prejudicial to the petitioner - Petition & Writ Appeal dismissed : Ramdin Vs. State of M.P., I.L.R. (2010) M.P. Note *86 (DB)
- Sections 4 & 6 - Public purpose - Acquisition to setup power plant - Notification not published in official gazette - Held - No fund provided by Government, therefore, the acquisition is not for public purpose - Acquisition proceedings and declaration u/s 6 quashed - Petition allowed : Vineet Kabra Vs. State of M.P., I.L.R. (2010) M.P. 2533
- Sections 4 & 6 - Delay and laches - Notifications issued on 08.08.2006 and 06.08.2007 - Petitions filed in the year 2008 & 2009 - Petitioners were aware of the notifications - They had participated in the acquisition proceedings - Most of the compensation has been disbursed - Out of 3289 acres of acquired land, only 25 acres of land belong to petitioners - Rest of the owners have accepted the acquisition - Petition suffers from delay and latches - Petition dismissed : Ramdin Vs. State of M.P., I.L.R. (2009) M.P. 1994
- Sections 4 & 6 - Declaration u/s 6 has to be issued only after issue of notification u/s 4 : Ambrish Kumar Vs. State of M.P., I.L.R. (2009) M.P. 346 (DB)
- Sections 4(1) & 6 - Acquisition of Land - Notification challenged on the ground of it being vague and not specific in respect of the public purpose - Held - Land acquired for Khirhani Railway Over-bridge - Such a purpose is covered within the meaning of Land Acquisition Act (1 of 1894) 413 expression "public purpose" contained in Section 3(f) of the Act - Thus, public purpose has been disclosed in Section 4(1) notification with sufficient clarity - Petition is without any substance : Gomti Bai Tamrakar (Smt.) Vs. State of M.P., I.L.R. (2009) M.P. 136
- Sections 4(1) & 6 - Delay in Challenge - Held - The land is being acquired for constructing a railway over-bridge which itself is a public purpose - Petitioners were aware of the acquisition proceedings and before filing of the writ petition substantially progress had taken place in the acquisition proceedings - Petitioners were not prompt in approaching the court - No other person has approached this court challenging the acquisition proceedings except for the petitioners - No interference can be made : Gomti Bai Tamrakar (Smt.) Vs. State of M.P., I.L.R. (2009) M.P. 136
- Sections 4, 6 & 17 - Declaration u/s 6(1) was published on the same date when the notification u/s 4(1) was published - The same is in clear violation of S. 17(4) of the Act and as such cannot be sustained - Notification quashed : Tukaram Vs. State of M.P., I.L.R. (2010) M.P. Note *72
- Section 5-A - Hearing of objections - Held - Simply because a person is entitled to seek compensation for the acquired land, would be no ground to rule out an objection raised by him pleading relevant facts : Malwa I.T. Park Ltd. Vs. State of M.P., I.L.R. (2009) M.P. 2863
- Section 5-A - Hearing of objections - Held - The objections, at no stage, had ever been decided by the appropriate authority and therefore a mere approval granted to the report of the Collector by the Commissioner, could neither be treated to be a decision of the objections by the appropriate Government, nor the said order reflects due application of mind : Malwa I.T. Park Ltd. Vs. State of M.P., I.L.R. (2009) M.P. 2863
- Section 5-A - Hearing of objections - It is well settled principle of law that when a statute requires an act to be done, an order to be passed or a duty to be performed by a statutory authority, in a particular manner, then that act must be done, order passed and duty performed in strict compliance with the statutory provisions, and the manner envisaged thereunder : Malwa I.T. Park Ltd. Vs. State of M.P., I.L.R. (2009) M.P. 2863
- Sections 5-A, 17(1), (4) - Acquisition of Land - Scope of interference by Court - Once Court finds that Govt. has applied its mind for the need for invoking urgency clause and also to the necessity of dispensing with enquiry u/s 5-A of Act and there is no malafide in such decision, Court should not interfere with such decision : Yogesh Neema Vs. State of M.P., I.L.R. (2008) M.P. 1878 (DB) Land Acquisition Act (1 of 1894) 414
- Sections 5-A, 17(1), (4) - Acquisition of Land - Some part of land acquired without any objections speedily soon after issuance of notification u/s 4 - Acquisition of remaining part of land being delayed due to objections of land owners - Held - Govt. can invoke provisions of Section 17(4) and can dispense with enquiry u/s 5-A : Yogesh Neema Vs. State of M.P., I.L.R. (2008) M.P. 1878 (DB)
- Section 6 - Public purpose - Petitioners were aware of the fact that land is being acquired for the purposes of setting up Sasan Ultra Mega Power Project through respondent Company - Agreement has also been executed by Company which is also published - No prejudice caused to petitioners if notifications u/s 4 & 6 did not mention specifically that acquisition was being undertaken for a named Company but stated that it was for a public purpose of Electricity Generation and its residential colony : Ramdin Vs. State of M.P., I.L.R. (2009) M.P. 1994
- Section 6 - Structure - Land sought to be acquired for the purposes of constructing canal - Structure standing on the land would definitely cause impediment as course of canal cannot be diverted to suit interest of an individual - Appeal dismissed : Ambrish Kumar Vs. State of M.P., I.L.R. (2009) M.P. 346 (DB)
- Section 6 Proviso, General Clauses Act, 1897, Section 3(31) - Local authority - Entire cost of acquisition deposited by company kept in separate account of treasury exclusively controlled and managed by Land Acquisition Officer - Collector and Land Acquisition Officer are not local authority as provided in proviso of S. 6 : Vineet Kabra Vs. State of M.P., I.L.R. (2010) M.P. 2533
- Sections 9 & 11, Urban Land (Ceiling and Regulation) Act, 1976, Section 10(3) - Lands already acquired under Land Acquisition Act would be outside the purview of ceiling proceeding - Petitioner will be entitled to receive compensation for the land which has been acquired under the Land Acquisition Act - Petition allowed : Rajjulal (Dead) Through L.RS. Ku. Shanti Devi Vs. State of M.P., I.L.R. (2009) M.P. 985
- Section 11 - See - Coal Bearing Areas (Acquisition and Development) Act, 1957, Section 14 : Naresh Singh Vs. Union of India, I.L.R. (2009) M.P. 730 (DB)
- Section 17 - Urgency clause - Conditions to be fulfilled - For invoking urgency clause satisfaction has to be reached on germane and cogent reasons - There has to be proper and apposite application of mind - Real urgency must emanate from situation as power of invoking urgency clause is extraordinary - It is necessary to consider whether delay would frustrate the purpose - Whether rights of citizens have been curtailed and abridged in arbitrary manner - Whether urgency is of such degree that enquiry u/s 5A has to be dispensed with - Whether special powers have been adequately and appositely exercised : Ambrish Kumar Vs. State of M.P., I.L.R. (2009) M.P. 346 (DB) Land Acquisition Act (1 of 1894) 415
- Section 17 - Urgency Clause - Powers of Commissioner - State Government has delegated powers to Commissioner of Division for granting sanction for invoking urgency clause - Sanction granted by Commissioner cannot be treated as invalid : Ambrish Kumar Vs. State of M.P., I.L.R. (2009) M.P. 346 (DB)
- Section 17, 3-A(a) - While issuing notification U/s 4 of the Act, urgency provisions were invoked - Petitioners have not at all taken any objection with regard to procedural deficiency or default in respect to issuance of the notification U/s 4/6 of the Act only controversy about offer of compensation in terms of section 17 [3 A (a)] - HELD - At the stage of while offering the said 80% compensation, the estimated value as suggested by Collector has to prevail, as landowners have opportunity to file their claim petitions with regard to the market value of the acquired land in response to notice U/s 9 of the Act - Petition dismissed : Mahesh Kumar Vs. State of M.P., I.L.R. (2008) M.P. 41
- Section 18 - Reference - Reference Court determined the market value on inadmissible piece of evidence i.e., basic valuation register - Market Value not determined in accordance with relevant factors - Matter remanded back to record evidence and render fresh decision : Shakuntala Devi Vs. Land Acquisition Officer, Satna-Rewa Railway Link Project, I.L.R. (2008) M.P. 564 (DB)
- Section 18 - Reference - Reference is not appeal - Case has to be proved by independent evidence - Reference has to be treated as original proceedings : Shakuntala Devi Vs. Land Acquisition Officer, Satna-Rewa Railway Link Project, I.L.R. (2008) M.P. 564 (DB)
- Sections 18 & 29 - See - Civil Procedure Code, 1908, Section 9 : Lalji Vs. Sitaram, I.L.R. (2009) M.P. 1166
- Section 23 - Market value - Agricultural land acquired - Reference Court held that land having potentiality of being put to residential use - Reference Court assess the market value of land Rs. 2 lacs on the basis of Index Register of relevant period containing sales of adjoining land - Held - Reference Court ought to have deducted 30% on account of development charges while determining the market value of the land : Land Acquisition Officer Vs. Jeet Singh, I.L.R. (2010) M.P. 1001
- Section 23 - Compensation - Large tract - Sale deed of small piece of land cannot be taken into consideration for the purpose of determination of compensation for large tract of land - Area adjacent to road would fetch higher value : Hira Devi Vs. State of M.P., I.L.R. (2009) M.P. 1045 (DB)
- Section 23 - Matters to be considered in determining compensation - Assessment of market value - Compensation awarded on the basis of average of market price Land Acquisition Act (1 of 1894) 416 preceding 3 years of transaction recorded in Registrar Office - Held - Reference Court erred in determining compensation by averaging the price recorded in Registrar Office - Sale deeds showing market price of land in near proximity just prior to acquisition were available - Compensation should be determined on the basis of price of higher sale deed and adding 15% p.a. as appreciation of the rate of land - Appeal allowed : Sita Bai Vs. State of M.P., I.L.R. (2009) M.P. 843
- Section 23 - Determination of Compensation - Land of respondents acquired in 1984 and possession taken in 1985 after invoking emergency clause - Land Acquisition Officer fixed the compensation at the rate of Rs. 0.97 paisa per sq.ft. and 0.47 paisa was deducted towards development and price of 0.45 paisa per sq.ft. was fixed - Reference Court enhanced the compensation of Rs. 2 per sq.ft. and granted compensation after deducting 33% towards development - Held - Sale deed filed by claimants being for smaller area and basic valuation register cannot form safe basis for determination of valuation - For relying on sale deeds distance from the land acquired to be proved - Test of prudent buyer can be applied - Size of plot sought to be acquired, nearness to road, proximity of developed area, depressed portion requiring filing, shape, level etc are relevant considerations for determining compensation - Sale deeds filed by appellant cannot be relied upon as witness has failed to narrate the distance between the lands sold and acquired - Considering potentiality of land, development in surrounding area, determination of compensation at Rs. 2/- per sq.ft. is not excessive - Deduction of 33% towards development also proper - Appeal dismissed : Director, Regional Medical Research Centre, Jabalpur Vs. Gokaran, I.L.R. (2007) M.P. 1409 (DB)
- Section 23(1) - Circular issued u/s 48 of Stamp Act for fixing the market value for the purposes of registration bears no relevance to determine the market value u/s 23(1) of the Act : Land Acquisition Officer Vs. Jeet Singh, I.L.R. (2010) M.P. 1001
- Sections 23 & 24 - Matters to be considered in determining compensation - Law explained : Hira Devi Vs. State of M.P., I.L.R. (2009) M.P. 1045 (DB)
- Sections 23 & 24 - Matters to be considered and neglected in determining compensation - Use of land on the date of acquisition is material fact - Potential value on the date of notification u/s 4 is relevant and not subsequent user - In case of acquisition of developing land, certain deduction has to be made depending upon facts of each case - In case of large piece of land certain deduction is required to be made - In case of acquisition of large piece of land grant of compensation per sq.ft. illegal - Situation of land, distance from city are relevant consideration - Genuineness of transaction and time gap between sale transactions are relevant facts : Shanti Devi Tiwari (Smt.) Vs. Town Improvement Trust, Rewa, I.L.R. (2008) M.P. 2336 (DB) Land Acquisition Act (1 of 1894) 417
- Sections 23, 51A - Acquisition of Land - Relevant factors for determination of Market Value - Test of a Prudent Buyer has to be applied - Relevant considerations - Sale Deeds relating to closest or nearest piece of land carries more value - Distance of land covered under Sale Deeds from land acquired - Potential value on the date of notification and nature - In case of large piece of land grant of compensation per sq. ft. after certain deduction for development - Distance from city also relevant factor : Shakuntala Devi Vs. Land Acquisition Officer, Satna-Rewa Railway Link Project, I.L.R. (2008) M.P. 564 (DB)
- Sections 23(1A) & 34 - Distinction - Held - Section 23(1A) directs payment of compensation from the date of notification upto the date of the award or of dispossession while on the other hand Section 34 directs for payment of interest on the amount of compensation from the date of dispossession till the amount of compensation is paid : State of M.P. Vs. Shobha Bai Singh, I.L.R. (2009) M.P. 1603 (DB)
- Sections 26(2) & 54, Limitation Act, 1963 (As amended w.e.f. 01.07.2002), Section 12(3) - Appeal against award - Application for condonation of delay - Time spent for preparation of decree sought to be condoned - Held - After receiving the copy of award for about five months, no action was taken by the appellant for moving an application for preparation of decree - In view of Section 26(2) of the Land Acquisition Act and Section 12(3) of Limitation Act copy of decree along with appeal was not required to be filed - It could not be said that there is no delay in filing appeal - However, since impugned award is also under challenge in the appeal filed for enhancement by respondent No.1, where appellant can file cross-objection - Delay condoned with cost - Application disposed of : Bharat Petorleum Corporation Ltd. Vs. Umeshkumar, I.L.R. (2008) M.P. 3169
- Section 28 - Interest - Interest on solatium and other components mentioned in Section 23 is payable in terms of Section 28 : Hira Devi Vs. State of M.P., I.L.R. (2009) M.P. 1045 (DB)
- Sections 28 & 34 - See - Civil Procedure Code, 1908, Order 41 Rule 33 : Land Acquisition Officer Vs. Jeet Singh, I.L.R. (2010) M.P. 1001
- Sections 39 & 40 - Acquisition of land for Company for establishing Mega Cement Plant - In notification, it has been mentioned, as against column of public purpose for which the acquisition has been made is for establishing Mega Cement Plant - Acquisition is for Company : Laxminarayan Mishra Vs. State of M.P., I.L.R. (2010) M.P. 1509 (DB)
- Sections 39 & 40, Land Acquisition (Companies) Rules, 1963, Rule 4 - Acquisition of land for Company - Report of Collector u/s 40 shows provisions of Rule 4 stood Land Revenue Code, M.P. (20 of 1959) 418 complied with and due enquiry has been held - Acquisition held valid - Petition dismissed : Laxminarayan Mishra Vs. State of M.P., I.L.R. (2010) M.P. 1509 (DB)
- Section 50(2) - Housing Board has assailed the legal validity of the award on the ground that it was not given a notice or opportunity of hearing as required by the provisions of S. 50(2) - Therefore, award stands vitiated - Held - Housing Board itself moved an application for being impleaded as party and was permitted to participate in the proceeding for determining compensation - Award was passed after hearing Board - Board had knowledge of pendency of acquisition proceeding and has not suffered any prejudice on account of failure to give notice - Provision of S. 50(2) or the law laid down by the Apex Court in Gyan Devi's case [(1995) 2 SCC 326] not violated - Petition dismissed : M.P. Housing Board, Hoshangabad Vs. State of M.P., I.L.R. (2009) M.P. 3334 Land Acquisition (Companies) Rules, 1963
- Rule 4 - See - Land Acquisition Act, 1894, Sections 39 & 40 : Laxminarayan Mishra Vs. State of M.P., I.L.R. (2010) M.P. 1509 (DB) Land Revenue Code, M.P. (20 of 1959)
- Sections 22 & 104(2) - See - Service Law : Ravindra Kumar Gupta Vs. State of M.P., I.L.R. (2010) M.P. 2511
- Sections 32 & 43 - Inherent powers of Revenue Court - Powers can be exercised within Code itself and not beyond the Code - Revenue authority does not have the power to grant injunction - Petition allowed : Maya Lalchandani (Mrs.) Vs. Board of Revenue, I.L.R. (2009) M.P. 2249 (DB)
- Section 44 - See - Lok Dhan (Shodhya Rashiyon Ki Vasuli) Adhiniyam, M.P. 1987, Section 3(2) : Maganlal Jain Vs. State of M.P., I.L.R. (2009) M.P. 3322
- Section 50 - Suo motu revision - Reasonable time - Exercise of suo motu power by Collector after a lapse of 16 years - Held - Exercise of suo motu power of revision cannot be said to be within reasonable period - Order quashed : Ajay Singh Vs. State of M.P., I.L.R. (2009) M.P. 691
- Section 50, Madhya Bharat Land Revenue and Tenancy Act, Samvat 2007, Section 51 - Effect of repeal of enactment - As per Section 261 of the Code, Madhya Bharat Land Revenue & Tenancy Act was repealed and, therefore, procedure provided in Section 50 of the Code shall apply and not the provisions of the repealed enactment will be applicable : Choti Bai (Smt.) Vs. State of M.P., I.L.R. (2008) M.P. 2331 Land Revenue Code, M.P. (20 of 1959) 419
- Section 50 - Revision - Power of Revisional Court can exercise jurisdiction regarding legality and propriety of any order or regularity of proceedings of any revenue officer-interference in the concurrent findings on appreciation of evidence given by Collector and Add. Commissioner not proper : Harikrishan Vs. State of M.P., I.L.R. (2007) M.P. 505 (DB)
- Sections 50, 261, 262 & 262(1), Madhya Bharat Land Revenue and Tenancy Act, Samvat 2007, Section 51 - Suo motu powers of revision - Held - Though no time limit has been prescribed for exercising suo moto powers of revision, yet they should be exercised within a reasonable time : Choti Bai (Smt.) Vs. State of M.P., I.L.R. (2008) M.P. 2331
- Section 51 - Review - Competent Authority, after seeking the sanction, reviewed the order and passed a fresh order - Held - Competent Authority under the Urban Land (Ceiling and Regulation) Repeal Act, 1999 is not vested with the power to review the earlier order with or without the sanction of the Authority - If the provisions of Code do not apply then the Competent Authority could not make an application u/s 51 to the Commissioner for granting sanction - Subsequent order set-aside and earlier order restored - Writ Appeal allowed : Biharilal Vs. State of M.P., I.L.R. (2009) M.P. 2496 (DB)
- Section 51 - Review of Orders - Suo motu review of order after 7 years - Cannot be held to be within a reasonable time : Ashok Kumar Dubey Vs. Smt. Parvati Bai, I.L.R. (2008) M.P. 2831
- Section 51 - Review - Review of order sought on the ground that judgment and decree passed by Civil Court not brought to knowledge of Court - Civil Court is having jurisdiction to decide title of parties - Once the matter is finally decided between parties, they and their successors are bound by aforesaid judgment and decree - It was a valid reason to seek review : Rajkumar Verma Vs. Board of Revenue, I.L.R. (2007) M.P. 1382
- Sections 57 & 158 - See - Public Trusts Act, M.P., 1951, Section 32 : Gayaprasad Vs. State of M.P., I.L.R. (2008) M.P. 3200
- Sections 57, 109 - Grant of lease and mutation - Power can only be exercised by an authority in respect of a person lawfully acquiring a right and if such application is filed within six months from date of acquisition - Application made in 1989 on basis of order passed in 1954 - Abuse of process of law - Appellants suppressing facts at every stage - Cost imposed Rs. 10,000/- : Begum Suraiya Rashid Vs. State of Madhya Pradesh, I.L.R. (2006) M.P. 433 (SC) Land Revenue Code, M.P. (20 of 1959) 420
- Sections 57(2) & 257 - See - Civil Procedure Code, 1908, Section 9 : State of M.P. Through Collector, Dhar Vs. Ratan Das, I.L.R. (2010) M.P. 2336
- Sections 59(5), 258(2)(iii) - Regulation of assessment of land revenue on diversion of land - Town Planning - Validity of Rule 14 of Notification dated 24.01.2002 fixing rates for the premium of different cities challenged as arbitrary and unreasonable as relevant factors mentioned in Code not taken into consideration - Held - Important cities classified differently from smaller cities and towns, according to their population - Villages also classified differently - Rates prescribed accordingly - Schedule based on reasonable differentia and therefore, rates prescribed therein are not arbitrary or discriminatory - Appeal dismissed : Raj Homes Pvt. Ltd. Vs. State of M.P., I.L.R. (2008) M.P. 2749 (SC)
- Section 104(2) - See - Constitution, Article 309 : Vinod Kumar Khare Vs. State of M.P., I.L.R. (2008) M.P. 1436
- Sections 107 & 257 - Suit challenging order effecting correction in revenue map - Revenue officers named in S. 107 alone are competent to take action in respect of correction in the revenue map - Jurisdiction of Civil Court excluded u/s 257 - Suit rightly held not maintainable - Appeal dismissed : Nagar Panchayat, Aron Vs. Shanti Bai, I.L.R. (2009) M.P. Note *49
- Section 110 - Mutation - Delay in challenge in civil suit - Suit land mutated in the name of defendant - The plaintiff not a party to mutation proceedings - Held - Plaintiff in possession is not required to approach the Court unless disturbance is caused into his possession - He is not required to sue due to adverse mutation order because mutation by itself does not confer title : Jaspreet Kaur (Smt.) Vs. Ramkrishna, I.L.R. (2010) M.P. 1939 (DB)
- Section 110 - Presumption - Entries in record of rights raise a presumption that the person whose name is entered is in possession but the same can be rebutted by adducing evidence : Mahant Ram Khilawan Das Vs. State of M.P., I.L.R. (2008) M.P. 997 (SC)
- Section 110, Rules Regarding Record of Rights, Rule 32 - Mutation of Name - Original holder had two wives - After death of original holder dispute arose between sons of first wife and the second wife - Compromise entered into during pendency of Civil Suit and half share of the agricultural land given to second wife - Compromise decree was drawn by Civil Court - Second wife sold her share - Purchaser filed application for mutation of his name on the entire property - Application allowed by Tahsildar - Application for review filed by sons of first wife - Application allowed and the names of sons of first wife restored - Order set aside by Board of Revenue - Held Land Revenue Code, M.P. (20 of 1959) 421
- Property was purchased from second wife and therefore, purchaser had step into the shoes of seller - Seller had only half share in agricultural land - Nothing has been referred in the order about acquisition of title of remaining half land except that purchaser was in possession of land - Mere possession will not give a party to get his name recorded or to get deleted the name of other co-owner - For invoking jurisdiction under Section 110 acquisition of right by some valid deed or order was necessary - Order passed by Board of Revenue set aside - Order passed by Tahsildar restored - Petition allowed : Rajkumar Verma Vs. Board of Revenue, I.L.R. (2007) M.P. 1382
- Section 117 - On account of the sale deed, the mutation in the revenue record was effected in favour of plaintiff's father and accordingly Bhu-Adhikar and Rin-Pustika was issued to him - Held - Even if name of plaintiff's father mutated on agricultural land - The entry in revenue record is only a pencil entry and will not confer any substantial right to plaintiff's father : Motilal Pandey Vs. Kailash Pathak, I.L.R. (2009) M.P. 2601
- Section 117 - Whether Collector's name be recorded unilaterally without giving notice to the Pujari - Held - Unilaterally recording the name of Collector was bad in law but will continue in the interest of deity - The Pujari will continue to hold the office if not held to be otherwise disqualified : Gaya Prasad Vs. State of M.P., I.L.R. (2008) M.P. 3200
- Sections 147, 154-A - See - Lok Dhan (Shodhya Rashiyon Ki Vasuli) Adhiniyam, 1987, Sections 3, 4, : Savita Ben Thakur Das Patel (Smt.) Vs. State of M.P., I.L.R. (2008) M.P. 1731
- Section 158(1)(b) - Natural Justice - The person claiming Bhumiswami rights over the land belonging to public temple, cannot be evicted without giving an opportunity of hearing, even if the Government alleges him to be a trespasser - Notice is necessary before taking action : Gaya Prasad Vs. State of M.P., I.L.R. (2008) M.P. 3200
- Section 165(6) - Provision does not prohibit the Government to acquire and transfer any land belonging to aboriginal tribe under law - But, it applies only to the transfer of a right of Bhumiswami belonging to a tribe by way of sale, lease, mortgage to a person not belonging to aboriginal tribe : Naresh Singh Vs. Union of India, I.L.R. (2009) M.P. 730 (DB)
- Sections 170-A, 170-B - Difference - Held - If the transfer is in pursuance to a decree passed by the court then the same is one of the transfers for the purposes of Section 170-A. Section 170-B does not specifically contemplates that if the transfer is in pursuance of a decree and judgment of the Court then still the transferee has to apply under that Section : Rimmo Vs. Kisan, I.L.R. (2010) M.P. 1792 Land Revenue Code, M.P. (20 of 1959) 422
- Sections 170-A, 170-B - Difference- Held - Section 170-A applies in case of eventuality of transfer and power has to be invoked by a transferor - Under section 170-B the power has to be invoked by a transferee : Rimmo Vs. Kisan, I.L.R. (2010) M.P. 1792
- Section 170-B - Appeal preferred before Collector against the order of SDO - Appellant had raised specific ground in appeal that no fraud had been committed on any tribal and the land is not the agricultural land but Abadi land and after purchasing the land house was constructed on the land by spending considerable amount - Plea not considered by Collector and revisional authority - Therefore, the orders passed by the Collector and revisional authority cannot be sustained - Matter remanded back to SDO : Siyaram Vs. Dalia Bai, I.L.R. (2009) M.P. 408
- Section 170-B - Presumption raised u/s 170-B(2) is rebuttable presumption - The presumption u/s 170-B(2) is confined to only one aspect i.e. whether the possession is without lawful authority - Therefore, if the person in possession shows that he is in possession with lawful authority the presumption stands rebutted : Siyaram Vs. Dalia Bai, I.L.R. (2009) M.P. 408
- Section 170-B - Provision applies to agricultural land in respect of members of tribal, which was declared to be aboriginal tribal as per Section 165(6) of Code : Siyaram Vs. Dalia Bai, I.L.R. (2009) M.P. 408
- Section 170-B - Reversion of land - Presumption raised u/s 170-B(2) is a rebuttable presumption - Final order under Sub-section (3) has to be passed even if no information is given within stipulated time - Show cause notice and enquiry is necessary - Orders of revenue authorities directing reversion of land to original holders who were members of aboriginal tribe on the ground of non-furnishing of information set-aside - Matter remanded back to SDO to conduct enquiry by giving opportunity to petitioner and to pass speaking order : Siyaram Vs. Dalia Bai, I.L.R. (2009) M.P. 408
- Section 170-B - Petitioner purchased agricultural land from member of aboriginal tribe after obtaining due permission from Collector - S.D.O. directed reversion of land on the ground that petitioner did not inform about sale within stipulated period - Held - Object of provision is to examine that possession of non-tribal purchaser is lawful and to ensure that tribal transferor was not defrauded - Order of S.D.O. is bad as it was passed without considering permission granted by Collector - Petition allowed : Ashok Kumar Dubey Vs. Smt. Parvati Bai, I.L.R. (2008) M.P. 2831
- Section 170-B - Settled position of law - Presumption u/s 170-B(2) is only a rebuttable presumption which can duly rebuted by producing the permission granted by Collector u/s 165(6) of Code : Ashok Kumar Dubey Vs. Smt. Parvati Bai, I.L.R. (2008) M.P. 2831 Land Revenue Code, M.P. (20 of 1959) 423
- Sections 170B, 257(L-1) (As amended w.e.f. 15.12.1995),- Exclusive jurisdiction of Revenue Authorities - Plaintiff purchased agriculture land by registered sale deed - Proceeding u/s 170B of Code was registered against him - Suit for declaration & injunction that he is Bhumiswami and respondent be restrained to dispossess him filed on 12.06.1995 - Suit dismissed on ground that jurisdiction of civil court is barred u/s 257 of Code - Held - Insertion of sub-clause (L-1) in Section 257 w.e.f. 15.12.1995 - Clearly indicates that prior to insertion there was no express bar on jurisdiction of civil court in matter covered u/s 170B - Suit was filed prior to 15.12.1995, therefore, jurisdiction of civil court was not barred - Judgment & decree of courts below set-aside - Case remanded - Appeal allowed : Babu Vs. State of M.P., I.L.R. (2008) M.P. 2638
- Section 183 - Service land - Collector cancelled service land, declared the same as Nazul land and reserved it for Mela purpose - Petition filed - Held - S. 183 provides instances which would lead to cancellation of service land - Object for which the service land has been cancelled is not in consonance to statutory stipulations contained u/s 183 - Illegality committed by the Collector - Order of cancellation quashed - Petition allowed : Jasoda Bai Vs. State of M.P., I.L.R. (2009) M.P. 979
- Sections 190 & 251 - Bhumiswami rights - Determination of question of Bhumiswami rights lies within the province of civil court except in cases falling u/s 257 of the Code - Section 257(o) gives limited jurisdiction to revenue authorities to decide the claim of occupancy tenant for conferral of Bhumiswami rights - Therefore, in cases where the status of claim as occupancy tenant is in dispute, Section 190 of the Code cannot be invoked : Vimla Bai Choudhary (Smt.) Vs. Board of Revenue, I.L.R. (2009) M.P. 415
- Sections 234, 236, 237 - Exchange of Charnoi Land - Application filed by respondents for exchange of their land with Charnoi Land - Application objected to by villages - Application for exchange rejected by Collector - Appeal also rejected - Board of Revenue allowed exchange of Charnoi land with that of respondents - Held - Section 236 of Land Revenue Code gives power to Collector to make provision for free grazing of cattles used for agriculture - Land reserved for free grazing of cattles cannot be changed easily for personal use of individual - Further more Board of Revenue could only have remanded the matter back to collector for reconsideration - Direction issued by Board of Revenue for exchange of lands of respondents quashed : Harikishan Vs. State of M.P., I.L.R. (2007) M.P. 505 (DB)
- Sections 234, 237 - Judgments passed in Amar Singh's case and in Dayaram's case referred to Full Bench to resolve the conflict between the law laid down by both of these judgments - After detailed scrutiny of both the judgments, the Full Bench - Held - Amar Singh's case was decided before incorporation of sub clause 3 in section 237 of M.P. LRC whereas Daya Ram's case was decided after incorporation of Sub clause 3 Land Revenue Code, M.P. (20 of 1955) 424 in Section 237 of M.P. LRC. - Before incorporation of sub clause 3 in Section 237 by amendment Act, (M.P. Act no. 1 of 1998), the collector had no jurisdiction to divert unoccupied land reserved for Nistar Rights into agricultural land, the power to divert Nistrar Land into agricultural land was vested with Sub Divisional Officer - Sec.234 (3) and 237 (3) operates in two separate spheres-234(3) deals with Nistrar Patrak whereas 237 (3) provides for diversion of certain lands-Law laid down by referred two judgments are not in conflict : Goverdhan Gurjar Vs. State of Madhya Pradesh, I.L.R. (2007) M.P. 1177 (FB)
- Section 241 and Rules published by notification No.218-6477-VI-N-(Rules) dated 06.01.1960 in the M.P. Rajpatra dated 22.01.1960 framed in exercise of powers u/s 241 of the Code - Held - (1) The reminder communication incorporated in Rule 4 need not be filed immediately on the lapse of the first three months from the date of filing the original application, (2) The provision of Rule 4 does not envisage filing of repeated or more than one reminder, (3) The deemed permission stipulated in Rule 4 comes into operation only on the lapse of three months from the date of filing the one and only reminder/communication, (4) In case a reply is communicated to the petitioner by the Collector then the running of time of three months on the lapse of which the deemed communication comes into operation is arrested and in such cases the Collector has the power and authority to take his time in deciding the application, (5) The permission or the deemed permission granted under Rule 4 is limited to and remains alive only till the end of the calendar year in which it has been granted, (6) The judgement in the case of Raghuvir Singh v. Board of Revenue & ors. [1984 RN 382] is hereby over-ruled not being good law : Raju Bai (Smt.) (Dead) Through L.R.-Dimak Chand Vs. Collector, Balaghat, I.L.R. (2010) M.P. 2031 (FB)
- Section 247 - Government's title to minerals - Judgment passed in Premchand's case (1965 JLJ 413) is not applicable to grant of mining leases after enactment of Mines and Minerals (Regulation and Development) Act, 1957 : Shyam Bihari Singh Vs. State of M.P., I.L.R. (2008) M.P. 2820 (DB)
- Section 248 - See - Constitution, Article 226 : Resources Development Institute, Bhopal Vs. State of M.P., I.L.R. (2009) M.P. 974 Land Revenue Code, M.P. (20 of 1955)
- Section 65 - Provides that State Government may vest any Settlement Officer with all or any of the powers of a Collector under this Code to be exercised by him - State Government has not issued any notification delegating the powers of Collector to Settlement Officer U/s 65 of the Code : Chetanlal Thakur Vs. State of M.P., I.L.R. (2008) M.P. 1114 Law of Torts 425
- Section 88 - Provides that Settlement Officer shall exercise all the powers of the Collector conferred on him in any of the provisions of Chapter IX & XVIII of the Code - It is clear that U/s 88 of the Code the powers of disciplinary authority vested with the Collector cannot be delegated to the Settlement Officer : Chetanlal Thakur Vs. State of M.P., I.L.R. (2008) M.P. 1114 Law of Torts
- Compensation - Determination - Held - Under the tort, the Acts do not provide the principle on which damages are to be assessed - The English Act merely say that "damages may be awarded as are proportioned to the injury resulting from the death to the dependants respectively" - The Indian Act similarly says that "the Court may give such damages as it may think proportioned to the loss resulting from such death to the parties respectively." : Chairman, M.P.S.E.B., Jabalpur Vs. Mulu @ Moolchandra, I.L.R. (2009) M.P. 1415
- Death by negligence - Deceased died due to electrocution - Appellants stated that a squirrel came in contact with wires resulting to a short circuit due which wire snapped from the pole and fell on the ground - Held - Stand taken by the appellant does not find mention in the written statement and witness states that he made statement on the basis of his experience - Parties cannot deviate from the pleadings - Maintenance of the lines were also done 5 months prior to incident - Appellants did not adduce any satisfactory evidence that safety measures were taken : Chairman, M.P.S.E.B., Jabalpur Vs. Mulu @ Moolchandra, I.L.R. (2009) M.P. 1415
- Malicious Prosecution - The person at whose instance the machinery is put to action and if law is put to action, then the person as such, who is responsible to put the machinery in action, shall be liable for the malicious prosecution : R.R. Sonver Vs. Mukhtyar Singh, I.L.R. (2010) M.P. Note *67
- Medical negligence - Civil liability - Mother of appellants died during T.T. operation - Suit filed on ground of negligence of doctor - Suit dismissed - Appeal filed - Held - Simple lack of care incurred civil liability - Operation was not necessary for saving life - Lady doctor was negligent in discharing her duties in allowing an incompetent person (a dresser) to administer anaesthesia - At the time of incident appellants were aged between 11 to 2 years respectively, lost their mother - No amount of compensation can fill up the gap - Compensation of Rs.1,50,000/- with 6% interest awarded - Judgment & decree of trial court set-aside - Appeal allowed : Bharti (Ku.) Vs. State of M.P., I.L.R. (2008) M.P. 2935
- Medical Negligence - Failure of T.T. operation - No evidence that operation was not performed by the doctor by taking reasonable degree of care & skill - As the Law of Torts 426 doctor was not found negligent, the liability cannot be fastened to pay damages and in that case there will not be any question of vicarious liability of employer of doctor : Radha Ujjainkar (Smt.) Vs. State of M.P., I.L.R. (2008) M.P. 2089 (DB)
- Medical negligence - Where a person is guilty of negligence per se, no further proof is needed -There was excess bleeding to young lady during the course of family planning operation in a camp - Death occurred in transit when she was shifted to Indore which shows that there was no proper arrangements where she was operated - Medical negligence proved : Gowardhan Singh Vs. State of M.P., I.L.R. (2008) M.P. 1183
- Medical negligence - Whether the claimant who has delivered an unawanted child because of failure of T.T. operation is entitled for compensation - Held - Popular and prevalent method of sterilization are not 100% safe and secure - In spite of the operation having been successfully performed without negligence on the part of surgeon, the sterilized woman can become pregnant due to natural cause - Even after having gathered the knowledge of conception, the couple opted for bearing the child - It cease to be unwanted child - Compensation for maintenance and upbringing of such child can not be claimed : Radheshyam Vs. State of M.P., I.L.R. (2009) M.P. 1031
- Negligence - Death of 8 years girl due to contact with live electric wire while cleaning her hut from out side - M.P.E.B. has taken a plea that hut constructed illegally near pole - Trial court found that accident occurred because of negligence on the part of M.P.E.B. and awarded Rs.85,000/- with interest from date of judgment - Appeal filed for enhancement - Held - No appeal filed by M.P.E.B., challenging the findings of trial court regarding negligence - Plea cannot be looked into - It was duty of M.P.E.B. to get hut removed - Thus, negligence of M.P.E.B. proved - Compensation enhanced by rupees One lac with interest from date of filing of suit - Appeal allowed : Mangibai Vs. M.P. Electricity Board, I.L.R. (2008) M.P. Note *86
- Negligence - Plaintiff has proved negligence on the part of Municipal Corporation in maintaining a public road in its proper condition which has resulted in accident - Consequently caused loss & damage to the plaintiff - Plaintiff is entitled to compensation for loss and injury suffered by him : U.P. Sharma Vs. Jabalpur Corporation, I.L.R. (2010) M.P. 231
- Vicarious liability - Compensation - Due to fault committed by the Board, petitioner's result was declared late - It resulted in the loss of entire year forcing the petitioner to reappear in the class XII examination - Single Judge awarded compensation of Rs.25,000 for mental agony and loss of entire year - Writ Appeal - Held - Petitioner is innocent cannot become a victim because of fault of the Board - Board is vicarious liable to pay compensation to the grieved student - Judgement affirmed by D.B. - Writ Appeal dismissed : Board of Secondary Education, Bhopal Vs. Rakesh Kewat, I.L.R. (2010) M.P. Note *3 (DB) Limitation Act (36 of 1963) 427
Legal Remembrance Manual
- Rule 18 - See - Criminal Procedure Code, 1973, Section 24 : Anita Khare (Smt.) Vs. State of M.P., I.L.R. (2010) M.P. Note *57 Legal Services Authorities Act, (XXXIX of 1987)
- Section 19(5), Contract Act Indian 1872, Section 23 - Jurisdiction of Lok Adalat - Petitioner filed suit for eviction - Matter compromised before Lok Adalat - Petitioner directed to pay Rs.1,88,000/- to tenant for vacating suit premises - Held - Order passed by Lok Adalat against public policy - Hence quashed : Kamal Kumar Jain Vs. Babilata Jain, I.L.R. (2007) M.P. 339
- Section 21 - Void Award - Remedy - Any order obtained by parties by playing fraud is a nullity and it can be challenged in any collateral proceedings even at the stage of execution and appeal is maintainable u/s 96 of CPC against void order of Lok Adalat : Mahila Bhanwari Bai Vs. Kashmir Singh, I.L.R. (2009) M.P. 1747
- Section 21(2) - Bar as to Jurisdiction - Award by Lok Adalat - Writ Petition challenging award of Lok Adalat is maintainable if award is without jurisdiction : Kamal Kumar Jain Vs. Babilata Jain, I.L.R. (2007) M.P. 339 Limitation
- It was a cardinal principal of law of limitation - The prescribed period, if any, of limitation starts running from the date of acquiring the knowledge of the relevant fact giving rise to the cause of action : Choti Bai (Smt.) Vs. State of M.P., I.L.R. (2008) M.P. 2331 Limitation Act (36 of 1963)
- Section 3 - Bar of limitation - Sale deed executed on 05.06.1972 - Suit challenging sale deed filed on 15.12.1986 i.e., after more than 14 years - Held - Case is barred by limitation : Bipta Bai (Smt.) Vs. Smt. Shipra Bai, I.L.R. (2009) M.P. 1402
- Section 3(2)(b) - Counter Claim - Subsequent amendment in counter claim seeking recovery of money - Computation of limitation - Statutorily prescribed as the date on which counter claim is filed in the Court - Doctrine of relation back does not get attracted : Kanhaiyalal S/o Vishwambherdayal Agrawal. Vs. Muktilal S/o Rameshwardas Naredi, I.L.R. (2006) M.P. 1026 (DB)
- Sections 4 to 24 - See - Income Tax Act, 1961, Section 260A : Assistant Commissioner of Income Tax Vs. M/s. Shubhash Traders, I.L.R. (2009) M.P. 2395 (DB) Limitation Act (36 of 1963) 428
- Section 5, Article 123, Civil Procedure Code, 1908, Order 9 Rule 13 - Suit decreed ex parte on 19.04.1985 against the appellant, who filed application for setting aside decree on 08.07.1988 alleging that he could only know about the decree when execution notice was served and without filing any application for condonation of delay - Held - The limitation must be deemed to have started from the date when the appellants/ defendants came to know about the decree on 22.06.1988 - An application under Order 9 Rule 13 was filed within 30 days from that date and therefore, it is clear that it was within time - At any rate, even if it held that the limitation started from the date of decree, there was a satisfactory explanation of the delay if any : Bhagmal Vs. Kunwar Lal, I.L.R. (2010) M.P. 2252 (SC)
- Section 5 - Condonation of delay - Applicability for State & individual litigant - Held - The Law of Limitation makes no distinction amongst the State and the citizens of this country - The State has to approach the Court well within the prescribed period of limitation - When the "State" as an abstract entity prays for condonation of delay, the requirement of strict proof sometimes leads to miscarriage of justice : Pyarelal Vs. State of M.P., I.L.R. (2010) M.P. Note *33
- Section 5 - Condonation of delay - No element of fraud or negligence of State Officials - Proper course - Held - Even when there exist no material to find that there was either a fraud played or with the connivance of the State Officials a fraud was committed in causing delay, due to deliberate negligence or as a result of master- craftsmanship of some employees of Government - A decision on merits could be arrived at only after condoning the delay and hearing the appeal on merits : Pyarelal Vs. State of M.P., I.L.R. (2010) M.P. Note *33
- Section 5 - Condonation of delay - No Question of law involved - Proper course - Held - The Court has to concentrate on the importance of the question of law involved in a matter, while considering the prayer for grant of condonation of delay because when the State approaches the Court after a long lapse of delay without there being any important question of law involved in the matter, no fruitful purpose could be served in condoning the delay : Pyarelal Vs. State of M.P., I.L.R. (2010) M.P. Note *33
- Section 5 - Condonation of delay - Powers of the Court - Held - The matter of condonation of delay is in the discretion of the Court : Bansidhar Goyanka Vs. Alok Kumar, I.L.R. (2010) M.P. Note *59
- Section 5 - Condonation of delay - Sufficient cause - Duty of the Court - Held - Every Court should remain cautious at the time of deciding an application seeking condonation of delay for ascertaining as to whether the delay was caused as a result of skillful management of some individuals, with a view to commit public mischief, for capturing the public property and when the Court feels satisfied, then it can ascertain Limitation Act (36 of 1963) 429 the sufficiency of the cause, by ignoring the length of the delay and condone it, in peculiar circumstance of each case : Pyarelal Vs. State of M.P., I.L.R. (2010) M.P. Note *33
- Section 5 - Application for condonation of delay in filing application under Order 9 Rule 13 CPC - Appellant due to death of counsel could not obtain certified copy in time - Held - The counsel representing the appellant had died that was the reason why copy of order could not be obtained in time - Courts below committed serious error by refusing to condone delay : Ramgulam @ Sadhu Patel Vs. Bhagwat Prasad Patel, I.L.R. (2010) M.P. 1685 (SC)
- Section 5 - Condonation of delay - Application under Order 9 Rule 13 CPC filed after a delay of 1 year 10 months - Application rejected and appeal also rejected as barred by time - First Appeal against decree was also filed after delay of 948 days - Appeal was also dismissed as barred by time - Reason for delay was shown to be that O.I.C. was negligent and did not inform the senior officers about the progress of the case - No action taken against O.I.C. except issuing show cause notice seeking his explanation - Same person continues to be O.I.C. in S.L.P. also - Record shows that O.I.C. was not negligent as petitioner had returned the land to the State Govt. and had requested to defend the case - Not clear that how the petitioner could return the land to State Govt. specifically when it was not placed in possession - Why petitioner after having requested State Govt. to defend the cases decided to file S.L.Ps. - petitioner also failed to produce any title deed, grant of possession certificate - Cause shown for delay is wholly inadequate and unsatisfactory - Petition dismissed with costs : M.P. Matsya Mahasangh Vs. Sudheer Kumar, I.L.R. (2010) M.P. 1243(SC)
- Section 5 - See - Civil Procedure Code, 1908, Order 9 Rule 4 : Shaikh Khalil Vs. Shaikh Jamil, I.L.R. (2009) M.P. 1048
- Section 5, Civil Procedure Code, 1908, Section 96 - Condonation of delay in filing appeal - Delay of 6¼ years in filing appeal - Plaintiff/respondent filed suit for declaration and perpetual injunction - Appellant engaged counsel - O.I.C. became patient of cancer and was unable to devote sufficient time - Counsel not engaged by appellant cross examined plaintiff"s witnesses and subsequently pleaded No Objection on the date which was fixed for appellant's evidence - Counsel engaged by appellant, is no more, never informed about the date - Appellant came to know about ex parte decree only when the same was filed by respondent in another suit - Appeal was filed after a delay of 6¼ years - Held - Sufficient cause should be construed liberally as the justice should not be lost in technicalities - Length of delay is not relevant factor - When sufficient cause is made out, the interest of opposite party may be compensated by imposing cost - Delay of 6¼ years condoned with cost of Rs.10,000/- : International Association of Lions Clubs Vs. Dr. Jagjit Singh Khanna, I.L.R. (2008) M.P. 2342 Limitation Act (36 of 1963) 430
- Section 5 - Dismissal of State's application for condonation of delay in filing appeal - Appeal barred by 12 days - Officer-in-charge was transferred and got busy in some government work and real brother became seriously ill who subsequently died - Held - State is impersonal machinery - Sufficient ground shown for condonation of delay - Court should have taken pragmatic approach in considering the application and should have considered the law laid down by the Apex Court in objective manner - Appeal allowed and case remanded to hear appeal on merits : State of M.P. Vs. Suresh, I.L.R. (2008) M.P. 2932
- Section 5, Civil Procedure Code, 1908, Section 96 - Appeal allowed by First Appellate Court without deciding application for condonation of delay - Held - First Appellate Court was not having any jurisdiction to decide appeal on merit without condoning delay - Matter remanded back to First Appellate Court to decide application under Section 5 of Indian Limitation Act - If delay is condoned then only appeal may be heard on merits - Appeal allowed : V.K. Verma Vs. Dawoodi Bohra Masjid Committee, I.L.R. (2008) M.P. 314
- Section 5 - Condonation of delay - Law of limitation is a law of peace and the provisions of the same are to be liberally interpreted : Indermal Vs. Shambhu Lal, I.L.R. (2007) M.P. 266
- Section 5 - Condonation of delay in filing appeal - Court should keep in mind the judgment impugned, extent of property involved and stake of the parties - Inconvenience caused to respondents can be compensated by awarding appropriate Costs - Delay condoned : Asharam Vs. Smt. Gangabai, I.L.R. (2006) M.P. 49
- Section 12 Art. 123 - See - Civil Procedure Code, 1908, Order 9 Rule 13 : Mohan @ Munna Pachari Vs. Jagdish Chandra Dubey, I.L.R. (2008) M.P. 1402
- Section 12(2) - Exclusion of time - Money Decree passed by Trial Court requiring defendant to deposit decretal amount within one month failing which the amount to carry interest @ 12% from 31.1.1996 till payment - Date of Decree to be excluded while calculating period of limitation of one month : The New India Assurance Company Limited Vs. Ramvilas Vijay Vargiya, I.L.R. (2007) M.P. 148
-Section 12(3) (As amended w.e.f. 01.07.2002) - See - Land Acquisition Act, 1894, Sections 26(2) & 54 : Bharat Petroleum Corporation Ltd. Vs. Umeshkumar, I.L.R. (2008) M.P. 3169
- Section 14 - Requirement of section is that the said proceedings were chosen and were taken up with due diligence - Mere prosecution of remedy by itself would be sufficient to ignore the period of limitation spent in prosecuting the remedy before a Limitation Act (36 of 1963) 431 wrong forum : ACME Papers Ltd. (M/s.) Vs. M.P. Financial Corporation, I.L.R. (2010) M.P. Note *56
- Section 14(1) & (3), Civil Procedure Code, 1908, Order 23 Rule 2 & Order 2 Rule 2 - As per S. 14(3) of Act, the provisions of S. 14(1) shall apply in relation to a fresh suit instituted on permission granted by the Court under Order 23 Rule 1 - The leave of the Court is also contemplated to file suit in case relief has been omitted to be claimed with respect to same cause of action under Order 2 Rule 2 - S. 14(3) of Act does not provide for the exigencies contemplated under Order 2 Rule 2 : Hindustan Motors Ltd. (M/s.) Vs. D.R. Motors (M/s.), I.L.R. (2010) M.P. 215 (DB)
- Section 27, Article 65 - Sale deed - No suit for partition filed by purchaser within 12 years - Purchaser admittedly in possession as tenants - It cannot be said that plaintiff has perfected title by virtue of adverse possession - Sale deed could not be said to be void and ineffective : Hameeda Begum (Smt.) Vs. Smt. Champa Bai Jain, I.L.R. (2009) M.P. 2328 (DB)
- Section 29(2) - Savings - Unless special law or local law expressly excludes application of provisions of Act, 1963, the provisions shall apply even to limitation prescribed for any suit, appeal or application under any special law : Ramesh Chouksey Vs. Union of India, I.L.R. (2008) M.P. 1887 (DB)
- Articles 19 & 28 - By agreement, money was lent for one year and was to be repaid within one year with interest - Held - Article 28 will be applicable for suit for recovery - Cause of action to file suit accrued after expiry of one year of money lent - Suit could be filed within 3 years of cause of action - Judgment and decree dismissing suit as barred by limitation set-aside - Revision allowed : Omprakash Vs. Krishnalal, I.L.R. (2009) M.P. 1794
- Article 54 - Agreements initially were to execute sale deeds by 31.10.87 - On 01.04.94, defendant agreed to get the sale deed executed within a period of one month of his getting the permission from competent authority - The endorsement exceeds the time fixed for execution of sale deeds - Suit filed on 29.01.1996 i.e. within 3 years of extension of the agreement - Suit is within limitation : Rameshwarlal Vs. Dattatraya, I.L.R. (2010) M.P. 970
- Article 54, Specific Relief Act, 1963, Section 12 - Specific Performance of Contract - Defendant was required to obtain permission from Urban Land Ceiling Deptt. - Suit for specific performance of contract filed after 1 year and 7 months of giving notice which was the last day of three years - Held - Execution of agreement and payment of earnest money admitted - Suit has to be filed within reasonable time even if time is not the essence of contract - Nothing on record to show as to when defendant obtained permission - No disadvantage caused to defendant - No suggestion that there was escalation in price - No delay or laches on the part of plaintiff - Plaintiff entitled for Limitation Act (36 of 1963) 432 decree of specific performance of Contract - Appeal dismissed : Murlidhar Pinjani Vs. Smt. Sheela Tandon, I.L.R. (2007) M.P. 785
- Article 55 - Suit for recovery against appellant filed well within the period of 3 years from the date of cause of action - Suit not barred by Limitation : Ravishankar Tiwari Vs. Allahabad Bank, Hoshangabad, I.L.R. (2006) M.P. 1529 (DB)
- Article 55 - Suit within 3 years of information about non-delivery of goods - Within limitation - Suit rightly decreed by Trial Court : Nav Bharat Corporation, Bombay Vs. M.P.E.B. Jabalpur, I.L.R. (2006) M.P. 600 (DB)
- Article 58 - Suit for declaration that proceedings held by State and Competent Authority under the Urban Land (Ceiling and Regulation) Act, 1976 was null & void and prayed permanent injunction for protecting the possession - Plaintiff was very well aware of the proceedings under the Ceiling Act - Still plaintiff did not file the suit to challenge the order withtin the period of limitation - Possession was taken in the year 1982 - Suit has been filed on 23.06.2000 - It was hoplessly barred by limitation - Concurrent finding of both courts upheld by High Court : Kamla Bai (Smt.) Vs. State of M.P., I.L.R. (2008) M.P. 2925
- Article 59 - Suit for declaration and permanent injunction - Instrument of gift sought to be declared as void ab initio - Limitation of three years - So long a person continues in possession there is no requirement to sue for avoiding a void document as suit would not fall under Article 59 : Dr. Amar Singh Vs. Smt. Gulab Bai (Dead) Through Proposed L.Rs., I.L.R. (2006) M.P. 1545
- Articles 64 & 65 - Adverse possession - Suit for declaration of title and injunction on the basis of adverse possession - In evidence, plaintiff admitted to have obtained possession from defendants for cultivation and execution of documents in this respect - In further cross-examination after 6 months plaintiff resiled from his earlier version merely about execution of document - Held - Plaintiff failed to prove how and when did his permissible possession become adverse - Suit on the basis of adverse possession liable to be dismissed. Parmal Singh Vs. Hallu, I.L.R. (2010) M.P. 1456
- Articles 64, 65 - Suit for possession - Defense plea of possession by virtue of part performance of oral agreement as also adverse possession - For part performance written contract is sine qua non - In absence of written contract benefit of part performance cannot be taken - Parties are real brothers - Possession with consent - Plea or adverse possession not open : Ramgopal through his LRs Smt. Savitri Vs. Ramniwas, I.L.R. (2006) M.P. 1306
- Article 65 - Adverse possession - Plea of - Cannot be raised against a minor : Dinesh Kumar Vs. Kaushal Chand Jain, I.L.R. (2006) M.P. 828
- Article 65 - Suit for possession and mesne-profit - Defendent pleading perfection of title bassed on adverse possession - Parties being co-owners, defendent should have Lok Dhan (Shodhya Rashiyon Ki Vasuli) Adhiniyam, M.P. 1987 (1 of 1988) 433 proved "ouster" - Plaintiffs suit wrongly dismissed as barred by limitation : Shivkumar Tiwari Vs. Rambai, I.L.R. (2006) M.P. 1300
- Article 70 - Suit for recovery of jewellery pledged - Jewellery pledged on 02.12.1987 - Notice to return of pledged jewellery received by appellant on 14.05.1998 - Suit filed on 26.06.1998 - Suit within limitation - Appeal dismissed : Seth Ramdayal Jat Vs. Laxmi Prasad, I.L.R. (2009) M.P. 1847 (SC)
- Articles 72 & 113 - Suit for compensation for death during/after T.T. operation - Trial Court dismissed the suit as barred by limitation since not filed within one year - Held - In the Act, there is no separate Article for claiming compensation on account of injury to person - Suit shall be govern by Article 113 - Limitation will be 3 years - Dismissal of suit not proper - Judgment and decree set-aside - Appeal allowed : Radheshyam Vs. State of M.P., I.L.R. (2009) M.P. 1031
- Article 74 - Malicious prosecution - Limitation starts to run when the plaintiff is acquitted or the prosecution is otherwise terminated and such order attains finality i.e. if the order is challenged in superior Court, the plaintiff to watch the outcome of such proceedings : S.D. Tiwari Vs. Gurmeet Singh @ Billu, I.L.R. (2009) M.P. 1172
- Article 123, Clause II - Notice of decree - Notice issued during execution proceedings - Cannot be considered to be notice of decree - Some vague information that some decree has been passed is not sufficient to impute knowledge : Indermal Vs. Shambhu Lal, I.L.R. (2007) M.P. 266 Limitation Act (9 of 1908) - Article 142 - Suit for possession must be brought within 12 years of dispossession - Plaintiff failed to file any document in order to demonstrate his possession within 12 years of filing of suit - Date of dispossession is also not disclosed - On the contrary, revenue record showing possession of defendant - Held - Suit barred by limitation - Appeal allowed : Maniram Vs. Harikishan, I.L.R. (2009) M.P. Note *48 Lok Dhan (Shodhya Rashiyon Ki Vasuli) Adhiniyam, M.P. 1987 (1 of 1988) - Section 3(1), (B), Debts Due to Bank and Financial Institutions Act, 1993, Sections 2(d), 2(e), 2(o), 17, 18 and 34 - Co-operative Bank - Section 34 of 1993 Act has no application - Dues on account of loans advanced in priority sector under a state sponsored and socially desirable scheme - Can be recovered as arrears of land revenue through RRC : Manoj Tarwala Vs. State of Madhya Pradesh, I.L.R. (2006) M.P. 980 (DB)
- Section 3(2), Land Revenue Code, M.P. 1959, Section 44 - Order passed by Tahsildar exercising powers u/s 3(2) of Adhiniyam for recovering as arrears of Land Revenue is appealable u/s 44 of the Code : Maganlal Jain Vs. State of M.P., I.L.R. (2009) M.P. 3322 Lok Swasthya Evam Parivar Kalyan Chikitsa Samvida Sewa (Niyukti Tatha Sewa 434 Ki Sharten) Niyam, 2002
- Sections 3, 4, Land Revenue Code, M.P., 1959, Sections 147, 154-A - Recovery of dues of Banking Company as arrears of land revenue - Petitioners had taken loan from bank and mortgaged their agricultural land - Lands were auctioned under Adhiniyam, 1987 as the petitioners committed default in repayment of loan amount - Auction proceedings challenged on the ground that they are in violation of Sections 147,154-A of Code - Held - When there are two apparently conflicting provisions and if a Special provision is made on a certain matter, that matter is excluded from general provision - Provisions of Adhiniyam will prevail over provisions of Sections 147,154-A of Code - Petition dismissed : Savita Ben Thakur Das Patel (Smt.) Vs. State of M.P., I.L.R. (2008) M.P. 1731 Lok Parisar (Bedakhali) Adhiniyam, M.P. (46 of 1974)
- Section 2(e) - Public Premises - Municipalities are constitutional bodies - Property owned and controlled by local authority/Municipalities - Will fall within the ambit of Section 2(e) (iii) of the Act : Smt. Meena Agrawal Vs. Chief Municipal Officer, Municipal Council,Shivpuri, I.L.R. (2006) M.P. 952 (FB)
- Sections 3 & 17 - Delegation of powers by the State Government to Collectors u/s 17 of the Act - Notification issued on 05.02.1975 and published in Official Gazette on 16.04.1976 - Collector issued the order dated 26.08.1975 appointing S.D.O. as competent authority and it was published in Official Gazette on 19.09.1975 - Validity of appointment of competent authority challenged - Held - Actions taken by the Collector were in anticipation of the order of delegation - Order of Collector appointing competent authority become operative from 16.04.1976 - Therefore order passed by competent authority on 10.02.2000 is a valid order : Karan Singh Vs. State of M.P., I.L.R. (2009) M.P. 1235 Lok Seva (Anusuchit Jatiyon, Anusuchit Jan Jatiyon Aur Anya Pichhada Vargon Ke Liye Arakshan) Ahiniyam, M.P. (21 of 1994)
- Lok Seva (Anusuchit Jatiyon, Anusuchit Jan Jatiyon Aur Anya Pichhada Vargon Ke Liye Arakshan) Ahiniyam, M.P. (21 of 1994) - See - Constitution, Article 16(4A) [77th and 85th Amendment] : Shiv Nath Prasad Vs. Saran Pal Jeet Singh Tulsi, I.L.R. (2008) M.P. 3059 (SC) Lok Swasthya Evam Parivar Kalyan Chikitsa Samvida Sewa (Niyukti Tatha Sewa Ki Sharten) Niyam, 2002
- Lok Swasthya Evam Parivar Kalyan Chikitsa Samvida Sewa (Niyukti Tatha Sewa Ki Sharten) Niyam, 2002 - See - Constitution, Article 311(1) : Arti Choudhari (Dr.) Vs. State of M.P., I.L.R. (2008) M.P. 3110 Madhya Pradesh Food Stuffs (Distribution) Control Order, 1960 435
Lokayukt Tatha Up-Lokayukt Adhiniyam, M.P. (37 of 1981)
- Sections 10, 11 & 12 - Allotment of plot to petitioner trust by Indore Development Authority (IDA) following the due process - On complaint being made, without hearing petitioner Lokayukt directed IDA to cancel allotment - IDA treating the direction of Lokayukt binding cancelled allotment - Held - Inquiry conducted by the Lokayukt only by issuing show cause notice to Chairman of IDA, and after taking explanation and perusal of record of IDA - Entire exercise has been done behind the back of petitioner - Although formal proof as required in Evidence Act and Cr.P.C. may not be required for proceeding before the Lokayukt, still adherence of principles of natural justice is required - Order of IDA cancelling allotment quashed - Lokayukt directed to look into complaint afresh after affording opportunity to all affected parties : Guruji Sewa Nyas (Shri) Vs. State of M.P., I.L.R. (2009) M.P. 2315 Lottery (Niyantran Tatha Kar) Adhiniyam, M.P. 1973 (9 of 1974)
- Sections 13 & 14 - Every person promoting lottery shall keep and maintain accounts relating to such lottery and shall submit statement within 7 days to the Collector - On failure, punishable with maximum fine of Rs.500 : Arun Dubey Vs. District Small Saving Officer, I.L.R. (2009) M.P. 559 Lower Judicial Service (Recruitment and Conditions of Service) Rules, M.P. 1994
- Rule 5(1) - See - Constitution, Article 234 : Ashok Narayan Kale Vs. State of M.P., I.L.R. (2009) M.P. 643 (DB)
- Rule 7 - See - Service Law : Arun Singh Bhadouriya Vs. State of M.P., I.L.R. (2009) M.P. 1939 (DB) Madhya Bharat Land Revenue and Tenancy Act, Samvat 2007
- Section 51 - See - Land Revenue Code, M.P. 1959, Sections 50, 261, 262 & 262(1) : Choti Bai (Smt.) Vs. State of M.P., I.L.R. (2008) M.P. 2331 Madhya Pradesh Food Stuffs (Distribution) Control Order, 1960
- Not applicable for the distribution of Kerosene oil - Co-operative Societies cannot distribute Kerosene Oil unless authorized by a notification, control order, scheme or granted licence under the Licensing Order, 1979 : Chandgi Ram Sharma Vs. State of M.P., I.L.R. (2006) M.P. 1503 (DB) Madhyamik Shiksha Mandal (Manyata) Viniyam, 2005 436
Madhya Pradesh Kerosene Dealers Licensing Order, 1979
- Distribution of Kerosene Oil - Kerosene Oil can be distributed only through Govt. Fair Price shops through Licence holders - Order of Collector for distribution of Kerosene Oil through Gram Panchayat without issuing any licence or without there being any notification - Without jurisdiction : Chandgi Ram Sharma Vs. State of M.P., I.L.R. (2006) M.P. 1503 (DB) Madhya Pradesh Reorganisation Act (28 of 2000)
- Sections 68, 69 & 70 - See - Constitution, Articles 3, 4, 245 & 246, Entry 41 of List II of 7th Schedule : K.N. Shukla Vs. Union of India, I.L.R. (2009) M.P. 430 (DB)
- Sections 68, 69 & 70 - See - Constitution, Article 310(1) : K.N. Shukla Vs. Union of India, I.L.R. (2009) M.P. 430 (DB) Madhyamik Shiksha Adhiniyam, M.P. (23 of 1965)
- Section 28(4), Board of Secondary Education (M.P.) Regulations, 1965, Regulation 97, Proviso - Eligibility of private candidates to appear in Higher Secondary School Examination - Board rejected the application for appearing as private candidate in HSS Examination as candidates have not completed 2 years after passing the HSC Examination - Held - The candidates who have completed four academic years from the date of passing the Class VIII Examination satisfy the conditions in Regulation 97 - This interpretation of the proviso does not destroy the main provision of Regulation 97 but is consistent with the main provision in Regulation 97 : Firoz Khan Vs. Secretary Board of Secondary Education, I.L.R. (2009) M.P. 2848 (DB) Madhyamik Shiksha Mandal (Manyata) Viniyam, 2005
- Madhyamik Shiksha Mandal (Manyata) Viniyam, 2005 - See - Constitution, Article 226 : Ratna Prabha (Ku.) Vs. State of M.P., I.L.R. (2010) M.P. 387
- Regulation 5(2) - Recognition of School - Petitioner running Higher Secondary School and was granted recognition from time to time - Total area of the school less than 4000 sq.ft. - Recognition for school granted for the academic year 2007-08 with the condition that strength of the qualified staff would be fulfilled and the endowment of the fund would be made sufficient as per the requisite criteria - Abruptly recognition cancelled for the reason that area of the school less than 4000 sq.ft. - Order challenged - Held - Recognition, having been granted on the basis of the information provided by the petitioner could not have been withdrawn during the continuance of the said academic Madhyastham Adhikaran Adhiniyam, M.P. (XXIX of 1983) 437 year without issuing a show cause notice to the petitioner, moreso, because students were already admitted for the academic session and they could not have been forced to withdraw from the school and seek admission in other institutions - Action of the Board in cancelling the recognition during mid of the academic session 2007-08 is, thus, violative of principles of natural justice and is not sustainable in law - Order cancelling recognition quashed - Respondent Board is directed to declare the result of students who were allowed to appear through the petitioner's school in the examination of the academic session 2007-08 : Nanakram Mukati Vs. The Board of Secondary Education, M.P. Bhopal, I.L.R. (2008) M.P. 3103 Madhyamik Shiksha Mandal (Namankan) Viniyam, M.P. 1994
- Regulation 3 - Enrollment - Petitioner, a student of Class X was refused enrollment on the ground that he was required to get himself enrolled while he was prosecuting studies of class IX - Consequently admit card for appearing in examination of class X was also not issued - Held - Regulation 3 of Viniyam, 1994 provides that if a student is to be admitted for examinations conducted by Board after 9th class, it is necessary for him to get himself enrolled - It is nowhere provided that if student fails to get himself enrolled in 9th class he shall be debarred forever from getting enrolled in future classes - Order refusing enrollment quashed - Respondents to act immediately on the application and to allow the Petitioner to appear in High School Examination in accordance with law - Petition allowed : Fanish Kumar Shukla Vs. Board of Secondary Education, M.P., Bhopal, I.L.R. (2008) M.P. 1132 Madhyastham Adhikaran Adhiniyam, M.P. (XXIX of 1983)
- (as amended by Act No. 36 of 1995)Sections 2(1)(d), 3, 7, 7-B, 17-A - Dispute - Reference to Tribunal - Tribunal constituted is under obligation to resolve ''all disputes or differences'' pertaining to works contract - Counter claim is a cross reference - Opposite party against whom reference is made can also refer a counter claim - But Tribunal cannot admit a counter claim if not referred to by final authority or where reference has not been filed before Tribunal within the period of limitation prescribed : Ravi Kant Bansal Engineers & Contractors Mahadji Park, Lashkar, Gwalior M.P. Vs. M.P. Audyogik Kendra Vikas Nigam Limited Gwalior, I.L.R. (2006) M.P. 781(FB)
- Section 7, Arbitration and Conciliation Act, 1996, Section 11, Constitution of India, Article 254 -Inconsistency between Laws made by Parliament and by Legislatures of States - Whether the provisions of 1983 Adhiniyam have been saved by 1996 Act or 1983 Adhiniyam stand impliedly repealed by 1996 Act -Petitioner entered into contract with respondents for construction of Central Spillway of Rajeev Sagar Tank. Conditions of contract provides that any claim valued at Rs. 50,000/- or more will be considered by Madhyastham Adhikaran Adhiniyam, M.P. (XXIX of 1983) 438
Superintending Engineer - Petitioner made claim of Rs. 21.81crores which was rejected by S.E. - Petitioner filed application under Section 11(6) of 1996 Act for appointment of arbitrator instead of referring dispute to Tribunal - Objection raised by respondents that application under Section 11(6) is not maintainable - Held - State Legislature was competent to make law in respect of arbitration in Entry 13 of Concurrent List though Arbitration Act, 1940 made by Central Legislature was already in same filed - Parliament competent to make 1996 Act in same field - Provisions of 1983 Adhiniyam have been expressly saved - Provision of 1983 Adhiniyam are not repugnant to the provisions of 1996 Act and are not void and donot stand impliedly repealed by 1996 Act. Application under Section 11(6) of 1996 Act not maintainable : Shri Shankaranarayana Construction Company Vs. State of M.P., I.L.R. (2007) M.P. 1309 (FB)
- Section 7, M.P. Land Revenue Code, 1959, Sections 146,147 - Whether State Govt. can recover damages for breach of contract from Contractor without seeking adjudication of its claim before the Tribunal - Agreements of Appellants with State Government of public works were terminated and issued orders for recovery of money under clauses 4.3.3.3 and 4.3.38.1 as arrear of land - Appellants raised dispute before Superintending Engineer but he did not decide the claim - Applications filed under Section 7 of Adhiniyam, 1983 which are pending adjudication - Held - Where Contractor disputes amount claimed by State Govt. as payable by Contractor to State Govt. cannot be said to be due - State Govt. has no power to recover any amount which is disputed by Contractor as payable under the Contract prior to the decision of Superintending Engineer or Tribunal under Adhiniyam, 1983 : B.B. Verma Vs. State of M.P., I.L.R. (2007) M.P. 1167 (FB)
- Section 7(1) - See - Arbitration and Conciliation Act, 1996, Section 9 : Va Tech Escher Wyass Flovel Ltd. Vs. M.P.S.E. Board, I.L.R. (2010) M.P. 769 (SC)
- Section 7-B - Limitation - Contract terminated on 23.03.90 - Demand notice to recover extra amount served on appellant on 22.01.93 - Subsequent notice served on 16.06.94 - Appellant should have approached S.E. within one month from 22.01.93 - Appellant approached S.E. in the year 1994 - S.E. neither decided the dispute within 60 days nor time was extended mutually by parties - Appellant approached Chief Engineer in the year 1999 - Reference petition filed before Tribunal dismissed as barred by time - Held - Appellant had not approached the authorities within time and failed to take recourse within period stipulated in clause 29 of agreement - Reference petition filed before Tribunal in 1999 was not maintainable - Revision dismissed : Aggyaram & Co. (M/s.) Vs. M.P. Public Works Department, I.L.R. (2008) M.P. 1799 (DB)
- Section 7-B - Limitation - Once limitation has commenced and comes to an end, it would not be revived by rendering a decision on an incompetent reference : Aggyaram & Co. (M/s.) Vs. M.P. Public Works Department, I.L.R. (2008) M.P. 1799 (DB)
- Sections 7-B, 19 - Revision - Reference to Tribunal - Limitation - A reference to the Tribunal is not entertainable in absence of reference of alleged dispute to the final Madhyastham Adhikaran Adhiniyam, M.P. (XXIX of 1983) 439 authority - Award of Tribunal set aside : Smt. Gyan Kaur Vs. State of Madhya Pradesh, I.L.R. (2006) M.P. 1108 (DB)
- Sections 7, 19 - Revision - Contract agreement contained clause for reducing or enhancing item during subsisting contract - Claimant not entitled to any sum on account of either over head expenses or loss of profit or interest on it : M/s Seth Mohan Lal Hiralal Vs. State of M.P., I.L.R. (2006) M.P. 1103 (DB)
- Section 16 - Award - Escalation in price - Tribunal awarded Rs.2,41,008/- by way of escalation and interest thereon - Held - There was delay on the part of department in carrying out its obligations - Period was extended without any penalty - Contract did not remain contract for period of 12 months - Clause 32 of agreement that no claim for price escalation rendered ineffective - Escalation rightly granted - Revision dismissed : State of M.P. Vs. M/s. Bharat Construction Co., I.L.R. (2008) M.P. 1807 (DB)
- Section 19, Limitation Act,Indian 1963, Section 5 - Condonation of delay - Provisions of Limitation Act donot apply to revision preferred under Section 19 of Act, 1983 : State of M.P. Vs. M/s Shekhar Constructions, I.L.R. (2007) M.P. 1495 (FB)
- Section 19, Limitation Act, 1963, Sections 5, 29(2)-Question whether in view of Section 29(2) of Adhiniyam, 1983, provisions of Sections 4 to 24 applies to revision filed under Adhiniyam, to condone delay referred to Larger Bench - Held - Provisions of Limitation Act do not apply to revision preferred under Section 19 of Adhiniyam, 1983 : State of M.P. Vs. M/s Shekhar Constructions, I.L.R. (2008) M.P. 20 (FB)
- Section 19 - Suo Motu power of Revision-High Court can exercise the power of revision suo motu within a reasonable period of time : State of M.P. Vs. M/s Shekhar Constructions, I.L.R. (2008) M.P. 20 (FB)
- Section 19 suo moto exercise of power - High Court can exercise the power of revision suo moto -Such power can be exercised within reasonable period of time considering facts and circumstances of case and nature of order which is being revised - View taken in case of Pandey Construction is in accord with language employed under Section 19 - Reference answered accordingly : State of M.P. Vs. M/s Shekhar Constructions, I.L.R. (2007) M.P. 1495 (FB)
- Section 19 and Constitution of India Article 141 - Claim of contractor in respect of loss of profit and infructuous overhead expenses - Requirement of proof - Apex Court having already held that contractor to lead evidence to justify his claim - Not necessary for Division Bench of High Court to refer to earlier judgments of this court when the Law has already been settled by Apex Court - Judicial discipline demands that when conflicting opinions are given by different Division Benches, dispute shall be Maxims 440 referred to larger bench : Mukesh Kumar Singhal Vs. Nagar Palika Parishad, Bhind,I.L.R. (2006) M.P. 1336 (DB)
- Section 19 (as amended) in 2005 Amendment providing for condonation of delay in filing revision application - Amendment whether prospective or retrospective in nature - Interpretation of statutes - All procedural laws are retrospective and substantive laws are prospective - Amending Act of 2005 creating right of getting condonation of delay creates new right and is therefore prospective in nature - No revision pending when amending act came in force - Petitioner not entitled to get delay condoned - Revision dismissed : State of M.P. Vs. M/s Shriram, I.L.R. (2006) M.P. 1343 (DB) Makhanlal Chaturvedi Rashtriya Patrakarita Vishwavidyalaya "Association of Study Institutes"
- Clause 17 - Post Graduate Diploma in Computer Application (PGDCA) & Diploma in Computer Application (DCA) - Cancellation of Association - Petitioner Institute associated with the University to run two courses namely, PGDCA & DCA with intake capacity of 50 students - Petitioner Institute changing the location without informing the University and admitting more student than its capacity - Association cancelled - Held - An institute which gets associated to the University can not be allowed to proceed to change its location at his own pleasure and leisure even without applying as per the prescribed norms - Such a proclivity of the institute is not only to be deprecated but condemned from all spectrums so that realisation would dawn upon it that it can not take law unto its own hands - No error or fallacy in the order of cancellation - The extra student admitted who have not studied in the Petitioner Institute their result directed not to published with a direction for refund of their fees along with a compensation of Rs. 20,000 each - Petition disposed of : Syscon Computer Shiksha Samiti Vs. State of M.P., I.L.R. (2009) M.P. 72 (DB) Master Plan Development Scheme
- The scheme is required to adhere to the designated use of the land in the master plan and scheme is prepared for consistent with the designated use contained in the master plan. Any deviation from the master plan not permitted : Jeevan Singh Vs. State of M.P., I.L.R. (2008) M.P. 1650 (DB) Maxims
- "Falsus in uno, falsus in omnibus" - Applicability - The legal maxim "falsus in uno, falsus in omnibus", means false on one point would be false on all points, is not applicable in our country - It is sacrosanct duty of the Court to separate the grain from the chaff : Rama @ Ramlal Vs. State of M.P., I.L.R. (2009) M.P. 2660 (DB) Medical and Dental Post Graduate Course Entrance Examination Rules, 2007 441
Medical and Dental Post Graduate Course Entrance Examination Rules, M.P. 2005
- Rule 21(4) - See - Chikitsa Shiksha Niyantran Adhiniyam, M.P., 1973, Section 10 : Medical Council of India Vs. Dr. Teena Khatri, I.L.R. (2008) M.P. 2799 (DB) Medical and Dental Post Graduate Course Entrance Examination Rules, 2007
- Rule 9.2 (a) - Vires of Rule 9.2(a) restricting demonstrator to opt a seat in his own subject challenged - Petitioner working as Demonstrator in Pharmacology - Appeared in Post Graduate Entrance Examination and was called for counseling - Seat of M.D. Pharmacology was not available therefore, was not allotted the seat and was not allowed to opt for a seat in any other subject in view of Rule 9.2(a) - Held - Classification of Demonstrators for the purposes that they donot leave the service as Demonstrator after PG course has no rational nexus with object of granting admission - Such object is achieved by provision made in rules that Demonstrator has to execute a bond of Rs.3 lacs to serve the Govt. for five years - Provision in Rule 9.2 (a) restricting Demonstrators to opt a seat in his own subject is discriminatory and ultra-vires Article 14 of Constitution : Dr. Shailendra Kumar Patne Vs. State of M.P., I.L.R. (2007) M.P. 916 (DB)
- Rule 10(2) - Weightage of marks for service rendered in rural areas - Petitioner appeared in common entrance examination to Post Graduate Medical Degree/Diploma Courses as in-service candidate - Petitioner secure higher marks than those candidates who had served in rural areas - Position in merit list went substantially down because of weightage of marks given to candidates having served in rural areas - Vires of Rule 10(2) providing for giving weightage of 25% marks challenged - Held - Rule 10(1) provides that in-service candidate should secure minimum qualifying marks - Apprehension that candidates of poor quality may get admission taken care of 50 marks out of 200 are to be awarded depending upon the number of years and the area in which in-service candidate has served - Considering peculiar experience of State of M.P., weightage of marks to in-service candidates upto ceiling of 25% for service in rural and tribal areas not unreasonable and irrational - Not ultra vires Article 14 of Constitution of India : Dr. Arvind Bhatia Vs. State of M.P., I.L.R. (2007) M.P. 921 (DB)
- Rule 10(3) - Weightage of marks to Demonstrators - Weightage of 10 marks for each year of service after 5 years of minimum regular service rendered to Demonstrator - Reason for giving weightage of marks because there are no career prospects for Demonstrator - Held - Rule 9.2 putting restriction that Demonstrator can only opt for seat in the subject in which he is working already declared ultra vires - Demonstrators Medical and Dental Post Graduate Course Entrance Examination Rules, M.P. 2008 442 as in-service candidates can opt for seat in other subjects also - Rule 10(3) providing weightage of marks to Demonstrators ultra vires Article 14 of Constitution of India - Respondents direct to conduct counselling accordingly : Dr. Arvind Bhatia Vs. State of M.P., I.L.R. (2007) M.P. 921 (DB)
- Rule 20(2) - Counseling - Petitioner alleged that provisions of Rule 20(2) were not complied with as news regarding counseling was not properly circulated - Held - Respondent had circulated information with regard to the second counseling in all leading newspapers having the effective public circulation - Steps were taken for publication of intimation relating to second counseling in the popular Hindi and English newspapers at Division and District level - Information was also flashed on Akashwani in the Radio and Doorshan in the television - Rule complied with - Petition dismissed : Ruchir Kumar Jain Vs. State of M.P., I.L.R. (2008) M.P. 2847 (DB)
- Rule 20(9) - Vires of Rule 20(9) which provides that seats remaining vacant after category wise counselling of in-service candidates will be made available unchanged to open category challenged - Held - Such provision has been made to ensure that seats reserved for different categories are not affected - Rule 20(11) provides seats to be filled upon from open unreserved candidates if candidates are not available from reserved categories - In such situation percentage of reservation is affected because of non- availability of candidates and not by a provision in Rules - If candidates from reserved categories are not available for remaining seats for S.C., S.T. or O.B.C. then such seats cannot go waste and will have to be filled from open unreserved category candidates - Rule 20(9) is not discriminatory and violative of Article 14 of Constitution of India : Dr. Arvind Bhatia Vs. State of M.P., I.L.R. (2007) M.P. 921 (DB) Medical and Dental Post Graduate Course Entrance Examination Rules, M.P. 2008
- If any seat falls vacant on or before 31st May, 2008 in any Medical/Dental College in any subject, the name of such candidate shall be considered on the basis of merit at the time of allotment of vacancies arising due to any reason for admission of the said category - None of the petitioners had availed "opt for waiting" - Hence, there cannot be any grievance : Vinod Kumar (Dr.) Vs. State of M.P., I.L.R. (2008) M.P. 3090 (DB)
Medical and Dental Post Graduation Course Entrance Examination Rules, M.P. 2008 - See - Medical Council Act, 1956, Sections 10A & 11(2), : Vinod Kumar (Dr.) Vs. State of M.P., I.L.R. (2008) M.P. 3090 (DB)
- Rule 1.2(d) - In service candidate - Discrimination - Medical Officers / Assistant Surgeons working under Employees State Insurance Directorate of State of M.P. denied benefit of quota allocated to in-service candidates as they are not working in the department of Public Health and Family Welfare - Held - Nature of work and duties of Medical and Dental Post Graduate Entrance (Conduct of Examination and 443 Admission) Rules, 2008 two categories are same - Doctors of both categories need to be given opportunity to upgrade their qualifications and skills - Classification is discriminatory and violative of Article 14 - Writ Petition allowed : Shailu Mangal Vs. State of M.P., I.L.R. (2009) M.P. 1988 (DB)
- Rule 1.8(4) - Horizontal reservation - Horizontal reservation of seats in favour of disabled persons is not ultra vires : Rakhi Mangal (Dr.) Vs. State of M.P., I.L.R. (2009) M.P. 1260 (DB)
- Rule 1.20(11), Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, Section 39 - Ultra vires - Rules of 2008 are ultra vires the Act of 1995 in as much as they do not earmark seats in Post Graduate Diploma and Degree Courses in the table annexed to the Rules : Rakhi Mangal (Dr.) Vs. State of M.P., I.L.R. (2009) M.P. 1260 (DB)
- Rule 1.20.9 - Constitutional validity of Rule 1.20.9 challenged as illegal and arbitrary - The rationale behind the rule is that in service quota seats should be filled by in service candidates first - In-service candidates and non-service candidates forms different category - In case of non-availability of eligible candidate in service category - The seats in service category cannot be allotted to corresponding category candidate of non-service category - Rule 1.20.9 not ultra vires - Petition dismissed : Ramu Thakur (Dr.) Vs. M.P. Professional Examination Board, I.L.R. (2008) M.P. 2285 (DB) Medical and Dental Post Graduate Course Substance Examination Rules M.P., 2005
- Rules 15 - Education - Admission - Constitutional validity of Rule 17.5 challenged - Reserved category seat to be filled up by open competition from all candidates whosoever is eligible - Petitioner "in service" candidate - Not a ground to hold him ineligible for M.D.S. Entrance Examination : Anand Dattatray Bele Vs. State of M.P., I.L.R. (2006) M.P. 1290 (DB)
- Rule, 17.5 - Reservation of Prosthodontics for Scheduled Tribe candidate - Ten year roster prepared - In fifth year seat to be reserved for S.C. candidate - Rule 17.5 providing reservation of Prosthodontics seat for S.T. candidate in fifth year of roster ultra-virus : Anand Dattatray Bele Vs. State of M.P., I.L.R. (2006) M.P. 1290 (DB) Medical and Dental Post Graduate Entrance (Conduct of Examination and Admission) Rules, 2008
- Rule 1.20(8) - Counselling, unavoidable circumstances - Petitioner working as doctor appeared in PG Entrance Examination - Petitioner declared eligible but did not Medical and Dental Postgraduate Entrance Examination Rules, Madhya Pradesh 1999 444 appear in counselling as he was not aware of his result - Held - Petitioner was either careless or callous to find out his result - Carelessness, callouseness or negligence cannot be equated with unavoidable circumstances - Petition dismissed : Somnath (Dr.) Vs. State of M.P., I.L.R. (2009) M.P. 1306 (DB) Medical and Dental Post Graduate Course Entrance Examination Rules, M.P. 2009
- Rules 8(1) & 17(6)(i) - Vires of the Rule providing that one seat of orthodontics in Post Graduate Dental Course shall be reserved for a female candidate of unreserved category challenged - Held - Rule 8(1) and Rule 17(6)(i) are saved by Article 15(3) of the Constitution and are not ultra vires of Article 14 of the Constitution : Satish Menon (Dr.) Vs. State of M.P., I.L.R. (2009) M.P. 2583 (DB) Medical and Dental Post Graduate Entrance Examination Rules, M.P. 2010
- Medical and Dental Post Graduate Entrance Examination Rules, M.P. 2009 - Petitioner, an in-service category candidate, who is already having diploma/ degree of P.G., restricted from choosing another discipline - The Rules were challenged as violative of Article 14 of Constitution and illegal restriction has been made - Held - The Rules cannot be said to be putting total embargo on the choice of the petitioners but it has the effect of streamlining their choice - The Rules have also not been shown to be repugnant to any directive issued by the Medical Council of India - Petition dismissed : Geeta Bakade (Dr.) Vs. State of M.P., I.L.R. (2010) M.P. Note *41 (DB)
- Rule 19(1)(c) - See - Constitution, Article 51-A & 226 : Ashish Raj (Dr.) Vs. State of M.P., I.L.R. (2010) M.P. 2061 (DB) Medical and Dental Postgraduate Entrance Examination Rules, Madhya Pradesh 1999
- Rules 3(VI)(iv) - Incumbent already admitted to postgraduate course debarred from appearing in Entrance Examination for three years - Held - Object of Rule is to ensure that resources of State spent on giving postgraduate education to students are not wasted by leaving postgraduate courses in midstream and seeking admission in some other postgraduate course of his choice - Direction to permit candidates to participate in counseling on the basis of result of subsequent entrance examination not tenable in law - However, as Petitioner by interim order was allowed to participate in counseling and was given admission in postgraduate course allotted to him and he must have completed the course therefore, admission given to petitioner pursuant to interim Medical and Dental Undergraduate Entrance Examination Rules, M.P. 2006 445 order will not be disturbed : Rajeev Dalela Vs. State of M.P., I.L.R. (2007) M.P. 1154 (FB) Medical and Dental Post-Graduate Entrance Test Rules, 2005
- Rule 17(5) - Validity - Discrimination - Seat reserved for Assistant Professor, Govt. Dental College, Indore - Seat liable to be allotted to eligible non-service (open) candidate if eligible candidate is not available - Held - Classification has been made between a Government College and other Colleges - Private College cannot be equated with Government College - Reservation is not in absolute terms - It is, in a way, preference - As said Rule has been withdrawn on subsequent year, it means it was meant to meet out a particular special circumstance - Rule does not offend Article 14 : Kaluram Khande (Dr.) Vs. State of M.P., I.L.R. (2009) M.P. 1296 (DB) Medical & Dental Post-Graduate Entrance Test, 2007
- Conduct of Examination and Admission Rules, Rules 21 (4), 21 (7), Post- Graduate Regulations 2000, Regulation 10 (3) - Regulation 10 (3) prohibits migration of transfer of P.G. students from one medical college or institution to another - State Government could not have framed a rule for mutual transfer - Petitioners application for mutual transfer from Bhopal to Gwalior rejected - Held - Regulations, 2000 would govern field : Jagram Manjhi Vs. State of M.P., I.L.R. (2008) M.P. *8 (DB)
- Mutual Transfer - State Government permitting mutual transfer which is impermissible in law - State is not only in contravention of Regulations of the Medical Counsel of India but a step which epitomizes unwarranted attitude giving rise to unhealthy feeling in the minds of others : Jagram Manjhi Vs. State of M.P., I.L.R. (2008) M.P. Note *8 (DB) Medical and Dental Undergraduate Entrance Examination Rules, M.P. 2006
- Rules 2.1, 3.5, 3.6 - Two seats reserved for O.B.C. female category candidates - Two candidates secured equal marks in Pre Medical Test - Petitioner placed at serial no. 91 in waiting list which was top position in waiting list of O.B.C. Female Category Candidates - One candidate allotted seat in 1st Counselling - 2nd seat reserved for O.B.C. female category candidate diverted for O.B.C. freedom fighter category therefore, petitioner was not allotted seat in 2nd counselling - Held - 2nd seat reserved for O.B.C. female category candidate cannot be diverted for O.B.C. freedom fighter category candidate - No Direction by High Court to divert the seat as pleaded by respondents - Petitioner already taken admission in BDS - Rule 3.5, 3.6 provides candidate once admitted to a particular course not entitled to change the course on any ground - Medical and Dental Undergraduate Entrance Examination Rules, M.P. 2007 446
Rules do not apply where candidate was denied admission in one course and was compelled to take admission in subject contrary to merit position - Respondents directed to admit petitioner in MBBS Course - However petitioner will have to forego the BDS Course undertaken by her : Ku. Akanksha Rajput Vs. State of M.P., I.L.R. (2007) M.P. 1081 (DB)
- Rule 5. 6, 9. 14 - Freedom Fighter - Whether students who had applied and selected in quota of freedom fighter can be given admission in seats meant for open unreserved category as they had secured enough marks - Petitioner appreared in Pre- Medical Entrance Test and was ranked 4th in merit list of Freedom Fighter-Sought admission on the ground that as three candidates placed above him had secured enough marks therefore, they should have been given admission in seats meant for open unreserved category - Held - Reservations in favour of S.C./S.T./O.B.C. is made as special provision for advancement of S.C./S.T./O.B.C. - If candidate belonging to this category is able to compete with other candidates belonging to unreserved category and secure admission on his merit, such candidate does not require benefit of special provision for advancement of S.C./S.T./O.B.C. - If candidate belonging to S.C./S.T./ O.B.C. is not able to compete with candidates belonging to unreserved categories and cannot secure admission on the basis of merit, he requires protection of special provision - Children or Grand Children of freedom fighter do not belong to S.C./S.T./O.B.C. - They do not belong to class who are socially or educationally backward - Reservation to them is by way of recognition of contribution made by Freedom Fighters - Candidates belonging to Freedom Fighter Class cannot claim benefit of Article 15.4 - Challenge to Rule 9.14 on the ground of discrimination misconceived - Petition dismissed : Sumit Jain Vs. State of Madhya Pradesh, I.L.R. (2007) M.P. 1356 (DB) Medical and Dental Undergraduate Entrance Examination Rules, M.P. 2007
- Rules 2.5, 2.6, 9.9, 9.9(a) & 9.14 - Admission in MBBS course - Petitioner belonging to OBC category - On option in the first counselling he was admitted in BDS course as against a General seat - In the second counselling, he was not permitted to opt as against OBC seat for pursuing MBBS course - Held - The person still remains of the category to which he belongs, he does not lose it by exercising option at first counselling as per merit with respect to seat which was offered - The petitioner has been wrongfully deprived of admission in the MBBS course in the year 2007 - The petitioner to be given admission in MBBS course in the year 2008-09 against a OBC category seat without counselling - Petition allowed : Rahul Patel Vs. State of M.P., I.L.R. (2009) M.P. 78 (DB) Medical Council Act (102 of 1956) 447
- Clauses 9.5, 10.1, 10.2, 10.3 - Production of original documents and retention thereof by college - Purpose is that if the original documents are returned to the student after counseling it would enable him to participate in several other counseling and block several seats in various colleges thus depriving other eligible students from seeking admission : Aman Khanuja Vs. State of M.P., I.L.R. (2008) M.P. 469 (DB)
- Clauses 9.5, 10.1, 10.2, 10.3 - Purpose of retaining original documents - To prevent unwarranted anarchy and chaos in the field of admission - A student who takes the risk of admission in particular college can not afford to play with it by taking recourse to production of certificate to effect that all the original documents deposited with college - When there is a rule, the same has to follow, no deviation can be allowed : Aman Khanuja Vs. State of M.P., I.L.R. (2008) M.P. 469 (DB)
- Rule 9.14 - Counselling - The word 'counselling' has been used in Rule 9.14 not at the time of first counselling, thus it is apparent that operation of Rule 9.14 is not confined to first counselling only - The option is available to ST/SC/OBC category candidate at the stage of second counselling to stake the claim as per his standing in the waiting list of his own reserved category or from unreserved category. Rahul Patel Vs. State of M.P., I.L.R. (2009) M.P. 78 (DB) Medical Council Act (102 of 1956)
- Sections 2(f), 15(2), 25 - Sah Chikitsa Parishad Adhiniyam, M.P., 2000, Sections 2(b)(c), 44, - Petitioner having diploma in Medical Laboratory Technology running Pathology Laboratory - On inspection no qualified Doctor was found therefore, Chief Medical and Health Officer directed to close down Laboratory - Order of C.M.H.O. was recalled on certificate given by Doctor that Petitioner was working as Lab Assistant under his supervision - Learned Single Judge held that Pathology Laboratories can be run by qualified Pathologist and not by Laboratory Technicians - Held - Pathology comes within definition of medicine as defined under Section 2(f) of Adhiniyam - Person not registered as medical practitioner in State Medical Register can practice in pathology and cannot sign certificate or report relating to pathology - Paramedical practitioner can only assist pathologist but cannot sign or authenticate any pathological report - Order of Single Judge modified to the extended indicated above : Smt. Kamla Patel Vs. State of M.P., I.L.R. (2007) M.P. 1059 (DB)
- Sections 10A & 11(2), Pre P.G. Entrance Examination for Medical & Dental Post Graduate Courses, 2008, Medical and Dental Post Graduation Course Entrance Examination Rules, M.P. 2008 - Admission - Petitioner applied for admission in P.G. course as a service candidate - Counselling for unrecognized seats not done in compliance of learned Single Judge order - Action challenged that counselling of the unrecognized Mental Health Act, 1994 448 seats is done for last many years and the order of learned Single Judge has been dislodged in the Writ Appeal - Held - Filling of unrecognized seat without proper infrastructural facilities is not permissible in view of rules made by Medical Council of India - It is the Medical Council / Dental Council which can prescribe the number of students to be admitted to medical/dental courses in a medical college or institution - The universities and the State Government have no authority to allow increase in the number of admissions in the medical colleges - The Medical Council is the principal body to lay down conditions for recognition of medical colleges which would include the fixing of intake for admission to a medical college : Vinod Kumar (Dr.) Vs. State of M.P., I.L.R. (2008) M.P. 3090 (DB) Medical Dental Postgraduate Entrance Examination Rules, M.P. 2007
- Rule 2(f) - Rural area - Petitioner posted in Agar which has been notified as municipal area - Definition of rural area is clear and unambiguous - Agar cannot be construed as rural area u/R 2(f) of Rules as departure from categorical, unambiguous definition would cause violence to Rules - Petition dismissed : Shashank Saxena (Dr) Vs. The Principal Secretary, Public Health & Family Welfare Department Government of M.P., I.L.R. (2009) M.P. 1651 (DB) Medical Education (Gazetted service) Recruitment Rules, M.P., 1988
- Schedule IV - Service law - Promotion Minimum qualification prescribed "five years experience as Lecturer (Cardiology) in a Medical College" for promotion to the post of 'Reader' - Not open to State Government to prescribe qualification lesser than the minimum prescribed by Medical Council of India - Same group of super specialists - Pre-requisite of five years experience as Lecturer - Not ultra vires : Dr. Yogesh Verma Vs. State of M.P., I.L.R. (2006) M.P. 1130 (DB) Mental Health Act (14 of 1987)
- Sections 52, 53 - See - Family Courts Act 1984, Sections 7,8,20 : B. Raman Vs. To whom so ever, I.L.R. (2008) M.P. 1177 (DB) Mental Health Act, 1994
- Section 23(1)(a)(b) - See - Evidence Act, 1872, Section 118 : Prakash Dabar Vs. State of M.P., I.L.R. (2010) M.P. 2349 Milk and Milk Products Order, 1992 449
Merged States (Laws) Act (59 of 1949)
- Sections 5 & 6 - See - Rewa State Registration Act, 1917, Section 21, : Rajendra Kumar Khandelwal Vs. Smt. Rajkumari Khandelwal, I.L.R. (2009) M.P. 424 (DB) Mesne Profits
- Entitlement of a person whose property was attached and was under the custody of a receiver - Remedy available - Held - Person entitled to mesne profits/ damages may file a separate suit against Supurdagidar, who has not deposited the same or has not accounted for it : Ishwar Dayal Vs. Mohan Singh, I.L.R. (2010) M.P. 1625 Micro, Small and Medium Enterprises Development Act (27 of 2006)
- Section 19 - Application for setting-aside decree, award or order - Deposit of 75% of the amount in terms of decree, award or as the case may be, in the manner directed by such Court, is mandatory pre-condition to entertain such application : R.S. Avtar Singh & Co. (M/s.) .Vs. Vindyachal Air Products Pvt. Ltd., I.L.R. (2009) M.P. Note *50 (DB)
- Section 19 - The words used in S. 19 "in the manner directed by the Court" cannot be interpreted so as to dilute the very requirement of deposit of 75% amount itself : R.S. Avtar Singh & Co. (M/s.) Vs. Vindyachal Air Products Pvt. Ltd., I.L.R. (2009) M.P. Note *50 (DB)
- Section 19 Proviso - Proviso to S. 19 empowers the Court to pass appropriate order with respect to disbursement of the amount to the supplier on conditions as it considers reasonable under the circumstances of the case to impose - Considering the proviso 50% of the amount is ordered to be disbursed to respondent No.1 remaining amount 25% shall be invested in the fixed deposit to be disbursed in terms of final decision : R.S. Avtar Singh & Co. (M/s.) Vs. Vindyachal Air Products Pvt. Ltd., I.L.R. (2009) M.P. Note *50 (DB) Milk and Milk Products Order, 1992
- Clause 5 - Necessity of Registration/Permission - No person or manufacturer can set up new plant or expand the capacity of existing plant without obtaining Registration/Permission - Registering Authority directed to ensure compliance of Clause 5 throughout the State : Nagrik Upbhokta Margdarshak Manch Vs. Secretary, Food, Civil Supplies & Consumer Protection Department Bhopal, I.L.R. (2007) M.P. 441 (DB) Mines and Mineral (Regulation & Development) Act (67 of 1957) 450
- Clause 20 - Export of Milk - Statistics regarding requirement of milk and its export from Jabalpur not available - In absence of statistics, no direction for stopping export of milk can be made - However, authorities directed to collect the requisite information and pass necessary orders in accordance with the provisions of order : Nagrik Upbhokta Margdarshak Manch Vs. Secretary, Food, Civil Supplies & Consumer Protection Department Bhopal, I.L.R. (2007) M.P. 441 (DB) Mineral Concession Rules, 1960
- Rules 22, 26 & 31 - See - Mines and Minerals (Development and Regulation) Act, 1957, Sections 10 & 24-A : Jitendra Singh Vs. State of M.P., I.L.R. (2009) M.P. 1683 (DB)
- Rules 72 & 73 - See - Mines and Minerals (Development and Regulation) Act, 1957, Section 24-A : Jitendra Singh Vs. State of M.P., I.L.R. (2009) M.P. 1683 (DB) Mineral Conservation and Development Rules, 1988
- Rule 23-F - Financial Assurance - Financial assurance is different from royalty and security - Cannot be termed unreasonable or arbitrary : S.N.S. (Minerals) Ltd., Maihar (M/s.) Vs. Union of India, I.L.R. (2008) M.P. 2565 (DB) Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, M.P. 2006
- Rules 3 & 18 - Appellants, who were found transporting coal without transit pass, were imposed with a penalty of Rs.25,000/- - Challenged by them on the ground that the appellants are only traders and have valid licence for purchase and sale of coal, therefore, no transit pass is obtained and no transit pass is prescribed under the Rules - Held - Rule 3 manifestly casts an obligation on a person who intends to transport mineral/ minerals or its products from the place of raising or from one place to another place, to obtain a valid transit pass - Appellants were admittedly found transporting coal from one place to another place without obtaining a valid transit pass, and as such they are liable for prosecution and for payment of penalty - Appeal dismissed : Maa Jalpa Enterprises (M/s) Vs. State of M.P., I.L.R. (2010) M.P. 2284 (DB) Mines and Mineral (Regulation & Development) Act (67 of 1957)
- Major and Minor Mineral - Dolomite a Minor Mineral or Major Mineral - Held - when dolomite is used for cutting and polishing purpose for making blast, slabs, Mines and Mineral (Regulation & Development) Act (67 of 1957) 451 tiles of specific dimension it has been declared as minor mineral by the State Government but unless a notification has been issued by the Central Government declaring it as minor mineral it cannot be treated a minor Mineral : Balram Tiwari Vs. State of M.P., I.L.R. (2010) M.P. 1753 (DB)
- Mines and Minerals (Development and Regulation) Act (67 of 1957) - See - Municipal Corporation Act, M.P., 1956, Section 132(6)(n) & (o) : Northern Coal Fields Ltd. Vs. State of M.P., I.L.R. (2010) M.P. 1304 (DB)
- Sections 10 & 24-A, Mineral Concession Rules, 1960, Rules 22, 26 & 31 - Constitutional validity - Consent of owner of land or opportunity of hearing to owner of land - Opportunity of hearing to occupier of the surface of land before grant of reconnaissance permit, prospecting licence or mining lease must be held as impliedly excluded - Constitutional validity upheld : Jitendra Singh Vs. State of M.P., I.L.R. (2009) M.P. 1683 (DB)
- Section 18, Mineral Conservation and Development Rules, 1988, Rule 23-F - Validity of Rule 23-F - Validity of Rule 23-F challenged - Mining lease holder has to take rehabilitation and reclamation process to bring back mining area as far as possible to its original shape - Section 18 of the Act gives power to Central Government to make rules for the protection of environment by preventing or controlling any pollution which may be caused by prospecting or mining operations - Rule 23-F is a measure introduced for protection of environment - Rule 23-F is intra vires of Section 18 of the Act : S.N.S. (Minerals) Ltd., Maihar (M/s.) Vs. Union of India, I.L.R. (2008) M.P. 2565 (DB)
- Sections 21, 23A - Compounding of offence - Petitioner filed an application seeking compounding of offence - Application allowed and directed to deposit Rs.75,000 as compounding fee - Petitioner challenged the order on the ground that he had never made any application and the clerk of Collector had obtained his signature on blank paper - Held - Application was signed by petitioner as well as his Counsel - No explanation offered by Petitioner as to why his counsel had put his signature - Petitioner cannot be allowed to turn around and say that application was blank when he signed it - Petition dismissed : Santosh Kumar Sharma Vs. State of M.P., I.L.R. (2008) M.P. Note *51
- Section 24A - Rights and liabilities of a holder of prospecting licence or mining lease - Whether consent of owner of private land before grant of mining lease to third person is or is not required - Held - Consent of owner of private land in respect of which mining lease is sought to be given by Government is not mandatory - Reference answered accordingly : Shyam Bihari Singh Vs. State of M.P., I.L.R. (2008) M.P. 2820 (DB)
- Section 24-A, Mineral Concession Rules, 1960, Rules 72 & 73 - Determination of compensation - Opportunity of hearing to occupier of surface of land before Money Lenders Act, (XII of 1934) 452 determination of compensation has to be granted - Principles of Natural Justice are implicit in Section 24-A(2) & (3) of Act, 1957and Rules 72 & 73 of Rules, 1960 : Jitendra Singh Vs. State of M.P., I.L.R. (2009) M.P. 1683 (DB) Minor Mineral Rules, M.P. 1996
- Rules 17, 30(1)(b), 57(2), Clause 3 of Part V - Quarry Lease - Transit Pass - Eligibility for renewal - Rule providing that application for renewal of quarry lease should be made at least one year before the date of expiry - Petitioner did not apply for renewal and filed a petition six days before expiry of quarry lease and got an order of status quo - On the basis of which Collector passed orders for issuing transit pass - Held - It was beyond the powers of Collector to issue transit pass after the expiry of the lease period - Orders passed by Collector quashed - Competent authority shall proceed afresh for grant of quarry lease in accordance with the Rules : M.P. State Mining Corporation Ltd. Vs. Director Geology and Mining Directorate of Geology & Mining, Bhopal, I.L.R. (2009) M.P. 2531 Money Lenders Act, M.P. (8 of 1934)
- Sections 3(1)(a), 3(1)(b), 7(b) & 7(c) - Maintenance of account by money lender for each debtor separately and furnishing statement of accounts every year to debtors, as prescribed, is mandatory - On failure to comply with either of requirements, court can disallow interest - Lower court was not justified in awarding interest - Appeal allowed : Narayan (Deceased) Through L.Rs. Vs. Sobhagmal Rakhabchand, I.L.R. (2009) M.P. Note *6
- Section 7, Civil Procedure Code, 1908, Section 34 - Discretion of court to award interest - Held - Section 7 of the Act has overriding effect - Court can not grant interest u/s 34 of the Code in case of breach of Section 7 of the Act : Narayan (Deceased) Through L.Rs. Vs. Sobhagmal Rakhabchand, I.L.R. (2009) M.P. Note *6 Money Lenders Act, (XII of 1934)
- Sections 7, 11-H - Suit for recovery - Plaintiff meoneyleder - Suit could not proceed until the Court is satisfied that he held valid registration or was not required to have registration : Commissioner of Income Tax Vs. Asandas Khatri, I.L.R. (2006) M.P. 264 (DB)
- Sections 2(ix), 11-B - Registration of Money Lenders - Petitioner granted licence for money lending for a period of 2 years by Tahsildar, Kotma - License extended lastly on 29-3-06 for a period from 30-10-2004 to 29-10-2006 by S.D.M. - Renewal of licence from 30-10-2004 to 29-10-2006 declared void having been issued in respect of Scheduled notified area of Kotma - Held - Money Lenders Act stood amended by M.P. Money Motor Vehicles Act (LIX of 1988) 453
Lenders (Amendment) Act, 2000 - As per amended definition Nagar Panchayat was registering authority for Kotma - S.D.M. had no authority or jurisdiction to grant renewal/ extension of licence - Kotma of Shahdol District declared as Scheduled area by notification dated 20-2-2003 - Kotma was earlier in Shahdol District but after formation of District Anuppur Kotma became part of it - No separate notification required as it is not the case of petitioner that Kotma falling in earlier Shahdol District is different from Kotma presently falling in District Anuppur - Petition dismissed : Mahendra Goyanka Vs. State of M.P., I.L.R. (2007) M.P. 1360 Motor Spirit and High Speed Diesel (Prevention of Malpractices in Supply and Distribution) Order, 1990
- Clause 5 - See - Essential Commodities Act, 1955, Section 3 r/w 7 : Mohd. Shamim Vs. State of M.P., I.L.R. (2009) M.P. 3201 Motor Vehicles Act (4 of 1939)
- Sections 68-B, 57(2)(3), Motor Vehicles Act, 1988, Section 80 - Permit - While granting new permit as per the provision of Act of 1988 after receiving application prior publication of notice and further notice to the operator who have been plying their vehicles on the route is necessary or not - Held - Not necessary - Petition allowed : Ganesh Prasad Madan Vs. State Transport Appellate Tribunal, I.L.R. (2008) M.P. 2601
- Section 93(d) - Third Party - Third party means other than contracting party to the insurance policy - Passenger travelling in a bus - Is a third Party : Prem Bai Vs. Sindhi Sahiti Motor Transport Company, I.L.R. (2007) M.P. 235
- Section 95(2)(b) - Liability of Insurance Company - Insurance Company realizing premium from insured to cover increased risk of third party - On realizing premium to cover unlimited risk of third party, the insurance company contracts out of the statutory liability which is limited in nature - Insurer rightly held liable to pay entire compensation instead of limited compensation by the Tribunal : Prem Bai Vs. Sindhi Sahiti Motor Transport Company, I.L.R. (2007) M.P. 235 Motor Vehicles Act (LIX of 1988)
- Second Schedule - Compensation - Multiplier - Age of appellant no.1/wife was 26 years at the time of accident - Income @ 2500 per month rightly assessed by Tribunal - However, Multiplier of 18 ought to have been applied instead of 17 - Rs. 4,05,000/- awarded in place of 2,55,000 towards loss of dependency - Appeal allowed: Akilabee Vs. Shyamkumar, I.L.R. (2008) M.P. 279 Motor Vehicles Act (LIX of 1988) 454
- Section 2(9), 2(30), 147, 173 - Appeal by the Insurance Company against award passed by Motor Vehicle Tribunal - Liability of Insurance Company in case of death of owner driving the vehicle - Owner dying in crash of his vehicle with a tree - Policy covering only driver and not owner - "Owner" and "Driver" defined separately - Policy can only cover liability of owner but not his individual risk - Owner not paying premium to cover his own risk - Insurance Company not liable to pay compensation to legal representatives of the owner : Virendra Singh Rajpoot Vs. New India Insurance Co. Ltd., I.L.R. (2006) M.P. 1512 (DB)
- Sections 2(21), 3 & 10 - Driving License - Light Motor Vehicle and Transport Vehicle - Driver of offending vehicle was having Light Motor Vehicle driving license and was driving goods vehicle - Transport vehicle may be light motor vehicle but a distinct licence is required for driving the same - Driver was not holding valid and effective licence at the time of accident - However, Insurance Company liable to deposit compensation amount with liberty to recover the same from the owner and driver : Oriental Insurance Co. Ltd. Vs. Angad Kol, I.L.R. (2009) M.P. 1561 (SC)
- Sections 2(28), 165 & 166 - Motor accident - Claims tribunal dismissed the claim due to absence of registration number of offending motorcycle - Held - Absence of registration on the offending vehicle does not immunize offending vehicle or driver - Claimant was hit by motorcycle driven by respondent could be well established by oral evidence - Claim petition maintainable - Appeal allowed : Gajrani (Smt.) Vs. Manoj Jain, I.L.R. (2009) M.P. 2044
- Sections 2(28), 166 - Motor Vehicle - JCB Machine-Claimants/Respondents going on a motor bike sustained grievous injuries due to rash and negligent driving of JCB by its driver - Held - JCB Machine moves on roads - It is used for constructions of Roads - Merely because it is not being registered by R.T.A as Motor Vehicle, cannot be said that it is not a motor vehicle under provisions of Act, 1988 - Claims Tribunal rightly held that JCB Machine is motor for the purposes of Act, 1988 : New India Assurance Co. Ltd., Indore Vs. Balu, I.L.R. (2008) M.P. 117
- Sections 2(30), 166 - Whether liability to pay compensation can be fastened on financier? - No, Owner is liable - Owner means a person in whose name a motor vehicle stands registered or in relation to motor vehicle which is subject of a hire purchase agreement, owner is the person in possession of the vehicle under agreement - Vehicle is not in possession and control of financier - Financier not liable to pay compensation : Kapsi Yadav Vs. Pradeep @ Bablu, I.L.R. (2008) M.P. 289 (DB)
- Sections 2(30), 166 and 173 - Road accident - Death - Ownership of offending vehicle - Purchaser cannot become owner unless his name is registered : Aditya Khare Vs. Jamuna Prasad Khare, I.L.R. (2006) M.P. 751 Motor Vehicles Act (LIX of 1988) 455
- Section 2(34) - Use of Vehicle in Public Place - Private property accessible to Public - Is a public place : Ramchandra Vs. Shivnarayan, I.L.R. (2006) M.P. 1552
- Sections 2(44), 166 - Accident occurred due to rash and negligent driving of Tractor - Deceased was rolled over by the wheel of tanker which was attached to a tractor - Tribunal has exonerated the insurer on the ground that tractor was insured but not the tanker - Held - If there would not have been any rash and negligent driving of tractor, the tanker would not have moved - Thus, accident was combined effect of use of tractor & tanker - Insurer held liable : Krishna (Smt.) Vs. Chief Municipal Officer, Nagar Panchayat, Rau, I.L.R. (2008) M.P. Note *55
- Sections 2(44), (46) - Tractor and Trolley - Tractor and Trolley separately insured and owned by two different persons - Both owners would be deemed to have permitted use of the same - Accident occurred due to rash and negligent driving of Tractor - Held - Tractor and Trolley cannot be treated as two different and separate vehicles - Both have to be taken together as one for the purposes of accident - Award directing payment of fifty percent each is a reasonable award : The New India Assurance Company Limited Vs. Triveni Bai , I.L.R. (2007) M.P. 415
- Sections 14(2)(a) & 149 - Death due to accident by tanker - Driver was not authorized to drive heavy transport vehicle - Insured committed breach of promise by handing over tanker to person having no valid license - Insurance Company rightly exonerated from liability : Sambhudayal Vs. New India Insurance Company Ltd., I.L.R. (2009) M.P. 3387
- Section 15 - Renewal of driving license - Accident occurred on 13.06.2000 - License of driver expired on 02.02.1999 - Application for renewal of license made more than 30 days after the date of expiry - License renewed on 23.06.2000 - Held - Driver was not possessing valid license at the time of accident - Insurance Company not liable : Kalu Vs. Bansilal, I.L.R. (2008) M.P. Note *78
- Sections 53, 149 and Motor Vehicles Rules, 1994 - Rule 60 - Offending Vehicle stolen prior to date of accident - F.I.R. lodged by owner but no procedure followed as per section 53 and Rule 60 - Insurance company cannot be exonerated from its liability : Parvat Vs. Sheikh, I.L.R. (2006) M.P. 849
- Sections 64, 65 & 41, Motor Vehicles Rules, Central, 1989, Rule 81, Motor Vehicles Rules, M.P., 1994, Rule 55-A - Fixation of higher fee for registration with an option to seek reservation of particular registration number - Validity - Application for allotment of particular registration number for motorcycle rejected as requisite fee for allotment of particular number was not paid - Held - Power to prescribe fee for registration of motor vehicle is conferred on Central Government - Notification issued by State Motor Vehicles Act (LIX of 1988) 456
Govt. prescribing fee to be charged for registration of motor vehicle by means of reservation ultra vires - Notification quashed - Respondents directed to reconsider application of petitioner - Petition allowed : Rakesh Sethi Vs. State of M.P., I.L.R. (2008) M.P. 2297 (DB)
- Section 67 - Power to control road transport - Jurisdiction - Held - Power to control road transport having regard to the advantages offered to the public and desirability of preventing uneconomic competition among holders of permit is vested only in the State Government and the State Government may issue directions in this regard from time to time by notification in the official gazette to the Regional Transport Authority : Pursottamlal Sahu Vs. State of M.P., I.L.R. (2010) M.P. 1948
- Section 72 - Regional Transport Authority passing a general resolution for public convenience and to stop competition amongst the transporters - Held - S. 72 does not confer power on the Regional Transport Authority to either pass a resolution or a general order for the purposes of controlling road transport - The resolution which is in the form of general order has apparently been passed by the Regional Transport Authority without any power and authority under law : Pursottamlal Sahu Vs. State of M.P., I.L.R. (2010) M.P. 1948
- Section 80 - See - Motor Vehicles Act, 1939, Sections 68-B, 57(2)(3) : Ganesh Prasad Madan Vs. State Transport Appellate Tribunal, I.L.R. (2008) M.P. 2601
- Section 82 - Transfer of permit - Held - Where the holder of the permit dies, the person succeeding to the possession of the vehicle covered by the permit may, for a period of three months, use the permit as if it has been granted to him : National Insurance Co. Ltd. Vs. Smt. Madhuri Kushwah, I.L.R. (2009) M.P. 2968
- Sections 96(i), (xxi), (xxii), 117, 138(2)(e), Motor Vehicles Rules, M.P. 1994, Rules 203 & 204 - Order of District Magistrate passed as Chairman of Bus-Stand Monitoring Committee prescribing maintenance charges to be paid in respect of motor vehicle halting in bus-stand - Rule 204 empowers only the Regional Transport Authority for taking decision for purposes of maintenance of bus-stand by prescribing fees to be paid by private bus operators - Bus-Stand Monitoring Committee constituted by an administrative order of which the District Magistrate is the Chairman can not be equated with Regional Transport Authority even though the Regional Transport Authority may be a member of committee - Order cannot be held valid - Order quashed - Petition allowed : Anil Jain Vs. State of M.P., I.L.R. (2010) M.P. 1380
- Section 96(2)(b) - Liability of the Insurance Company - Agriculture Purpose - The word "agricultural purpose" is not defined in the Act - The condition with respect to use of vehicle for agricultural purpose is only in the policy - If the passengers are Motor Vehicles Act (LIX of 1988) 457 carried in a tractor trolley then due to breach of the condition of the policy, Insurance Company may not escape the liability : National Insurance Company Ltd. Vs. Vidhyabai, I.L.R. (2008) M.P. 3270
- Section 104 - See - Civil Procedure Code, 1908, Order 9 Rule 9 & Order 43 : Sharad Kumar Mishra Vs. Shriram Transport Finance Company Ltd., I.L.R. (2010) M.P. 2170
- Section 126 - Negligence - No measures taken to ensure that the stationary vehicle is not put in motion - Driver negligence - Principle of Strict Liability also applies : Ramchandra Vs. Shivnarayan, I.L.R. (2006) M.P. 1552
- Section 128 - Pillion rider - deceased was carrying 3 persons including a minor son on motorcycle - Dashed by Tanker - No evidence that when the accident occurred, the motorcycle was being driven at an excessive speed by deceased in rash and negligent manner - Held - Mere carrying of more than one person as pillion rider will not raise presumption for contributory negligence - Claims Tribunal rightly held that accident occurred due to sole negligence of tanker driver : National Insurance CO. LTD., Ratlam Vs. Smt. Sindhu, I.L.R. (2009) M.P. 1079
- Sections 128, 166 - Contributory Negligence - Three persons traveling on Motor cycle - Motor cycle dashed by truck coming from opposite direction causing injuries to appellants - Claims Tribunal deducted 50% of total award on account of contributory negligence on the part of driver of motor cycle - Held - Driver of offending truck not examined to state in what circumstances accident occurred - Spot map prepared in criminal case shows that motor byke was on left side of road - Merely because three persons were traveling on motor byke, it cannot be presumed that driver of Motor byke was equally liable for the accident, as there is no evidence on record in this regard - Tribunal committed error in holding that it was case of contributory negligence - Compensation enhanced by Rs. 20,000/- - Appeal allowed : Biharilal Vs. Pannalal, I.L.R. (2008) M.P. 300
- Sections 128, 173 - Contributory negligence - Two fat ladies travelling on motorcycle as pillion riders - Appellant while driving motorcycle did not possess licence - Appellant and both pillion riders are contributory negligent to the extent of 20% - 20% deduction in compensation on account of contributory negligence held valid - Appeal disposed of : Amrut Lal Vs. Sandeep, I.L.R. (2008) M.P. Note *62
- Section 140 - No Fault Liability - Liability of Insurance Company in case of violation of conditions of policy - Once objections are raised by Insurance Company in regard to violation of conditions of policy - Tribunal is required to render a decision upon the issue - Section 140 does not contemplate that Insurance Company shall be liable to deposit amount while it has no fault in terms of Section 147(2) of Act - Order of Tribunal Motor Vehicles Act (LIX of 1988) 458 set aside - Tribunal directed to decide the objections raised by Insurance Company and decide applications afresh - Appeals allowed : Oriental Insurance Company Vs. Smt. Kantidevi, I.L.R. (2008) M.P. 275
- Section 140 - No fault Liability - Insurer preferred appeal to recover the amount i.e. Rs. 50,000/- paid to the legal heir of deceased towards no fault liability on ground that claim petition dismissed - Held - It is an absolute liability under no fault liability upon the owner of the vehicle and insurer is liable to indemnify the owner - Interim award attended finality as it was not challenged - It can not be reopened - Insurance company not liable to get back Rs. 50,000/- paid in compliance of order passed U/s 140 of Act : K.N. Agrawal Vs. M. R. Portfolio Services, I.L.R. (2008) M.P. Note *16 (DB)
- Sections 140, 143 & 167 - See - Workmen's Compensation Act 1923, Section 30 : Rajani Agrawal (Smt.) Vs. Ramswaroop, I.L.R. (2008) M.P. 2384 (DB)
- Sections 140, 166, 163-A & 163-B - Application for change of claim u/s 166 to 163-A - Permissibility - Held - Since, the claim was filed u/s 166 and the claimant also claimed that on the basis of no fault liability claim may also be considered u/s 140 - Then under such circumstances, S. 163-B of the Act would come into operation - Therefore, application cannot be accepted because the claimant has already exercised her option u/s 140 - Application dismissed as not maintainable : Sahnaz Bee Vs. Nirmala Road Lines, I.L.R. (2010) M.P. 2326
- Section 145 - Liability of Insurance Company - Claim of appellants was that deceased died in accident while he was coming back in tractor trolley after administering fertilizers in his agricultural fields - Insurance Company denied its liability on the ground that in tractor trolley marriage party was being carried - Insurance company exonerated by Claims Tribunal - Held - F.I.R. which was lodged after accident mentions that marriage party was being carried - It is not necessary to examine lodger of F.I.R. as document was filed by claimants and they have relied upon - If entire evidence is considered in the light of F.I.R., the finding recorded by Tribunal is proper : Arun Kumar Patel Vs. Smt. Terasi Saket, I.L.R. (2008) M.P. 282 (DB)
- Sections 145, 149 - Liability of Insurance Company-Plying without valid permit - Claimants travelling in offending bus- Bus turned turtle due to rash and negligent driving of driver causing injuries to passengers - Insurance Company exonerated on the ground that offending bus was not possessing valid permit - Held - Offending vehicle was not possessing valid permit therefore, Insurance Company shall have right to recover the compensation from appellant as condition of policy was violated - Appeal dismissed : Meharban Singh Vs. Smt. Pushpabai, I.L.R. (2008) M.P. 111
- Sections 145, 166 - Liability of Insurance Company - Whether trolley was used for agricultural purpose - Deceased used to purchase agricultural produce from Motor Vehicles Act (LIX of 1988) 459 agriculturists and take them to Mandi for selling - Deceased taking ground nut in a trolley for selling the same - Tractor and Trolley turned turtle killing the deceased who was travelling in the trolley - Held - Tractor and Trolley were being used for agricultural purposes - Deceased was travelling as owner along with his goods in the trolley - Insurance Company liable : The New India Assurance Company Limited Vs. Triveni Bai, I.L.R. (2007) M.P. 415
- Sections 145 (g), 147(1), Motor Vehicles Rules, 1994, Rule 97(vii) - Liability of Insurer - Whether insurer liable to indemnify for death of deceased as a passenger was a third party - Deceased working as labour for owner of tractor-trolley - Deceased died in accident while travelling in tractor-trolley - Claims Tribunal awarded compensation but exonerated Insurance Company - Held - Third Party would mean party other than Contracting Parties to Insurance policy - However Insurer not liable for any bodily injury or death of third party unless liability is fastened on insurer under provisions of Section 147 of Act or under terms and conditions of Insurance Policy - Rule 97 of Rules of 1994 has been made by State Government to give effect to provisions of Chapter V of Act - Rule 97 has no bearing in interpreting provisions of Chapter XI - Decision of Division Bench in case of National Insurance Co. Ltd. v. Sarvanlal and others relying on Rule 97 of Rules of 1994 holding insurer liable for death or bodily injury of passenger does not lay down correct law -Reference answered accordingly : Bhav Singh Vs. Smt. Savirani, I.L.R. (2007) M.P. 1302 (FB)
- Sections 145(g), 157 - Third Party - Meaning and Scope of - Question whether owner under any circumstance can be treated as third party - Held - Insured who is party to policy of Insurance is not a third party - Section 157 goes to show that owner of vehicle and insured under insurance policy is one and same person - Owner of vehicle cannot be a third party for purposes of Chapter XI of Motor Vehicles Act : Smt. Sunita Lokhande Vs.The New India Assurance Company Limited, I.L.R. (2007) M.P. 1145 (FB) SYNOPSIS : Section 147
1. Additional risk of the 7. No liability of insurance property of third party company without the liability 2. Breach of policy of owner 3. Cancellation of policy / 8. Owner / Passenger travelling Cover note with goods 4. Compensation for death 9. Powers of Executing Court or injury of deceased owner 10. Vehicle overloaded Motor Vehicles Act (LIX of 1988) 460
5. Gratuitous Passenger 11. Witnesses not examined / 6. Negligence of the driver cross-examined - Matter not established remanded back to Tribunal
1. Additional risk of the property of third party
- Section 147(2) - Horse died in vehicular accident - Tribunal awarded cost of horse Rs. 35,000/- plus Rs. 10,000/- for loss of its future income - Insurer challenged the award - Held - No extra premium for covering additional risk of the property of third party was paid - Insurer's liability limited upto Rs. 6,000/- as per provision of section 147(2) - Appeal partly allowed : New India Insurance Co. Ltd. Vs. Santosh, I.L.R. (2008) M.P. 322 2. Breach of policy
- Section 147 - Liability of insurer - Claimant got injured, when travelling, as part of band being transported to the wedding party in the tractor trolley, insured for use for agricultural purposes only - Held - Insurance Company exonerated from liability : National Insurance Co. Ltd., Indore Vs. Mangilal, I.L.R. (2010) M.P. 2575
- Section 147 - Breach of policy - Deceased was a passenger for fare travelling in a tractor - As per policy condition, tractor can be used for agricultural purposes - Held - Breach of policy - Insurance Company exonerated - However, Insurance Company directed to pay compensation and recover the amount from owner : National Insurance Co. Ltd. Vs. Mathurabai, I.L.R. (2009) M.P. Note *17
- Section 147 - Liability of Insurance Company - Deceased travelling in a tractor which was insured under farmer package policy - Insurance Company not liable for payment of compensation - Amount if any paid by Insurance Company shall not be recovered from claimants but shall be recovered from insured and driver : Kamlabai Vs. Kamlesh, I.L.R. (2008) M.P. Note *93
- Sections 147 & 149 - Liability of insurer - Collision of Jeep & Truck - Person sitting in Jeep died - Tribunal exonerated insurer of Jeep - Whereas High Court fastened the liability on insurer of Jeep - Held - Deceased was travelling as a passenger in a Jeep - Therefore in view of the terms of contract of insurance, insurer of Jeep cannot be held liable - Appeal allowed : New India Assurance Co. Ltd. Vs. Bismillah Bai, I.L.R. (2009) M.P. 3247 (SC) Motor Vehicles Act (LIX of 1988) 461
3. Cancellation of policy / Cover note
- Section 147 - Liability of Insurance Co. - Cheque issued towards payment of premium - Dishonoured by Bank - Insurance Policy cancelled by Insurance Co. - Would not effect the right of third party to recover compensation amount from Insurance Company - However, Insurance Company can recover the compensation amount from the owner : National Insurance Co. Ltd. Vs. Smt. Uma Tiwari, I.L.R. (2006) M.P. 1536 (DB)
- Sections 147, 149 - Insurance Company's liability to pay compensation - Premium paid by cheque - Cheque presented by Insurer dishonoured - Insurance Company cancelling the policy because of non-payment of cheque amount by Insurer even after notice - No proof provided by Insurance Company that notice of policy cancellation was served upon Insurer - Insurance Company liable to pay compensation to applicant but can recover the amount from Insurer : Oriental Insurance Co. Ltd. Vs. Smt. Vaikunthi Bai, I.L.R. (2006) M.P. 1540 (DB) 4. Compensation for death or injury of deceased owner
- Section 147 - Liability of Insurance Company - Owner was driving auto-rickshaw - Auto Rickshaw turned turtle and driver/owner suffered injuries and died subsequently - Claims Tribunal determined compensation of Rs. 4,41,500 but held that since additional premium was not paid to insurer to cover risk of owner, therefore, insurer is not liable to pay compensation - Claimants/Appellants relied upon clause in insurance policy which specifies persons or classes of persons including owner/insured entitled to drive the vehicle - Question whether merely by aforesaid condition of policy enabling owner to drive vehicle, risk of owner was covered by insurance policy when no separate premium was paid to cover owner's risk referred to Larger Bench - Held - Clause in Insurance Policy only specifies persons or classes persons entitled to drive vehicle and it says that any person including insured can drive insured vehicle provided such person holds an effective licence - Such a clause by itself doesnot cover the risk of owner/insured unless additional premium was paid so as to cover risk of owner driving vehicle - Reference answered accordingly : Smt. Usha Baghel Vs.United India Insurance Company Limited, I.L.R. (2007) M.P. 1141 (FB)
- Section 147 (5) - Policy - Question whether own damage would cover damage to person of owner or it is confined to properties of vehicle owner - Held - Expression own damage has to be read along with express terms and conditions of Insurance Policy - If on reading of terms and conditions of insurance policy it is found that additional premium has also been paid for injury or death of owner then Insurance Company will also be liable for compensation for injury or death of owner in addition to property : Smt. Sunita Lokhande Vs.The New India Assurance Company Limited, I.L.R. (2007) M.P. 1145 (FB) Motor Vehicles Act (LIX of 1988) 462
- Sections 147, 166 - Liability of Insurance Company - Question whether owner can claim compensation in respect of injury sustained by him in accident unless a premium in respect of personal injury has been paid referred to larger bench - Deceased/owner travelling in truck - Truck turned turtle and owner/deceased eventually died - Claims Tribunal held that Insurance Company not liable to indemnify the owner of vehicle - Held - Owner cannot claim compensation in respect of injury or death suffered by him, unless additional premium in respect of such personal injury or death has been taken by way of Special Insurance Contract : Smt. Sunita Lokhande Vs. The New India Assurance Company Limited, I.L.R. (2007) M.P. 1145 (FB)
- Sections 147 & 166 - Liability - Van belongs to a partnership firm - Being a partner of that firm driver (deceased) was also owner of illfated van - Risk of owner not insured as no premium paid to insurer in this respect - Held - Insurer not liable to pay compensation to legal heir of deceased/driver (owner) : K.N. Agrawal Vs. M.R. Portfolio Services, I.L.R. (2008) M.P. Note *16 (DB) 5. Gratuitous Passenger
- Section 147 - Liability of Insurance Company - Deceased travelling as a passenger in the goods vehicle - He was not travelling with or for the safety of his goods - Insurance Company would be absolved from liability to pay compensation - Appeal dismissed : ICICI Lombard General Insurance Co. Ltd. Vs. Haroon Bi, I.L.R. (2010) M.P. 2601 6. Negligence of the driver not established
- Section 147 - Liability of insurer - No liability can be mulcted on the Insurance Company when the negligence on the part of the driver is not established or the fact that the passengers were gratuitous passengers in a goods vehicle : Sahnaz Bee Vs. Nirmala Road Lines, I.L.R. (2010) M.P. 2326 7. No liability of insurance company without the liability of owner
- Sections 147 & 149 - Requirement of policies and limits of liability & duty of insurers - Whether owner can be exonerated and Insurance Co. alone may be fastened with liability of compensation - Held - Chapter XI of Act does not empower the tribunal or Court to fasten the liability of compensation on Insurance Co. alone - The liability of compensation is to be necessarily fastened on owner and Insurance Co. in joint and several manner : Vimla Bai Vs. Sharif Khan, I.L.R. (2009) M.P. 2490 (FB) 8. Owner / Passenger travelling with goods Motor Vehicles Act (LIX of 1988) 463
- Section 147 - Liability of Insurance Company - Claimant hired truck in connection with purchase of garlic - Accident took place while claimant was travelling in truck to fetch garlic - It cannot be said that there was violation of terms and conditions of policy - Insurance Company liable : Kamlesh Kahar Vs. Ashif Khan, I.L.R. (2008) M.P. Note *45 (DB)
- Section 147 (as amended w.e.f. 14.11.1994) - From the amended Section risk of owner traveling in the vehicle alongwith goods is clearly covered under the policy - Asharani's case was based on unamended provision - Tribunal has wrongly relied upon that decision - Insurer's liability is joint and several. Batul Begam Vs. Suresh Prasad Sahu, I.L.R. (2008) M.P. note *4 (DB)
- Section 147(1)(b)(i) - Claimants have specifically pleaded that the deceased was travelling in the vehicle on payment of fare along with the vegetables which he was taking for sale - Claimants produced oral as well as documentary evidence - Insurance Co. has not denied the fact specifically and not produced any contrary evidence in rebuttal - Held - It is established that deceased was travelling in the vehicle along with his goods (vegetables) for which he had paid the charges - Insurance Co. cannot escape from its liability : Resham Bai (Smt.) Vs. Jabbar, I.L.R. (2009) M.P. 2926 9. Powers of Executing Court
- Section 147, Motor Vehicles Rules, M.P., 1994, Rule 240 - Powers of Executing Court - Claims tribunal passed an award in favour of claimants (petitioners) that owner & driver would be severally & jointly liable, and further directed that Insurance Company shall make the payment to the claimants and thereafter Insurance Company shall recover the amount from owner - Insurance Company deposited the amount of award in the Executing Court - Executing Court ordered that until & unless the owner shall furnish the security of the amount of compensation, the amount be not paid to claimants - Order challenged in writ petition - Held - Executing Court has no power to impose such condition which was not part of the original award - Petition allowed : Prem Narayan Bhagel Vs. Banchandra, I.L.R. (2008) M.P. 2041 10. Vehicle overloaded
- Section 147 - Liability of Insurance Company - Offending Vehicle insured for 20 passengers and one driver - Same was plied for carrying 50 passengers which was contrary to terms and conditions of Insurance Policy - Held - Insurance Company cannot be exonerated mere on account of carrying more passengers in vehicle in comparison of its capacity - If vehicle is overloaded and more than 20 passengers got injured, insurer is liable to indemnify the claim of 20 passengers in descending order Motor Vehicles Act (LIX of 1988) 464 from higher side to lower side : Dheer Singh Vs. Ravi Kumar, I.L.R. (2008) M.P. Note *63 11. Witnesses not examined /cross-examined - Matter remanded back to Tribunal
- Sections 147, 149 - Liability of Insurance Company - Owner filing affidavit that vehicle was insured - Insurance company filed affidavit of Development Officer that cover note was cancelled due to non-payment of premium - Witnesses not produced for cross-examination - Testimony of witness cannot be accepted as evidence unless tested by cross-examination - No evidence as to when cover note was issued or when it was cancelled - Finding of Tribunal exonerating Insurance Company on the ground of cancellation of cover note not proper - Matter remanded back to Tribunal for giving finding as regards liability of Insurance Company after recording evidence : Smt. Kapori Devi Vs. Bidharam Koli, I.L.R. (2007) M.P. 192 (DB)
● - Section 148 - Liability of Insurance Company - The owner has liability to verify the fact as to whether driver possessed a valid licence or not - Driver of offending vehicle who is the brother of owner was having fake licence - Tribunal and High Court - Rightly exonerated Insurance Company - However claimants need not repay Rs. 50,000/- to Insurance Company - Insurance Company can recover the same from the insured - Claimants can recover the remaining amount from the driver and owner : Premkumari Vs. Prahlad Dev, I.L.R. (2008) M.P. 985 (SC)
- Section 149 - Compensation - Liability of the Insurance Company - On the date of the accident the vehicle was not having the valid permit to ply the vehicle on a particular route - Claims Tribunal holding the Insurance Co. liable to pay compensation - Held - If there are violation of terms and conditions of the insurance policy, then the Insurance Co. is not liable to indemnify the insured, however the Insurance Co. shall pay the compensation to the claimants and it recover the same from the owner of the vehicle : National Insurance Co. Ltd. Vs. Smt. Madhuri Kushwah, I.L.R. (2009) M.P. 2968
- Section 149 - Liability of the Insurance Company - Driver of the offending vehicle not having valid driving licence - Insurance Company still held liable - Held - Tribunal has committed error in saddling the liability to indemnify the claim jointly and severally against the Insurance Company with the owner & driver - Insurance Company was exonerated from the liability to indemnify the claim to the claimant - However, Insurance Company is directed to pay the awarded sum first to the claimant and recover the same from the owner - Appeal allowed : National Insurance Company Ltd. Vs. Mohar Singh, I.L.R. (2009) M.P. Note *53 Motor Vehicles Act (LIX of 1988) 465
- Section 149 - Deceased was travelling in goods vehicles - Insurer exonerated by claims tribunal - Appeal against exoneration of insurer - Contented that contents of FIR could not be relied as which were contrary to evidence adduced - Held - FIR was lodged and produced by sole eye witnesses who is one of claimants - Contents of FIR and documents binding upon claimants : Magan Vs. Mansukhbhai, I.L.R. (2009) M.P. 806
- Sections 149 & 166 - Driver of offending vehicle was driving Government vehicle and was on official duty when accident occurred - Tribunal found driver personally liable as photocopy of driving license was produced and driver did not take any steps to bring on record the original - Held - In the course of employment accident occurred - State Vicarious liable to pay compensation - Appeal Allowed : Mohanlal Mishra Vs. Chief Medical & Health Officer, I.L.R. (2010) M.P. 1445
- Sections 149 & 166 - Liability of insurer - Collision of Jeep & Truck - Person sitting in Jeep died - Tribunal found accident occurred due to rash & negligent driving of the Truck driver - Truck not insured - Award passed only against owner & driver of Truck - Owner, driver and insurance company of Jeep exonerated - On filing appeal High Court setting-aside the part of award exonerating the insurer of Jeep and making insurer of Jeep also liable for payment - Held - High Court having not reversed the finding of the tribunal that Jeep driver was not at fault it could not have fastened liability on insurer of Jeep - Judgement of High Court set-aside - Appeal allowed : New India Assurance Co. Ltd. Vs. Bismillah Bai, I.L.R. (2009) M.P. 3247 (SC)
- Sections 149, 166 - Whether on account of cancellation of policy, still insurer is liable to pay compensation - Yes, authorised agent of insurer collected premium in cash from insured - Insured also received cover note - Authorized agent issued cheque for the amount of premium in favour of insurer which was dishonoured - Policy cancelled due to dishonour of cheque - Held - Insurer is liable for act of his agent - Cannot be absolved of its liability : Oriental Insurance Co. Ltd., Bilaspur Vs. Indrapal, I.L.R. (2008) M.P. 2055 (DB)
- Sections 149, 166, 173 - Liability of Insurance Company - Deceased going on a motorcycle as a pillion rider - Motorcycle collided with buffalo - Pillion rider died in accident - Pillion rider not covered by terms of Insurance Policy - Held - Insurance Company did not raise the ground before Claims Tribunal or High Court that pillion rider was not covered by Insurance Company - Claimants had no opportunity to meet this ground and to adduce evidence in that behalf - Appeal filed by Insurance Company dismissed : United India Assurance Co. Vs. Saroj Bai, I.L.R. (2007) M.P. 1115 (DB)
- Section 149 (2) - Liability of Insurance Company - LP Gas - Whether running a vehicle on LP Gas is a violation policy condition - No : Santosh Singh @ Kishanpal Vs. United India Insurance Co. Ltd., I.L.R. (2008) M.P. Note *39 (DB) Motor Vehicles Act (LIX of 1988) 466
- Section 163-A - Deceased borrowed Scooter from his father who was registered owner - Because of slip of Scooter deceased fell down and died due to head injury - L.Rs. of deceased stepped into the shoes of the owner - Owner could not himself be a recipient of compensation as liability to pay the same is on him - Claim petition rightly dismissed by tribunal : Kiran Chhabra (Smt.) Vs. Hitesh Chhabra, I.L.R. (2010) M.P. 438
- Section 163-A - Deduction of personal expenses of a bachelor deceased - Computation - Claim application u/s 163-A - Victim is a bachelor - Held - In the note appended to the Second Schedule, for compensation for third party fatal accident cases, there is no mention of fact that what would have been happened if the victim is a bachelor - Claim shall be reduced by 1/3rd towards personal expenses : Banwarilal Vs. Rajendra Singh, I.L.R. (2009) M.P. Note *40
- Sections 163-A & 166 - Whether application filed u/s 166 for compensation can be converted into application u/s 163-A at appellate stage - Held - No, after dismissal of application u/s 166, claimants not entitled to convert application u/s 163-A : Ramlali Tiwari (Smt.) Vs. Vrindavan Tiwari, I.L.R. (2009) M.P. 906 (FB)
- Sections 163 A & 166 - Out of one accident two applications arise one U/s 163 A and another U/s 166 - A compromise arrived at in proceeding initiated U/s 163 A - Such compromise will not have any bearing upon proceedings initiated U/s 166 : Ratna Parashar Vs. Kusumlata, I.L.R. (2008) M.P. Note *26 (DB)
- Section 165, Civil Procedure Code, Section 9 - Motor Accident Claims Tribunal - Is a Civil Court : National Insurance Co. Ltd., Gwalior Vs. Shrikant, I.L.R. (2007) M.P. 312 (FB)
- Sections 165 & 166 - Motor accident - Exchange of hot talks between driver and cleaner of truck during travelling - Driver was found dead in truck - Alleged murder by cleaner - Claim petition dismissed without recording evidence - Held - Death of driver was due to accidental murder which arose out of use of motor vehicle or murder simplicitor - This could have been examined only after recording evidence - Order set- aside - Case remanded to decide it afresh after recording evidence : Shamim Bano Vs. Rajesh Kumar, I.L.R. (2009) M.P. 2041
- Sections 165, 166 - Liability of Insurance Company towards owner of vehicle - Tanker colliding with truck going in the same direction and getting damaged - Tanker- owner claiming for damage of tanker from the Insurance Company - Insurance Company is liable only against the damage to the property of third party - Owner not third party, Insurance Company is not liable-Remedy lies in filing civil suit : United India Insurance Co. Vs. Sandeep Kumar Gupta, I.L.R. (2007) M.P. 792 Motor Vehicles Act (LIX of 1988) 467
SYNOPSIS : Section 166
1. All the legal representatives 15. Loss of dependency in case of the deceased are necessary of deceased house wife parties 16. Maintainability 2. Apportionment of liability 17. No negligence no liability 3. Appreciation of Documents 18. Pay and Recover of Criminal case 19. Personal expenses 4. Assessment of Permanent 20. Protection of interest of disability minor claimant 5. Cancellation of policy / 21. Provisions of abatement do Cover note not apply in Claim Cases 6. Claim for personal injuries 22. Quantum abates on the death of claimant 23. Second Claim Petition after - Law discussed Subsequent events 7. Compensation for death or 24. Second Schedule - Applicability injury of deceased owner 25. The tortfeasor can not take 8. Composite Negligence advantage of owner's contract 9. Contributory negligence with third party / The doctrine 10.Death of a Minior of subrogation does not 11.Dependent apply automatically 12.Duty of the court to explore 26. Towing - Negligence truth 27. Unmarried deceased 13.Entitlement of brothers of 28. Vicarious liability deceased 29. Miscellaneous 14.Legal representatives of claimant
1. All the legal representatives of the deceased are necessary parties
- Section 166(1) Proviso - Duty of claims tribunal - Claim application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and who have not so joined shall be impleaded as respondents - It was the bounden duty of Motor Vehicles Act (LIX of 1988) 468 the claims tribunal to ascertain the position of all legal representatives of the deceased and to get them impleaded in claim case : Saraswati Bai Vs. Asgar Ali, I.L.R. (2009) M.P. 2919
- Section 166 - Tractor owner's daughter died due to accident caused by his own tractor - Due to shock his wife also died - Owner file claim petition against the driver and insurer - Tribunal awarded compensation Rs. 65,000/- - Insurer challenged the award - Owner does not come within purview of third party - Held - Petition is not filed in the capacity of owner but in the capacity of one of legal representative of deceased and sole legal representative of his wife - Award affirmed - Appeal Dismissed : New India Assurance Co. Ltd. Vs. Nandram Prajapati, I.L.R. (2008) M.P. 325 2. Apportionment of liability
- Sections 166, 173 - Motor accident - Claim - Award of compensation - Apportionment of liability - Joint tort feasors - There cannot be apportionment on general principles of law - Owners and drivers shall be jointly and severally liable for payment of compensation : Bheru Singh Vs. Ikramuddin, I.L.R. (2006) M.P. 844 3. Appreciation of Documents of Criminal case
- Section 166 - Evidence - FIR can be used as a piece of evidence when relied on by both the parties : National Insurance Co. Ltd., Indore Vs. Mangilal, I.L.R. (2010) M.P. 2575
- Section 166 - FIR was in respect of Santro Car bearing registration No. MP20F2002 whereas it was the Maruti Car which was registered on this number - The evidence of two witnesses whose name are given in FIR may be sufficient to prove that it was Maruti Car bearing registration No. MP20F2002 which caused accident : Nisha Patel Vs. Syed Mustaq, I.L.R. (2010) M.P. 2565
- Section 166 - Claim case - Appreciation of evidence - Evidentiary value - Papers of criminal case - Driver held to be rash & negligent whereas owner and insurer exonerated as the number of motorcycle was not mentioned in the FIR - Held - When unrebutted supporting evidence is available on the record then the papers of the criminal case could not be discarded lightly without considering the circumstances mentioned in such papers - After consideration and on appreciation it is held that the alleged accident was happened because of rash and negligent riding of the alleged motorcycle - Therefore, owner and insurer of alleged motorcycle are also liable jointly & severally with the driver : Sameer Ahmed Vs. Adil, I.L.R. (2009) M.P. Note *22
- Section 166 - Deceased was carrying 3 persons i.e. wife and 2 persons (including a minor son) on motorcycle - Dashed by Tanker - In FIR lodged by wife, she did not Motor Vehicles Act (LIX of 1988) 469 state that motorcycle was stationary at the time of accident - In oral evidence she stated that motorcycle was stopped on the side of road - Held - In the accident wife and her family members were seriously injured - She can not be said to be in fit mental condition at the time of lodging FIR - Oral evidence cannot be said to be unreliable - Accident occurred due to sole negligence of Tanker driver : National Insurance CO. LTD., Ratlam Vs. Smt. Sindhu, I.L.R. (2009) M.P. 1079
- Section 166 - Effect of non-mentioning the registration number of involved vehicle in FIR - FIR is not the encyclopedia of the incident - Thus, it could not be said that FIR relating to the road accident must have the number of the offending vehicle - In many cases, injured being illiterate or on sustaining the injury in accident does not remain in the position to see or identify the registered number of the vehicle - The same could be traced out only after holding the investigation by the police : Sameer Ahmed Vs. Adil, I.L.R. (2009) M.P. Note *22
- Section 166, Evidence Act, 1872, Section 102 - Burden of Proof - Eye witness lodged FIR that a truck had hit motorcycle killing the driver - Police filed charge sheet that involvement of truck not proved however Bus had caused the accident - Driver and owner of bus remained ex parte before Claims Tribunal - Tribunal passed award in favour of claimants - Held - It was the duty of claimants to examine the I.O. to prove that on what particular evidence he recorded a finding that the truck was not involved in the accident and in fact the bus has caused the accident - Non-examination of I.O. and first informant would give a dent to the claim : National Insurance Company Ltd. Vs. Smt. Setubai, I.L.R. (2008) M.P. 2367 (DB)
- Sections 166, 173 - Motor accident - Death - Negligence - Proof of - res ipsa loquitor - Claimants not present at the time of accident - Brought circumstances in which accident occurred - FIR may be looked as corroborative piece of evidence - FIR not rebutted by driver - res ipsa loquitor can be applied in this case : Dewakar Shukla Vs. Ashok Thakur, I.L.R. (2006) M.P. 383(DB) 4. Assessment of Permanent disability
- Section 166 - Compensation - Appellant undergone 4 operations - Appellant suffered permanent disability because of loss of part of tibia due to which there is shortening of left leg - Doctor not mentioning the percentage of permanent disability - Permanent disability has to be assessed from medical papers - Considering the fact of shortening of leg, permanent disability is upto 25%. : Babu Singh Vs.Mohd. Irfan Khan, I.L.R. (2008) M.P. Note *30 (DB) 5. Cancellation of policy / Cover note
- Sections 166, 173 - Motor accident - Claim - Award of compensation - Liability of insurer - Cover note cancelled for alleged non-payment of premium - Cancellation Motor Vehicles Act (LIX of 1988) 470 not proved by cogent reliable evidence - Tribunal erred in not saddling liability on insurer : Praveen Vaidya Vs. Kailash, I.L.R. (2006) M.P. 1043 (DB) 6. Claim for personal injuries abates on the death of claimant - Law discussed
- Section 166, Indian Succession Act, 1925 - Section 306, Legal Representative Suits Act, 1855 - Section 1 - Whether a claim for personal injuries received in motor accident abates on the death of claimant or would survive to his legal representatives - Person injured in Motor Accident died during the pendency of claim petition - Reference made by Division Bench - Held - Claim for personal injuries to a claimant abates on the death of claimant - Claim would not survive to legal representatives except as regards the claims for pecuniary loss to the estate of claimant - Matter remanded back to Division Bench to assess loss to the estate if any - Judgment of Division Bench in the case of Umedchand Golcha affirmed : Smt. Bhagwati Bai Vs. Bablu Alias Mukund, I.L.R. (2007) M.P. 24 (FB) 7. Compensation for death or injury of deceased owner
- Section 166 - Claim for compensation - Question whether legal heirs of deceased owner put forth claim for compensation in absence of special policy - Held - Legal heirs of deceased/owner cannot put a claim for compensation for death or injury of deceased unless additional premium in respect of personal injury has been taken by the Insurance Company by way of special insurance contract from the owner of the vehicle : Smt. Sunita Lokhande Vs.The New India Assurance Company Limited, I.L.R. (2007) M.P. 1145 (FB) 8. Composite Negligence
- Section 166 - Compensation - Composite Negligence - Deceased was travelling in Matador which was hit by truck - In claim case truck driver remained ex-parte - Tribunal dismissed the petition on the ground that appellant has not impleaded owner & insurer of Matador - Held - Even if it is assumed that driver of Matador was negligent then too so far as appellants are concerned it was a case of composite negligence and claim petition cannot be dismissed for non-impleading owner, driver and insurer of Matador - Appeal allowed : Gajanand Vs. Virendra Singh, I.L.R. (2008) M.P. Note *72
- Section 166 - Composite negligence - Appellants are tempo driver and owner - Claimants travelling in tempo - One truck by towing another truck came from opposite side in rash and negligent manner - Truck which was towed came from its side and collided with tempo - Tribunal held the case to be of composite negligence and saddled Motor Vehicles Act (LIX of 1988) 471
50% liability on appellants - Held - No evidence adduced on behalf of truck driver, owner or insurer to prove any fault and negligence on the part of tempo driver - Injured and eye witnesses have proved with all probabilities that accident was the cause and consequence of act of offending truck - Appellants exonerated to indemnify the liability of awarded sum to claimants - Appeal allowed : Badda @ Barik Rao Vs. Kantibai, I.L.R. (2008) M.P. 3172
- Section 166 - Joint feasors-Deceased travelling in jeep which was dashed by truck as a result of which jeep skidded to certain distance and its three tyres came out due to accident - Some persons received grievous injuries and some died - Claims Tribunal held that both drivers were negligent and their contribution was determined at 50% each - Respondents were held liable to pay 50% of the award as driver, owner and insurance company of jeep were not made party - Held - Deceased was not driving jeep therefore, it cannot be held that he had contributed to accident - Accident has been caused by composite negligence of feasors - It is the choice of claimant to claim from owner driver and insurer of both vehicles or any one of them - Conclusion of tribunal that as owner, driver and insurer of jeep have not been made party, therefore, 50% is to be deducted is absolutely unsustainable- Appeal allowed : Mahesh Matre Vs. Akhlesh Thakur, I.L.R. (2008) M.P. 120 (DB)
- Section 166 - Composite negligence - In case of head on collusion between two vehicles on middle of road - Doctrine of res ipsa loquitur attracted - Case of composite negligence proved : Ratna Parashar Vs. Kusumlata, I.L.R. (2008) M.P. Note *26 (DB)
- Sections 166 - Due to accident both pillion riders sustained fracture in their femur bones - Sustained 40% disability - Tribunal found a case of contributory negligence and awarded 50% of amount assessed i.e. Rs. 45,900/- and Rs. 46,200/- respectively - High Court held to be a case of composite negligence and awarded Rs. 1,20,000/- to each claimant : Nanhelal Gontiya Vs. Harishchand, I.L.R. (2008) M.P. Note *24 (DB)
- Sections 166 & 128 - Case of pillion riders - It would be a case of composite negligence of both drivers - But not a case of contributory negligence : Nanhelal Gontiya Vs. Harishchand, I.L.R. (2008) M.P. Note *24 (DB) 9. Contributory negligence
- Section 166 - A child of tender age (7 years) can not be held liable for contributory negligence and thus can not be non-suited on this ground : Sheikh Sabir Vs. Islamuddin Ansari, I.L.R. (2010) M.P. 1768 Motor Vehicles Act (LIX of 1988) 472
- Section 166 - Contributory negligence - Jeep was stopped and claimant alighting from the Jeep met with an accident by a tractor which was driven rashly - Driver and owner of the Jeep were impleaded as party but were not examined and exonerated by the Claims Tribunal - Held - It was the duty of the Jeep driver to see that the vehicle was stopped at a safe place where from immediately after alighting there could be no possibility of any accident with any other vehicle - It is a case of contributory negligence of the Jeep driver - Claims Tribunal not justified in rejecting the claim against the owner, driver and Insurance Co. of the Jeep : Mahendra Kumar Vs. Amar Singh, I.L.R. (2009) M.P. 2640
- Section 166, Rules of the Road Regulations, 1989, Rules 8 & 9 - Compensation - Contributory negligence - Burden of proof - Precaution so as to avoid accident at the intersection of roads - Deceased was going on a motorcycle dashed by a truck at intersection of roads - Tribunal found 50% contributory negligence of deceased - Held - Respondents failed to examine any witness to disprove version of eye witness - Respondents failed to discharge burden to prove that deceased was himself negligent - No presumption of negligence of deceased can be drawn merely because accident occurred at the intersection of roads - Finding of tribunal that deceased was contributory negligent erroneous - Appeal allowed : Usha (Smt.) Vs. Rajesh, I.L.R. (2009) M.P. 1390
- Section 166 - Contributory Negligence - In violation of S. 128 M.V. Act, Appellant/ injured while travelling on a motor cycle as a pillion rider - Held - Pillion rider is not liable for contributory negligence : Babu Singh Vs.Mohd. Irfan Khan, I.L.R. (2008) M.P. Note *30 (DB)
- Sections 166, 128 and Rule 123 - The driver of the motor cycle was carrying two pillion riders in violation of section 128 - Motor Cycle met with an accident with a jeep - Pillion riders sustained injuries -Claims petition filed by Pillion riders - Tribunal held negligence on the part of the jeep driver was 80% and 20% on the part of motor cycle driver and accordingly awarded the compensation - Appeal filed by Insurance Company, contention was raise before D.B. that Pillion rider was traveling in violation of section 128 of the Act so compensation should be reduced on account of his "contributory negligence" - D.B. found conflict between Manjo Bee's case and Smt. Uma Tiwari's Case, Kanti Devi Sikarwar's case and referred the case to the Full Bench - F.B. after considering various judgments and text on the law of Torts - Held - "Contributory negligence" is distinct from the "negligence" - Merely two or more persons are traveling as Pillion rider on a motor cycle ipso facto can not be termed as "contributory negligence" on the part of the driver of the motor cycle - Further Held - Law laid down in Manjo Bee's Case is correct law - Law laid down in Smt. Uma Tiwari's Case and Kanti Devi Sikarwar's case - Expressly overruled : Devi Singh Vs. Vikram Singh, I.L.R. (2007) M.P. 1323 (FB) Motor Vehicles Act (LIX of 1988) 473
- Section 166 - Negligence - Tribunal has dismissed the application on the ground that negligence of the driver is not pleaded - The truck went in a big ditch due to the steering pierced the chest and abdomen of the driver - Accident caused due to bad condition of road - However, driver was also negligent to the extent of 50% as he was not able to locate big ditch properly : Champa Pandey Vs. Hardayal Singh, I.L.R. (2008) M.P. Note *5 (DB) 10. Death of a Minior
- Section 166 - Compensation - 3 years old daughter of claimants died in accident - Tribunal awarded Rs. 1,07,000/- - Held, in view of second Schedule - Notional income, deduction 1/3rd and applying multiplier 15- Loss of dependency 1,50,000 + 30,000 towards funeral expenses, loss of estate and love & affection HC awarded Rs. 1,80,000/- : Monika Vs. Kamlesh, I.L.R. (2008) M.P. Note *11 11. Dependent
- Section 166 - Claimant, the neice of deceased, used to stay with deceased to look after him - Her fees etc. was paid by deceased - She may also get compensation : Gangaram Vs. Mangilal, I.L.R. (2010) M.P. Note *80 12. Duty of the court to explore truth
- Section 166, 173 and Evidence Act, 1872, Section 165 - If Considered necessary court may require production of evidence and witnesses - Failure to do so can be set right in exercise of revisional or appellate jurisdiction - Tribunal examined only claimant and no other witness - It is duty of the court to explore truth - Case remanded to give opportunity to examine witness : Jarina Bi Vs. M.P.S.R.T.C. Bhopal, I.L.R. (2006) M.P. 1172 13. Entitlement of brothers of deceased
- Section 166 - Compensation - Appellants are brothers of deceased - Although appellants were not financially dependent on deceased but it cannot be denied that in number of respect they were dependent on the deceased and entitled for compensation - Since appellants are financially well settled Rs. 1,50,000/- compensation awarded : Gajanand Vs. Virendra Singh, I.L.R. (2008) M.P. Note *72 14. Legal representatives of claimant
- Section 166 - Legal representatives of claimant - Claimant, father of deceased died during appeal - His legal representatives would get the amount of compensation, Motor Vehicles Act (LIX of 1988) 474 but limited to the share of claimant : Gangaram Vs. Mangilal, I.L.R. (2010) M.P. Note *80
- Section 166 - Tractor owner's daughter died due to accident caused by his own tractor - Due to shock his wife also died - Owner file claim petition against the driver and insurer - Tribunal awarded compensation Rs. 65,000/- - Insurer challenged the award - Owner does not come within purview of third party - Held - Petition is not filed in the capacity of owner but in the capacity of one of legal representative of deceased and sole legal representative of his wife - Award affirmed - Appeal Dismissed : New India Assurance Co. Ltd. Vs. Nandram Prajapati, I.L.R. (2008) M.P. 325
- Section 166 - Legal Representative - Appellant filed claim petition claiming himself to be Gurubhai of deceased Sadhu Harnamdas - Whether Gurubhai can be said to be legal representative - Held - If man becomes ascetic and severes all connection with his natural family, he becomes spiritual son of his preceptor - Appellant was residing in Ashram - He had no connection with his natural family - Appellant entitled to maintain application as legal representative of deceased - Appellant entitled to get Rs. 64,500 in toto as compensation - Appeal partly allowed : Mahant Shyamdas Guru Mohandas Vs. Lalaram, I.L.R. (2008) M.P. 257 (DB)
- Section 166 - Application for Compensation- Deceased working as driver of truck - While deceased was checking nut bolts of wheels, bus belonging to respondent no.1 came from opposite direction and dashed against truck as a result of which deceased died - Mother and brother of deceased filed application for grant of compensation - Claim Petition allowed by Claims Tribunal - Appellants filed appeal for enhancement of compensation- Insurance Company filed cross objection alleging that brother of deceased is not legal representative and is not entitled for compensation - Held - Term "legal representative" not defined in Section 166 of Act, 1988 - "Legal Representative" defined in Section 2(11) of C.P.C. - For the purposes of Motor Vehicles Act, Legal Representative is one who suffers on account of death of person and need not necessarily be a wife, husband, parent or child - Any person in family who is dependent upon deceased is entitled to claim compensation - Appellant no.2 is a handicapped person and dependent upon deceased - Appellant no.2 therefore, held to be dependent upon his deceased brother and has suffered adversely on account of death of his brother - Claim petition on his behalf maintainable: Amna Bi Vs. M/s Royal Transports Service, I.L.R. (2008) M.P. 125
- Section 166, Mohammedan Law, Sections 253, 254,268,308 - Claimant - Claims Tribunal rejected claim of appellant no.1 on ground that she is not legally married wife of deceased and appellant no.2 is not son of deceased - Held - Father of deceased admitting that appellant no.1 is legally wedded wife and appellant no.2 is son of deceased - Interest of appellants and that of parents of deceased clashes therefore, it is not Motor Vehicles Act (LIX of 1988) 475 possible for him to falsely depose that appellant no.1 is wife and appellant no.2 is son of deceased - No evidence that alleged first husband of appellant no.1 ever objected her marriage with deceased on the ground that he has not given divorce - It shall be presumed that first husband had given divorce and only thereafter she contracted second marriage with deceased - Finding of Claims Tribunal that the marriage was illegal set aside - Appellants also entitled to get compensation : Jalisa Begum Vs. Jagdish Sahu, I.L.R. (2008) M.P. 295 (DB) 15. Loss of dependency in case of deceased house wife
- Sections 166, 173 - Deceased house wife - Loss of dependency - Criteria - Even in absence of datas and considering multifarious services rendered by housewives for managing entire family even on a modest estimation, should be Rs.3,000/- per month and Rs. 36,000/- p.a. - This would apply to all those housewives between the age group of 34 to 59 and are active in life - Award modified : Kalu Ram Vs. Rajesh, I.L.R. (2006) M.P. 1152
- Sections 166, 173 - Motor accident - Death - Compensation - Appeal for enhancement - Deceased house wife - Loss of dependency - Criteria - Even in absence of datas and taking into consideration the multifarious services rendered by housewives for managing the entire family even on a modest estimation, should be Rs.3,000/- per month and Rs. 36,000/- p.a.- This would apply to all those housewives between the age group of 34 to 59 and were active in life - Award modified : Kalu Ram Vs. Rajesh, I.L.R. (2006) M.P. 1152 16. Maintainability
- Section 166 - Maintainability of Claim Petition-Murder or Accidental Murder- Accident between offending truck and Mini Truck which was being driven by deceased- Driver of offending truck took deceased in his truck for satisfying the demand to make payment of compensation for loss caused to offending truck-Altercation took place between driver of truck and deceased-Deceased was dashed with truck-Rear wheel came over head resulting into death-Driver of truck convicted U/s 302 of I.P.C.-Claim rejected by Tribunal holding the case to be of murder and not accidental murder-HELD- If there is intention to kill person then such killing is murder-If act of murder was originally not intended but same was caused in furtherance of any other felonious act such murder is accidental murder-There was casual connection between initial accident- There was connection of subsequent events with accident-It was case of accidental murder-Claimants entitled for compensation : Khairunisha Vs. Subhash @ Punjabi, I.L.R. (2008) M.P. 82 (DB)
- Section 166, Employees State Insurance Act, 1948, Section 53 - 1948 Act is piece of welfare measurement and it does not debar victim of a road accident to ask for Motor Vehicles Act (LIX of 1988) 476 compensation under law of torts - Claimant had already received lump sum amount of compensation and is getting monthly disability pension from ESI as per provision of Section 53 of 1948 Act - On this ground his claim petition under Motor Vehicles Act cannot be rejected : Ahmed Khan Vs. Sher Khan, I.L.R. (2008) M.P. 860 17. No negligence no liability
- Section 166 - Compensation - Liability of the Insurance Company - The tribunal giving a finding that there was no negligence of the Driver in causing accident - The tribunal holding the owner and Insurance Company jointly and severally liable - Held - The tribunal has returned a categorical finding that there was no negligence on the part of the driver driving the vehicle i.e. jeep which met with an accident resulting in his death - Insurance Company cannot be held liable to indemnify the insured - Insurance Company exonerated from the liability : United India Insurance Co. Ltd. Vs. Smt. Vandana, I.L.R. (2010) M.P. Note *93 18. Pay and Recover
- Section 166 - Insurance Company exonerated on ground of breach of policy even then claimants would be entitled to recover amount of compensation awarded from Insurance Company - However Insurance Company will be at liberty to recover the same from owner of offending vehicle - The proposition laid down by S.C. in the case of Swaran Singh (2004) 3 SCC 297, Baljit Kaur (2004) 2 SCC 1 and Pramod Agrawal (2004) 8 SCC 667 still holds the field : Shivcharan Patel Vs. Govind @ Balkrishna Gautam, I.L.R. (2008) M.P. Note *28 (DB)
- Section 166 - Jeep insured as private vehicle - Used as a taxi - Breach of policy condition - Insurance company rightly absolved - However in the view of Sarvan Singh's and Pramod Kumar Agrawal's case directions given that insurance company to satisfy the award and recover 50% from jeep owner and 50% from truck owner : Ratna Parashar Vs. Kusumlata, I.L.R. (2008) M.P. Note *26 (DB) 19. Personal expenses
- Section 166 - Claim Petition - Supreme Court in Sarla Verma's case [2009 ACJ 1298] has laid down the guidelines in respect of application of multiplier and determining personal expenses for maintaining uniformity - Deceased aged 35 years - Number of dependents are 7 - As per guidelines - Multiplier 16 would be applied and deduction towards personal and living expenses of deceased would be 1/5 - Compensation enhanced accordingly - Appeal allowed : Resham Bai (Smt.) Vs. Jabbar, I.L.R. (2009) M.P. 2926 Motor Vehicles Act (LIX of 1988) 477
20. Protection of interest of minor claimant
- Section 166, Civil Procedure Code, 1908, Order 32 Rule 7 - Agreement or compromise by next friend or guardian for the suit - Claim for Rs.3,80,000 filed - Matter compromised between parties at Rs.35,000 - Claimants Nos. 2 to 5 were minor at relevant time - Claims Tribunal did not consider the provisions of Order 32 Rule 7 - Compromise not shown to have been entered on behalf of minor claimants - Leave of Court ought to have been asked for - Compromise not in the interest of minors - Order recording compromise set-aside : Tijauwa Vs. Rajmani, I.L.R. (2009) M.P. 2616
- Section 166 Proviso - Without impleading minor children of deceased earlier claim petition filed by widow which was compromised - Subsequent claim petition filed by minor children - Held - Since the right to demand compensation u/s 166 flows in favour of minor children being legal representatives of deceased - Can not be denied on the basis of compromise entered into with opposite party by widow of deceased - Subsequent claim petition to be adjudicated independently on its merit - Appeal allowed : Saraswati Bai Vs. Asgar Ali, I.L.R. (2009) M.P. 2919 21. Provisions of abatement do not apply in Claim Cases
- Section 166, 240, Civil Procedure Code, 1908, Order 22 - Abatement - Provisions relating to abatement as contained in Order 22 of Civil Procedure Code donot apply in Motor Accident Claim Cases - Claims Tribunal rejected application for bringing LRs. of owner on the ground that it was filed after a period of 90 days - Consequently exonerated Insurance Company as claim against insured had abated - Rejection of application for bringing LRs. of owner and exoneration of Insurance Company improper - Appeal allowed : Runna Bai Vs. Shivram Kushwaha, I.L.R. (2007) M.P. 241 22. Quantum
- Section 166 - Compensation - Quantum - Deceased aged about 35 years of age - No proof of his income - Held - Notional income fixed to Rs.24,000/- p.a. - Applying a multiplier of 16 the dependency awarded as Rs.3,84,000/- and Rs.16,000/- funeral expenses and loss of consortium - Compensation computed to Rs.4,00,000/- along with interest @ 6% p.a. : Nisha Patel Vs. Syed Mustaq, I.L.R. (2010) M.P. 2565
- Section 166 - Compensation - Appellant aged 20 years suffering 40% of permanent disability due to fracture of tibia & fibula bone of right leg - Tribunal awarding compensation of Rs.40,000 for loss of income, Rs.22,500 for treatment expenses and Rs.5,000 for pain & suffering - Held - Tribunal has not awarded any sum on the head of loss of income for the period of treatment and in treatment expenses only Rs.22,500 are awarded in which the expenses of attendant, special diet, travelling expenses to consult Motor Vehicles Act (LIX of 1988) 478 the doctor are also included - Considering overall circumstances, compensation further enhanced by Rs.30,000 along with interest @ 6% p.a. from the date of filing of claim petition : Sameer Ahmed Vs. Adil, I.L.R. (2009) M.P. Note *22
- Section 166 - Compensation enhanced - Claimant aged 35 years was a truck driver met in accident suffered injuries in right leg - Five operations were performed - Due to unsuccessful operation there was gangrene in right leg - Ultimately right leg above knee level amputated - Tribunal awarded a total compensation of Rs.3 lacs - Held - As per the second schedule u/s 163-A of the Act there is permanent disability results from the total injuries - Total loss of earning capacity - Loss of income Rs.24,000 p.a. multiplier 16 will be applicable then total loss of income comes Rs.3,84,000 plus Rs.36,000 for loss of income of one year during treatment period plus Rs.50,000 for medical expenses plus Rs.50,000 for pain and suffering - Total compensation of Rs.5,20,000 minus Rs.3 lac already awarded by tribunal - Claimant will get the enhanced compensation of Rs.2,20,000 with interest @ 8% p.a. from the date of filing of claim application : Vishal Singh Vs. Shailendra Singh, I.L.R. (2009) M.P. Note *18
- Section 166 - Compensation - Enhancement - Wife aged 25 years and two children aged 5 and 1 year are dependent on the deceased, who was of 35 years of age - By maintaining the dependency of the claimants on the deceased - The sum awarded by the tribunal is further enhanced by Rs.1,20,000 considering the facts of the case : Manager U.P. State Road Transport Corp. Jhansi Vs. Halkibai, I.L.R. (2009) M.P. Note *4
- Section 166 - Compensation - Appellant was working as Tube-well operator and motor winding work - Total income assessed to Rs. 30,000/- per annum - Permanent disability 25% - Loss of income would be Rs. 7,500/- per annum - Appellant aged about 22 years - Multiplier of 17 applicable - Appellant entitled for Rs. 50,000/- towards treatment, special diet, pain & suffering and Rs. 50,000/- towards future treatment - Compensation enhanced from Rs. 30,000/- to Rs. 2,27,500/- : Babu Singh Vs.Mohd. Irfan Khan, I.L.R. (2008) M.P. Note *30 (DB)
- Section 166 - Compensation - Claimant sustaining 40% permanent disability - Remained under treatment for six months - Compensation enhanced from Rs.57,000/- to Rs.1,52,000/- - Interest @ 7% p.a. on enhanced amount payable from the date of filing of claim petition : Oriental Insurance Co. Ltd., Bilaspur Vs. Indrapal, I.L.R. (2008) M.P. 2055 (DB)
- Section 166 - Compensation - Permanent Disability of claimant assessed to the extent of 66% - Income taken as Rs. 3000/- p.m. - 2/3rd loss of income comes to Rs. 2000/- p.m. - Multiplier of 18 would be applicable - Compensation Rs. 12,000/- for loss of earning of four months - Rs.4,32,000/- for loss of future income - Rs. 50000/- for Motor Vehicles Act (LIX of 1988) 479 pain and suffering - Rs. 11000/- for medical expenditure - Rs.20000/- for expenditure on special diet etc. - Compensation Rs. 3,85,758/- enhanced to Rs. 5,25,000/- - Appeal allowed : Kamlesh Kahar Vs. Ashif Khan, I.L.R. (2008) M.P. Note *45 (DB)
- Section 166 - Compensation - Claimant aged 4 and half years sustaining 40% permanent disability due to mal union of fracture of shaft femur and injury in the ankle also - As per II schedule - Being a non earning member notional income Rs. 15, 000/- p.a. - Annual loss of earning capacity 40% i.e. Rs. 6000/- - Multiplier of 15 applied - Future loss of earnings capacity 6,000 x 15 = Rs. 90,000/- plus Rs. 20,000/- towards pain & suffering, medical expenditure, special diet etc.- Tribunal awarded Rs. 60,000/- - High Court enhanced the total compensation Rs. 1,10,000/- - Enhanced compensation carry interest @ 7% p.a. from the date of application till realization : Aditya Soni Vs. Sanjay Gulati, I.L.R. (2008) M.P. Note *2 (DB)
- Section 166 - Compensation - Appellant, a young lady of 25 years sustained injuries on face for which she was operated - She remained hospitalized for 14 days - Claims Tribunal awarded Rs. 40,000/- - No amount was given for transport expenses, expenses incurred on attenders and loss of income- Appellant further entitled for Rs. 30,000/- : Monika Vs. Kamlesh, I.L.R. (2008) M.P. Note *11
- Section 166 - Compensation - Appellant sustained grievous injuries in thoracic, 10th vertebra and sustained permanent disability - He was treated in hospital - Though no medical bills have been proved but it cannot be held that he had not spent money on treatment, special diet and attendant - Looking to age, nature of injuries amount of Rs. 50,000 awarded in all heads with 7% p.a. from the date of filing of claim petition : Dinkar Joshi Vs. Nitin Tiwari, I.L.R. (2008) M.P. 307(DB)
- Section 166 - Compensation - Claimant aged 19 years - Spleen of claimant removed owing to injury sustained in accident - Claims Tribunal awarded 25,000/- for injury, pain & suffering plus 16,000/- for medical expenses & conveyance - Held - Function of spleen is to manage, fragile or abnormally shaped red blood cells and destroy them - Spleen also plays important role in body's defence mechanism - Compensation enhanced to Rs. 1,30,500/- : Kavita Sharma Vs. Ashwni Kumar, I.L.R. (2008) M.P. Note *9 (DB)
- Section 166 - Compensation - Deceased having 3 minor children apart from his wife and old parents - No justification for deducting ½ towards personal expenses - Deduction ought to have been ¼ towards personal expenses : Akilabee Vs. Shyamkumar, I.L.R. (2008) M.P. 279
- Section 166 - Compensation - Deceased earning Rs. 3000 per month - Deducting customary amount from annual income dependency of claimants comes to Rs. 24,000 Motor Vehicles Act (LIX of 1988) 480 p.a. - Multiplier of 18 applied - Claimants entitled to compensation of Rs. 4,32,000 apart from Rs. 30,000 towards loss of estate, funeral expenses, loss of life expectancy and Rs. 10,000 to widow for loss of consortium - Claimants entitled for compensation of Rs. 4,72,000 - Widow shall get 35% of compensation - Son shall get 35% of compensation - Parents of deceased shall get equally 30% of compensation - Appeal allowed : Jalisa Begum Vs. Jagdish Sahu, I.L.R. (2008) M.P. 295 (DB)
- Section 166 - Compensation - Deceased working as second driver in truck - Offending jeep dashed deceased while he was repairing punctured wheel of truck - Monthly income of deceased assessed to be Rs. 2,500 per month - Loss of dependency comes to Rs. 20,000 p.a. after deducting 1/3 customary amount - Multiplier of 13 applicable as age of father and mother of deceased at the time of accident was 43 and 41 years respectively - Claimants entitled for Rs. 2,60,000/- apart from Rs. 30,000 under customary heads - Appeal allowed : Jhanak Vs. Santosh @ Monu, I.L.R. (2008) M.P. 310 (DB)
- Section 166 - Compensation - Monthly income of the deceased assessed by claims Tribunal @ Rs. 8,000 per month on the basis of pay slip - Held - There is no sufficient evidence relating to income of deceased - No accounts of firm filed to demonstrate that deceased was being paid salary @ Rs. 8,000 per month - No documentary evidence to show academic qualification of deceased - Income of deceased should have been assessed @ Rs. 5,000 per month -Looking to age of claimants, multiplier of 15 should have been applied instead of 13 - Claimants entitled for Rs. 6 lacs towards loss of dependency instead of Rs. 8,32,000 as awarded by Claims Tribunal - Appeals disposed off : Varsha Vs. Uttaranchal Rajya Parivahan Nigam, I.L.R. (2008) M.P. 304
- Section 166 - Compensation-Future Income- Truck Dumper hit the mini truck driven by Injured appellant as a result of which appellant suffered three fractures including one at tibia - Claims Tribunal awarded total sum of Rs. 72,000/- by way of compensation - Held - After fracture of tibia, it is doubtful if appellant can even drive again - Even if he pursues some other vocation, he would not be able to earn as such as he was earning - Disability suffered by appellant would surely reduce his earning capacity - Appellant required to be compensated for loss of earning - Loss of income assessed at Rs. 2,59,200 in addition to sum already awarded by Tribunal- Interest at the rate of 6% p.a. on enhanced amount be paid from the date of filing of claim petition till realization - Appeal allowed : Sunil Kumar Vs. Ram Singh Gaud, I.L.R. (2008) M.P. 1 (SC)
- Section 166 - Quantum of Compensation-Mother of Deceased and employer of deceased stated that deceased was earning Rs. 3,000/- per month as driver - This evidence cannot be ignored merely documentary evidence is not produced - Assessment of earning of deceased at Rs. 1,500/- by Claims Tribunal erroneous - Appellants entitled Motor Vehicles Act (LIX of 1988) 481 for compensation of Rs. 3,12,000/- - Appeal allowed : Amna Bi Vs. M/s Royal Transports Service, I.L.R. (2008) M.P. 125
- Section 166 - Compensation - Death of driver of jeep - Compensation of Rs. 2,10,000/- with interest of 6% p.a. from the date of filing of claim petition : Kavita Vs. Rajmati, I.L.R. (2008) M.P. Note *10 (DB)
- Section 166 - Compensation - Deceased aged 50 years was traveling alongwith timber in truck - Truck turned turtle - Due to sustaining injuries died on the spot - Tribunal assessed the income of deceased at Rs. 15,000/- p.a. and multiplier of 11 applied - High Court re-appreciated the evidence - Deceased running bidi factory and also sells the timber - Assessed income of deceased Rs. 60,000/- p.a. - After deducting 1/3rd towards self expenditure loss of dependency comes to Rs. 40,000/- - Multiplier of 13 applied - Total loss of dependency Rs.5,20,000/- plus 40,000/- under customary heads - Total compensation Rs. 5,60,000/- : Batul Begam Vs. Suresh Prasad Sahu, I.L.R. (2008) M.P. Note *4 (DB)
- Section 166 - Compensation - Deceased aged 32 years - His salary Rs. 3000/- per month plus daily allowance Rs. 50 - Total income Rs. 4,500/- per month - 1/3rd deduction towards self expenditure - 50% deduction due to negligence of driver - Monthly loss of dependency comes to Rs. 1,500/- i.e. 18,000/- p.a. - Multiplier of 17 applied - Loss of dependency Rs. 3,06,000/- plus Rs. 40,000/- under the customary heads - Claimants are entitled for Rs. 3,46,000/- : Champa Pandey Vs. Hardayal Singh, I.L.R. (2008) M.P. Note *5 (DB)
- Sections 166, 173 - Compensation-Quantum of - Deceased working as driver of jeep - Claims Tribunal assessed the monthly income of deceased as Rs. 2,000 per month and granted compensation of Rs. 2,63,000 - Held - Claimant deposed that deceased was earning Rs. 2000 per month by way of salary and Rs. 150 per day as allowance - Statement of claimant could not be impeached - Monthly income of Deceased held to be Rs. 3000 per month - Annual dependency comes to Rs. 24,000 per year - Multiplier of 16 applied as age of deceased was 40 years - Appellants entitled to Rs. 40,000 under customary heads - Appellants entitled to Rs. 4,24,000/- - Enhanced compensation amount shall carry interest @ 7% from the date of filing of claim petition - Appeal allowed : Durga Kori Vs. Ram Gopal, I.L.R. (2008) M.P. 115 (DB)
- Sections 166 & 173 - Compensation - Appellant sustaining 11% permanent disability - He was earning 21,600/- p.a. - 11% comes to Rs.2,376/- p.a. - Appellant aged 25 years therefore multiplier of 18 would apply - Appellant entitled for Rs.42,768/ - along with Rs.10,000/- for treatment and Rs.5,000/- for his loss of income during course of treatment, special diet, attendant expenses etc. - Appeal allowed : Dheer Singh Vs. Ravi Kumar, I.L.R. (2008) M.P. Note *63 Motor Vehicles Act (LIX of 1988) 482
23. Second Claim Petition after Subsequent events
- Section 166, Civil Procedure Code, 1908, Order 47 Rule 1 - Review - Left leg of the claimant was amputated subsequent to the passing of award - Subsequent events can be taken note of on certain conditions precedent being satisfied - Amputation may have nexus with the accident - Tribunal directed to treat second claim petition as application for review and be dealt with in accordance with law : Narayan Lillahare Vs. Dinesh, I.L.R. (2007) M.P. 382 (DB)
- Section 166 - Maintainability of Second Claim Petition - Claimant filed claim petition on account of injuries sustained by him in accident - Claimant was granted compensation of Rs. 89,000/- - No appeal was filed and award attained finality - Subsequently left leg was amputated due to further complications in the injuries - Claimant filed second claim petition - Claim petition was dismissed by Tribunal as not maintainable - Held - Second Claim Petition based on similar cause of action - Subsequent event has un-severable nexus with initial cause of action - Second Claim Petition not maintainable : Narayan Lillahare Vs. Dinesh, I.L.R. (2007) M.P. 382 (DB) 24. Second Schedule - Applicability
- Section 166 - Second Schedule - Applicability - Second Schedule is applicable only in respect of claim petitions filed u/s 163A but the same provides for some guidelines while determining compensation u/s 166 - Deceased aged above 30 years but not exceeding 35 years - Multiplier of 17 in terms of Second Schedule is rightly applied by High Court - Appeal dismissed : Mohan Singh Vs. Kashi Bai, I.L.R. (2009) M.P. 1545 (SC) 25. The tortfeasor can not take advantage of owner's contract with third party/ The doctrine of subrogation does not apply automatically
- Sections 166, 173 - Motor accident - Damage to appellant's vehicle - Compensation received from insurer - Position of insurance company with which vehicle was insured is that of an indemnifier - Owner of that truck which caused accident continues to be primarily liable - Tortfeasor cannot take advantage of the owner's contract with third party : Rajendra Kumar Vs. M/s Sohan Agro Industries, I.L.R. (2006) M.P. 1160 26. Towing - Negligence
- Section 166, Rules of the Road Regulations, 1989, Rule 20(3), (4) - Negligence - Towing - Deceased who was driving motorcycle dashed with truck which was being towed by another truck - Drivers and owners of both the trucks remained ex parte - Motor Vehicles Act (LIX of 1988) 483
Burden of proof of observance of Rule 20 was on driver, owner and insurer of trucks - No evidence that the speed of truck was not exceeding 24 Kms/hrs and the distance between both the trucks was at no time exceed 5 meters - No written signboard mentioning the words 'ON TOW' on the rear of the truck being towed as per Rule 20(3) - Deceased was not negligent - Appeal allowed : Meera (Smt.) Vs. Jolly Road Lines, I.L.R. (2008) M.P. 3273 (DB) 27. Unmarried deceased
- Section 166 - Deceased 16 years of age and unmarried - Taking loss of annual dependency as 50% of notional income and applying multiplier of 18 compensation enhanced to Rs. 91,000 - Appeal allowed : Mohanlal Mishra Vs. Chief Medical & Health Officer, I.L.R. (2010) M.P. 1445
- Section 166 - Award - Determination of compensation - Deceased 16 years of age - Tribunal holding that deceased was not an earning member and awarded minimum compensation of Rs.50,000 - Held - Deceased being 16 years of age and unmarried, 50% of the notional income to be the loss of annual dependency - Multiplier of 18 applied - Loss of total dependency comes to 7500×18 = Rs.1,35,000 + Rs.10,000 granted towards conventional heads : Shyamlal Vs. Madhu, I.L.R. (2010) M.P. 996 28. Vicarious liability
- Section 166 - Vicarious liability - Deceased, an employee of appellant drove the motorcycle of employer and dashed against the tree, causing death of himself and one pillion rider - Held - In present case, it is not established that the deceased had gone on official work with permission of employer, hence liability cannot be imposed on the owner/employer - Appeal allowed : C.B. Awasthy, Senior Co-operative Inspector Prashasan Sahakari Vipnun Sanstha Vs. Ramnarayan, I.L.R. (2010) M.P. 2569
- Sections 166, 168 & 149 - Liability of Insurance Company - Driver of tractor took the tractor for tilling agricultural field accompanied by deceased - Driver of tractor during course or the master's agent in the course of that agency negligently left the tractor with ignition key inserted in ignition lock - Deceased turn on the key and started the tractor - Tractor turned turtle resulting in death of deceased - 50% liability rightly fastened on driver, owner and insurance company - Appeal dismissed : New India Assurance Company Ltd. Vs. Lalita Devi, I.L.R. (2009) M.P. 2373 29. Miscellaneous
- Section 166 - Compensation - Claim petition filed by appellant dismissed by Claims Tribunal - Claimant deposed that while he was going on foot, the offending car Motor Vehicles Act (LIX of 1988) 484 came from behind and dashed him as a result of which he suffered several injuries including facture of spinal cord - Driver of offending vehicle took him to hospital - Respondent averred that appellant was driving scooter and he fell down - He took the claimant to hospital out of sympathy and no accident took place with his car - Held - Vehicular accident is mentioned in bed head ticket - Doctor should have informed the police regarding vehicular accident - No mention in bed head ticket that appellant fell down from scooter - Respondent also did not state to doctor that appellant had fallen down from scooter - Respondent is held to be driving car rashly and negligently - Finding arrived by Tribunal in this respect set aside : Dinkar Joshi Vs. Nitin Tiwari, I.L.R. (2008) M.P. 307(DB)
- Section 166 - Mediclaim Policy - Amount reimbursed under the policy is not deductible from the amount of medical expenses : Monika Vs. Kamlesh, I.L.R. (2008) M.P. Note *11
- Section 166 - Liability - Mechanical Failure - Jeep turned turtle due to sudden failure of brakes - Driver of jeep died - Reasonable care taken by owner in maintaining vehicle - Accident was outcome of mechanical defect - Owner and Insurer liable to make payment of compensation : Kavita Vs. Rajmati, I.L.R. (2008) M.P. Note *10 (DB)
- Section 166, Civil Procedure Code, 1908, Order 9 Rule 9 - Restoration of Claim Petition - Provision of Motor Vehicles Act regarding compensation has been enacted to do social justice with victim for road accident - Tribunal should adopt liberal attitude : Tikaram Sen Vs. T. Sandhya Rani, I.L.R. (2008) M.P. Note *12 (DB)
- Sections 166 & 128 - Rash or negligent - In contravention of Section 128 of Act moped driver allowed two persons to sit as pillion riders - A mini truck collided with the moped - As a result moped driver died and both pillion riders received injuries on their legs - Merely on these facts it can never be said that moped driver was rash or negligent - Unless it is proved that moped driver was driving vehicle in a high speed and vehicle was not in his control on account of allowing two persons to sit as pillion riders : Nanhelal Gontiya Vs. Harishchand, I.L.R. (2008) M.P. Note *24 (DB)
● - Sections 167, 149 and Workmen's compensation Act 1923 Section 19,30 - Appeal against award - Substantial questions of law - Questions of age, employment, wages, nature of injuries and factum of accident are findings of fact - Not liable to be interfered with in appeal - Question as to liability of any person to pay compensation, question as to whether a person injured is or is not a workman or as to the amount or duration of compensation and question as to nature & extent of disablement are the substantial questions of law - Right of insurance company is not broader then the right conferred under the Motor vehicle act, 1988 : New India Assurance Co. Ltd., Indore Vs. Shantibai, I.L.R. (2006) M.P. 1164 Motor Vehicles Act (LIX of 1988) 485
- Section 168 - Compensation - Deceased working as driver of tractor - Income of deceased assessed at Rs. 2000/- p.m. i.e. Rs. 24,000/- p.a. - After deducting 1/3rd towards personal expenses dependency comes to Rs. 16,000/- p.a. - Deceased aged about 24 years - Multiplier of 17 will be applicable - Compensation comes to Rs. 2,72,000/ - - Rs. 28,000/- awarded towards damages under various heads - Claimants entitled to Rs. 3 Lakh with 7% interest on enhanced amount from date of appeal till realization : Shakuntala Vs. Ghanshyam Dhakad, I.L.R. (2008) M.P. Note *27 (DB)
- Section 168 - Contributory negligence or negligence - Deceased sleeping in shadow beneath tractor trolley - Driver started tractor on reverse side - Head of deceased came under rear wheel - Claims Tribunal held that deceased had contributed to the extent of 50% - Held - Negligence means omission of duty or care as required by responsible man - Driver of tractor had full opportunity to avoid accident either by awakening deceased or by taking tractor forward - Claims Tribunal committed error in holding that deceased had contributed in the accident to the extent of 50% - Appeal allowed : Shakuntala Vs. Ghanshyam Dhakad, I.L.R. (2008) M.P. Note *27 (DB)
- Section 168 - Amount of compensation - Deduction of personal expenses - In absence of any evidence to the contrary the practice is to deduct towards personal and living expenses of the deceased one third of the income in case he was married and one half (50%) if he was unmarried - Claimants are father, mother, grandfather and only one minor brother - It would be just and proper to fix the dependency 50% : Vasudev Singh Vs. Raghuraj Singh, I.L.R. (2009) M.P. 1086
- Section 168 - Multiplier - Deceased was unmarried - Multiplier has to be applied as per the age of the mother - Mother aged 48 years - Looking to the second schedule of M.V. Act multiplier of 13 would be applicable : Vasudev Singh Vs. Raghuraj Singh, I.L.R. (2009) M.P. 1086
- Section 169 - Civil Procedure Code, 1908, Order 47 Rule 1 - Review - Number of appeals filed against a award, which passed in regard to one accident - One appeal decided by DB & remaining appeals decided by SB - Single Bench held the case to be of composite negligence - In prior judgment Division Bench held the case to be of contributory negligence - DB's decision was not brought to the notice of Single Bench - Application for review cannot be dismissed in view of explanation of Order 47 Rule 1 - Application allowed : United India Insurance Co. Ltd. Vs. Nandlal, I.L.R. (2008) M.P. Note *13
- Section 170, Civil Procedure Code, 1908, Order 41 Rule 33 - Claims tribunal awarded compensation of Rs.13,32,000/- against the Owner & Driver - Claimants filed appeal for enhancement of compensation and saddling liability of Insurance Company also - Insurance Company contended that the compensation is excessive - High Court Motor Vehicles Act (LIX of 1988) 486 reduced compensation upto Rs.6,96,000/- - Held - No appeal filed by Driver or Owner - Insurance Company would have no right to question quantum of compensation in absence of any leave in terms of Section 170 of Act - Legally impermissible for Insurance Company to question a finding of fact taking umbrage under Order 41 Rule 33 of Code - Order 41 Rule 33 of Code was not applicable - Reduction of compensation erroneous - Appeal allowed : Samundra Devi Vs. Narendra Kaur, I.L.R. (2008) M.P. 2743 (SC)
- Section 170 - Owner (Respondent no.2) was driving offending vehicle, filed his written statement and affidavit but did not turn up for cross examination - Appellant filed application U/s 170 of Act seeking permission to contest claim on all grounds - Application dismissed without assigning any cogent reason and award passed by Tribunal - Held - Dismissal of application U/s 170 was without justification - As final award was passed within 6 weeks of order of dismissal of application - Appellant well within its right to challenge the order in appeal - Matter remanded back to Tribunal to allow Appellant to contest claim on all grounds which are available to Owner and Driver - Appeal allowed : New India Insurance Co. Ltd. Vs. Suresh Chand Sankla, I.L.R. (2008) M.P. 863
- Section 173 - Insurance Co. at the stage of appeal raised a plea that deceased was not travelling in the cabin of the vehicle - No such defence was raised before the tribunal - Insurance Co. cannot be permitted to raise the factual issue for the first time in the appeal : Resham Bai (Smt.) Vs. Jabbar, I.L.R. (2009) M.P. 2926
- Section 173 - Appeal amicably settled in Lok Adalat - Application for withdrawal of amount in cash - Rejection - Held - Applicant being an adult person in need of money awarded to him as compensation for injuries sustained by him - Appeal settled in Lok Adalat without imposing any condition about deposit of amount in fixed deposit - Tribunal should have allowed the application for withdrawal of amount instead of ordering to keep it in the fixed deposit - Order of tribunal set-aside - Revision allowed : Mangilal Vs. Haider Ali, I.L.R. (2009) M.P. Note *32
- Section 173 - Appeal against dismissal of claim on ground that name of deceased did not find in FIR - Held - There was enough evidence to show that deceased died in the said accident - Dismissal of claim set-aside - Appeal allowed : Magan Vs. Mansukhbhail, I.L.R. (2009) M.P. 806
- Section 173, Civil Procedure Code, 1908, Order 41 Rule 22 - Compenasaion - Enhancement - When in the absence of appeal or cross-objection by claimant, compensation can be enhanced - Law explained : Manager U.P. State Road Transport Corp. Jhansi Vs. Halkibai, I.L.R. (2009) M.P. Note *4 Motor Vehicles Act (LIX of 1988) 487
- Section 173 - Compensation - Liability of Insurance Company - Offending vehicle used for murdering the deceased - Claims Tribunal held Insurance Company liable for compensation - Held - Insurance Company is not liable for compensation because the vehicle was used contrary to the terms and conditions of the Insurance Policy - Award fixing the liability of Insurance Company set-aside - However, the liability of other non- applicants will be same as per the award - If any amount paid by Insurance Company to the claimants, it can be recovered from the owner of the vehicle - Appeal allowed : United India Insurance Co. Ltd. Vs. Smt. Gayatri Yadav, I.L.R. (2009) M.P. 817
- Section 173 - Cross-objection by owner without complying mandatory provision of Section 173 whereby he is required to deposit amount towards payment of award - Held - Cross-objection not maintainable : Magan Vs. Mansukhbhai, I.L.R. (2009) M.P. 806
- Section 173, Civil Procedure Code, 1908, Order 41 Rule 22 - Motor accident caused by rash and negligent driving by driver of mini truck - Driver was holding license to drive LMV - Held - Mini truck squarely falls in category of LMV - Driver had valid license - Insurance Company held liable - Cross-objection of claimants allowed and compensation enhanced by applying proper multiplier : United India Insurance Co. Ltd., Indore Vs. Smt. Ramtubai, I.L.R. (2008) M.P. 3251 (DB)
- Section 173 - Insurance Company has already paid a sum of Rs.30,000/- to the claimant as per award - Claimant filed appeal for enhancement - High Court awarded further sum of Rs.25,000/- - Insurance Company prayed before the High Court that at the time of accident driver was not possessing valid & effective driving licence, therefore, a right of recovery be given to Insurance Company for the amount which was awarded by the tribunal and paid to claimant - Held - Since no appeal or cross-objection has been filed by Insurance Company - The prayer cannot be accepted - However, Insurance Company shall pay enhanced amount of Rs.25,000/- to claimant and shall have an option to recover the amount from owner & driver : Kalu Vs. Bansilal, I.L.R. (2008) M.P. Note *78
- Section 173 - Appeal - Deduction towards personal expenses - Looking to the evidence available on record it is clear that besides the widow and three minor children, old parents of deceased were also dependent upon him - Therefore, Tribunal erred in deducting 1/3rd amount towards personal expenses of the deceased instead of 1/4th - Appeal partly allowed : Seema Wd/o Sitaram Vs. M.P.S.R.T.C., I.L.R. (2007) M.P. 124
- Section 173 (1) - Exemption from deposit amount in compliance of requirement of proviso to Section 173(1) - Award of tribunal fixing liability against owner, driver & Motor Vehicles Act (LIX of 1988) 488 insurer - However, tribunal permitted the insurer to recover the amount from the owner - Insurer deposited entire amount in tribunal - Appeal by owner and prayed for exemption from depositing the amount in compliance of proviso of Section 173(1) - Held - There is no provision in the Act to grant such exemption - Appellant/owner can not claim benefit of deposit made by insurer : Chandrakanta Bhandari (Smt.) Vs. Manohar Lal, I.L.R. (2008) M.P. 2373 (DB)
- Section 173 (1) Proviso - Interpretation - When the language of statute is plain and unambiguous, effect has to be given to such words without reading anything more in them - If the intention of legislature was to provide exemption from deposit then the same would have found place in the section itself : Chandrakanta Bhandari (Smt.) Vs. Manohar Lal, I.L.R. (2008) M.P. 2373 (DB)
- Section 173(2), Civil Procedure Code, 1908 - Section 115 - Question referred to Larger Bench to determine whether revision under Section 115 of Civil Procedure Code, or Petition under Article 227 of Constitution of India would lie where an appeal has been barred to assail an award passed by the Motor Accident Tribunal - Held - Accident Claims Tribunal is a Civil Court subordinate to High Court - Section 173(2) of Motor Vehicles Act merely bars the appeal against award where dispute is valued less than Rs. 10,000/-, however no express provision barring recourse to revision under Section 115 of Civil Procedure Code - Revision maintainable as high Court shall continue to have powers of superintendence - However, revision can be entertained subject to limited scope of Section 115 of Civil Procedure Code : National Insurance Co. Ltd., Gwalior Vs. Shrikant, I.L.R. (2007) M.P. 312 (FB)
- Section 173(2), Constitution of India - Articles 226, 227 - Petition challenging the award where dispute is valued less than Rs. 10,000 - As revision under Section 115 lies therefore, no petition under Articles 226 & 227 challenging the award is maintainable : National Insurance Co. Ltd., Gwalior Vs. Shrikant, I.L.R. (2007) M.P. 312 (FB)
- Sections 173 & 96(2)(b) - Liability of the Insurance Company - Driver having a valid license carrying passengers in a tractor trolley insured for agriculture purpose without the knowledge of the owner - Insurance Company alleging breach of policy - Held - Breach means infringement or violation of a promise or obligation - As such, the Insurance Company will have to establish that the insured was guilty of an infringement or violation of a promise - The insurer has also to satisfy the tribunal or the court that such violation or infringement on the part of the insurer was wilful - No evidence on record that the passengers, who were carried in the tractor trolley, were carried with due knowledge or permission of the owner -Insurance Company cannot repudiate its statutory liability : National Insurance Co. Ltd. Vs. Vidhyabai, I.L.R. (2008) M.P. 3270 Motor Vehicles Rules, M.P., 1994 489
Motor Vehicles Rules, Central, 1989
- Rule 81 - See - Motor Vehicles Act 1988, Sections 64, 65 & 41 : Rakesh Sethi Vs. State of M.P., I.L.R. (2008) M.P. 2297 (DB) Motor Vehicles Rules, M.P., 1994
- Rule 55-A - See - Motor Vehicles Act 1988, Sections 64, 65 & 41 : Rakesh Sethi Vs. State of M.P., I.L.R. (2008) M.P. 2297 (DB)
- Rule 158 - Validity of Rule 158 challenged being unconstitutional - Petitioner purchased second hand bus which was registered in Gujarat with seating capacity 29+1 - No Objection Certificate issued by competent authority to enable her to ply the vehicle within State of Madhya Pradesh - Petitioner applied for transfer of her name in Registration Book - Name of Petitioner was recorded however original seating capacity of 29+1 was changed to 38+2-Change was done in view of circular issued by Transport Commissioner - Validity of Rule 158 and circular of Transport Commissioner challenged - Held - Vehicle was physically verified and keeping in view the size and length of vehicle seating capacity was changed from 29+1 to 38+2 - This does not make the vehicle unworkable or prone to accident - As change in seating does not make the vehicle unworkable therefore, increase in seating capacity of stage carriage or contract carriage does not deprive the petitioners of their means of livelihood - Contention of Petitioner that it amounts to deprivation of livelihood without substance : Smt. Uma Devi Sharma Vs. State of M.P., I.L.R. (2007) M.P. 1397 (DB)
- Rules 203 & 204 - See - Motor Vehicles Act, 1988, Sections 96(i), (xxi), (xxii), 117, 138(2)(e) : Anil Jain Vs. State of M.P., I.L.R. (2010) M.P. 1380
- Rule 240 - See - Civil Procedure Code, 1908, Order 9 Rule 9 & Order 43 : Sharad Kumar Mishra Vs. Shriram Transport Finance Company Ltd., I.L.R. (2010) M.P. 2170
- Rule 240 - See - Civil Procedure Code, 1908, Order 5 Rule 15 : Sumitra Bai Vs. Shyam Lal Sen, I.L.R. (2009) M.P. 495
- Rule 240 - See - Civil Procedure Code, 1908, Order 9 Rule 13, Order 5 Rule 9 : Harisingh Vs. Kallobai, I.L.R. (2009) M.P. 497
- Rule 240 - See - Motor Vehicles Act 1988, Section 147 : Prem Narayan Bhagel Vs. Banchandra, I.L.R. (2008) M.P. 2041 Municipal Corporation Act, M.P. (XXIII of 1956) 490
Motoryan Karadhan Adhiniyam, M.P. (25 of 1991)
- Section 16, Criminal Procedure Code, 1973, Sections 451 & 457 - Motor vehicle seized u/s 16 of Act - Ss. 451 & 457 of Cr.P.C. are not attracted - Criminal Court will not have power to release the vehicle u/ss. 451 & 457 of Cr.P.C. : Hardeo Motor Transport Co. (M/s.) Vs. State of M.P., I.L.R. (2010) M.P. 852 (DB)
- [As amended w.e.f. 08.12.1999], Section 16(5) - See - Constitution, Article 14 : Hardeo Motor Transport Co. (M/s.) Vs. State of M.P., I.L.R. (2010) M.P. 852 (DB) Motoryan Karadhan Sanshodhan Adhiniyam, M.P. 2004
- Clause (g) of Entry IV of First Schedule - Penalty imposed by taxation authority under Clause (g) of Entry IV of First Schedule - Provision declared unconstitutional by Supreme Court - Order imposing penalty quashed : Prakash Chandra Purohit Vs. The Transport Commissioner, I.L.R. (2008) M.P. 234 Municipal Corporation Act, M.P. (XXIII of 1956)
- Notice inviting tender for installation of advertisement Board/ Hoardings challenged as being discriminatory - Several persons interested in installing advertisement Board/hoardings - Decision of Municipal Corporation to invite tender is not discriminatory or arbitrary : M/s Sagardeep Advertising Vs. Municipal Corporation, Jabalpur, I.L.R. (2007) M.P. 450 (DB)
- Sections 17(1)(b) & 19-B - Removal - Disqualification - Section 19-B and Section 17(1)(b) would make it clear that if a person is simply removed from his office then the removal itself would be end of the matter - But if the appropriate Government finds the case for ordering disqualification against the incumbent then it can disqualify the person from contesting in the next term : Satyarath Prakash Agrawal Vs. State of M.P., I.L.R. (2009) M.P. 923 (DB)
- Section 66 - Accident due to stock of sand on public road - Claim for compensation against Corporation - Held - Corporation failed to discharge its duty in maintaining properly the road in safe condition and due to use of same plaintiff suffered injuries - Corporation is responsible to pay compensation for the loss or damage suffered by the plaintiff - Appeal allowed : U.P. Sharma Vs. Jabalpur Corporation, I.L.R. (2010) M.P. 231
- Sections 66 & 220 - See - Constitution, Article 21 : Manoj Rajani Vs. State of M.P., I.L.R. (2009) M.P. 2210 (DB) Municipal Corporation Act, M.P. (XXIII of 1956) 491
- Section 132(6)(n) & (o), Mines and Minerals (Development and Regulation) Act, 1957, Terminal Tax (Assessment and Collection) on the Goods Exported from Madhya Pradesh Municipal Limits Rules, 1996, Rule 3 - Terminal Tax on export of goods outside Municipal Corporation area - There is no provision in Act, 1957 which expressly or by implication deal with such tax as imposed by Corporation or by the State - The goods are dumped in the Municipal Corporation area for long/indefinite time - Terminal tax can be exacted - S. 132(6)(n) & (o) of Municipal Corporation Act and Rule 3 of Rules, 1996 can not be said to be ultra vires : Northern Coal Fields Ltd. Vs. State of M.P., I.L.R. (2010) M.P. 1304 (DB)
- Sections 134 & 141 - Recovery of Property Tax - Shops in possession of tenants - Corporation put lock to ensure recovery of Property Tax - Held - Recovery of Property Tax, if it is to be effected on an occupier who happens to be a tenant which can only be made by attachment of rent due in respect of the said property - Corporation cannot recover tax by putting lock over the property in occupation of a tenant : Saleem Mansoori Vs. Municipal Corporation, I.L.R. (2009) M.P. 1935
- Sections 135 & 136 - See - Krishi Upaj Mandi Adhiniyam, M.P., 1972, Section 9(3) Proviso : Secretary, Krishi Upaj Mandi Samiti, Jabalpur Vs. Administrator, Municipal Corporation, Jabalpur, I.L.R. (2010) M.P. 1420
- Sections 293 & 299 - Petitioner was granted the permission to construct commercial cum residential complex - After completion of more than 50% work, permission was cancelled - Held - S. 299 provides that the Commissioner may, before any work has been commenced in pursuance to any permission u/s 293, revoke such permission and may give fresh permission in lieu thereof on conditions - Petitioner had already commenced work and it was in progress - Commissioner at that stage was having no powers to cancel the permission granted earlier - The recourse was only to refer the matter to State Government u/s 299-A to cancel or revise the permission for construction : Adarsh Thok Fal Sabji Vikreta Vyapari Sangh Vs. State of M.P., I.L.R. (2009) M.P. 3365
- Sections 293, 299 & 299-A - Natural Justice - Petitioner was granted the permission to construct commercial cum residential complex - After completion of more than 50% work, permission was cancelled without notice - Held - It is settled laws that any action having any civil consequence, should be taken by following the principles of natural justice but in the case the permission accorded to the petitioner was cancelled without issuance of any show cause notice or extending an opportunity of hearing - Order not sustainable under the law : Adarsh Thok Fal Sabji Vikreta Vyapari Sangh Vs. State of M.P., I.L.R. (2009) M.P. 3365
- Sections 293 (2), (3) - Scope of Appeal to District Judge - Section 293(2) provides that Commissioner shall determine that whether external alteration or addition Municipal Corporation Act, M.P. (XXIII of 1956) 492 to a building is a material alteration or not - Order passed under Section 293(2) of Act, 1956 is appealable to District Court - Scope of appeal to District Court is confined to order passed by Commissioner determining whether a particular alteration in or addition to an existing building is or not a material alteration : Municipal Corporation, Bhopal Vs. Arvind Jain, I.L.R. (2007) M.P. 1132 (FB)
- Sections 293(3), 294(1), 295, 403(3) - Appeal - Respondents received notice from petitioner requiring them to produce the map of their building after making provision in F.A.R. 1:2, Coverage 70% and height upto 40 Ft. - Appeal filed by respondents before Add. District Judge allowed- Jurisdiction of Add. District Judge to entertain appeal under Section 293(3) of Act, 1956 Challenged in writ petition - Matter referred to Larger Bench by Learned Single Judge in view of two conflicting judgments - Held - Power to refuse sanction or to grant sanction for erection or re-erection of any building is exercised by Commissioner under Section 295 and not under Section 293(1) of Act, 1956 - Appeal against any notice or order issued or other action taken by Commissioner under Section 295 is to be filed before Corporation which has to be heard by Appeal Committee - Difficult to hold that appeal against order of Commissioner refusing or sanctioning erection or re-erection of building can also be filed before District Judge - View taken in Sardarbi Noor Mohammad v. Municipal Corporation, Indore and others is not correct view and is overruled : Municipal Corporation, Bhopal Vs. Arvind Jain, I.L.R. (2007) M.P. 1132 (FB)
- Sections 299 & 299-A Proviso - Opportunity of hearing - S. 299 of the Act does not provide any proviso like S. 299-A but guidance can be taken from S. 299-A which specifically provide that the State Government shall not pass any order unless the aggrieved party has been given an opportunity of hearing : Adarsh Thok Fal Sabji Vikreta Vyapari Sangh Vs. State of M.P., I.L.R. (2009) M.P. 3365
- Section 307(5) - Power to require removal or alteration of work not in conformity with byelaws or any scheme or any other requirement - The issue for reference before the Full Bench was "Whether the locus standi under Sub-section (5) of Section 307 of the Act is restricted to the person affected by the violation complained of or encompasses all persons resident within the area to which the Act applies?" - Held - The locus standi under Sub-section (5) of Section 307 of the Act of 1956 is not restricted to a person affected by the violation complained of but encompasses all persons resident within the area to which the Act of 1956 applies. The reference is answered accordingly. The Division Bench decision in the case of Radhakishan Sharma (1996 MPACJ 55) to the contrary is overruled - Appeal dismissed : Dilip Kaushal Vs. State of M.P.,I.L.R. (2008) M.P. 2167 (FB)
- Sections 307 (5), 392 - Revision - Construction of Chabutra on Colony road within area of corporation - Finding of Trial Court that construction is on road therefore Municipal Employees Recruitment and Conditions of Service Rules, M.P. 1968 493
Section not applicable - Finding illegal - Power is to be exercised whenever construction is unauthorised irrespective of whether it is on public land or private land : Suresh Agrawal Vs. Municipal Corporation, I.L.R. (2006) M.P. 291
- Sections 322, 323, 335, 366, Constitution of India, Article 21 - Installation of Gantries and Road Signages - Municipal Corporation adopted resolution to install gantries and road signages - Writ petition filed for direction not to erect gantries as advertisements placed on them may divert concentration of vehicle drivers consequently increasing road accident - Held - Advertisement has become a major source of revenue as it has assumed importance in commercial field - Law does not prohibit Corporations to allow erection of gantries/road signages - However, advertisements on gantries which would be hazardous and disturbing safe traffic movement should not be permitted by Municipal Corporation : Mohd. Farooq Vs. Municipal Corporation, Bhopal, I.L.R. (2007) M.P. 1109 (DB)
- Sections 322,323,335,366 - Power to impose Advertisement Tax - Municipal Corporation in its meeting resolved to impose advertisement tax at the rate of Rs. 3 sq.ft. on Corporation Land and Rs. 5 sq.ft. on Private Land - Held - Advertisement Tax can be charged from person who advertises and not from person on whose property the advertisement board/hoarding is installed - Classification between Corporation Land and private Land for the purpose of imposing advertisement tax discriminatory and violative of Article 14 of the Constitution of India - Resolution regarding diffrential rates of advertisement tax on Corporation and Private Land quashed : M/s. Sagardeep Advertising Vs. Municipal Corporation, Jabalpur, I.L.R. (2007) M.P. 450 (DB)
- Section 366 - Licenses and permissions - In absence of statutory prescription of procedure, a reasonable procedure has to be adopted by authority : M/s. Sagardeep Advertising Vs. Municipal Corporation, Jabalpur, I.L.R. (2007) M.P. 450 (DB) Municipal Employees Recruitment and Conditions of Service Rules, M.P. 1968
- Rule 2(e), (f) - See - Municipalities Act, M.P., 1961, Sections 86, 87, 88 & 94 : State of M.P. Vs. Ashok Kumar Sharma, I.L.R. (2008) M.P. 2527 (DB)
- Rule 12 - See - Service Law : Munnalal Karosiya Vs. State of M.P., I.L.R. (2009) M.P. 2854
- Rule 23 - See - Service Law : Mathuro (Smt.) Vs. State of M.P., I.L.R. (2009) M.P. 765 Municipalities Act, M.P. (37 of 1961) 494
Municipalities Act, M.P. (37 of 1961)
- (Amending Act No.17 of 1994 and 18 of 1994), Sections 36, 45, 47 & 49 - See - Constitution, Article 243-U : Mangilal Vs. State of M.P., I.L.R. (2009) M.P. 1903 (DB)
- Section 5 - See - Electricity Act, 2003, Sections 37 & 42 : Siyabai Thakur (Smt.) Vs. M.P. State Electricity Board, I.L.R. (2009) M.P. 1947 (DB)
- Sections 30,31 - Qualification and Disqualification of voters - Respondent no.3 enrolled in voter list of Gram Panchayat - Also registered as voter in voter list of Municipality - Respondent no.3 elected as President of Municipality - Held - Section 31 does not disqualify a person for registration in municipal electoral roll on the ground that such a person is registered in voter list of Gram Panchayat : Raja Ram Ahirwar Vs. State of M.P., I.L.R. (2008) M.P. 1042 (DB)
- Section 41A - Removal of President of Nagar Palika - Allegations of publication of advertisements, calling for tenders and payment - Held - Decisions were made by entire council - State failed to establish loss caused - Decision of removal by State can not be sustained - Appeal allowed : Sharda Kailash Mittal Vs. State of M.P., I.L.R. (2010) M.P. 1248 (SC)
- Section 41A - Removal of President - The exercise of power has serious civil consequences - Such power can be invoked by State only on very strong and weighty reason - The provision has to be construed in strict manner because the holder of office occupies it by election and he/she is deprived of office by an executive order in which the electorate has no chance of participation : Sharda Kailash Mittal Vs. State of M.P., I.L.R. (2010) M.P. 1248 (SC)
- Section 41-A - Removal of President or Chairman of a committee - Judicial review - High Court can go into the sufficiency, adequacy and correctness of the reasons, and can also look into the sufficiency, adequacy and relevance of the material on the basis of which the opinion is formed by the State Government or conclusion is reached in respect of existence of ground to take an action u/s 41-A : Baleshwar Dayal Jaiswal Vs. State of M.P., I.L.R. (2010) M.P. 111
- Section 41-A - Removal of President or Chairman of a committee - Power of State Government - The manner in which it has to be exercised - S. 41-A does not give arbitrary, unbridled and discretionary power to the State Government to remove the elected President on trumpery charges not adequately proved or unreasonably accepted - State is required to form an opinion in respect of the misconduct or incapacity objectively : Baleshwar Dayal Jaiswal Vs. State of M.P., I.L.R. (2010) M.P. 111 Municipalities Act, M.P. (37 of 1961) 495
- Section 41-A - Removal of President or Chairman of a committee - Powers when can be exercised - Since the exercise of power u/s 41-A has serious consequence, therefore, it can be invoked only for very strong and weighty reasons and the material on the basis of which such action taken must justify such a serious action : Baleshwar Dayal Jaiswal Vs. State of M.P., I.L.R. (2010) M.P. 111
- Section 41-A - Removal of President or Chairman of a committee - Opinion or finding of the State Government formed or recorded must be based upon some cogent material which should be adequate to form such an opinion or reach to the conclusion as required by the section and such a material should be reflected in the order of removal : Baleshwar Dayal Jaiswal Vs. State of M.P., I.L.R. (2010) M.P. 111
- Section 41-A - Removal of President or Chairman of a Committee - Opportunity of hearing - Petitioner removed from the post of President on the ground that he does not belong to OBC and yet got elected on the basis of temporary caste certificate - Petitioner withdrew the application for grant of permanent caste certificate - Temporary caste certificate expired as there was no permanent caste certificate - Held - Petitioner appeared before authority and presented his case - Onus to prove that he belonged to OBC was on petitioner - Petitioner has failed to discharge the onus - Any amount of reasonable opportunity will not mitigate the factor that he does not belong to OBC - Petition dismissed : Naveen Kumar Sood Vs. State of M.P., I.L.R. (2009) M.P. 2264
- Section 43-A(2)(ii) - Notice - No confidence motion against Vice-President - The requirement of section is that the notice should be despatched to the President and every Councillor ten clear days before the meeting and does not mandate service of notice ten clear days before the meeting : Anis Beg Vs. State of M.P., I.L.R. (2010) M.P. 136
- Section 47 - Recalling of President - Second proposal for recalling rejected by Collector on the ground that earlier proposal had been moved - Held - There is difference between submission of proposal and initiation of process of recall - Earlier proposal was not put to the voting, as such, it could not be said that process was initiated - Collector committed gross illegality in rejecting the second proposal for recall - Order quashed - Petition allowed : Shyamlal Kol Vs. State of M.P., I.L.R. (2009) M.P. 2215 (DB)
- Section 47 - Difference between word 'approval' and 'satisfaction' - Recalling of president - Held - The degree of application of mind in the word 'satisfaction' is greater than the word 'approval' - Normally approval is granted to an act of some other persons and not of his own - However, so far as satisfaction is concerned - Satisfaction is personal satisfaction - Said satisfaction can also be on proposal or any other material or report submitted by some other authority, still personal satisfaction is necessary - Hence, greater degree of application of mind is necessary, when the mandate of the Municipalities Act, M.P. (37 of 1961) 496 law is that the 'satisfaction' is the satisfaction of himself - Appeal dismissed : Madan Lal Narvariya Vs. Smt. Satyaprakashi Parsedia, I.L.R. (2008) M.P. 2542 (DB)
- Section 47 - Recalling of President - Appellant elected President of Municipal Council - Affidavits by 3/4th Councillors for no-confidence submitted before Collector - Proposal for recall-cum-no confidence also submitted before Collector - Collector decided to send proposal to Govt. for taking action - State Govt. made reference to State Election Commission to arrange voting for recall - Held - Collector has to satisfy himself with regard to conditions precedent engrafted under Section 47 (1) - Councillors appeared before Collector and signed the proposal - Collector recommended the proposal - Affidavits indicating vote of no-confidence motion - Conjoint reading of affidavits and proposal leaves no doubt that Collector had rightly verified signatures and recorded his satisfaction - Section 47 doesnot postulate that Councillors should have sat at a combined place and passed a resolution - Writ Appeal dismissed : Smt. Anubha Munjare Vs. State Election Commission, I.L.R. (2007) M.P. 1203 (DB)
- Section 47 - Recalling of President - Three Fourth of the elected Councillors submitted proposal for recalling of Petitioner - Collector after satisfying himself sent proposal to State Govt. for further action - Before State Election Commission could declare election 2 Councillors submitted affidavit before Collector stating that their earlier affidavits were obtained under political pressure and same be treated as incorrect and cancelled - Held - Collector sent the proposal to State Govt. after due verification and satisfaction - Once proposal is sent by Collector, there is no provision empowering Collector, State Govt. or Election Commission to reconsider matter and to cancel or ignore the duly sent proposal - No illegality in proposal sent by Collector - Petition dismissed : Anil Kumar Jain Vs. State of M.P., I.L.R. (2008) M.P. 80
- Section 47(2) - Recalling of President - 20 Councillors submitted representation to Collector for recalling of President - Collector forwarded the same to Project Officer - Project Officer recommended to forward proposal to State Govt. - Collector accepted the proposal and sent it to State Govt. - Held - Statutory requirement is that Collector himself should satisfy and verify - In fact Collector has accepted and approved the satisfaction arrived at by Project Officer - This being not in accordance with provisions of Statute - State Election Commissioner shall not proceed with recommendations made by Collector - Petition allowed : Satya Prakashi Parsadia Vs. State of M.P., I.L.R. (2008) M.P. 1092
- Sections 86, 87, 88 & 94, Municipal Employees Recruitment and Conditions of Service Rules, M.P. 1968, Rule 2(e), (f) - Respondents alleging to be employees of State Government having been appointed in a cell constituted by the State Government namely M.P. State Municipal Services (Technical Cell) in exercise of powers conferred u/s 86 of Act of 1961 - Held - There is a specific rule which provides that only State Municipalities Act, M.P. (37 of 1961) 497
Municipal Service (Executive) are excluded from the definition of "municipal service" and "municipal employee" and other categories i.e. State Municipal Service (Health) and State Municipal Service (Engineering) are included in the said definition - Respondents employees belong to category (c) i.e. State Municipal Service (Engineering), hence, they are covered by the definition of "municipal service" and "municipal employee" - Hence, so long as said definitions are not challenged, the respondents employees cannot claim that they are the employees of the State Government, even though they are getting the same salary and benefits as are available to the State Government employees - Appeal Allowed : State of M.P. Vs. Ashok Kumar Sharma, I.L.R. (2008) M.P. 2527 (DB)
- Section 94 - See - Service Law : Munnalal Karosiya Vs. State of M.P., I.L.R. (2009) M.P. 2854
- Sections 95 & 355 - See - Service Law : Mathuro (Smt.) Vs. State of M.P., I.L.R. (2009) M.P. 765
- Sections 95, 355 - Appointment of Shiksha Karmis - Municipality is appointing authority of Shiksha Karmi - No approval of State Government required as there is no such provision - Appointments made in accordance with Rules,1998 - Government is liable to pay salary or to reimburse the amount to Municipal Council : State of M.P. Vs. Shiv Narayan Saxena, I.L.R. (2008) M.P. 1356 (DB)
- Sections 164 & 167 - Natural Justice - Petitioner a sub-lessee dispossessed without affording opportunity of hearing as contemplated u/s 164 - Held - There is non- compliance of the provisions contained u/s 164(3) and thus, a denial of an opportunity to the petitioner to satisfy the Chief Municipal Officer in respect of the demand, if any, qua the shop - The action u/s 167 of the Act suffers from vice of illegality and arbitrariness - Petition allowed : Shyam Kishore Malviya Vs. State of M.P., I.L.R. (2010) M.P. Note *53
- Section 187-A - Compounding of offences of construction of buildings without permission - Clause (d) of Section 187-A does not restrict the power of Municipality to compound even in relations to plots having area exceeding 300 sq. meters - Municipality or Corporation is empowered to order demolition has also the power to compound - Authority first consider whether offence of illegal construction can be compounded - Demolition should be resorted to only when compounding is not possible : Nagda Municipality, Nagda Vs. ITC Limited; I.L.R. (2007) M.P. 941 (DB)
- Sections 307 & 308 - See - Registration of Births and Deaths Act, 1969, Section 8 : Shyam Murari Sharma Vs. Additional Commissioner, Sagar Division, I.L.R. (2010) M.P. Note *92 Municipalities Act, M.P. (37 of 1961) 498
- Section 319 - Bar of suit in absence of notice - Civil suit filed against the Municipality for perpetual injunction - Held - Bar contained in S. 319 is not applicable in a suit for perpetual injunction by virtue of sub-section (3) of S. 319 : Nagarpalika Parishad, Shivpuri Vs. Mohan Singh Sisodiya, I.L.R. (2009) M.P. 3395
- Section 319 - See - Krishi Upaj Mandi Adhiniyam, M.P., 1973, Section 67 : Krishi Upaj Mandi Samiti Banapur Vs. Chandra Shekhar Raghuvanshi, I.L.R. (2009) M.P. 3019 (DB)
- Section 323 - Powers to suspend execution of orders, etc of Council - S. 323(1) indicates that two circumstances are required to be fulfilled - First is that the Collector is required to pass an order whether the action which is challenged is not in comformity with law or with the rules or byelaws made thereunder - Second is that such an action is detrimental to the interests of the Council or public or is likely to cause injury or annoyance to the public or any class or body of persons or is likely to lead to a breach of the peace - Without recording such finding, Collector has proceeded to set-aside resolution only on the ground that action was not bona fide - Collector's order set-aside : Nagar Palika Parishad, Balaghat Vs. Rajesh Bhoj, I.L.R. (2010) M.P. 185 (DB)
- Section 323 - Powers to suspend execution of orders, etc of Council - Without assigning any reasons, Collector cancelled the tender proceedings which were passed in a resolution - Held - Collector has only power to stay but has no power to annul the resolution - Resolution, as per S. 323(2) has to be annulled by the State Government after giving due opportunity to the Council - Collector's order quashed : Nagar Palika Parishad, Balaghat Vs. Rajesh Bhoj, I.L.R. (2010) M.P. 185 (DB)
- Section 323 (1) - Power to suspend execution of orders of Council - There is no power with Collector or any other authority mentioned therein to suspend the execution of resolution/order or prohibit the doing of any act which has already been executed/ implemented - Not even in cases where Council had violated provisions of Section 109 (3) of Act in disposing of its property : Devendra Kumar Paliwal Vs. State of M.P., I.L.R. (2008) M.P. 1128
- Section 339-A and Bylaws - Development Charges - Respondent constructed building for its own use - Section 339-A amended by Act no.29 of 2003 included builder - Builder means who construct buildings for the purpose of transfer by sale or otherwise all or some of them to persons other than members of his family - By laws makes provision for development charges from the colonizers and person in occupation for making available the basic facilities to inhabitants - By laws not amended to bring activity of person like petitioner within the net - No fault in order of single Judge in quashing notice demanding development charges - Appeal dismissed : Nagda Municipality, Nagda Vs. ITC Limited, I.L.R. (2007) M.P. 941 (DB) Muslim Women (Protection of Rights on Divorce) Act (25 of 1986) 499
Municipality Shiksha Karmi (Recruitment and Conditions of Service) Rules, M.P. 1998
- Rule 5(9)(ii) - Select List - Rule provides that select list of each category and waiting list shall be prepared which shall be valid for a period of nine months - This provision is for waiting list and not for the select list : State of M.P. Vs. Shiv Narayan Saxena, I.L.R. (2008) M.P. 1356 (DB) Municipality (Transfer of Immovable Property) Rules, M.P. 1996
- Rule 6 - Municipal Council has imposed additional condition that the highest bidder is required to deposit 1/4 amount immediately after conclusion of the bid and in case of failure on the part of the highest bidder in depositing the balance amount 1/4 amount deposited by the bidder shall stand forfeited automatically - Held - Rule 6 empowers the Council to impose other conditions in addition to the condition mentioned in Rule 6 - Council has exercised power well within its jurisdiction - Suit for recovery of forfeited 1/4 amount was rightly dismissed by the trial court - Appeal dismissed : Manoj Vs. Municipal Council, Mandsaur, I.L.R. (2009) M.P. 802 Muslim Women (Protection of Rights on Divorce) Act (25 of 1986)
- Sections 2,3,4 - Criminal Procedure Code, 1973, Section 125 - Maintenance - Application filed by wife resisted on the ground that she is a divorced wife and not entitled for maintenance - Divorced Women means divorced according to law - Merely taking plea of divorce in written statement is not sufficient - Talaq must be pronounced - Applicant failed to prove divorce by leading cogent evidence - Wife entitled for maintenance : Sabir Khan Vs. Jaheda Bi, I.L.R. (2007) M.P. 286
- Section 3, Criminal Procedure Code, 1973, Section 125 - Muslim wife can file the application under both the provisions before Magistrate for maintenance against the husband - If the claim of the husband about divorcing the wife is accepted, then after the date of divorce, the rights of the wife can be considered by the Magistrate in the same application - In that case the Magistrate can decide the rights of the divorced wife on the basis of provisons of the Act - Thus, filing of a new application by the wife under the provisions of the Act is not required : Shabana Bano (Smt.) Vs. Imran Khan, I.L.R. (2009) M.P. 276
- Section 3, Criminal Procedure Code, 1973, Section 421 - Recovery of Mahr and maintenance - In default of payment, husband already undergone one year imprisonment - Another application for recovery of same amount and on failure to sent him Jail - Held - Since husband has already undergone imprisonment for one year u/s 3(4) of Act, he Muslim Women (Protection of Rights on Divorce) Act (25 of 1986) 500 can not be sent Jail again on same default - However, recovery of balance amount can be made in accordance with law - Application partly allowed : Mohd. Hasib Vs. Rubina, I.L.R. (2009) M.P. 597
- Section 3 - Divorce - Effective date - If pronouncement of Talaq on a particular date is disputed - Then proof is required to establish this fact and once it is proved It will be effective from the actual date of Talaq and not from the date of its establishment in court : Shabana Bano (Smt.) Vs. Imran Khan, I.L.R. (2009) M.P. 276
- Section 3(1), Muslim Woman (Protection of Rights on Divorce) Rules, 1986, Rule 4 - An application u/s 3(1) of the Act was filed by non-applicant for recovery of Mehar & maintenance - Before magistrate applicant and non-applicant have filed their evidence on affidavit - Order of maintenance passed by magistrate - Revisional court affirmed the order - Order challenged before High Court on the ground that evidence not be taken in the presence of applicant as per Rule 4 of Rules 1986 - Non-applicant has taken a plea that none of the parties have raised such objection before magistrate - Now applicant cannot take this objection in view of principle of estoppel - Held - There can be no estoppel against statute and no rule of estoppel between the parties - Cannot compel court to take any action contrary to express words of statute - Admittedly, evidence not recorded in the presence of applicant against whom order of maintenance was made - Order passed by magistrate and revisional court illegal - Therefore, set- aside with the direction to record fresh evidence in presence of applicant and pass order in accordance with law : Mohiuddin Vs. Smt. Azra Bano, I.L.R. (2008) M.P. Note *88
- Sections 3 & 4, Criminal Procedure Code, 1973, Section 125 - Maintenance - Applicant failed to prove that divorce was effected between the parties - Husband under obligation to maintain his wife - Grant of Rs.700 per month to wife and Rs.200 to child reasonable - Revision dismissed : Irshad Khan Vs. Smt. Rani, I.L.R. (2009) M.P. Note *31
- Sections 3 & 4, Criminal Procedure Code, 1973, Section 125 - Maintainance - After coming into force of the Act, the provisions of Section 125 of Code are available to a Muslim wife, but not available to a divorced Muslim wife : Shabana Bano (Smt.) Vs. Imran Khan, I.L.R. (2009) M.P. 276
- Sections 3 & 4, Criminal Procedure Code, 1973, Section 125 - Right of maintenance after the expiry of period of Iddat - The liability of the Muslim husband to his divorced wife arising u/s 3(1)(a) of the Act to pay maintenance is not confined to Iddat period only - He has to make reasonable and fair provisions within the period of Iddat for the future of the divorced wife i.e. even for post Iddat period also, which obviously includes her maintenance as well : Shabana Bano (Smt.) Vs. Imran Khan, I.L.R. (2009) M.P. 276 Nagar Tatha Gram Nivesh Adhiniyam, M.P. (23 of 1973) 501
- Sections 3 & 4, Family Courts Act, 1984, Section 7(1)(f) - Jurisdiction - The cases u/s 3 & 4 of the Act of 1986 are required to be decided by a Magistrate alone and not by the Family Court : Shabana Bano (Smt.) Vs. Imran Khan, I.L.R. (2009) M.P. 276
- Muslim Women (Protection of Rights on Divorce) Act, (25 of 1986) - See - Criminal Procedure Code, 1973, Section 125 : Jumana Bai Vs. Mushtaq Ali, I.L.R. (2008) M.P. 1839 Muslim Woman (Protection of Rights on Divorce) Rules, 1986
- Rule 4, Criminal Procedure Code, 1973, Section 126(2) - The language of Section 126(2) of Code and Rule 4 of Rules 1986 is similar : Mohiuddin Vs. Smt. Azra Bano, I.L.R. (2008) M.P. Note *88
- Rule 4 - See - Muslim Women (Protection of Rights on Divorce) Act, 1986, Section 3(1) : Mohiuddin Vs. Smt. Azra Bano, I.L.R. (2008) M.P. Note *88 Nagar Palika Nirvachan Niyam, M.P. 1994
- Rule 9-A(1) - Deletion of entry in voter's list - Rule 9-A cannot be interpreted to override the provisions of 1961 Act and disqualify a person who is otherwise entitled to be registered as voter in electoral roll - It also does not provide automatic disqualification but merely provides for deletion of name of person from electoral roll : Raja Ram Ahirwar Vs. State of M.P., I.L.R. (2008) M.P. 1042 (DB) Nagar Tatha Gram Nivesh Adhiniyam, M.P. (23 of 1973)
- (As amended act No.22 of 2005), Section 23A - Provision is intra vires : Bhopal Citizen's Forum Vs. State of M.P., I.L.R. (2010) M.P. 2111 (DB)
- (As amended by Act No. 22 of 2005) Section 23 - A (2) - Mandatory provision of section 23-A(2) not complied with - all subsequent actions have to be held to be invalid and no sanctity can be attached to the draft modified plan.
In present case - (i) Notice with regard to draft modification plan was not published continuously for two consecutive days in two daily news papers. (ii)Draft modified plan was not affixed in a conspicuous place in the office of Collector, inviting objections and suggestions.
Held - Draft modified plan has not been published in the manner prescribed. Notification dated 14.03.2008 and 05.09.2007, quashed : Bhopal Citizen's Forum Vs. State of M.P., I.L.R. (2010) M.P. 2111 (DB) Nagar Tatha Gram Nivesh Adhiniyam, M.P. (23 of 1973) 502
- (As amended by Act No.22 of 2005) Section 23-A (2) - Manner of publication of notice of modification of development plan or Zoning plan by State Government in section 23-A(2) is mandatory in nature : Bhopal Citizen's Forum Vs. State of M.P., I.L.R. (2010) M.P. 2111 (DB)
- [As amended by Nagar Tatha Gram Nivesh (Sanshodhan) Adhiniyam, M.P. 2004], Section 50(4) Proviso - Preparation of Town Development Schemes - Lapse of Scheme - Proviso to Sec. 50(4) provides that draft scheme shall be deemed to have lapsed if final publication of draft scheme is not notified within a year of publication of draft notification - Held - Objects and reasons for introducing proviso is to remove hardship caused to citizens and individual landowners - Proviso applies to pending actions also - The Scheme cannot be in perpetuity and it can lapse if action is not contemplated as provided in proviso - The doctrine of delay and laches gets attracted : Indore Development Authority Vs. M/s. Shriram Builders, I.L.R. (2009) M.P. 2136 (FB)
- [As amended by Nagar Tatha Gram Nivesh (Sanshodhan) Adhiniyam, M.P. 2004], Section 50(4) Proviso - Preparation of Town Development Schemes - Lapse of Scheme - Scheme floated earlier stood lapsed in view of proviso to Sec.50(4) - Authority can proceed to take appropriate steps afresh to float a fresh scheme : Indore Development Authority Vs. M/s. Shriram Builders, I.L.R. (2009) M.P. 2136 (FB)
- Sections 2 (e), 58, 59, 72 and Nagar Tatha Gram Nivesh (Vikasit Bhoomiyo, Griho, Bhavano Tatha Anya Sanrachnaon Ka Vyayan) Niyam M.P., 1975, Rules 3,4,5,19 and 20 - Creatures of Statutes are bound to act within the four corners thereof - Rules for disposal of land laid down in Rules - Powers required to be exercised strictly in conformity - Allotment of 'authority land' on concessional rent - Approval of State required - Disposal is within the domain of Development authority - State has no role to play - Even advice given by it would be ultra vires - Public utility - Printing and publication of news paper - Does not come within the purview of 'public utility' - Change of user from commercial to individual purpose - Could not have been directed without fulfilling statutory requirements - Judgment of High Court set aside - Authority may consider the matter afresh for grant of allotment : K.K. Bhalla Vs. State of M.P., I.L.R. (2006) M.P. 143 (SC)
- Sections 2 (e), 58, 59, 72 and Nagar Tatha Gram Nivesh (Vikasit Bhoomiyo, Griho, Bhavano tatha Anya Sanrachnaon Ka Vyayan) Niyam M.P., 1975, Rules 3,4,5,19 and 20 - Creatures of Statutes are bound to act within the four corners thereof - Rules for disposal of land laid down in Rules - Powers required to be exercised strictly in conformity - Allotment of 'authority land' on concessional rent - Approval of State required - Disposal is within the domain of Development authority - State has no role to play - Even advice given by it would be ultra vires : K.K.Bhalla Vs. State of M.P., I.L.R. (2006) M.P. 143 (SC) Nagar Tatha Gram Nivesh Adhiniyam, M.P. (23 of 1973) 503
- Sections 2(u), 16, 49, 50 - Town Development Scheme - Whether town Development Scheme under Section 50 of the Adhiniyam can be notified in absence of Development Plan by the State Govt. under Section 19 of the Adhiniyam - Petitioner purchased a plot in village Bicholi Hapsi which was not included in the plan area of Indore City - Gram Panchayat approved Appellant's plan for construction - Draft Master Plan known as Indore Development Plan was prepared for enlarged plan area including village Bicholi Hapsi - Appellant applied for sanction of lay out plan for the purposes of development - Appellant was informed that plan for construction cannot be approved because of publication of Draft Scheme - Held - Town Development Scheme means scheme to implement the provisions of Development Plan - Until Development plan for an area is published, draft town development scheme cannot be published - Notification publishing draft Scheme No. 164 under Section 50(2) of M.P. Nagar Tatha Gram Nivesh Adhiniyam, 1973 quashed - Commissioner directed to reconsider application of appellant for permission to undertake construction of the house : M/s Pure Industrial Cock & Chemicals Ltd. Vs. State of M.P., I.L.R. (2007) M.P. 360
- Section 13 - Planning areas - Power to constitute planning areas and define the limits thereof to the Zila Yojna Samiti delegated by State Govt. - Notification issued by Zila Yojna Samiti re-notifying planning areas including more number of villages not ultra vires of the powers delegated to it : Five Star Developers Private Ltd. Vs. State of M.P., I.L.R. (2007) M.P. 323 (DB)
- Sections 13, 29, 38, 47A, 50(2), 50(3) - Draft Notification - State Govt. delegated its power under Section 13, 47A to District Planning Committee - District Planning Committee on 13.11.2000 amended planning area by adding 115 villages including Bicholi and Kanadia villages - Draft Development Plan published on 27. 6.2003 - Draft Development Plan returned back by State of M.P. with a direction to prepare plan for the projected population in the year 2021 - Notification under Section 38(1) issued on 28.10.2005 - Notification inviting objections issued on 18.5.2006 - Draft Development Plan 2021 published on 13.7.2006 - Respondents having land in Bicholi and Kanadia villages obtained sanction in terms of building by laws from Gram Panchayats - Applications for grant of development plans made on 2.12.2004 - Application rejected by Joint Director, Town and Country Planning in view of purported publication of plan under Section 50(2) of Act - High Court in writ appeal struck down declaration made under Section 50(2) of Act - Held - End use of land is not frozen until a final sanction plan comes into being - Where valuable rights of citizens are involved it is mandatory that public authority should perform statutory duties within stipulated time - Right of property is not only constitutional but human right - Provisions which restrict the right of owner of property to use and develop requires strict interpretation - Draft publication which has not attained finality cannot determine rights and obligations of citizens - Until development plan is finalized it would have no statutory or legal force - Freeze on usage Nagar Tatha Gram Nivesh Adhiniyam, M.P. (23 of 1973) 504 of land without any development plan would lead to misuse of power and arbitrary exercise - Villages in question have been included in notification dated 28.10.2005 - Any action taken prior there to is illegal and without jurisdiction - Appeal dismissed : Chairman, Indore Vikas Pradhikaran Vs. M/s Pure Industrial Cock & Chem. Ltd., I.L.R. (2007) M.P. 976 (SC)
- Section 14- Challenged as being ultra-vires of Article 243W of Constitution - Section 14 vesting power for preparing developmental plan on Director - Article 243W providing for endowment of such power by State Legislature on Municipalities - Held - Article 243W of Constitution of India is only enabling provision - It does not envisage that existing laws relating to town planning would become non-operative - Director will continue to operate till legislature vests such powers on Municipalities - Section 14 not ultra-vires Article 243W of Constitution of India : Madan Parmaliya Vs. State of Madhya Pradesh, I.L.R. (2007) M.P. 468 (DB)
- Section 14 - Director to prepare Development Plans - Constitutional validity of Section 14 challenged on the ground that work of preparing development plan is vested in Director without laying down any technical qualification or experience in the specialized field - Held - Director to perform his duties with assistance of Additional Director, Joint Director, Deputy Director, Asstt. Director, Asstt. Director having knowledge, expertise and experience in town and country planning - Section 14 of the Act not unreasonable, arbitrary or ultra vires to Article 14 of the Constitution : Center For Environment Protection Research And Development, Indore Vs. State of Madhya Pradesh, I.L.R. (2007) M.P. 475 (DB)
- Section 16 - Freezing of land use - Vires of Section 16 challenged on the ground that it amounts to excessive delegation of power as no guideline or policy has been laid down to grant or refuse permission - Held - Where change in the use of any land is incosistent with proposed land use in development plan Director can refuse to grant permission - Section 16 (1) of the Act does not vest absolute power to refuse or grant permission - Mere misuse of power doesnot make Section ultra-vires - Section 16 intra- vires as there is no excessive delegation of power : Center for Environment Protection Research & Development, Indore Vs. State of M.P., I.L.R. (2007) M.P. 475 (DB)
- Section 17-A - Committee - Comstitutional validity challenged on the ground that composition of committee is different from that provided in Article 243ZD of Constitution of India - Held - Article 243ZD provides for constitution of committee in relation in town and country planning - Section 17-A not ultra-vires to Article 243ZD of Constitution of India : Madan Parmaliya Vs. State of M.P., I.L.R. (2007) M.P. 468 (DB)
- Sections 17-A and 18 - Committee - Constitutional validity of Section 17-A and 18 challenged on the ground that there is no provision as to who will be the Chairman Nagar Tatha Gram Nivesh Adhiniyam, M.P. (23 of 1973) 505 and what will be the quorum of committee and on account of non-inclusion of experts - In absence of properly constituted committee reasonable opportunity to persons affected by draft development plan cannot be granted - Held - Committee can always decide that who will preside over the Committee - Committee can always adjourn its meeting if few members are present - Absence of experts in the field of town and country planning does not render the reasonable and fair procedure - Section 17-A and 18 not ultra vires as reasonable and fair procedure has been laid down : Center for Environment Protection Research & Development, Indore Vs. State of M.P., I.L.R. (2007) M.P. 475 (DB)
- Section 20 - Zoning plans by local authorities challenged being unreasonable, arbitrary, unworkable and vague - Held - Zoning plan only enlarges details of land use - Local authorities to prepare zoning plans for their respective areas in accordance with development plan - Section 20 no ultra vires article 14 of the Constitution.: Center for Environment Protection Research & Development, Indore Vs. State of M.P., I.L.R. (2007) M.P. 475 (DB)
- Section 23-A - Modification of Development plan or Zoning plans - Omission of words for urgent public purposes in amended Section 23-A - Validity challenged on the ground that State Govt. can modify development plan even if there is no urgent public interest - Held - Use of words to be beneficial to the Society also mean for public purpose - Contention that Govt. can modify development or zoning plan even for a purpose other than public purpose has no merits : Madan Parmaliya Vs. State of M.P., I.L.R. (2007) M.P. 468 (DB)
- Section 38 - Town and Development Country Authority - Authority was created for a definite purpose - Principle of legislation by incorporation was applied and not legislation by reference : Chairman, Indore Vikas Pradhikaran Vs. M/s Pure Industrial Cock & Chem. Ltd., I.L.R. (2007) M.P. 976 (SC)
- Sections 38 & 50, Nagar Tatha Gram Nivesh Vikasit Bhumiyon, Grihon, Bhavano Tatha Anya Sanrachnao Ka Vyayan Niyam, 1975, Rules 19 & 20 - Allotment of land at concessional rates - Land allotted to newspaper on concessional rates for it being an educational institution - The said allotment challenged - Hon'ble High Court held it to be void against rule 19 and 20 - Petitioner apprehending termination of their allotment and challenging it before the High Court - Held - The issue that newspapers are educational institution has already been held the Division Bench in Compact Printers Pvt. Limited v. Indore Development Authority in Misc. Petition No.1197/1989, the said decision not brought to knowledge of the Division Bench while deciding the Vijay Kumar Tiwari's case - As the matter was already covered by the decision of the Division Bench that newspapers are educational institutions and are entitled for allotment at concessional rates - Respondents directed to consider the applications of the petitioner's afresh and Nagar Tatha Gram Nivesh Adhiniyam, M.P. (23 of 1973) 506 decide in accordance with law laid down in K.K. Bhalla's case - Petitions disposed of : Jeevan Singh Vs. State of M.P., I.L.R. (2008) M.P. 1650 (DB)
- Section 50 - Preparation of Town Development Scheme - Grant of no objection - A Scheme was prepared which was not accorded approval by the State Government - A land was purchased by respondent which was under the Scheme - He sought no objection from the appellant which was rejected - Appellant alleged that on refusal to grant NOC, the Scheme stood revived - Held - After the State Government refused to accord its ex post facto sanction to proposed Scheme No.133, the IDA having taking into account every facet of the case, took a conscious decision to drop the Scheme No.133 - Stand taken by the appellant on the erroneous assumption that Scheme stood revived automatically to refuse NOC to respondent is an outcome of total non-application of mind on the part IDA and its officers - Such a stand, is unsustainable in law in view of the Full Bench decision in Indore Development Authority v. M/s Shri Ram Builders and others [ILR (2009) MP 2136] wherein it has been held that S. 50(4) of the Adhiniyam is prospective in nature : Indore Development Authority Vs. Rajesh Lalwani, I.L.R. (2010) M.P. 1044 (DB)
- Section 50 - See - Constitution, Article 226 : Mahavir Grih Nirman Sahkari Sanstha Maryadit Vs. State of M.P., I.L.R. (2008) M.P. 1603
- Section 50(1) - At any time - Starting point of declaration of intention has to be from publication of development plan : Chairman, Indore Vikas Pradhikaran Vs. M/s Pure Industrial Cock & Chem. Ltd., I.L.R. (2007) M.P. 976 (SC)
- Section 73 - Power of State Government to give direction - Housing Policy issued in September 1995 - Directions are binding on authorities and officers appointed under Section 3 of Act - Held - Petitioner entitled for allotment of 20% of developed plots out of land acquired as per housing policy : Mahavir Grih Nirman Sahkari Sanstha Maryadit Vs. State of M.P., I.L.R. (2008) M.P. 1603
- Section 75 - Delegation of Powers - Vires of Section 75 of the Adhiniyam challenged - Delegation of Power under section 13 of the Adhiniyam to the Zila Yojna Samiti also challenged - Held - The officer or authority as a delegate of the State Govt. does not have any discretion to exercise the powers delegated to him contrary to the legislative policy indicated in provisions of the Adhiniyam - Delegatee doesnot exercise an unbridled and unrestricted power - Section 75 of the Adhiniyam not ultra-vires the Constitution : Five Star Developers Private Ltd. Vs. State of M.P., I.L.R. (2007) M.P. 323 (DB)
- Rule 19 - Public utility - Printing and publication of news paper - Does not come within the purview of 'public utility' - Change of user from commercial to individual Narcotics Drugs and Psychotropic Substances Act (61 of 1985) 507 purpose - Could not have been directed without fulfilling statutory requirements : K.K.Bhalla Vs. State of M.P., I.L.R. (2006) M.P. 143(SC) Nagar Tatha Gram Nivesh Vikasit Bhumiyon, Grihon, Bhavano Tatha Anya Sanrachnao Ka Vyayan Niyam, 1975
- Rules 19 & 20 - See - Nagar Tatha Gram Nivesh Adhiniyam, M.P., 1973, Sections 38 & 50, : Jeevan Singh Vs. State of M.P., I.L.R. (2008) M.P. 1650 (DB) Nagriya Nikay Samvida Shala Shikshak (Employment and Conditions of Contract) Rules, M.P. 2005
- Rule 6(9) Explanation - Additional marks for teaching experience - By giving Explanation State Govt. has simply observed that teaching experience would mean experience in institutions mentioned in Explanation - If by explanation, State Govt. wanted to give additional weightage or marks to persons who acquired teaching experience in given class or classes, it cannot be held that Explanation leads to a discrimination : Shailesh Kumar Sahu Vs. State of M.P., I.L.R. (2008) M.P. 1138 (DB) Narcotics Drugs and Psychotropic Substances Act (61 of 1985) SYNOPSIS : Section 8
1. Cultivation of Ganja 4. Mere presence is not sufficient (cannabis) to connect with the offence 2. Case remanded for 5. Non-commercial quantity getting the sample marked 6. Search and arrest in public 3. Identity and quantity of place provision of Section 43 seized articles not established - will apply Conviction not sustainable 7. Seizure not reliable
1. Cultivation of Ganja (cannabis)
- Sections 8, 20 - Cannabis plants seized from field - Land record and map of field produced - Appellant denied ownership and possession of field - Held - Prosecution is required to prove that the appellant was in exclusive possession of the field where cannabis plants were seized and he was having conscious possession of contraband article - Neither name of Patwari who issued the record disclosed nor signature & Narcotics Drugs and Psychotropic Substances Act (61 of 1985) 508 handwriting proved - Land record and map not proved in accordance with provision of S. 67 of Evidence Act - Independent witness also did not support prosecution case - Prosecution failed to prove case beyond reasonable doubt - Conviction and sentence set-aside - Appeal allowed : Bheru Vs. State of M.P., I.L.R. (2008) M.P. 3008
- Sections 8 read with 20 (a) (i) - Cultivation of Ganja (Cannabis Plant) - Only 90 Ganja Plants were seized - No evidence that they were systematically grown - Absence of spot- map and photographs - Possibility of spontaneous growth of plants can not be ruled out Accused entitled to benefit of doubt - Acquitted : Nanda Vs. State of M.P., I.L.R. (2008) M.P. 589
- Sections 8-C & 20-B(1) - Appellant was not owner of land but land belongs to his sons, from where 33 Ganja plants were seized - Held - Merely because the appellant was not owner of land that does not mean he was not in possession of that land - Thus on the basis of the factum of possession, no illegality or perversity was found into the findings given by trial Court : Prem Singh Vs. State of M.P., I.L.R. (2009) M.P. 1148
- Sections 8-C & 20-B(1) - Cultivation of Ganja (cannabis) - Can be proved by circumstantial evidence - 33 Ganja plants were seized from the agricultural land of appellant - Appellant alleging that he did not cultivate Ganja plants - Held - If the land was not in possession of appellant and appellant has not cultivated the Ganja plants then after seeing police party he should not have uprooted the Ganja plants and also should not have run away along with the plants - Such a conduct of appellant is unnatural - This circumstance has been rightly relied upon by trial Court for proving the cultivation of Ganja by appellant : Prem Singh Vs. State of M.P., I.L.R. (2009) M.P. 1148 2. Case remanded for getting the sample marked
- Sections 8 & 20(b)(ii)(B) - Appellant was held with 15.250 Kgs of Ganja - During trial the seized contraband 'Ganja' was not produced as article of evidence, before the Court - Held - Prosecutor-in-charge failed to request and trial judge failed to direct for production of the samples of contraband during trial as expected from them in wake of principle laid down in Zahira's case - Case remitted for getting the sample marked as articles of evidence and also to the defence for challenging the identity thereof : Nannu Sahu Vs. State of M.P., I.L.R. (2010) M.P. 2191 3. Identity and quantity of seized articles not established - Conviction not sustainable
- Sections 8 & 15(c) - Punishment for contravention in relation to poppy straw - 60 bags containing poppy husk were seized - 120 samples were prepared - Only one sample was sent to F.S.L. - Seized articles not produced before trial court - Held - 120 Narcotics Drugs and Psychotropic Substances Act (61 of 1985) 509 samples were representative sample of each individual bag - As one sample was sent, therefore, it cannot be said that whole 60 bags were containing poppy husk - Non- production of seized articles is also fatal - Prosecution failed to establish identity and quantity of seized articles - Conviction not sustainable - Appeal allowed : Shakil Vs. State of M.P., I.L.R. (2008) M.P. 2102 4. Mere presence is not sufficient to connect with the offence
- Section 8 r/w 20(b)(iii)(b) - See - Criminal Procedure Code, 1973, Section 374(2) : Kuldeep Sahu Vs. State of M.P., I.L.R. (2008) M.P. 2985 5. Non-commercial quantity
- Sections 2(vii)(a), 8/18(b) & 8/18(c) - Whether 2.5 Kg opium will come within commercial quantity or non-commercial quantity - 2.5 Kg of opium seized from the possession of appellant - Trial court has not pointed out specifically whether the appellant is convicted for commercial quantity or non-commercial quantity - However, awarded Jail sentence of 10 years and fine of Rs. 1 lac - Conviction and sentence challenged before High Court - Held - As per definition u/s 2(vii)(a) 'commercial quantity' means any quantity greater than the quantity specified by the Central Government by notification - In the notification commercial quantity of opium is mentioned in item No.92 as 2.5 Kg - If more than this quantity would have been seized from the possession of the appellant, the appellant would be responsible for punishment for commercial quantity u/s 8/18(b) of the Act - Since 2.5 Kg opium has been seized from the appellant, therefore, his case would fall under non-commercial quantity which is punishable u/s 8/18(c) of the Act - U/s 8/18(c) minimum Jail sentence is not prescribed - Looking to the facts of the case, Jail sentence reduced to 7 years from 10 years : Gopal Vs. State of M.P., I.L.R. (2008) M.P. Note *92 6. Search and arrest in public place provision of Section 43 will apply
- Sections 8/18, 42, 43 and Criminal Procedure Code 1973, Section 313 - When the person is searched and arrested in public place then there is no application of provision of Section 42(2) of Act and provision of Section 43 will apply - Statement of accused - Not permissible to accept only inculpatory part and reject exculpatory part : Ritesh Chakravarti Vs. State of M.P., I.L.R. (2006) M.P. 1076
- Section 8, 21, 42, 43 and Criminal Procedure Code, 1973 - Section 311 - Recalling of witness - Witness present but not cross-examined - Adjournments cannot be granted except of special reasons - Counsel engaged in another case - Cannot be a considered to be a special Reason - Seizure of contraband in public place and not in a Narcotics Drugs and Psychotropic Substances Act (61 of 1985) 510 building or enclosed place - Section 43 would apply and not section 42 : Babban Shah Vs. State of M.P., I.L.R. (2006) M.P. 1091 7. Seizure not reliable
- Sections 8/18 & 8/18/29 - Independent witnesses were hostile - Bulk quantity of seized opium formula was not produced at the time of evidence - At the time of seizure of opium formula articles A, B, C, D were not marked on the samples - Similarly, on both bulk quantity packets no articles were marked - At the time of deposit of seized property in the Malkhana in the office of CBN, it was not resealed with the seal of Officer Incharge of Malkhana - Impression of seal and seal were not deposited in the Malkhana at the time of seizure - Local witnesses were not collected but the pocket witnesses were called on the spot by the raiding party - Samples were deposited in the Court after 1 year and 5 months with unexplained delay - Malkhana Incharge not examined - Preparation of the Panchanamas was doubtful and not reliable - Appellants are not liable to be convicted - Appeal allowed : Makhmad Khan Vs. CBN, Mandsaur, I.L.R. (2010) M.P. 2633
- Section 8/18(b) - Independent witnesses not supporting the prosecution case - The proceeding u/s 52-A of the Act was not proved - Search of the lady accused and the notice u/s 50 of the Act was defective - Seized property was not produced before Court during trial - The appellants were not liable to be convicted - Conviction set aside: Bansilal Vs. State of M.P., I.L.R. (2010) M.P. Note *77
- Sections 8/18(b) & 8/21(c) - Proof - Independent witnesses not supporting prosecution case - Compliance of S. 52 not proved - House from where the contraband was seized, not proved to be in ownership and possession of accused - Seized property/ contraband not produced before Court and only samples were produced - Held - Accused not liable to be convicted : Mulchand Vs. Union of India, I.L.R. (2010) M.P. Note *65
- Sections 8(c), 20(b)(i) - Possession of Ganja - Investigation Officer not in a position to identify appellants in Court to establish fact regarding seizure of Ganja - Seizure witnesses not supported prosecution case - Appellants entitled for acquittal : Halku Vs. State of M.P., I.L.R. (2008) M.P. 574
- Sections 8/29(18b) & 8/29(21-c) - Rs.1,57,000/- recovered from accused / appellant in persuance of statement of co-accused that he had given advance of Rs.1,60,000/- to accused - Held - The statement of co-accused is doubtful and not reliable, recovery of money from house of accused is not proved, and it has also not been proved that the accused had received that money from co-accused - Conviction and sentence can not be sustained : Mulchand Vs. Union of India, I.L.R. (2010) M.P. Note *65 Narcotics Drugs and Psychotropic Substances Act (61 of 1985) 511
● - Section 20(b)(ii)(B) - Conscious possession - Ganja seized from a room of house - House does not belong to appellant - No evidence that room was in exclusive possession of appellant - No evidence that appellant was found in room near the sack of Ganja - No evidence that appellant was in conscious possession of Ganja - Appeal allowed : Aasif Malik Vs. State of M.P., I.L.R. (2009) M.P. 3012
- Sections 20b, 42(2), 50, 57 - Non compliance of Mandatory provisions - Appellant was personally searched on information and ganja was seized - I.O. registered case under Section 34 Excise Act - Appellant was charged under Section 20 b of Act, 1985 - I.O. did not send copy of information to his immediate official superior as required under Section 42(2) - Compliance of provision of Section 50 was also necessary as ganja was seized from personal search of accused - Any report was also not sent to official superior within 48 hours - Appellant entitled for acquittal - Appeal allowed : Nannu Vs. State of M.P., I.L.R. (2008) M.P. 346
- Section 27 - Accused convicted u/s 20 of the Act for illegal possession of 100 gm Ganja - Appeal before High Court - Held - Accused is not bound by his pleadings - He can prove his defence even from the admission made by the prosecution witnesses - Detecting Officer admitted that accused explained the possession of contraband by saying that it was meant for his personal consumption - In the light of circumstances surrouding seizure of only 100 gm Ganja, favoured the defence that the contraband was not meant for sale or distribution - It ought to have been inferred that Ganja was possessed for personal consumption - Impugned conviction & consequent sentences set-aside - Instead, appellant is convicted u/s 27 of the Act and sentence to undergo R.I. for six months - Appeal partly allowed : Khanchedilal Vs. State of M.P., I.L.R. (2009) M.P. 2093
- Section 35 - Presumption of culpable mental state - Once the accused is found in possession of contraband articles burden shifts on him to prove that he had no culpable mental state : Pramod Vs. State of M.P., I.L.R. (2008) M.P. 1259
- Sections 36 to 36-D Amendment Act No. 2 of 1989 - Special Court constituted by Amendment Act No. 2 of 1989 - Central Govt. by notification appointing 29/5/1989 as the date on which the amendment Act No. 2 of 1989 shall come into force - Offence committed on 22-8-1989 - Judicial Magistrate First Class had no jurisdiction to try the case as only Special Court could have tried the case - Judgment passed by J.M.F.C. is void ab initio and nullity - Matter remanded back to Special Court to conduct the trial : State of M.P. Vs. Ramesh; I.L.R. (2007) M.P. 559
- Section 42 - Power of entry, search, seizure and arrest without warrant or authorization - At 12.45 a.m. in the night house of accused was searched and opium was seized - Acquittal by trial court on the ground of non-compliance of provision of Narcotics Drugs and Psychotropic Substances Act (61 of 1985) 512
Sec. 42 & 50 - Held - If search of house is taken within the period of sunset and before sunrise, the search warrant has to be obtained by the concerned police and if they are of the opinion that there was every possibility to concealment of evidence or facility for escape of an offender, they may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the ground of belief - No such ground of belief recorded - Non-compliance of mandatory provision - Acquittal granted by trial Court upheld - Appeal dismissed : State of M.P. Vs. Aslam, I.L.R. (2009) M.P. 1145
- Section 42 - Compliance - Search and seizure on public place in the presence of Gazetted Officer -Provision of Section 42 (2) N.D.P.S. Act would not apply - Gazetted Officer, Superintendent of Bureau was present - The compliance of Section 42 not necessary : Gopal Vs. Central Bureau of Narcotics, Indore, I.L.R. (2008) M.P. 131
- Section 42 (i) (ii) - Power of entry, search, seizure and arrest without warrant or authorization - Recording of grounds of belief - Appellants apprehended in night - Grounds of belief to immediate superior officer not sent - Provision mandatory - Trial Vitiated : Halku Vs. State of M.P., I.L.R. (2008) M.P. 574
- Section 42(2) - Power of entry, search, seizure and arrest without warrant or authorisation - House of appellant searched on information received at Kotwali Sidhi - Gunny bag containing 1 Kg 100 grams of ganja recovered - Compliance of mandatory provision of Section 42(2) - Held Admittedly immediate official superior was out of headquarters - Acknowledgment of receipt of relevant entry of rojnamcha Sanha with covering letter given on his behalf by Constable contained crime number which could be ascertained only after recording of F.I.R. - F.I.R. recorded at 7 P.M. whereas relevant entry of rojnamcha Sanha with covering letter received by constable at 5 P.M. - Acknowledgment being post timed document indicative of fact that information was sent after arrest of appellant - Not established that search was carried out after complying with mandatory provision of Section 42(2) - Appellant acquitted - Appeal allowed : Shakuntali Kol Vs. State of M.P., I.L.R. (2008) M.P. 153
- Sections 42, 43 - Power of entry, search, seizure and arrest without warrant or authorization - Appellant was driving motor cycle - Contraband articles found beneath the seat of motor cycle - Provisions of Section 42(1) will not be attracted while conducting search and seizure in public place or a moving vehicle - Appellant found to be in possession of contraband articles - Appellant was rightly held guilty by Trial Court - Appeal dismissed : Pramod Vs. State of M.P., I.L.R. (2008) M.P. 1259
- Section 50 - 100 gm Ganja recovered at public place from plastic bag being carried by accused - Section 50 does not apply to search of bag carried by person searched at public place : Khanchedilal Vs. State of M.P., I.L.R. (2009) M.P. 2093 Narcotics Drugs and Psychotropic Substances Act (61 of 1985) 513
- Section 50 - Accused carrying bag not concealed in the body - Search of such bag does not come within ambit of search of "Person" as mentioned U/s 50 N.D.P.S. Act - Held - Provisions of Section 50 would not apply in such case : Gopal Vs. Central Bureau of Narcotics, Indore, I.L.R. (2008) M.P. 131
- Section 52 - Analysis of sample - Seized article was sent for examination to Excise Inspector - Report is not clear that seized article was ganja or bhang - Seized article was not sent for chemical examination - In absence of chemical examination it cannot be established that seized article was ganja : Nannu Vs. State of M.P., I.L.R. (2008) M.P. 346
- Section 52-A - Disposal of seized narcotic drugs and psychotropic substance - Non-compliance of mandatory provision - Effect - When the personal liberty of a man is at stake then the mandatory provisions of law take sacrosanct nature and their observation become mandatory - Court would find no hesitation in acquitting the accused if it finds that the provisions of mandatory nature have been violated : Laxminarayan Vs. State of M.P., I.L.R. (2009) M.P. 2652
- Section 52-A - Disposal of seized narcotic drugs and psychotropic substance - Prosecution would be obliged to produce the bulk quantity or in case the prosecution successfully proves that the seized bulk quantity was destroyed then the prosecution would be obliged to produce the additional samples drawn from the bulk quantity before its destruction - Prosecution failed to prove destroy or destruction of bulk quantity - Neither seized bulk quantity nor samples drawn from the bulk quantity were produced - Prosecution failed to prove its case beyond shadow of doubt - Appeal allowed : Laxminarayan Vs. State of M.P., I.L.R. (2009) M.P. 2652
- Section 52-A - Disposal of seized narcotic drugs and psychotropic substance - Provision does not require the concerned officer to seek permission from the Judicial Magistrate or an Executive Magistrate to destruct or destroy the remaining article - But, concerned officer has to state on oath before the Court that he had destroyed the balance articles - Otherwise Court shall presume that the articles were not destroyed and an adverse inference can always be drawn against the prosecution agency for not producing the balance article : Laxminarayan Vs. State of M.P., I.L.R. (2009) M.P. 2652
- Section 52-A, Criminal Procedure Code, 1973, Sections 6 & 20 - In the sub- section (2) of Section 52-A of the Act the word used 'any magistrate' means any executive or judicial magistrate as defined in Code u/ss 6 & 20 : Nirmal Vs. State of M.P., I.L.R. (2009) M.P. 848
- Section 52-A - Disposal of seized narcotics drugs and psychotropic substances - Provision is meant for disposal of the property during the pendency of the trial - Narcotics Drugs and Psychotropic Substances Act (61 of 1985) 514
Disposal means final disposal and the property would not remain in custody of Police, Excise Department or Central Narcotics Bureau : Nirmal Vs. State of M.P., I.L.R. (2009) M.P. 848
- Section 52-A - The purpose of Section 52-A is to allow the disposal of property at the earliest point of time during the course of investigation so that same may not be vulnerable to theft, substitution, constraints of proper storage, space or any other kind of destruction, after following the procedure mentioned in sub-section (2) of Section 52-A of the Act : Nirmal Vs. State of M.P., I.L.R. (2009) M.P. 848
- Section 52-A - 23 quintal of poppy husk loaded in truck without license or permit seized from appellants - As per provisions u/s 52-A samples were drawn, inventory prepared and photographs were taken in the presence of executive magistrate, but property was not finally disposed of - Held - Neither photograph, seizure memo, inventory, packets of sample were produced before the trial court and proved as primary evidence nor original property which was not disposed of was produced before trial court - Prosecution failed to establish quantity and identity of seized property - Conviction & sentence of appellants set-aside - Appeal allowed : Nirmal Vs. State of M.P., I.L.R. (2009) M.P. 848
- Section 52-A - Disposal of seized narcotic drugs and psychotropic substances - Narcotic drug and psychotropic substances can be disposed off immediately after following procedure prescribed in Section 52-A - Investigating agency or prosecution should have taken recourse of these provisions - Trial court also suo-moto could have taken steps for disposal of seized articles : Shakil Vs. State of M.P., I.L.R. (2008) M.P. 2102
- Section 53 - Officer-in-charge of a police station U/s 53 of Act is not a "Police Officer" within meaning of Section 25 of Evidence Act : Kanhaiyalal Vs. Union of India, I.L.R. (2008) M.P. 629 (SC)
- Section 55 - Police to take charge of articles seized - No weighment panchnama prepared - Weight of Ganja shown only by guess - Sample not sealed on spot but in Police Station - Sample not drawn by Investigating Officer but by Town Inspector - No evidence that Ganja was kept in intact condition in Police Station - Appellants acquitted - Appeal allowed : Halku Vs. State of M.P., I.L.R. (2008) M.P. 574
- Section 67 - A conviction can be maintained solely on the basis of a confession made U/s 67 of Act - Supreme Court maintained the conviction and sentence passed by High Court : Kanhaiyalal Vs. Union of India, I.L.R. (2008) M.P. 629 (SC)
- Section 67 - Criminal Procedure Code, 1973, Section 161 - A statement made U/s 67 of Act is not the same as a statement made U/s 161 of Code, unless made under Narcotic Drugs and Psychotropic Substance Rules, 1985 515 threat or coercion - Statement made U/s 67 of Act to be used as confession against the person making it and excludes it from the operation of Sections 24 to 27 of Evidence Act : Kanhaiyalal Vs. Union of India, I.L.R. (2008) M.P. 629 (SC)
- Section 67 - Retracting the confession - Appellant made a confessional statement U/s 67 - Thereafter an application was made for retracting the confession - Neither any order passed on such application nor same proved during trial - Therefore, no evidence about retracting confession - Evidentiary value of confessional statement would not go down : Kanhaiyalal Vs. Union of India, I.L.R. (2008) M.P. 629 (SC)
- Section 67 r/w Section 42 - An officer for the purposes of Section 67 of Act r/w Section 42 thereof is not a police officer, the bar U/ss 24 & 27 of Evidence Act can not attracted and the statement made by the person directed to appear before officer concerned may be relied upon as a confessional statement against such person : Kanhaiyalal Vs. Union of India, I.L.R. (2008) M.P. 629 (SC)
- Conscious possession - Bus tickets of both appellants recovered from the possession of appellant Shyamu Bai and both appellants were sitting adjacent to each other - A bag seized from the possession of appellant Gopal - On these facts it can not inferred that appellant Shyamu Bai was in conscious possession of the bag - It is possible that appellant Shyamu Bai has purchase the ticket on the request of appellant Gopal because the ladies are being given priority in purchasing bus tickets - Held - Conscious possession of Shyamu Bai not proved beyond reasonable doubt - Conviction and sentence set aside - Appeal of Shyamu Bai allowed : Gopal Vs. Central Bureau of Narcotics, Indore, I.L.R. (2008) M.P. 131
- Narcotic Drugs and Psychotropic Substance Rules, 1985 - Cancellation of license - Petitioner's license for cultivation of opium poppy cancelled as he was not eligible as per the General Conditions of Contract - Held - The general conditions for grant of license have got force of law and it govern the eligibility test for grant of license: Radheshyam Vs. Union of India, I.L.R. (2010) M.P. Note *34 Narcotic Drugs and Psychotropic Substance Rules, 1985
- Narcotic Drugs and Psychotropic Substance Rules, 1985 - See - Narcotic Drugs and Psychotropic Substances Act, 1985 : Radheshyam Vs. Union of India, I.L.R. (2010) M.P. Note *34
- Rule 2(c) - Application for re-examination of drugs sample at different laboratory - Rejection - Revision - Held - Rule 2(c) defines Chemical Examiner - Authorized Government Laboratory of Opium & Alkaloid Works has given report - Adequate provisions have been made under the Act - General provisions of Cr.P.C. for re- National Council for Teacher Education Act (73 of 1993) 516 examination would not be necessary to call in aid - Application not maintainable - Application filed after five years of incident when sample may not be in proper condition - More so, allowing the application would lead to spate in litigation by similarly situated accused - Rejection of application proper - Revision dismissed : Muzafar Ali Vs. Central Narcotic Bureau, Neemuch, I.L.R. (2009) M.P. 1502 National Council for Teacher Education Act (73 of 1993)
- Sections 3,12,14,15,16,17,20,21,29,30,32(2), NCTE (Recognition Norms and Procedure) Regulations 2005, NCTE (Procedure To Be Followed By the Regional Committees ) Regulations 1995 - Recognition to Institutions - Whether the Central Govt. in exercise of power under Section 29 of Act, 1993 can direct NCTE to stop recognition to any teacher training institutions falling within jurisdiction of Western Regional Committee of NCTE - Petitioner is college founded and established by a Society registered under Society Registrikaran Adhiniyam - NCTE is competent to grant recognition to Institution offering courses for training of teacher education - Petitioner submitted application for recognition along with requisite fee and also complying with other requisite norms - NCTE not issued formal order of recognition in view of direction given by Central Govt. under Section 29 of Act, not to grant recognition to any teacher training institution till comprehensive review is made or till further orders - Held - Language employed in Section 29 leaves no scintilla of doubt that Central Govt. can issue such direction - NCTE is bound by such directions in view of Section 29(1) of Act - Central Govt. issued direction as it has come to its notice that there has been uneven and disproportionate growth in number of recognition granted in various courses of Institutions and actual demand of teachers has been totally ignored - In view of reasons and objects and role assigned to Council and Central Govt. direction issued by Central Govt. is within the ambit and sweep of its powers and not dehors the statutory exercise of power : Amrit Vidya Peeth B.Ed. College Vs. State of M.P., I.L.R. (2008) M.P. 54 (DB)
- Section 14 - Recognition of Institutions-NCTE communicated to Principal informing him that college is recognized for 2006-2007-100 seats were allotted to college for admission - Examination forms were submitted and University permitted students to appear - Results were not declared by University on the ground that Institution was not granted unconditional recognition - Held - Nothing in Section 14 that Regional Committee shall issue first provisional order and thereafter a formal order of recognition - Every order granting recognition is to be communicated in writing to institution, examining body, local authority or State Govt. or Central Govt. and is also required to be published in official Gazette - Order of recognition which is communicated is same which is published in Official Gazette - If the order of recognition is communicated but the same is not published in official Gazette it cannot be said that there is no formal order of National Highways Act (48 of 1956) 517 recognition : Vedica College of Education, Bhopal Vs. Barkatullah University, I.L.R. (2007) M.P. 1757 (DB)
- Section 14 (3) - Conditional Recognition - Conditional recognition issued by NCTE - Conditional recognition could be ripened only after satisfying statutory requirements provided in regulations 7 and 8 of the Regulations as they are conditions precedent : Jan Seva Shiksha Samiti Vs. State of M.P., I.L.R. (2008) M.P. 706 (DB)
- Sections 14, 15 & 32 - New B. Ed. College - Institutions are bound to follow regulations and University are required to respect regulations as they have overriding effect on University Statutes - Petition disposed off : Jan Seva Shiksha Samiti Vs. State of M.P., I.L.R. (2008) M.P. 706 (DB)
- Sections 14, 15 & 32 - New B.Ed. College - Permission to start - N.C.T.E. is final authority to grant or refuse recognition - State Govt. cannot refuse No Objection Certificate : Jan Seva Shiksha Samiti Vs. State of M.P., I.L.R. (2008) M.P. 706 (DB)
- Section 29 - Central Govt. issuing direction to NCTE not to grant affiliation till further orders as it is making comprehensive review of situation for taking necessary corrective measures - Direction was issued on 20-8-07 - Central Govt. directed to take final decision by end of January, 2008 : Amrit Vidya Peeth B.Ed., College Vs. State of M.P., I.L.R. (2008) M.P. 54 (DB) National Family Scheme
- Deceased was neither included in the list of Below Poverty Line nor was he the head or the bread earner of the family - Disentitled for compensation under the National Family Scheme : Badri Nath Vs. State of M.P., I.L.R. (2009) M.P. Note *39 National Highways Act (48 of 1956)
- Section 3-A - Power to acquire land - It is not for Court, but for Central Government to decide that which particular land is to be acquired for the purposes mentioned in notification u/s 30-A : Devi Prasad Singh Vs. State of M.P., I.L.R. (2008) M.P. 2189 (DB)
- Sections 3-A, 3-D, National Highways Authority of India Act, 1988, Section 16 - Acquisition of land - Land of the appellant acquired for public purposes of building (widening), maintenance, management and operation of National Highway - Held - Acquisition of land permissible not only for above objects but for all purposes ancillary or incidental to such objects such as establishment and maintenance of hotels, motels, National Security Act (65 of 1980) 518 restaurants, rest rooms at or near Highways and facilities & amenities for users of National Highways : Devi Prasad Singh Vs. State of M.P., I.L.R. (2008) M.P. 2189 (DB)
- Sections 3-H, 3-G - See - Constitution, Articles 226, 227 : Kanhaiyalal Patel Vs. Union of India, I.L.R. (2008) M.P. 1932 (DB)
- Section 9, National Highways (Fees for the use of National Highway Section and Permanent Bridge - Public Funded Project) Rules, 1997, Rule 11 - Vires of Rule 11 challenged - Held - Rule 11 which provides that the fee shall be collected in perpetuity by the executing agency is bad - However, the agency would be entitled to recover cost of the road/bridge or for its maintenance or its upkeep provided the original cost is not recovered and the executing agency comes out with a clear case that for maintenance etc of a road/bridge, certain tolls are required to be imposed - In Rule 11 'in perpetuity' held ultra vires : Truck Owners Association Vs. State of M.P., I.L.R. (2010) M.P. 364 (DB) National Highways Authority of India Act, (68 of 1988)
- Section 16 - See - National Highways Act 1956, Sections 3-A, 3-D : Devi Prasad Singh Vs. State of M.P., I.L.R. (2008) M.P. 2189 (DB) National Security Act (65 of 1980)
- Public Order & Law and Order - Distinction - There is thin distinction between 'public order and law and order' and sometime they may overlap each other - The criminal act or the crime howsoever heinous may be, cannot be brought within the ambit of public order, unless it is shown that the impact of the act was such that it disturbed the locality and life of the community : Jagdish Prasad Pastariya Vs. State of M.P., I.L.R. (2010) M.P. 1128 (DB)
- Section 2 - Law & Order and Public Order - Distinguished - Held - The true distinction between the areas of "law and order" and "public order" lies upon the degree and extent of the reach of an act upon the community or specified locality - The acts causing disturbance of public order need not necessarily differ in nature and quality, but must differ in the degree and extent of reach upon the community or public at large : Sayeed Mohd. Vs. Union of India, I.L.R. (2010) M.P. 2500 (DB)
- Section 2(3) - Detention - Public Order - What amounts to - Held - Petitioner along with his associates and armed with swords, brutally murdered the Priest at the time of worship when others were present - Held - This crime was committed by detenu at a public place in the presence of number of people - It would have affect of National Security Act (65 of 1980) 519 disturbing the public tranquility and creating terror in the locality : Sayeed Mohd. Vs. Union of India, I.L.R. (2010) M.P. 2500 (DB) SYNOPSIS : Section 3
1. A single act would be 6. Non-application of mind by enough to detain a person detaining authority 2. Detention of a person 7. Non-communication of right already in detention to file representation 3. Mention of correct facts 8. Old incidents cannot be the basis regarding criminal of the order of detention cases are mandatory 9. Principle 4. No interference 10. Truthfulness of grounds of 5. No terror in the locality, detention not to be examined no nexus with public order
1. A single act would be enough to detain a person
- Section 3 - Detention - Public Order - 20 cases registered against petitioner out of them one is registered U/ss 336 & 347 of IPC for indiscriminate firing in public - Even if it is taken as a single act would enough to hold that public order was affected - A single act can be considered for detaining a person - Advisory Board on due consideration upheld the detention - No interference can be made in writ petition on the basis of material on record : Ram Khiladi Gurjar Vs. State of M.P., I.L.R. (2008) M.P. 1428
- Section 3 - Detention order - Public Order or Law & Order - Detenu caught hold of police personal and tried to snatch his revolver in a public place and thereafter ran away from custody of police - Act of detenu must have caused panic amongst public and has direct nexus with public order : Shanker Mihani Vs. State of M.P., I.L.R. (2008) M.P. 797 (DB)
- Section 3 - Order of detention is essentially a precautionary measure - Based on reasonable prognosis of future behaviour of a person based on his past - Such past conduct may consist of one single act or of a series of acts - Two incidents of 22-12- 2006 and 5-1-2007 mentioned in grounds of detention order - Can form a reasonable basis for satisfaction of detaining authority that unless petitioner is detained in custody National Security Act (65 of 1980) 520
U/s 3 of Act - He is likely to repeat similar activities in future which will in danger public order : Shanker Mihani Vs. State of M.P., I.L.R. (2008) M.P. 797 (DB) 2. Detention of a person already in detention
- Section 3(2) - Detention of a person already in detention - Whether warranted - Held - A detention order can validly be passed if the authority is aware of the fact that he is actually in custody - If he has reason to believe on the basis of the reliable material that there is a possibility of his being released on bail and that on being so released, the detenu would in all probabilities indulge in prejudicial activities : Chhenu @ Yunus Vs. State of M.P., I.L.R. (2010) M.P. Note *26 (DB)
- Section 3(2) - Where respondents have failed to point out even a single act relating to the public order proximate in point of time when the order of detention was passed and they have also failed to justify the need for passing the detention order when the petitioner is already in jail, the order of detention cannot be sustained - Order of detention set aside : Sanjay Vs. State of M.P., I.L.R. (2010) M.P. Note *88 (DB) 3. Mention of correct facts regarding criminal cases are mandatory
- Section 3(2) - It is mandatory for the SP to mention correct facts in recommending the case for detention - Particularly whether the person has been acquitted in certain criminal cases or not - Non-mentioning the aforesaid facts is fatal in detention of the person : Tehsildar Singh Vs. State of M.P., I.L.R. (2010) M.P. 1080 (DB) 4. No interference
- Section 3(2) - Detention challenged on the ground that allegations against the petitioner are general in nature and no proper investigation has been done - Held - Petitioner has indulged in looting, arson, stone-pelting and as a consequence disturbed the communal harmony and has created enmity between the two communities - He has caused public disorder in the town - Acts of the petitioner have created panic in town and has put fear in general public - Members of general public do not dare to lodge a report against the petitioner - Therefore, it has become essential to initiate action against him u/s 3(2) of the Act and pass the order of detention - Petition dismissed : Tahir Vs. State of M.P., I.L.R. (2009) M.P. 3101 (DB)
- Section 3(2) - Detention - Challenged that others who participated in the communal riots have not been detained under the Act and are only facing regular trials in criminal courts and witnesses in the criminal cases against the petitioner are turned hostile - Held - These facts are not relevant for deciding whether the detention of the National Security Act (65 of 1980) 521 petitioner under the Act was necessary - DM was satisfied on the materials that it was necessary considering the active role played by the petitioner in communal riots to detain him under the Act and not to detain others who may have relatively a lesser role in the communal riots - The order of detention cannot be held to be bad : Tahir Vs. State of M.P., I.L.R. (2009) M.P. 3101 (DB) 5. No terror in the locality, no nexus with public order
- Section 3 - Preventive Detention - Public Order - Order of detention - Three alleged offending acts of petitioner - Staged riotous demonstration by blocking the road - Kidnapped one person and brutally murdered him in the Jungle - Abused and threatened to kill the family of a person - No narration in the grounds of detention that the alleged acts committed by the petitioner created any terror in the locality - Incident cannot also be said to have affected even tempo of life of any locality - Incident has no nexus with public order - Order of detetion quashed : Sunil Tiwari Vs. State of M.P., I.L.R. (2009) M.P. 1679 (DB)
- Section 3(2) - Detention - Detention order passed mainly on the ground that petitioner's son fired a gun shot and looted money - Held - It is not the gravity or seriousness of the act or incident but its degree and extent of the reach upon the society or its potentiality would determine as to whether it affected public order or only law and order - In absence of such material on record or in the grounds of detention, detention order is not justified : Jagdish Prasad Pastariya Vs. State of M.P., I.L.R. (2010) M.P. 1128 (DB)
- Section 3(2) - Preventive detention - "Law and Order" and "Public Order" - Grounds of detention based on incidents which have no proximity to the impugned order of detention and incidents which can not be said to have affected the even tempo of life of any locality and has no nexus with public order - Held - No necessity for detaining the petitioner under the Act - Order of detention quashed - Petition allowed : Sanju Devre Vs. State of M.P., I.L.R. (2009) M.P. 2570 (DB) 6. Non-application of mind by detaining authority
- Section 3(2) - Detention of a person already in detention - Whether the detaining authority was aware of the fact that the detenu on being suspected of having committed a serious offence, was already in jail - Held - There is nothing to indicate the awareness of the detaining authority that detenu was already in jail and yet the impugned detention order was made - This clearly exhibits non-application of mind - Order quashed : Chhenu @ Yunus Vs. State of M.P., I.L.R. (2010) M.P. Note *26 (DB) National Security Act (65 of 1980) 522
- Section 3(2) - There was no subjective satisfaction of the District Magistrate in ordering the detention of the petitioner, which is necessary as per S. 3(2) of the Act - Order is against the law and provision of S. 3(2) of the Act - Order quashed : Tehsildar Singh Vs. State of M.P., I.L.R. (2010) M.P. 1080 (DB)
- Section 3(2) - See - Constitution, Article 226 : Lalitabai Vs. State of M.P., I.L.R. (2008) M.P. 2587 (DB) 7. Non-communication of right to file representation
- Sections 3(2), 8, 14(1) - Revocation of detention orders - Non-communication of information regarding right of detenu to file representation to Central Government - Held - It was mandatory that detenu was apprised of his right to make representation also to Central Government - As that was not done, therefore, right of detenu under Article 22(5) of Constitution impinged and curtailed - Detention order though can be maintained, the further detention cannot be allowed - Petition allowed : Rizwan @ Rijju Vs. State of M.P., I.L.R. (2008) M.P. 2052 (DB) 8. Old incidents cannot be the basis of the order of detention
- Section 3 - Order of detention - Out of 17 grounds of detention, 9 incidents were old - Last incident mentioned in the ground of detention shows that appellants along with companions shot fire at deceased in busy market area in the afternoon - Held - Old incidents cannot constitute the basis of the order of detention but can at best suggest the criminal antecedents of appellant - Order of acquittal in such old cases have little relevance over order of detention of year 2008 - Act of shooting in market area and public place in afternoon seriously affecting the peace and tranquility of locality - Alleged act of appellant affected public order - Order of detention can not be said to be vitiated for non-application of mind - Appeal dismissed : Santosh Sharma Vs. State of M.P., I.L.R. (2009) M.P. 1597 (DB)
- Section 3 - Preventive Detention - Offences committed in the years 1987-2004 have no proximity to impugned order of detention passed in the year 2008 : Sunil Tiwari Vs. State of M.P., I.L.R. (2009) M.P. 1679 (DB)
- Section 3 - Stale incidents which are remote to date of order of detention cannot constitute basis for passing order of detention - Order of detention passed on 10-10- 2007 - Incidents of years from 1994 to 2006 prior to one year before date of order were stale incidents - Could not constitute basis for detention : Shanker Mihani Vs. State of M.P., I.L.R. (2008) M.P. 797 (DB) Negotiable Instruments Act (26 of 1881) 523
9. Principle
- Section 3(2) - Detention - When warranted - Held - The acts of the detenu should amount to causing disturbance of the public order as the degree and extent thereof should result in panic and terror to the persons of the locality or affect the public at large : Sheeba Malik (Smt.) Vs. Union of India, I.L.R. (2010) M.P. 1410 (DB) 10. Truthfulness of grounds of detention not to be examined
- Section 3 - Grounds of Detention - Truthfulness - High Court while examining validity of an order of detention is not to examine truth or otherwise of allegation mentioned in grounds of detention - Has to assume that ground of detention is true : Shanker Mihani Vs. State of M.P., I.L.R. (2008) M.P. 797 (DB)
- Section 8 - Preventive detention - "Law & order" and "Public order" - Distinction between -Grounds of detention do not travel beyond breach of "Law & order" - Subjective satisfaction of detaining authority vitiated - Lacking in basic requirement of breach of public order - Order quashed : Smt. Ayodhyabai Vs. Principal Secretary, I.L.R. (2006) M.P. 964 (DB) Natural Justice
- Applicant conducted the investigation and filed charge-sheet u/s 379 of IPC - The trial court finding the investigation as biased and not having conducted properly passed adverse remark against the applicant - Order challenged on the ground that no opportunity of hearing was given - Held - Before passing adverse remark against a person or authority in a trial, opportunity of hearing should be given - Application allowed : Randheer Singh (Dr.) Vs. State of M.P., I.L.R. (2008) M.P. 2150
- Notice to remove encroachment by publication in newspaper - Held - Since petitioners have no right to continue at the same place and there was urgency to take action in public interest - Even if notice was given to petitioners, the result would have been same - Action of respondents not faulted on the ground of non-compliance of principles of natural justice : Mohammad Sageer Manihari Wale Vs. State of M.P., I.L.R. (2009) M.P. 681
- Principle of natural justice is not a 'mantra' to be applied in vacuum in all cases - They are not required to be complied with when it will lead to an empty formality : Rasik Lal Vs. Kishore, I.L.R. (2010) M.P. 11 (SC) Negotiable Instruments Act (26 of 1881)
- Sections 7, 138 & 142 - Cognizance - Cognizance of the matter can be taken upon complaint in writing by payee or holder in due course of cheque - Cheque was Negotiable Instruments Act (26 of 1881) 524 issued in favour of father of non-applicant - No where in complaint it is stated that payee has died and who are legal representatives - No where stated that how non- applicant is entitled for the cheque amount - The complaint is not maintainable - Petition allowed : Kishore Goyal Vs. Hanif Patel, I.L.R. (2010) M.P. 1994
- Sections 9, 138 - 'Holder in due course' - Cheque drawn in favour of person who is dead - Complaint on behalf of his legal heirs maintainable : Ramprasad Vs. Smt. Sudhaben, I.L.R. (2008) M.P. Note *60
- Section 80 - No provision in agreement for payment of interest - When no rate of interest is specified in the instrument, interest on due amount shall be calculated @ 18% - However, plaintiffs claimed interest @ 6% - Interest rightly awarded : Manak Chand Jain Vs. Pukhraj Bai (Smt.), I.L.R. (2008) M.P. 2619
- Section 80 - No rate of interest shown in PN - Section 80 will come into play- interest @ 18 p.a. is payable w.e.f. due date of payment till realization : Madhya Pradesh State Electricity Board Vs. M/s. Anand Transformers Pvt. Ltd., I.L.R. (2008) M.P. 28 (DB)
- Section 118 (b) - The case of complainant was that cheque was bearing date 2-9-1992 - Defence plea that undated cheque was delivered to complainant - There is legal presumption about date mentioned on the cheque as per provision U/s 118 (b) - Complainant is not required to rebut the plea raised by defence - Finding of Trial Court that undated cheque was given by the accused to the complainant is erroneous : Kishanlal Vs. Murlidhar, I.L.R. (2008) M.P. 1237 SYNOPSIS : Section 138
1. Admission of accused 12. Dismissed in default 2. Alteration in date of 13. Evidence of complainant, issuance of cheque How it should be recorded 3. Cheating 14. Examination of the cheque 4. Cheque issued on by handwriting expert behalf of firm - non applicant 15. Legality of notice head no role to play / When 16. Limitation starts from the the cheque was first notice dishonoured 17. Mode of service of notice - 5. Compensation Not prescribed Negotiable Instruments Act (26 of 1881) 525
6. Complaint by one of partners 18. Presumption about 7. Complaint can be signed and service of notice filed by Counsel 19. Prosecution against the 8. Complaint cannot be Company and its Directors dismissed as premature 20. Quashment of complaint 9. Computation of 30 days under inherent power 10.Condonation of Delay 21. Territorial jurisdiction 11. Death of partner 22. Whether cheque is issued in discharge of liability ?
1. Admission of accused
- Section 138 - Accused admitted the receipt of Rs. 40,000/- in his accused statement recorded U/s 313 of Cr.P.C. as well as in his reply of the notice - Trial Court has failed to consider the admission - Appeal against acquittal allowed - Accused convicted U/s 138 of the Act and sentenced to imprisonment for 6 months and also pay compensation Rs. 50,000/- to complainant : Kishanlal Vs. Murlidhar, I.L.R. (2008) M.P. 1237 2. Alteration in date of issuance of cheque
- Section 138 - Dishonor of cheque - Alteration in date of issuance of cheque - Cheque presented for encashment even after 5 months of altered date - No explanation about revalidation of cheque and delay in presentation - Held - Complaint rightly rejected by court below - Appeal dismissed : Daccan Lubes Terfe (M/s) Vs. M/s. Chakradhar Construction, I.L.R. (2009) M.P. 870 3. Cheating
- Section 138 - See - Penal Code 1860, Section 420 : Govind Singh Parmar Vs. Jai Prakash Mishra, I.L.R. (2008) M.P. Note *64 4. Cheque issued on behalf of firm - non applicant head no role to play / When the cheque was dishonoured
- Section 138 - Non-applicant issued a cheque on behalf of M/s Vaibhav Enterprises which was not arraigned as an accused - Held - The only fact that the non-applicant had issued the cheque, by itself, was not sufficient to attract penal liability for the offence u/s 138 as he was able to establish that his authority as the drawer had ceased Negotiable Instruments Act (26 of 1881) 526 to continue till the date it was presented for encashment - In other words, the applicant had failed to prove that the non-applicant had played some role at the time when the cheque was dishonoured - Acquittal upheld : Kamla Rusiya (Smt.) Vs. State of M.P., I.L.R. (2010) M.P. 2001 5. Compensation
- Section 138, Criminal Procedure Code, 1974, Section 357(3) - Compensation - Deterrent provisions contained in Section 138 of Act are devised to ensure sanctity to the amount paid by cheque but not for recovery of amount : Marry Jani Kumrawat Vs. Krishnakant, I.L.R. (2008) M.P. 955
- Section 138, Criminal Procedure Code, 1974, Section 357(3) - Compensation - Dishonour of cheque occasions to party is harassment of initiating proceedings against such party and pursuing litigation in which inconvenience is suffered in addition to expenses incurred - This loss deserves to be compensated : Marry Jani Kumrawat Vs. Krishnakant, I.L.R. (2008) M.P. 955
- Section 138, Criminal Procedure Code, 1974, Section 357(3) - Compensation - Power to grant compensation animates only from Section 357 (3) of Code and not from Section 138 of Act - If fine is imposed, amount of compensation cannot be arbitrary or unreasonable and should be lesser than amount which can be granted by Civil Court - Criminal Court is not a substitution for a Civil Court : Marry Jani Kumrawat Vs. Krishnakant, I.L.R. (2008) M.P. 955 6. Complaint by one of partners
- Section 138 - Dishonor of cheque - Complaint by partnership firm through one of partners - Held -Complaint is maintainable : Daccan Lubes Terfe (M/s) Vs. M/s. Chakradhar Construction, I.L.R. (2009) M.P. 870 7. Complaint can be signed and filed by Counsel
- Section 138 - Complaint can be signed and filed by Counsel on the basis of memo of appearance : Kewal Kumar Jaggi Vs. Vinod Kumar Sahu, I.L.R. (2008) M.P. 3055 8. Complaint cannot be dismissed as premature
- Section 138 - Complaint filed before the expiry of 15 days of notice period - Application filed by the applicant for quashment of the complaint for it being premature - Trial court rejected the application on the ground that once he has taken cognizance Negotiable Instruments Act (26 of 1881) 527 u/s. 204 of Cr.P.C., he is not empowered to review his own order - Held - The complaint cannot be dismissed as premature as it is filed prior to the expiry of notice period of 15 days - The magistrate is required to wait for expiry of the period of notice for taking cognizance - Petition disposed of : Hemant Sharma Vs. Kishorilal Vanshkar, I.L.R. (2008) M.P. Note *65
- Sections 138 & 142 - Dishonor of cheque - Complaint filed before expiry of 15 days of receipt of demand notice - Held - Cognizance of the offence is taken after mandatory period prescribed u/s 142 and accused failed to make payment - Complaint maintainable - Order dismissing complaint as not maintainable and premature set-aside - Revision allowed : Chouradiya Trading Company Vs. Sushil Kumar, I.L.R. (2009) M.P. Note *29 9. Computation of 30 days
- Section 138, General Clauses Act, 1897, Section 9 - Computation of 30 days - Date on which cheque was returned and received by complainant has to be excluded : Sanjay Gawalani Vs. Sunil Satwani, I.L.R. (2009) M.P. 2731 10. Condonation of Delay
- Section 138, Proviso (b) (as existed prior to the amendment brought into w.e.f. 06.02.2003) - Demand notice within 15 days of the receipt of information from the Bank - Bank means drawee bank and not collecting bank - Delay on the part of collecting bank in forwarding the intimation given by drawee bank not sufficient to extend the statutory period of limitation : Govind Singh Parmar Vs. Jai Prakash Mishra, I.L.R. (2008) M.P. Note *64
- Sections 138 & 142 - Delay - Condonation - Magistrate is empowered to condone the delay as per proviso to clause (b) of Section 142 of the Act, which came into force on 06.02.2003 : Girraj Patwa Vs. Dayaram, I.L.R. (2008) M.P. 3355 11. Death of partner
- Section 138 - Dishonour of cheque on the ground of death of partner with intention to force the petitioner/accused for doing necessary formalities on the death of partner - Cannot make the petitioner liable for punishment u/s 138 of the Act : Yogendra Gupta Vs. Smt. Renu Agrawal, I.L.R. (2010) M.P. Note *96
- Sections 138 & 141 - See - Evidence Act 1872, Section 106 : Mahaveer Traders (M/s.) Vs. M/s. Gangadhar Sharma, I.L.R. (2009) M.P. 286 Negotiable Instruments Act (26 of 1881) 528
12. Dismissed in default
- Section 138 - Dismissal of complaint in default - Complaint was dismissed in default - Complaint was filed on 15.05.1996 - Evidence of a witness recorded on 03.08.2000 - Complainant availed series of adjournments for adducing remaining evidence - Held - Instead of dismissing the complaint in default, the Magistrate should have decided the complaint on merits in the light of the evidence already brought on record - Matter remanded back with a direction to proceed from the stage where it had reached, however, no further adjournment to be granted to the complainant : Uma Dubey (Smt.) Vs. Roopesh Kumar, I.L.R. (2009) M.P. 3452 13. Evidence of complainant, How it should be recorded
- Section 138, Criminal Procedure Code, 1973, Section 200 - Whether at the time of taking cognizance of an offence u/s 138 of Act, examination of complainant u/s 200 Cr.P.C. is mandatory - Held - Yes - Non obstante clause either in S. 142 or in S. 145(1) of Act does not relieve the Magistrate of his duty to examine the complainant on oath as examination u/s 200 Cr.P.C. is altogether different from evidence as contemplated in S.145(1) of the Act : Banshilal Vs. Abdul Munnar, I.L.R. (2009) M.P. 3032
- Sections 138 & 145 - Complaint for dishonor of cheque - On the basis of evidence of complainant on affidavit, cognizance was taken by the Court - Petition for quashment of criminal case on the ground that statement of complainant was not recorded and against which liability cheque was issued not mentioned in complaint - Held - U/s 145 evidence of complainant can be recorded on affidavit and Court can on the application of the prosecution or the accused summon and examine any person giving evidence on affidavit - Since cheque was issued and the amount was unpaid despite demand notice, no illegality has been committed by the Court in taking cognizance against applicant on the ground that complainant failed to mention in the complaint that cheque was against which liability - Complaint can not be dismissed - Petition dismissed : Abhilasha Agnihotri Vs. Dilip, I.L.R. (2009) M.P. 1836 14. Examination of the cheque by handwriting expert
- Section 138, Evidence Act, 1872, Section 45 - Handwriting Expert - Applicant alleged that complainant had interpolated cheque by adding '9' in front of Rs.6785/- - Sought permission to get cheque examined by Handwriting Expert - Held - If permission is refused it may put applicant in inconvenience and irreparable loss - Applicant permitted to examine the cheque by handwriting expert : Meena Tiwari Vs. Satya Prakash Capital Investment Ltd., I.L.R. (2008) M.P. Note *47 Negotiable Instruments Act (26 of 1881) 529
- Section 138 - Handwriting Expert - Applicant has not denied his signatures on cheque - No question in this regard to put to Bank Manager also - Other columns of cheque may be filled by anyone on the instructions of applicant himself - No useful purpose will be served by getting cheque examined by hand writing expert : Narendra Dhakad Vs. Anand Kumar, I.L.R. (2008) M.P. 1309 15. Legality of notice
- Section 138 - Demand in notice - No demand for payment of cheque amount but for entire outstanding amount - Notice is not legal - Complaint not maintainable on such notice : Rahul Builders Vs. M/s Arihant Fertilizers and Chemical, I.L.R. (2008) M.P. 189 (SC)
- Section 138 - It contemplates service of notice and payment of amount of cheque within 15 days from the date of receipt thereof - Does not contemplates 15 days notice : M/s Rahul Builders Vs. M/S Arihant Fertilizers and Chemical, I.L.R. (2008) M.P. 189 (SC)
- Section 138 Proviso B - Notice issued for demanding whole of amount due i.e. Rs. 8 lakh without specifying amount of cheque concerned i.e. Rs. 2 lakh - Not a valid notice U/s 138 - On basis of such notice - Criminal proceedings are an abuse of process of Court - Proceedings quashed : Mahendralal Shivhare Vs. State of M.P., I.L.R. (2008) M.P. Note *20 16. Limitation starts from the first notice
- Section 138 - Applicant sending notice for dishonouring of cheque on the basis of oral information received from the Bank - Trial court did not frame charge u/s. 138 as the offence was not made out as there was no written intimation by the Bank - Held - Obligation of issuance of notice by the payee starts from the date of receiving an information in writing from the bank with regard to dishonour of the cheque - If even on an unwritten or oral information the payee opts to issue legal notice of demand under Section 138 of the Act, then subsequently he becomes estopped from taking defence that, as the written information was received subsequently, he was not obliged to issue notice, hence, prior to receiving written information, the limitation ought not to be counted from the first notice - Petition dismissed : Arora Distilleries Pvt. Ltd. (M/s) Vs. M/s. Vijay Associates, I.L.R. (2008) M.P. 2130
- Section 138 - Cause of Action - Complainant presented cheques which were dishonoured - Issued notice to the applicant - Did not file the complaint but presented the cheques once again - Issued second notice to the applicant - Filed complaint thereafter - Held - If dishonour of cheque has once snowballed into a cause of action, it is not Negotiable Instruments Act (26 of 1881) 530 permissible for a payee to create another cause of action with same cheque - It was first notice of demand that gave rise to cause of action - No application for condonation of delay filed - It would not be possible to convict applicant for the offence - Proceedings quashed : Nishant Vs. Prakash Chand, I.L.R. (2008) M.P. Note *57 17. Mode of service of notice - Not prescribed
- Section 138 - Dishonour of cheque - Trial Court acquitted the accused on the ground that complainant had not filed postal receipt regarding sending of the notice by registered post and the acknowledgment was not bearing any postal seal and who received the notice was not clear - Intimation of dishonour of cheque was sent by the advocate of complainant, which was replied by the advocate of accused - Held - In Section 138 or anywhere in the enactment, mode of service of notice is not prescribed - Sending of reply is not disputed by the accused in the statement, therefore, the statutory requirement has been complied with - Impugned order of acquittal set-aside and accused found guilty u/s 138 of the Act - Appeal allowed : Prakashchand Vs. Sureshchand, I.L.R. (2008) M.P. 2412 18. Presumption about service of notice
- Section 138 - Presumption - Service of notice - Complainant sent notice to accused by registered post with A.D. and U.P.C. on correct address - Accused is Ex- Sarpanch of the village - The endorsement of the postman to the effect that he has visited the house of accused seven times for service of notice but accused was not available at the time of delivery - Presumption ought to have been drawn in favour of complainant about service of notice : Babulal Vs. Gafur, I.L.R. (2010) M.P. Note *1
- Section 138, Evidence Act, 1872, Section 114 Illustration (f), General Clauses Act, 1897, Section 27 - Dishonour of Cheque - Notice by registered post on correct address - Postman tried to deliver on several dates - Notice returned with remark addressee not available - Presumption about service not rebutted - Held - Notice duly served - Order of conviction passed by trial court upheld - Appeal allowed : Mujaffar Hussain Mansoori Vs. Devendra Trivedi, I.L.R. (2008) M.P. 2687 19. Prosecution against the Company and its Directors
- Section 138 - Offence against the Company and its Directors - For launching a prosecution against the Directors, there must be a specific allegation in the complaint as to the part played by them in the transaction - The allegation should be clear and unambiguious as to how the Directors were incharge and responsible for the conduct of the business of the Company - Nowhere in the complaint it was mentioned who had signed the cheque and how all the Directors were incharge and responsible for the Negotiable Instruments Act (26 of 1881) 531 transaction - It is not sufficient to allege that all the Directors were involved in the affairs of the Company - Order of taking cognizance is quashed with the direction to pass a fresh order after hearing the applicants - Application allowed : Maya Spinners Ltd. Vs. Shri Shankar Cotton Corporation through Narendra Kumar, I.L.R. (2009) M.P. 2123
- Sections 138 & 141 - Dishonour of cheque - Appellant was General Manager of the Company and was held vicariously liable for Company for the offence u/s 138 - Conviction challenged - Held - No specific role attributed to him in the complaint - No notice was given to him - No evidence that at the relevant time appellant was in charge and responsible for the conduct of the business of the Company - Conviction & sentence set-aside - Appeal allowed : Ramraj Singh Vs. State of M.P., I.L.R. (2009) M.P. 3035 (SC) 20. Quashment of complaint under inherent power
- Section 138, Criminal Procedure Code, 1973, Section 482 - First cheque of Rs. 2 lacs and second cheque of Rs. 3 lacs dishonoured on different dates - Demand notices served - No payment against cheques were made within stipulated period of 15 days of receipt of demand notice - It is alleged that total amount of Rs. 5 lacs was deposited in the Bank by petitioner - Petition filed u/s 482 of Code for quashing the prosecution - Held - No amount was outstanding against cheque is a question of fact which is to be determined in face of evidence to be adduced by parties - Cannot be considered in proceedings u/s 482 of Code - Petition dismissed : Mridula Kalpiwar (Smt.) Vs. Mridial Pathak, I.L.R. (2008) M.P. Note *67
- Section 138 - For quashing a complaint u/s 138 of Act, under the inherent powers, High Court is not concerned with the defence of the accused : Mridula Kalpiwar (Smt.) Vs. Mridial Pathak, I.L.R. (2008) M.P. Note *67
- Section 138 - See - Criminal Procedure Code, 1973, Section 482 : Ramprasad Vs. Smt. Sudhaben, I.L.R. (2008) M.P. Note *60
- Sections 138, 141, Criminal Procedure Code, 1973, Section 482 - Quashing of Proceedings -Applicant working as General Manager (Plant) of M/s Bhanu Iron and Steel Company Ltd. - Cheques issued by M/s Bhanu Iron and Steel Company Ltd. returned back unpaid by the Bank - Complaint filed by the complainant mentioning specifically that applicant was in charge and was responsible for the conduct of business of the company - Held - Necessary averments have been made in complaint - Sufficient foundation laid down for prosecution of applicant - Proceedings cannot be quashed - Petition dismissed : Y. S. Bist Vs. Steel Authority of India Ltd., I.L.R. (2007) M.P. 708 Niji Vyavsayik Shikshan Sanstha (Pravesh Ka Viniyaman Avam Shulk Ka Nirdharan) 532 Adhiniyam, M.P. (21 of 2007)
21. Territorial jurisdiction
- Section 138 - See - Criminal Procedure Code, 1973, Section 178(d) : Murli Dhar Vs. Ishwar Dayal Girdhani, I.L.R. (2010) M.P. 2230 22. Whether cheque is issued in discharge of liability ?
- Section 138 - Dishonour of cheque - Appellant alleged that plot which was sold to him earlier by respondent was re-sold to another person without his knowledge and a cheque of Rs. 75,000 was issued by respondents - Held - It is not a case of appellant that respondents had agreed to pay Rs. 75,000 - Cheque cannot be said to be issued in discharge of liability - Appeal dismissed : Rajendra Prasad Vs. Sukleshwar, I.L.R. (2010) M.P. 1668
- Section 138 - Liability - Explained : Rajendra Prasad Vs. Sukleshwar, I.L.R. (2010) M.P. 1668
● - Section 139 - Presumption in favour of holder of cheque, unless the contrary is proved that holder of cheuqe received cheque for discharge, in whole or in part, of any debt or liability : Mujaffar Hussain Mansoori Vs. Devendra Trivedi, I.L.R. (2008) M.P. 2687
- Section 139 - Presumption - Accused denied its liability in reply to the notice sent by Complainant - Accused specifically alleged that cheque was issued by way of security and no goods were supplied by complainant - Complainant's witness also admitted in cross examination that cheque was issued by way of security - Onus to rebut presumption u/s 139 gets discharged - Onus shifts on complainant to prove the liability of Accused : Map Auto Ltd. Vs. Anil Kumar Jain, I.L.R. (2008) M.P. Note *34
- Section 145 - Evidence on affidavit - Accused cannot avail the right to examine its witness on affidavit : Suresh Vs. Ashok, I.L.R. (2008) M.P. Note *84 Niji Vyavsayik Shikshan Sanstha (Pravesh Ka Viniyaman Avam Shulk Ka Nirdharan) Adhiniyam, M.P. (21 of 2007)
- Admission (Reservation to NRI) Regulation, M.P. 2009, Regulation 3 & 5 - Vires of - Challenged being repugnant to the provision of Chapter VIII of AICTE Regulations, 2010 - Held - Regulation cannot be said to be defeating the object with regard to a bona fide NRI nor it can be said to be violative of definition of NRI as contained in Regulation 2.19 of AICTE Regulation - No repugnancy found in AICTE Regulations and NRI Regulations 2009 framed by State Government : Lalit Tongia Vs. State of M.P., I.L.R. (2010) M.P. Note *81 (DB) Niji Vyavsayik Shikshan Sanstha (Pravesh Ka Viniyaman Avam Shulk Ka Nirdharan) 533 Adhiniyam, M.P. (21 of 2007)
- Sections 3(a) & 5, Private Medical and Dental Postgraduate Course Entrance Examination Rules, M.P. 2009, Rule 10 - Eligibility - Permanent registration by M.P. Medical / Dental Council - Rule 10(2)(iii) ultra vires to Ss. 5 & 3 of Act : Association of Private Dental & Medical Colleges Vs. State of M.P., I.L.R. (2009) M.P. 2269 (DB)
- Section 3(d) - Legislature in its wisdom thought that responsibility of conducting common entrance test should be entrusted to State Government or agency authorized by State - Held - State Government's order authorizing VYAPAM to conduct common entrance test for admission to professional courses, not open to challenge : Association of Private Dental & Medical Colleges Vs. State of M.P., I.L.R. (2009) M.P. 2269 (DB)
- Sections 3(d), 6 & 7, Constitution, Articles 19 & 226 - Constitutional validity - Admission in private unaided professional educational institution on the basis of common entrance test to be conducted by State or by any agency authorized by State - Held - Provisions do not violate fundamental right under Article 19 or interfere with autonomy of private unaided professional educational institutions : Association of Private Dental & Medical Colleges Vs. State of M.P., I.L.R. (2009) M.P. 2269 (DB)
- Sections 4 & 9 - Right to charge its own fee - Factors to be taken into consideration by committee while determining fee - Provisions of Ss. 4 & 9 do not violate this right : Association of Private Dental & Medical Colleges Vs. State of M.P., I.L.R. (2009) M.P. 2269 (DB)
- Section 8, Private Medical and Dental Under Graduage Entrance Examination Rules, M.P. 2009, Rule 9 - Vires of - Challenged on the grounds that (i) No provision has been made for reservation of freedom fighter category, while the State Government has issued rules for Pre-Engineering and Pharmacy Test (PEPT) 2009 making a provision for reservation to freedom fighter category students, (ii) State Government has not explained the reason for not making such reservation - Held - On the basis of framing of another Rule, the Rule of 2009 cannot be declared as ultra vires - Until and unless the rule is in contravention of constitutional provision or statutory provision, such Rule cannot be declared as ultra vires - Petition dismissed : Akanksha Pandey Vs. State of M.P., I.L.R. (2010) M.P. 2541 (DB)
- Section 8, Admission Rules, 2008, Rule 4(2), Private Medical and Dental Postgraduate Course Entrance Examination Rules, M.P. 2009, Rules 7 & 15(9) - There is no reverse discrimination against the unreserved category candidates - Object of sequence of counselling is to ensure that unreserved category candidates participate in counselling at the end not only for the unreserved seats but also for those reserved seats which could not be filled up on account of non-availability of reserved candidates: Non-Gazetted Class III Education Service (Non-Collegiate Service) Recruitment 534 and Promotion Rules, M.P. 1973
Association of Private Dental & Medical Colleges Vs. State of M.P., I.L.R. (2009) M.P. 2269 (DB)
- Section 9 - Held - Act of the Admission and Fees Regulatory Committee (AFRC) in determination of fee is quasi judicial in nature and it is obligatory on the part of AFRC to pass reasoned order after considering all the document and claimes submitted by the institution in accordance with regulation of 2008 : Institute of Technology & Management Vs. Govt. of M.P., I.L.R. (2010) M.P. Note *43 (DB)
- Section 13, Admission (Reservation to Non-resident Indian) Regulations, 2009 - Education - Admission in engineering under the Non Resident Indian quota - Eligibility - Petitioner was given provisional admission in engineering under the NRI quota subject to verification of documents - His sponsorer was his first cousin - Admission cancelled as first cousin as a sponsorer was not covered - Court directed the State Government to decide the issue of first degree relationship as the same was not defined in the regulation - Held - Sponsor of the petitioner i.e. the first cousin of the petitioner (Mausi's son) is not covered under the definition and, therefore, he is not an eligible NRI sponsor - No error has been committed in rejecting the admission of the petitioner against NRI quota on the ground that he has not been sponsored by the NRI covered by the provisions of the Regulation : Hanish Kukreja Vs. State of M.P., I.L.R. (2010) M.P. 1534 (DB)
- Section 13, Admission (Reservation to Non-resident Indian) Regulations, M.P. 2009, Regulation 3(b) - Under the regulations, the person sponsoring the student for admission is required to be first degree relation of student - Committee defined first degree relation as father & mother, real brother & sister, father & mother of father/ mother, real brother & sister of father/mother - Candidates are either niece, nephew or cousin of sponsors - Not covered by regulation and do not satisfy the requisite conditions for admission against NRI quota - Petition dismissed : Saurabh Vs. State of M.P., I.L.R. (2010) M.P. 1539 (DB) Non-Gazetted Class III Education Service (Non-Collegiate Service) Recruitment and Promotion Rules, M.P. 1973
- Rule 10(3) proviso - State Govt. sponsored project known as Operation Black Board - Asstt. Teachers were to be appointed in order to improve standard of education - Proviso to Rule 10(3) was added by amendment empowering State Govt. to prescribe criteria and procedure for selection of candidates in specific circumstance - Recruitment process started - Validity of Proviso to Rule 10(3) was challenged before Administrative Tribunal - Tribunal passed interim order directing that no appointment should be made as Asstt. Teachers in terms of said Scheme - No select list was prepared, no tabulation was done in respect of interviews of candidates - No select list could be issued in absence of preparation of tabulation - Tribunal struck down the Proviso to Rule 10(3) - Notaries Act (53 of 1952) 535
Order of Tribunal was stayed by Supreme Court - State Govt. offered appointment in favour of candidates who had been selected except those who had appeared in interview before Selection Committee - Selection Process was upheld by Supreme Court - Tribunal on application of candidates directed that aborted process of selection be completed and select list be drawn and those placed in select list be offered appointment - Writ Petition dismissed by High Court, however restricted the relief only to the case of those who had approached the Tribunal - Held - Tabulation of marks was not finalized - Members of Selection Committee were entitled to undergo consultative process so as to enable them to arrive at consensus in regard to candidates who should be appointed - As tabulation process itself was not completed, question of preparing any select list also did not arise - As selection process was not complete there was nothing before Tribunal or High Court to indicate that candidates had acquired legal right of any kind - Appearance of name in slection list would not give rise to legal right unless action on the part of State is found to be unfair, unreasonable or malafide - No such plea was raised nor same was otherwise found to be existing - However respondents shall be entitled to relaxation of age in the event they intent to take part in next selection process - State also directed to pay sum of Rs. 10,000 to each respondent - Appeal allowed : State of M.P. Vs. Sanjay Kumar Pathak, I.L.R. (2007) M.P. 1479 (SC) Notaries Act (53 of 1952)
- Section 3, Notaries Rules, 1956, Rules 7 & 8 - Appointment of Notary - Criterion - Held - State Government while appointing a Notary must have to consider a panel so prepared as per merits of the candidates strictly in consonance with provisions of the Act and the Rules made there under and also the law laid down in various judgments delivered on the subject matter : Kedar Nath Sharma Vs. State of M.P., I.L.R. (2010) M.P. 62
- Section 8 - Authentication of promissory note by Notary - Meaning - Notary is not an attesting witness - Function of Notary is to authenticate document to attest so as to ensure about as to the authenticity of the document, that wou1d not make the Notary or registering officer or as the case may be or identifier an attesting witness : Ram Kishan Dwivedi Vs. Rohni Prasad Tiwari, I.L.R. (2010) M.P. 123 (DB)
- Section 8, Notaries Rules, 1956, Rule 4 - Application for appointment as a notary - Memorial of the petitioner not countersigned by a manager of a nationalized Bank - Since the application was incomplete he could not be appointed as notary - Action challenged - Held - Use of word "shall" in sub-rule (3) of Rule 4 and also in the note appended to Form-I raises a strong presumption that the provision is mandatory - Memorial was incomplete as it was not countersigned as required by sub-rule (3)(b) of Rule 4 - Petition dismissed : Panah Mohammed Vs. State of M.P., I.L.R. (2009) M.P. 3148 Nuisance 536
Notaries Rules, 1956
- Rule 4 - Incomplete memorial - No such provision in the Rules making it obligatory on the Competent Authority to inform the applicant about the defect in the application (memorial) and get it corrected - Only an application which complies with the requirement of Rule 4 is considered by the Competent Authority u/R 6 : Panah Mohammed Vs. State of M.P., I.L.R. (2009) M.P. 3148
- Rule 7 - Appointment of Notary - Recommendation of Competent Authority - After not receiving any objection from the Bar Association, the Competent Authority recommended the names of candidates for appointment of Notary in order of seniority without making any inquiry as regards eligibility and competence as contemplated in Rule 7(3) - Held - Division Bench while affirming the findings of the learned Single Judge held that Competent Authority has failed to act as per the mandate of Rule 7(3), which amounted to arbitrariness in the process of selection for appointment of Notary : Rajendra Kumar Chaudha Vs. Ayaz Ahmad Khan, I.L.R. (2010) M.P. 1265 (DB)
- Rule 7 - Appointment of Notary - Recommendation of Competent Authority - Cardinal principles - Held - It was incumbent upon the Competent Authority to have send the names arranged in order of suitability of the incumbents whom he has considered to be appropriate having due regard to knowledge and experience, extent of practice and fitness in accordance of Rule 7(3) : Rajendra Kumar Chaudha Vs. Ayaz Ahmad Khan, I.L.R. (2010) M.P. 1265 (DB)
- Rule 7 - Recommendation of Competent Authority - Report sent by competent authority merely contains factual details and no recommendation has been made - Held - Competent authority is required to consider knowledge and experience of commercial law and nature of obligations and also to the extent of practice and record a conclusion - No findings as regards fitness of candidate for being appointed as Notary has been recorded - Report not in accordance with Rule 7 - Selection of respondents is in contravention of Rule 7 - Selection quashed - Matter remitted back : Ayaz Ahmad Khan Vs. State of M.P., I.L.R. (2009) M.P. 1623
- Rules 7 & 8 - See - Notaries Act, 1952, Section 3 : Kedar Nath Sharma Vs. State of M.P., I.L.R. (2010) M.P. 62 Nuisance
- Remedies under civil and criminal law - Law discussed : Shivraj Singh Vs. State of M.P., I.L.R. (2010) M.P. 742 Panchayat (Resignation by Office Bearer) Rules, M.P. 1995 537
Official Language Act, M.P., 1957 (5 of 1958)
- Section 3 - See - Criminal Procedure Code, 1973, Section 265 : Mohd. Aslam Vs. State of M.P., I.L.R. (2010) M.P. 2428 (DB) Official Languages Act (19 of 1963)
- Section 3(4) - See - Constitution, Articles 343 & 344 : Raghvendra Prasad Gautam Vs. Union Bank of India, I.L.R. (2010) M.P. 2275 (FB) Panchayat (Gram Panchayat Ke Sarpanch Tatha Up-Sarpanch, Janpad Panchayat Tatha Zila Panchayat Ke President Tatha Vice- President Ke Virudh Avishwas Prastav) Niyam, M.P. 1994
- Rule 5 - Invalid Vote - Intention of voter - One vote containing the sign of (P) on
the back side of ballot paper - Vote was declared invalid - Held - Any mark put on the back side of ballot paper will not conveyP any intention - Moreover, symbol is put on the ballot paper in a reverse manner ( ) - Intention must be in a manner which is provided under Law - No mark put by voter in horizontal columns showing his intention for or against no confidence motion - No confidence motion was not validly passed for want of requisite strength - Petition allowed : Sunita Patel Vs. Collector, I.L.R. (2008) M.P. 443
- Rule 5, M.P. Panchayat Nirvachan Niyam, M.P. 1995, Rule 76 - Application of Niyam, 1994 in no confidence motion - Niyam, 1994 are applicable to meeting of No Confidence motion with regard to procedure which is liable to be observed in such meetings : Sunita Patel Vs. Collector, I.L.R. (2008) M.P. 443 Panchayat (Method of Service of Notice and Document) Rules, 1995
- Rule 3 - Proper service of notice - Rule 3 provided elaborate procedure for services of notice to any person - Thus, notice has to be served in accordance with the statutory provision - Service of notice in any manner contrary to statutory rules is not permissible : Uttam Singh Vs. State of M.P., I.L.R. (2010) M.P. 891 Panchayat (Resignation by Office Bearer) Rules, M.P. 1995
- Rules 3 & 4 - See - Service Law : Lallu Kol Vs. State of M.P., I.L.R. (2009) M.P. 1607 (DB) Panchayat Raj Evam Gram Swaraj Adhiniyam, M.P. 1993 (1 of 1994) 538
- Rule 4 - See - Panchayat Raj Evam Gram Swaraj Adhiniyam, M.P. 1993, Section 69(1) : Lallu Kol Vs. State of M.P., I.L.R. (2009) M.P. 675 Panchayat (Upsarpanch, President and Vice President) Nirvachan Niyam, M.P., 1995
- Rule 21(1) - Election process - Adjournment - By invoking emergency clause - The proceedings of election should be interrupted or obstructed by any riot or open violence at a meeting then Presiding Officer can adjourn the election process by invoking emergency clause : Anita Karope (Smt.) Vs. Smt. Geeta Uikey, I.L.R. (2009) M.P. 31 (DB)
- Rule 21 - Adjournment of election in emergency - Election can be adjourned only in case of obstruction or interruption during election - Voting and Counting of Votes already complete - Complaints by some members that they were obstructed to come in and participate in voting just before certificate to winning candidate could be issued - Election cannot be adjourned as there was no obstruction or interruption at the time of voting - Order adjourning election quashed - Presiding Officer directed to issue certificate in form V and VI : Smt. Geeta Uikey Vs. M.P. State Election Commission. I.L.R. (2007) M.P. 57 Panchayat Karmi Yojna,
- Clause 3(3.4) - Appointment of Secretary - Preference - Preference to candidates of ST/SC/OBC/Female categories - If candidates of different categories are equal in merits, candidate belonging to SC/ST/OBC/Female category is to be preferred - Petitioner belonging to ST category securing 59.6% marks whereas respondent No.4 belonging to General category secured 74% marks in High School Examination - Petitioner not entitled for preference : Lallu Kol Vs. State of M.P., I.L.R. (2009) M.P. 675 Panchayat Nirvachan Niyam, M.P., 1995
- Rules 12 Proviso, 80(3) - Recounting of Votes - Every order for recounting must be in writing - Not necessary to examine returning officer by specified officer for that purpose : Kailashi Vs. Smt. Bharosi Bai, I.L.R. (2008) M.P. 1586 Panchayat Raj Evam Gram Swaraj Adhiniyam, M.P. 1993 (1 of 1994)
- Appointment of Panchayat Karmi - Scheme - Eligibility - Candidate should be 10th pass - Held - Selection should be decided on the basis of eligibility criteria - Acquisition Panchayat Raj Evam Gram Swaraj Adhiniyam, M.P. 1993 (1 of 1994) 539 of better qualification would not provide any further benefit - Order of appointment in favour of candidate having highest marks in 10th standard upheld - Petition dismissed : Bherulal Vs. State of M.P., I.L.R. (2010) M.P. 1907
- [As amended w.e.f. 01.09.2006], Section 36(1)(m) - Deleted - Clause (m) was inserted in the year 2000 which provided that a person shall be disqualified in election to be an office bearer if he has more than two living children one of whom is born on or after 26th day of January 2001 - Clause was deleted by Sansodhan Adhiniyam, 2006 w.e.f. 01.09.2006 - Deletion has been effected in prospective manner and no retrospective effect have been given : Bhuvneshwar Prasad @ Guddu Dixit Vs. State of M.P., I.L.R. (2008) M.P. 1683
- Panchayat (Gram Panchayat Ke Sarpanch Tatha Up-Sarpanch, Janpad Panchayat Tatha Zila Panchayat Ke Adhyaksha Tatha Upadhyaksha Ke Virudha Aviswas Prastav) Niyam, M.P., 1994, Niyam 3 - Seven days Notice period is a mandatory condition - Not followed - No confidence motion passed - Not legal : Ramesh Chandra Vanshkar Vs. State of M.P., I.L.R. (2008) M.P. Note *38
- Section 5, M.P. Nagar Palika Nirvachan Niyam, 1994 - Rule 9-A - Deletion of entry in voter's list - Section 5 of Adhiniyam, 1993 provides that no person shall be entitled to be registered in the list of voters if he is registered in the electoral roll relating to any other local authority - Provision has to be made in Rule 9-A of Rules to ensure that the person whose name is entered into electoral roll of Municipality as well as in voter list of Panchayat elections does not circumvent the provision of Section 5 of Adhiniyam, 1993 : Raja Ram Ahirwar Vs. State of M.P., I.L.R. (2008) M.P. 1042 (DB)
- Section 5, M.P. Municipalities Act, 1961, Section 30 - Registration of voter - Election of respondent no.3 on the post of President Municipal Council challenged on the ground that his name was also recorded in voter list of Gram Panchayat Lakhahar - Held - Person is not prevented from getting his name entered in electoral roll of Municipal Council, if his name is already registered in electoral roll of village - Proviso to Section 30 of Act, 1961prohibits person from getting registered in electoral roll for more than one ward or for any ward more than one - No allegation that name of respondent no.3 was already entered in voter list of more than one ward - Respondent no. 3 was not disqualified from contesting municipal election - Petition dismissed : Rajaram Ahirwar Vs. State of M.P., I.L.R. (2008) M.P. 236
- Sections 10 & 11 - Whether Panchayat is a Goverment Department - Held - A Gram Panchayat, Zila Panchayat or Janpad Panchayat is created or established u/s 10 of Adhiniyam and each Panchayat is a separate legal entity - As per the provision of Sec. 11 a Panchayat created under the Adhiniyam is an independent legal entity different Panchayat Raj Evam Gram Swaraj Adhiniyam, M.P. 1993 (1 of 1994) 540 from the Government Department : P.K. Jain Vs. State of M.P., I.L.R. (2009) M.P. 1010
- Section 21 - Recall of Sarpanch - Motion for recall of Sarpanch moved and signed by 987 members of Gram Sabha - SDO for the purposes of verification of signature directed that such members who signed the requisition for recall shall present themselves in his office and file affidavit - Held - No such type of enquiry in respect of signatures of members on prayer of recall is contemplated by the Act or the Rules - SDO should be prima facie satisfied but satisfaction should not be arbitrary - Case remitted back to the SDO to proceed further in accordance with law : Santosh Kumar Ahirwar Vs. State of M.P., I.L.R. (2009) M.P. 2517 (DB)
- Section 21, M.P. Panchyat (Gram Panchyat Ke Sarpanch Tatha Up-Sarpanch Janpad Panchayat Tatha Zila Panchyat Ke President Tatha Vice-president Ke Virudh Avishwas Prastav) Niyam, 1994 - No Confidence Motion - No confidence motion was declared as failed - Panchas started protesting on the ground that they were misled - Presiding officer set aside first process of election and conducted the meeting afresh - In subsequent meeting no confidence motion passed - Appellant (Sarpanch) filed dispute under Section 21 (4) before Collector - Collector set aside both proceedings and directed for holding fresh meeting - Single Judge found no infirmity in Collector's order - Held - No steps were taken by any party to challenge motion passed in earlier part of day - Presiding officer did not have any power to adjudicate whether first meeting was nullity or not - Presiding officer did not have any power to set aside the result of first meeting and to convene another meeting for consideration of motion - Collector did not have power to go behind the motion challenged by Sarpanch - Order passed by Collector quashed - However, person aggrieved by result of first meeting shall be at liberty to assail the same before appropriate forum - Appeal allowed : Naval Singh Vs. Collector, Khargone, I.L.R. (2008) M.P. 204 (DB)
- Section 21 - No Confidence motion - Motion of no confidence challenged on the ground that Naib Tahsildar who was appointed as Presiding Officer was on bad terms with Petitioner - Held - Resolution is passed on the basis of votes cast by Panchas - Voting rights of Panchas are not vitiated by mere appointment of particular person - Presiding officer has no role under law to influence voters - Principles of Natural Justice cannot be said to be violated : Santosh Kumar Singh Vs. State of M.P., I.L.R. (2007) M.P. 1762
- Section 21(2) - Right to Speak - Shall have a right to speak at, or otherwise to take part in - No Confidence Motion challenged on the ground that the Petitioner was not given opportunity to speak - Held - Word 'or ' is disjunctive or alternative conjunction which expresses choice between two alternatives - 'Comma' merely provides an emphasis and does not take away regular meaning of conjunctive word 'or'- Petitioner Panchayat Raj Evam Gram Swaraj Adhiniyam, M.P. 1993 (1 of 1994) 541 had participated in proceeding and was not prevented from exercising his right to speak - Petitioner having failed in exercising his right to speak cannot be permitted to impugn the proceedings on the ground of alleged violation of Sub-Section 2 - Petition dismissed: Santosh Kumar Singh Vs. State of M.P., I.L.R. (2007) M.P. 1762
- Section 21(4) (Gram Panchayat Ke Sarpanch Tatha Up-Sarpanch, Janpad Panchayat Tatha Zila Panchayat Ke President TathaVice-President Ke Virudh Avishwas Prastav) Niyam, 1994, - Maintainability of appeal before Collector - No confidence motion against Sarpanch was declared failed - One of the Panchas filed a dispute before Collector under Section 21(4) - Collector declared the no confidence motion as has been passed - Held - Only Sarpanch or Up Sarpanch against whom no confidence motion is passed may prefer a dispute - Appeal at the instance of Panch is not maintainable: Sunita Patel Vs. Collector, I.L.R. (2008) M.P. 443
- Section 36 - A person must incur the disqualifications as has been enumerated in sub-section (1) of S. 36 which is condition precedent for invoking sub-section (3) of S. 36 of the Adhiniyam : Raminder Singh Kalra Vs. Kanhaiya Tiwari, I.L.R. (2010) M.P. 2468 (DB)
- Section 36 (1) (a)(ii) - Disqualified - No person shall be eligible to be an office - bearer of Panchayat - Who sentenced to imprisonment for not less than six month unless a period of five years has elapsed since his release - Respondent no. 9 was convicted u/s 326 IPC for the period of three years on 28/9/2000 remained in custody till 2003 - There after on 26/12/2004 filed nomination papers for member of Janpad Panchyat and elected as president in January, 2005 - At the time of filing nomination paper he was not qualified to contest - Cease to continue to hold the post of president of Janpad Panchayat : Shiv Singh Rawat Vs. State of M.P., I.L.R. (2008) M.P. 491 (DB)
- Sections 36(1)(m), 2(a), 122 - Disqualification - Petitioner submitted false information regarding date of birth of his fourth child - Election Petition filed u/s 122 of Adhiniyam - S.D.O. instead of deciding election petition referred the matter to Collector as question involves disqualification u/s 36 - Collector disqualified the petitioner - Held - Disqualification on account of having more than two children one of whom is born on or after 26.01.2001 was not decided in any election petition - No impediment in deciding petition u/s 36 by Collector : Bhuvneshwar Prasad @ Guddu Dixit Vs. State of M.P., I.L.R. (2008) M.P. 1683
- Section 36(2) - "Questioned" and "decided" are to be read as one - The word 'and' certainly can be read as 'or' if the intention of the legislature is not clear or the law requires the word "and" to be used as "or" : Bhuvaneshwar Prasad @ Guddu Dixit Vs. State of M.P., I.L.R. (2008) M.P. 2788 (DB) Panchayat Raj Evam Gram Swaraj Adhiniyam, M.P. 1993 (1 of 1994) 542
- Section 36(2) - Sub-section (2) would simply mean that the jurisdiction of Collector is not required to be invoked in a case where the question was raised and finally decided by Election Tribunal - Collector could not proceed to make an enquiry and re-decide the issue u/s 36(3) of the Act contrary to the findings recorded by the tribunal : Bhuvaneshwar Prasad @ Guddu Dixit Vs. State of M.P., I.L.R. (2008) M.P. 2788 (DB)
- Section 36(2) & (3) - Appellant elected as Sarpanch - Election was challenged by filing election petition beyond the period of limitation - S.D.O. issued notices but thereafter referred the matter to Collector with a submission that matter can be decided by Collector u/s 36 - Held - When an election petition not duly constituted is filed before S.D.O. and S.D.O. finds that question can be decided by a higher officer in exercise of power u/s 36, then a reference can certainly be made by him - Section 36(3) provides that Collector may give his decision either on an application made to him by any person or on his own motion - Proceedings before Collector were maintainable - Appeal dismissed: Bhuvaneshwar Prasad @ Guddu Dixit Vs. State of M.P., I.L.R. (2008) M.P. 2788 (DB)
- Section 36(3) - Sub-section (3) clearly show that legislature wanted the Collector to exercise powers to see that no disqualified person contests the election after concealing disqualification or no person who has become disqualified after the elections are over is continued as an office bearer in Panchayat - Collector also has to see that whether the disqualification is removable and, if yes, but not removed, then in such a case the Collector may declare that the office has become vacant : Bhuvaneshwar Prasad @ Guddu Dixit Vs. State of M.P., I.L.R. (2008) M.P. 2788 (DB)
- Section 38 - Filling up of vacancies - Petitioner officiating as Sarpanch as a no confidence was passed against the Sarpanch - Election programme for filling of the post of Sarpanch declared - Action challenged on ground that once a Sarpanch is nominated to officiate in such casual vacancy, the same cannot be construed as vacancy as would call for fresh election - Held - Section 38(1)(a) provides for filling up of such casual vacancy as soon as may be vacant in accordance with the provisions of the Act and the Rules made there under -Temporary filling up of the post of a Sarpanch u/s 38(1)(b) does not create a right in favour of such Officiating Sarpanch to claim that no election can be held u/s 38(1)(a) till the entire term expires : Phoolabai Vs. State of M.P., I.L.R. (2009) M.P. 1293
- Section 40 - SDO ordering the removal of Sarpanch including disqualification to contest the election - Enquiry conducted by CEO on complaint was not bipartite - No opportunity to cross-examine witnesses afforded - In the proceedings u/s 40 of the Adhiniyam, none of the witnesses including complainant whose statements were recorded by the Inquiry Officer, were examined - Opportunity to cross-examine witnesses and to adduce evidence was also not afforded - No due and proper enquiry was conducted by Panchayat Raj Evam Gram Swaraj Adhiniyam, M.P. 1993 (1 of 1994) 543 the SDO - Denial of fair hearing resulted in serious prejudice to petitioner - Case remitted to SDO - Petition allowed : Manita Jaiwar (Smt.) Vs. State of M.P., I.L.R. (2009) M.P. 3067 (DB)
- Section 40 - Removal of Sarpanch - Petitioner's application to cross-examine the Enquiry Officer was allowed but Enquiry Officer did not appear and petitioner's right to cross-examine was closed - Held - Prescribed authority heavily relied upon the findings of Enquiry Officer - Not affording of an opportunity to cross-examine the Enquiry Officer resulted in miscarriage of justice and denial of opportunity of hearing - Order of removal quashed - Petition allowed : Phool Bai Vs. State of M.P., I.L.R. (2009) M.P. 1631
- Section 53(2) - This general provision will apply where instead of the Panchayats performing functions entrusted to them, the State Government itself undertakes to execute such functions of the Panchayats through its own agencies - This provision obviously does not apply where the Panchayat fails to perform a particular duty conferred on it under the Adhiniyam despite a direction by the State Government or prescribed authority to perform such duty : Pawan Rana Vs. State of M.P., I.L.R. (2009) M.P. 2752 (FB)
- Sections 69 & 86(2) - Prescribed authority on the basis of report of enquiry found petitioner guilty of financial irregularities and directed Gram Panchayat for initiation of proceeding for removal of petitioner - On refusal by the Gram Panchayat, the prescribed authority passed order of removal of petitioner from the post of Panchayat Karmi and denotified him from post of Secretary - Held - Gram Panchayat is bound to comply with direction issued by State Government or prescribed authority u/s 86(2) otherwise the said authority shall have all necessary powers to get complied with direction - Decision of prescribed authority is not against the provision - Petition dismissed : Shiv Charan Bhurtiya Vs. State of M.P., I.L.R. (2010) M.P. 1065
- Section 69(1) - See - Service Law : Lallu Kol Vs. State of M.P., I.L.R. (2009) M.P. 1607 (DB)
- Section 69(1), Panchayat (Resignation by Office Bearers) Rules, M.P. 1995, Rule 4 - Appointment of Secretary - Brother of respondent No.4 is Panch - He submitted his resignation before the appointment of respondent No.4 as Secretary - Brother also not participated in the meeting - Resignation of brother not accepted so far - Section 69 merely prohibits person from holding charge of Panchayat Secretary if he happens to be a relative of Panch or Sarpanch - No bar that respondent No.4 cannot be appointed as Secretary - However, respondent No.4 shall not be permitted to hold charge of the office of Secretary till the resignation of his brother is accepted - In case resignation is not accepted, respondent No.4 shall not be permitted to hold the charge of Secretary : Lallu Kol Vs. State of M.P., I.L.R. (2009) M.P. 675 Panchayat Raj Evam Gram Swaraj Adhiniyam, M.P. 1993 (1 of 1994) 544
- Section 69(1), Panchayat Service (Discipline and Appeal) Rules, M.P. 1999 - Rules 5,7 - Major Penalty - Appellant who was working as Panchayat Secretary was denotified by Collector as Secretary on the allegation that he was found in possession of essential commodities belonging to ration card holders - Held - Rule 7 provides that for imposing major penalty formal inquiry will be held as far as may be in manner provided therein - Unless the procedure laid down in rule 7 is followed, appellant cannot be removed from the post of Secretary, Gram Panchayat or could not have been reverted to a lower post of Panchayat Karmi : Lalla Prasad Burman Vs. State of M.P., I.L.R. (2008) M.P. 1050 (DB)
- Sections 69(1), 70 - Powers of Panchayat - Panchayat cannot appoint Secretary or C.E.O. - Panchayat can appoint other officers and servants as it considers necessary for efficient discharge of its duties - Previous approval of prescribed authority is required not to a named officer or named servant but to appointment of such officers : Manoj Kumar Yadav Vs. State of M.P., I.L.R. (2008) M.P. 2523 (DB)
- Sections 69(1), 70(1), 86(1) & 86(2) - Appointment of Panchayat Karmi - In case Gram Panchayat fails to make appointment of a Panchayat Karmi despite direction issued by State Government or prescribed authority - State Government or prescribed authority can direct C.E.O. of Janpad Panchayat within whose territorial jurisdiction a Gram Panchayat is located to appoint a Panchayat Karmi - View taken by D.B. in Leelawati's case [ILR (2008) MP 2817] approved - Whereas view taken in W.P. No.206/ 2008 Smt. Madhu Bhadoria v. State of M.P. & ors. Overruled : Pawan Rana Vs. State of M.P., I.L.R. (2009) M.P. 2752 (FB)
- Sections 69(1), 70, 91 & 95, Panchayat (Appeal and Revision) Rules, M.P. 1995, Rule 3 - Appeal - Appointment of Panchayat Karmi by resolution of majority of votes of Panchas - Appointment challenged in appeal - An objection was raised that against a resolution no appeal lies - Held - If the resolution is followed by an order of appointment then validity of minutes of such a resolution can be challenged in an appeal and not otherwise : Abdul Hasan Qureshi Vs. State of M.P., I.L.R. (2009) M.P. 165
- Sections 69(1), 70, 91 & 95, Panchayat (Appeal and Revision) Rules, M.P. 1995, Rule 5 - Revision - Whether the proceeding of Gram Panchayat in matter of appointment of Panchayat Karmi can directly be challenged in revision u/r 5 - Held - Gram Panchayat is an authority within the meaning of Rule 5, it not an authority subordinate to any of the revisional authories within the meaning of this rule - A resolution merely selecting thereby a person as Panchayat Karmi would not be revisable u/r 5 despite being proceedings of Gram Panchayat : Abdul Hasan Qureshi Vs. State of M.P., I.L.R. (2009) M.P. 165 Panchayat Raj Evam Gram Swaraj Adhiniyam, M.P. 1993 (1 of 1994) 545
- Sections 69(1), 70, 91 & 95, Panchayat (Appeal and Revision) Rules, M.P. 1995, Rule 5 - Second Revision - A second revision before the State Government against the revisional order of the officers mentioned in Rule 5 would lie after final disposal by such officers by virtue of clause (ii) of sub-rule (2) of Rule 5 : Abdul Hasan Qureshi Vs. State of M.P., I.L.R. (2009) M.P. 165
- Section 70 - Appointment of Panchayat Karmi by the resolution of Gram Sabha - Appointment of petitioner by majority of votes and not on the basis of merits in terms of scheme of appointment - Held - Appointment rightly cancelled and fresh selection process rightly ordered - No interference called for - Petition dismissed : Prajapal Singh Vs. State of M.P., I.L.R. (2008) M.P. 1721
- Sections 70, 69(1), 91 - Appointment of Panchayat Karmi - Whether appealable - Panchayat Karmi is appointed U/s 70 of Adhiniyam - It does not provide that appointment shall be made by passing a resolution - Scheme provides for resolution - Resolution means formal expression of opinion or will of a body - Appointment order is issued by Sarpanch to carry out resolution of General Body - Appointment order can be challenged by filing appeal under Section 91 - Appointment of Panchayat Karmi pursuant to resolution is appealable : Devidayal Raikwar Vs. State of M.P., I.L.R. (2008) M.P. 1370 (DB)
- Sections 70, 86(2) - Gram Panchayat failed to appoint a Panchayat Karmi within the specified period - Therefore, Collector being a prescribed authority, in exercise of powers u/s 86(2) of the Adhiniyam authorized the C.E.O. to appoint Panchayat Karmi - C.E.O. appointed Panchayat Karmi - Appointment challenged on the ground that under the Adhiniyam only Gram Panchayat can appoint Panchayat Karmi - Held - U/s 86(2) of the Adhiniyam, expression "all necessary powers" will include the power to authorize any authority to perform the duty of Panchayat such as appointment of a Panchayat Karmi u/s 70(1) of Adhiniyam - Therefore, Collector as prescribed authority had a power u/s 86(2) of the Adiniyam to authorize the C.E.O., Janpad Panchayat to appoint a Panchayat Karmi - The order of appointment is to be treated as of order passed by the prescribed authority - Petition dismissed : Leelawati (Smt.) Vs. State of M.P., I.L.R. (2008) M.P. 2817 (DB)
- Section 75 (First Proviso) - Duty of Bank towards account holder - On the instructions of Registrar of Stamps Bank had debited in petitioner's account 1% additional duty i.e. Rs. 6,97,000/- - In view of the amendment in Section 75 of Act Additional duty shall not exceed the amount of stamp duty payable thereupon - Bank has no authority either under Contractual Law or under Bank Laws to deduct any amount without giving prior information to account holder (petitioner) - Any adjustment without prior information to account holder (petitioner) in fact some times may amount to misappropriation and breach of trust - High Court directed the Bank to repay amount which was in excess of Panchayat Raj Evam Gram Swaraj Adhiniyam, M.P. 1993 (1 of 1994) 546 liability with interest to petitioner : APL International Ltd. Vs. State of M.P., I.L.R. (2008) M.P. 495 (DB)
- Section 85 - Section 85 confers power on State Government or Prescribed Authority to suspend resolution, order etc. on conditions precedent - Person grieved can bring his grievance to the notice of State Govt. and State Govt. should take a decision under Section 85 - State Government shall be guided by concept of promptitude: Sagar Machhua Sahakari Samiti, Seoni Vs. Chief Executive Officer, Janpad Panchayat, Seoni, I.L.R. (2008) M.P. 1080 (DB)
- Section 85(1) - Challenge of appointment of Panchayat Karmi by resolution - Order of appointment is appealable to SDO, however having fought the matter before various forums and having regard to the fact that the matter stood decided on merits also, the second respondent cannot be directed to go before the SDO for litigating the issue once again afresh : Mahesh Vs. State of M.P., I.L.R. (2010) M.P. 2057
- Section 85(1) - Resolution - The scheme required that the marks obtained in the 10th Class shall decide the fate of the candidate then that only ought to have been done: Mahesh Vs. State of M.P., I.L.R. (2010) M.P. 2057
- Section 85(1) & (2), Panchayat (Appeal and Revision) Rules, M.P. 1995, Rule 3 - Resolution of Gram Panchayat - Appeal - Maintainibility - Resolution of Gram Panchayat to appoint appellant on the post of Panchayat Karmi - SDO held the resolution to be illegal in an appeal preferred before him - Held - Against a resolution passed by the Panchayt, an appeal would not lie to the SDO - SDO can only exercise powers u/s 85(1) of the Adhiniyam subject to the rider fixed by Section 85(2) and he has to forward the resolution to the State Government within 10 days which otherwise would lose the efficacy of order passed by him - Appeal allowed : Basant Kumar Verma Vs. State of M.P., I.L.R. (2009) M.P. 16 (DB)
- Sections 85, 91 - When the Statute confers a right specifically mere absence of procedural rules, does not abrogate the right of litigant : Sagar Machhua Sahakari Samiti, Seoni Vs. Chief Executive Officer, Janpad Panchayat, Seoni, I.L.R. (2008) M.P. 1080 (DB)
- Section 86(1) - Gram Panchayat appointed Panchayat Karmi - SDO set-aside the order of appointment in appeal - Collector directed appointment by fresh advertisement u/s 86(1) - Held - Collector (Prescribed Authority) can not issue such direction unless there is willful default or negligence on the part of Gram Panchayat in performing its duties of filling the post - Order of learned Single Judge setting-aside order of Collector upheld - Writ Appeal dismissed : Brajesh Sharma Vs. Nagendra Singh Sisodiya, I.L.R. (2010) M.P. 550 (DB) Panchayat Raj Evam Gram Swaraj Adhiniyam, M.P. 1993 (1 of 1994) 547
- Section 86(1) & 86(2) - Power of State Government to issue order directing Panchayat for execution of work in certain cases - Appointment of Panchayat Karmi - When justified - Panchayat Karmi appointed u/s 86(1) of the Adhiniyam, but the Sarpanch of Gram Panchayat did not allow him to join - Held - Once an appointment was already made u/s 86(1) of the Adhiniyam, then there was no question of any appointment u/s 86(2) of the Adhiniyam, until & unless earlier appointment is set aside by a competent authority : Chitrarekha Saulakhe (Ku.) Vs. Suresh Saulakhe, I.L.R. (2010) M.P. 1945
- Section 86(2) - Object of provision is to ensure that if the Panchayat fails to perform any particular duty conferred on it under the Act despite directions issued by State Government or prescribed authority u/s 86(1) - State Government or prescribed authority must have the required powers to get the directions complied with and when State Government or prescribed authority exercises such necessary powers, it will be deemed as if Panchayat has exercised its powers under the Act : Pawan Rana Vs. State of M.P., I.L.R. (2009) M.P. 2752 (FB)
- Section 87(1) & 86(2) - A drastic measure contemplated by the legislature against a Panchayat and can be resorted to strictly in the circumstances mentioned in S. 87(1) and not otherwise and these circumstances are different from those mentioned in S. 86(2) : Pawan Rana Vs. State of M.P., I.L.R. (2009) M.P. 2752 (FB)
- Section 91, Panchayat (Appeal and Revision) Rules, M.P 1995, Rule 3 - Appeal - Appeal would lie against an order of appointment of Panchayat Karmi issued by Sarpanch of the Gram Panchayat u/s 91 of the Act r/w Rule 3 of the Rules - Appellate Authority has all necessary powers to grant relief in case while allowing the appeal - Such powers will also include the powers to decide whether the selection made by the Gram Panchayat by adopting the resolution was not correct either on facts and law : Prajapal Singh Vs. State of M.P., I.L.R. (2008) M.P. 1721
- Section 91 - Whether appeal or revision would lie against resolution passed by Gram Panchayat - Proceedings - Proceeding of Gram Panchayat is assailable in appeal or revision - However, resolution which would have been specifically challengeable in different manner under 1993 Act would not come under purview of Section 91 : Sagar Machhua Sahakari Samiti, Seoni Vs. Chief Executive Officer, Janpad Panchayat, Seoni, I.L.R. (2008) M.P. 1080 (DB)
- Section 122, Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, M.P. 1995, Rule 80 - Recount - Not permissible - Election Tribunal ordering for recount on the basis of scarcity of light and overwriting on the declaration form issued which cannot be a ground for recount but are grounds for generally challenging the election of the returned candidate under the provision of the Rules : Gyanendra @ Chotu Vs. Anoop Chand, I.L.R. (2010) M.P. 341 Panchayat Samvida Shala Shikshak (Employment and Condition of Contract) 548 Rules, M.P., 2005
- Section 122, Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, M.P. 1995, Rule 80 - Recount - Permissibility - Held - An order of recount can be made only on the basis of clear and specific pleading supported by clear evidence to the effect that the ballot papers of a particular booth had been wrongly accepted or rejected which would have immediately affected the result of the election : Gyanendra @ Chotu Vs. Anoop Chand, I.L.R. (2010) M.P. 341
- Section 122 - Election Petition after expiry of 30 days in accordance with Section 122(2) of the Act was nothing but an exercise in futility - Even if the S.D.O. issued notices to the parties, the same would not confer any jurisdiction upon him because he had no jurisdiction to condone the delay and proceed further with the matter : Bhuvaneshwar Prasad @ Guddu Dixit Vs. State of M.P., I.L.R. (2008) M.P. 2788 (DB)
- Section 122 - Tribunal Directed for recounting of invalid votes only on the ground that the margin of victory is less and number of invalid votes are very high - Recounting of votes cannot be ordered without proper evidence and pleadings - Matter remanded back to Tribunal to decide the issue afresh after taking note of Pleadings, Evidence and Documents : Kamlesh Bai Vs. Upper Commissioner Bhopal and Hosangabad Division, I.L.R. (2008) M.P. 465 Panchayat Samvida Shala Shikshak (Appointment and Conditions of Service) Rules, M.P. 2001
- Rule 5.8(b) - Marks for teaching experience - Petitioner working in 100% Government aided School - He was not awarded marks for teaching experience as his salary was not withdrawn from Government treasury - Held - Rule simply means experience gained by working in school receiving grant in aid without any further qualification - Refusal to award marks for teaching experience on the ground that his salary was not withdrawn from Government treasury unsustainable - Petition allowed : Kalyan Singh Vs. State of M.P., I.L.R. (2009) M.P. 396 Panchayat Samvida Shala Shikshak (Employment and Condition of Contract) Rules, M.P., 2005
- Explanation 5 Rule 9(b) - Marks for different qualifications - Constitutional Validity challenged - Application for contract teacher Grade III - 20 marks to be awarded to D.Ed./B.T.C./D.S.E. incumbent but not to B.Ed. incumbent - Held - B.Ed. incumbents may be having qualification to teach at higher level but B.Ed. is not higher qualification to teach at primary level - Rule is based on intelligible classification - Rule is intra vires Panchayat Service (Discipline and Appeal) Rules, M.P. 1999 549 of Constitution - Petition dismissed : Manoj Kumar Pandya Vs. State of M.P., I.L.R. (2008) M.P. 1383 (DB)
- M.P. Panchayat Raj Adhiniyam, 1993, Section 53, Constitution of India, 243-J - Power of State Government in relation to functions of Panchayats - State Government may by general or special order, add to any of functions of Panchayats or withdraw functions and duties entrusted to such Panchayats, when State Government undertakes the execution of any of the functions entrusted to Panchayat : Ajay Tripathi Vs. State of M.P., I.L.R. (2008) M.P. 782 (DB)
- Rule 6, M.P. Panchayat Raj Adhiniyam, 1993, Section 47 - Rule 6 of Rules, 2005 not ultra vires the Constitution or Section 47 or other provisions of Panchayats Act, 1993 : Ajay Tripathi Vs. State of M.P., I.L.R. (2008) M.P. 782 (DB)
- Rule 6, M.P. Panchayat Raj Adhiniyam, 1993, Preamble, Constitution of India, 243-G - Constitutional validity of Rules, 2005 challenged being violative of Preamble of Act, 1993 - Held - Power to appoint or power of local administration or power for development activities has not been withdrawn - Under Rules,2005, appointing authority is Panchayat and has effective control over Samvida Shala Shikshak - Rules 2005 do not run contrary to preamble of Act : Ajay Tripathi Vs. State of M.P., I.L.R. (2008) M.P. 782 (DB)
- Rule 6(9) 3rd Explanation - Constitutional validity - 3rd Explanation provides that teaching experience certificate shall be issued to only those teachers whose salary has been paid from Grant-in-aid and only for that period for which salary was paid - Held - Government wants to ensure that fraudulent, manufactured certificates are not issued in relating to teaching experience - It cannot be argued that third explanation carves out a discrimination between equals - Teachers who are being paid from State Grant-in-aid and who are not being paid from State Grant-in-aid donot come under same class - Petition dismissed : Bhupendra Singh Vs. State of M.P., I.L.R. (2008) M.P. 1136 (DB) Panchayat Samvida Shala Shikshak (Recruitment and Conditions of Contract) Rules, M.P. 2005
- Rules 10, 12, 12(a) & 12(h) - See - Service Law : Arun Singh Bhadouriya Vs. State of M.P., I.L.R. (2009) M.P. 1939 (DB) Panchayat Service (Discipline and Appeal) Rules, M.P. 1999
- Rule 2(f) & (j) - Member of Panchayat Service or a Panchayat Servant means any person appointed to the Panchayat Service - According to Rule 2(j) Panchayat Panchayat Shiksha Karmis (Recruitment and Conditions of Service) Rules, M.P. 1997 550
Service means any Panchayat Service - Thus, the Panchayat Karmis are also included in the Panchayat Service and they are Panchayat Servants within the meaning of Rule 2(f) of the Rules : Uttam Singh Vs. State of M.P., I.L.R. (2010) M.P. 891
- Rules 5,7 - See - Panchayat Raj Avam Gram Swaraj Adhiniyam, M.P. 1993, Section 69(1) : Lalla Prasad Burman Vs. State of M.P., I.L.R. (2008) M.P. 1050 (DB)
- Rules 5(b), 7 - Major Penalty - Procedure - Petitioner working as Panchayat Karmi - Removed from his post without following procedure laid down under Rule 7 - Removal bad - Petition allowed : Kailash Babu Rai Vs. State of M.P., I.L.R. (2008) M.P. 2278
- Rule 7 - Termination - Natural Justice - Petitioner removed from the post of Panchayat Karmi without holding an enquiry merely by passing a resolution - Petitioner is Panchayat Servant within the meaning of Rule 2(f) of the Rules and enjoys the protection of Rules of 1999 - In the absence of any enquiry as contained in Rule 7, the impugned orders are illegal and they are liable to be quashed : Uttam Singh Vs. State of M.P., I.L.R. (2010) M.P. 891 Panchayat Service (Recruitment and General Conditions of Services) Rules, M.P. 1999
- Rule 20 - See - Service Law : Bharat Bhusan Sharma Vs. State of M.P., I.L.R. (2009) M.P. 1204 (DB)
- Rule 25 - See - Panchayat Shiksha Karmis (Recruitment and Conditions of Service) Rules, M.P. 1997, Rule 7 : State of M.P. Vs. Raghvendra Sohgaura, I.L.R. (2009) M.P. 623 (DB)
- Panchayat Service (Recruitment and General Conditions of Services) Rules, M.P. 1999 - See - Service Law : P.K. Jain Vs. State of M.P., I.L.R. (2009) M.P. 1010 Panchayat Shiksha Karmis (Recruitment and Conditions of Service) Rules, M.P. 1997
- Rule 7, Panchayat Service (Recruitment and General Conditions of Services) Rules, M.P. 1999, Rule 25 - Probation - Rules 1997 exclusively deals with appointment of Shiksha Karmis - Rules 1999 lays down recruitment and general conditions of Panchayat services - When a specific set of rule has been brought into existence to govern the terms and conditions of Shiksha Karmis, it is to be treated as special rule : State of M.P. Vs. Raghvendra Sohgaura, I.L.R. (2009) M.P. 623 (DB) Panchayat (Appeal and Revision) Rules, M.P. 1995 551
- Rule 7 - Probation - Increment - Shiksha Karmis are not entitled to increments during their probation period in terms of Rule 7 : State of M.P. Vs. Raghvendra Sohgaura, I.L.R. (2009) M.P. 623 (DB)
- Rule 7,25 - Service law - Shiksha Karmis - Grant of increments - Probation successfully completed and incumbent confirmed - Benefit of increment has to be given even for the period of probation : Raghwendra Sohgaura Vs. State of M.P., I.L.R. (2006) M.P. 28
- Petitioners appointed as Shiksha Karmis - Appointments cancelled as petitioners were close relatives of the members of selection committee - Action challenged on the ground of non-observance of principles of natural justice - Held - It is established principle that when action or orders are challenged on the ground of non- grant of hearing, mechanical interference is not to be resorted to until & unless prejudice caused due to non-grant of hearing and the effect of the final outcome is established before the court, except that an excepetion carved out in such cases where a statutory provision for grant of hearing is contemplated - Petitioners were given full & reasonable opportunity of hearing by the Commissioner and thereafter, during the course of hearing in this petition also - Petitioners were not in a position to demonstrate as to what was the prejudice caused for non-grant of hearing by the Collector - No case made out for interference - Petition dismissed : Shyama Dwivedi (Smt.) Vs. State of M.P., I.L.R. (2008) M.P. 2885
Panchayat Shiksha Karmis (Recruitment and Condition of Service) Rules, M.P. 1997 - See - Constitution, Article 226 : Shyama Dwivedi (Smt.) Vs. State of M.P., I.L.R. (2008) M.P. 2885 Panchayat (Appeal and Revision) Rules, M.P. 1995
- Rule 3 - See - Panchayat Raj Evam Gram Swaraj Adhiniyam, M.P. 1993, Sections 69(1), 70, 91 & 95 : Abdul Hasan Qureshi Vs. State of M.P., I.L.R. (2009) M.P. 165
- Rule 3 - See - Panchayat Raj Evam Gram Swaraj Adhiniyam, M.P. 1993, Section 85(1) & (2) : Basant Kumar Verma Vs. State of M.P., I.L.R. (2009) M.P. 16 (DB)
- Rule 3 - State Government and Collector have sanctioned and approved the posts to be filled up - Order of appointment of Shiksha Karmis bears the signature of an Additional Assistant Development Commissioner - Held - It cannot be construed that this order is passed by some authority of State Government or its officers and not by the Janpad Panchayat - Collector competent to deal with the appeal u/R 3 - Revision maintainable u/R 5 before Commissioner : Shyama Dwivedi (Smt.) Vs. State of M.P., I.L.R. (2008) M.P. 2885 Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) 552 Rules, M.P. 1995
- Rule 3 - See - Panchayat Raj Avam Gram Swaraj Adhiniyam, M.P., 1993, Section 91 : Prajapal Singh Vs. State of M.P., I.L.R. (2008) M.P. 1721
- Rules 3, 5 - Proceedings - Word Proceeding used in Rule 5 is confined and restricted as to regularity of proceedings of authorities subordinate to it and further the same pertains to a case : Sagar Machhua Sahakari Samiti, Seoni Vs. Chief Executive Officer, Janpad Panchayat, Seoni, I.L.R. (2008) M.P. 1080 (DB)
- Rule 5 - See - Panchayat Raj Evam Gram Swaraj Adhiniyam, M.P. 1993 (1 of 1994), Sections 69(1), 70, 91 & 95 : Abdul Hasan Qureshi Vs. State of M.P., I.L.R. (2009) M.P. 165
- Rule 5(1)(a) - Revision - Revision before Commissioner is maintainable against order passed by Collector in appeal : Sone Singh Vs. State of M.P., I.L.R. (2008) M.P. Note *82 (DB)
- Rule 9 - Power of appellate or revisional authority - Preponement of date of hearing - Revisional authority without notice to appellant preponed the date of hearing and allowed application for condonation of delay and decided revision - Held - Authority without extending an opportunity to the appellant decided the matter - Such order is not sustainable under law - Matter remanded for fresh adjudication - Appeal allowed : Gram Panchayat, Banchhora Vs. State of M.P., I.L.R. (2009) M.P. 2164 (DB) Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, M.P. 1995
- Rule 3 - Presentation of election petition - Election petition filed by Counsel for Petitioner - By virtue of Vakalatnama, a lawyer doesnot become authorized by election petitioner to present the election petition - Presentation of election petition by Counsel doesnot fulfill the requirements of Rule 3 - Presentation of election petition by Counsel not proper - Election Petition rightly dismissed - Petition dismissed : Urmila Devi Vs. Returning Officer (Panchayat), I.L.R. (2008) M.P. 1175
- Rules 3 & 8 - Non-compliance of Rule 3(2) - Effect - Election Tribunal has recorded categorical findings that the copies of the election petition served on the respondent did not bear his signatures, were not verified and did not bear attestation as required by Rule 3(2) and has accordingly dismissed the election petition - No fault found in the finding - Petition dismissed : Baijulal Verma Vs. Additional Collector, Chhindwara, I.L.R. (2010) M.P. 129
- Rules 3 & 8 - Non-compliance Rule 3(2) - Objection can be raised and decided at any stage - Election Tribunal can take and decide the issue regarding defect of non- Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) 553 Rules, M.P. 1995 compliance of the rules at any stage and it is not incumbent upon the authority to do so only at the threshold - There can be no waiver of the requirement of Rule 8 and failure of the authority to dismiss the petition at the threshold would not prohibit or prevent the authority from doing so at the later stage : Baijulal Verma Vs. Additional Collector, Chhindwara, I.L.R. (2010) M.P. 129
- Rules 3, 8, 9 - Attested copy of Election Petition - Appellant and Respondent contested the election for the post of Sarpanch - Respondent was declared elected - Appellant filed election petition - Notices were issued - Summons issued to respondent came back with endorsement by process server that summons were served along with copy - Respondent did not appear - Presiding Officer observed that it appears from record that summons were not served and directed for issuance of fresh summons - Husband of respondent appeared and obtained copy of election petition and other documents - Written Statement was filed- Objection regarding non-deposit of security amount and non-verification of copy of petition was taken subsequently by filing separate application - Election Tribunal without considering the objections directed for re-count and appellant was declared elected - Petition filed by respondent was allowed and matter was remitted back to decide the objections - Election Tribunal did not cast issues on the question of maintainability and directed for recount - Matter was again remanded back by High Court - Election Tribunal rejected the objection regarding non deposit of security amount but dismissed the election petition on the ground of non supply of verified copy of election petition - Held - Rule 3 requires filing of as many copies attested by petitioner looking to the number of respondents - Presiding Officer did not find violation of rule 3 when he made the scrutiny - Copy of election petition was sent along with summons which was issued for the first time - Another copy of petition was supplied to the husband of respondent when he appeared - It is mystery that who supplied the additional copy to Presiding Officer - Verified copy was sent along with first notice and assuming an ordinary copy was served upon respondent there would be no violation of rule 3 because necessary and required copies were once supplied with election petition - Findings recorded by Election Tribunal upholding the objection regarding non supply of verified copy are perverse and bad - Appeal Allowed - Matter remanded back : Lata Patle Vs. Smt. Kamlesh, I.L.R. (2007) M.P. 1553 (DB)
- Rule 21(d)(iii) - Grounds for declaring election to be void - Amendment of Election Petition - Election Petitioner has to plead all material facts which have affected result of election - Election petitioner cannot be permitted to introduce new facts by way of amendment after limitation - Order allowing application for amendment quashed - Petition allowed : Madanlal Vs. Sub Divisional Officer (Revenue), I.L.R. (2008) M.P. 1425 Penal Code (45 of 1860) 554
- Rule 80 - See - Panchayat Raj Evam Gram Swaraj Adhiniyam, M.P. 1993, Section 122 : Gyanendra @ Chotu Vs. Anoop Chand, I.L.R. (2010) M.P. 341 Partnership Act (9 of 1932)
- Section 53 - See - Civil Procedure Code, 1908, Order 39 Rule 1 & 2, : Ishwarchand Jain Vs. Sushil Kumar Jain, I.L.R. (2009) M.P. 2796 (DB)
- Section 69 - Suit for dissolution of partnership firm and rendition of account - Provision barring institution of suit unless partnership firm is registered - Held - Provision not applicable in instant suit - Purpose of registration is to protect the interests of third parties and disability is confined to suits to enforce a right arising from a contract or conferred by the Act : Madanlal Vs. Smt. Badambai, I.L.R. (2008) M.P. 3249 Passports Act (15 of 1967)
- Section 5 - Change of Date of Birth - Petitioner has recourse of getting date of birth corrected in birth certificate and after having the same corrected, she may submit application with corrected entry of her birth certificate - Petitioner may also institute a civil suit for declaration about date of birth and mandatory injunction directing PIA to effect change in the passport with regard to date of birth : Neetu Jain (Smt.) Vs. Union of India, I.L.R. (2008) M.P. 2841
- Section 5 - Date of Birth in Passport - Petitioner made application for issuance of passport mentioning her date of birth as 15.06.1983 which was duly supported by birth certificate - Petitioner sought correction of date of birth in passport as 15.06.1982 on the basis of school certificates - Held - Rectification/correction in matter of date of birth may be made, obviously if petitioner is found entitled to seek correction/rectification after following procedure prescribed by circulars - Since, PIA has relied upon birth certificate submitted by petitioner herself, no fault can be found with it : Neetu Jain (Smt.) Vs. Union of India, I.L.R. (2008) M.P. 2841 Patwari Selection and Examination Conduction Rules, M.P. 2008
- Rule 1.8 - See - Service Law : Neelesh Shukla Vs. State of M.P., I.L.R. (2010) M.P. 1050 (DB) Penal Code (45 of 1860)
- Sections 32 & 304-A - See - Criminal Procedure Code, 1973, Sections 227 & 228 : Ram Kishore Vs. State of M.P., I.L.R. (2010) M.P. 1836 Penal Code (45 of 1860) 555
SYNOPSIS : Section 34
1. Exhortation confirms 3. It does not create a predetermination substantive offence 2. Individual liability 4. Overt Act -It's relevancy 5. Sharing common intention
1. Exhortation confirms predetermination
- Section 34 - Common intention - Four appellants came on a jeep - All of them alighted from the jeep and appellant No.2 to 4 exhorted appellant No.1 to kill deceased - Appellant No.1 fired from his rifle - Held - Exhortation given by appellant No.2 to 4 confirms predetermination - It was a planned case of appellants with common intention to kill the deceased : Gajendra Singh Vs. State of M.P., I.L.R. (2009) M.P. Note *41(DB) 2. Individual liability
- Sections 34, 141, 149 and 302 - Murder - Common object - Constructive liability - Sudden fight - Only those who participated and caused injury would be liable for their acts : Prabhulal Vs. State of M.P., I.L.R. (2006) M.P. 1083 (DB)
- Sections 34, 149, 300, 302, 325, 506 Part II and Criminal Procedure Code, 1973 - Section 374(2) - Appeal from conviction and sentence - When act falls within any of the exceptions of Section 300, IPC accused cannot be convicted with the help of Section 34 or 149, IPC and should be convicted for individual acts - Appeal partly allowed : Narayan Vs. State of M.P. , I.L.R. (2006) M.P. 270 (DB)
- Sections 34, 302, 304-I, 323, Indian Evidence Act, 1872, Section 3 - Appreciation of evidence -Murder - Co-accused catching hold of victim while other caused stab injury - No evidence that catching hold from behind and stabbing were simultaneous - Co-accused cannot be said to have knowledge that other co-accused would go to the extent of causing death - Cannot be held guilty of causing death with the aid of section 34, IPC - Entire body exposed but injury was caused on non-vital parts - Intention to cause death cannot be inferred - Conviction under section 302 altered to one under Section 304-Part I, IPC : Virendra Vs. State of M.P., I.L.R. (2006) M.P. 1322 (DB) Penal Code (45 of 1860) 556
- Sections 34, 320, 326 - Common Intention - Deceased and informant coming back to their houses after collecting wood from bank of river - Appellant and co-accused came there and committed theft of wood - During altercation another co-accused inflicted one axe blow on head of deceased - Other prosecution witnesses were assaulted by appellants - Deceased died on his way to Police Station - Appellant convicted under Section 302/34 of I.P.C. - Held - There had been a quarrel - No pre-mediation between appellant and another accused - Causing injury by another accused to deceased was an individual act - Common intention may develop on spot but must also be shared with other accused - Occurrence took place all of a sudden -Accused persons had acted on spur of moment having regard to altercations which preceded the incident - Difficult to lead to conclusion that appellant and another accused had developed common intention of causing death of deceased - Considering the nature of injuries sustained by injured witnesses appellant convicted under Section 326 of I.P.C. and sentenced to 10 years rigorous imprisonment - Appeal allowed accordingly : Jagannath Vs. State of M.P., I.L.R. (2007) M.P. 1288 (SC) 3. It does not create a substantive offence
- Section 34 - Common Intention - Section is only a rule of evidence and does not create a substantive offence - The distinctive feature is element of participation in action : Daya Shankar Vs.State of M.P., I.L.R. (2009) M.P. 1197 (SC)
- Section 34 - Common Intention - Section 34 is only a rule of evidence and does not create a substantive offence - Distinct feature is the element of participation in action - Direct proof of intention is seldom available and such intention can only be inferred from the circumstances appearing from the proved facts and circumstances of the case : Komal Vs. State of M.P., I.L.R. (2009) M.P. 1557 (SC) 4. Overt Act -It's relevancy
- Section 34 - Provision of Sec. 34 is intended to meet a case in which it may be difficult to distinguish between acts of individual member of a party who act in furtherance of common intention of all or to prove exactly what part was taken by each of them - This section is applicable even no injury has been caused by the particular accused himself - It is not necessary to show some overt act on the part of the accused : Shashi Mohan Vs. State of M.P., I.L.R. (2009) M.P. 897 (SC)
- Sections 34, 302 - Murder and common intention - No overt act attributed to appellant - Mere fact that he was in company of accused who were armed would not sufficient to attract Section 34 - Appellant neither armed nor having any animosity with deceased - Appellant acquitted - Appeal allowed : Daya Shankar Vs. State of M.P., I.L.R. (2009) M.P. 1197 (SC) Penal Code (45 of 1860) 557
- Sections 34, 397 - Robbery or dacoity with attempt to cause death or grievous hurt - Individual act of each accused has to be established - Cannot be convicted with aid of Section 34 of I.P.C. : Bharat Singh Vs. State of M.P., I.L.R. (2008) M.P. 2126 5. Sharing common intention
- Section 34 - Common Intention - Two accused coming on a auto-rickshaw caused 6 stab injuries to deceased on vital parts of body and thereafter fled away on the same auto-rickshaw - Both were sharing common intention and had assaulted deceased in further of common intention - Respondent Nos. 1 & 3 who caused injury by choori convicted under Section 302 r/w Section 34 - Appeal of State partly allowed : Nasir Vs. State of M.P., I.L.R. (2008) M.P. 907 (DB)
- Sections 34, 302 - Common Intention - Murder - One accused assaulted the deceased by an axe - Appellant assaulted the deceased by lathi - Main cause of death was injury caused by another accused - Held - Both accused persons assaulted simultaneously - Both left the spot together after causing injuries - Injury caused by appellant on skull of deceased had resulted into fracture of mandible - It cannot be held that there was no prior concert between both accused persons : Jham Singh Vs. State of M.P., I.L.R. (2007) M.P. 1691 (DB)
- Sections 34, 299, 302, 323, 326 - Death after 35 days due to septicaemia and not as a direct result of injury by knife - Intention to Cause death cannot be inferred - Offence would be of causing grievous hurt punishable under Section 326, I.P.C. : Kailash Vs. State of Madhya Pradesh, I.L.R. (2006) M.P. 857(DB)
- Sections 34, 300, 302, 304 Part-II and Criminal Procedure Code, 1973, Section 374 (2) - Appeal from conviction and sentence - Culpable homicide - Death due to excessive peritonitis and no because of direct result of injury - Accused cannot be convicted under Section 302 IPC but under Section 304 Part-II, IPC - Appeal partly allowed : Rama @ Ramlal Vs. State of Madhya Pradeshm, I.L.R. (2006) M.P. 614 (DB)
- Sections 34,300, 302, 304, Part II and 323 - Cause of death was coma because of head injury - Doctor not stated that said injury was sufficient to cause death in the ordinary course of nature - Convictions altered to one under Section 304 Part II, IPC : Chand Khan S/o Bannekhan Vs. State of Madhya Pradesh, I.L.R. (2006) M.P. 868 (DB)
- Sections 34, 302, 304 Part II, 323 and Criminal Procedure Code, 1973, Section 378 - State Appeal against acquittal - Power of High Court - Not different than its powers in hearing appeal against conviction - But High Court must consider each of the Penal Code (45 of 1860) 558 grounds on which Trial Court acquitted the accused - Once conclusively held that injuries on deceased were caused by accused discrepancy in respect of place of incident and cause of incident pale into insignificance ½'' X ¼'' X scalp deep injury on right parietal region of head of deceased - Incident occured without premeditation and as a result of sudden altercation - Accused convicted under Section 304 Part II, IPC : State of M.P. Vs. Ashok, I.L.R. (2006) M.P. 397(DB)
- Sections 34, 302,394, 460 - No direct evidence - Prosecution case based on Circumstantial evidence that gun of deceased was recovered from appellant - Recorvery made after 10 months - Cannot form basis of conviction : Pradeep Sharma Vs. State of Madhya Pradesh , I.L.R. (2006) M.P. 653 (SC))
- Sections 34, 306 and Criminal Procedure Code, 1973, Section 482 - Quashing charge - Abetment of suicide - Accused allegedly commented on character of deceased - Charge framed by trial Court - Case of petitioner is identical to other co-accused who have been discharged by the High Court - Petitioner is entitled to be discharged : Sonam Vs. State of M.P., I.L.R. (2006) M.P. 1348
- Sections 34, 325 - Conviction and Sentence - Appellate or Revisional Court cannot pass sentence beyond original Court's jurisdiction : Raghuraj Singh Vs. State of M.P., I.L.R. (2006) M.P. 896
● - Sections 52, 294, 452, 392, 500, 506 r/w 34 - See - Sahkari Krishi Aur Gramin Vikas Bank Adhiniyam, M.P., 1999, Section 50(2) : Arvind Kumar Bhargava Vs. Lalit Parashar, I.L.R. (2008) M.P. 2471
- Sections 68 & 69 - See - Criminal Procedure Code, 1973, Sections 362 & 482: Prahlad Singh Vs. State of M.P., I.L.R. (2009) M.P. 1537
- Section 84 - Plea of insanity - PWs admitted in cross-examination that appellant was insane and he also used to take treatment - Jailor's evidence and Doctor's certificate indicates that the appellant was treated for schizophrennia during 06.12.98 to 18.06.99 in mental hospital - But, no medical evidence on record to indicate that before or at the time of commission of offence, appellant was suffering from any mental disorder or insanity so as to be incapable of understanding the nature of his act - Plea of insanity found rightly rejected by trial Court : Kodulal @ Laxman Vs. State of M.P., I.L.R. (2010) M.P. 2181 (DB)
- Section 84 - Act of a person of unsound mind - Plea with regard to appellant's mental condition based exclusively on the statements made by his close family members - Plea taken for first time before Apex Court at the SLP stage only - Appellant not entitled for any benefit : Jagdish Vs. State of M.P., I.L.R. (2010) M.P. 310 (SC) Penal Code (45 of 1860) 559
- Section 84, Evidence Act, 1872, Section 105 - Act of a person of unsoundmind - Burden of proof & degree of proof - Burden of proof rests on accused to prove his insanity - Burden is not so onerous as that upon the prosecution - The burden on the accused is no higher than that resting upon a plaintiff or a defendant in a civil proceeding: Hari Singh Gond Vs. State of M.P., I.L.R. (2008) M.P. 2764 (SC)
- Section 84 - Kinds of unsound mind persons - (1) An idot, (2) One made non- compos by illness, (3) A lunatic or a made man and (4) One who is drunk : Hari Singh Gond Vs. State of M.P., I.L.R. (2008) M.P. 2764 (SC)
- Section 84 - Mere absence of motive of a crime, how so ever atrocious it may be, cannot in the absence of plea and proof of legal insanity, bring the case within this section - Mere abnormality of mind or partial delusion, irresistible impulse or compulsive behaviour of a psychopath affords no protection under this section : Hari Singh Gond Vs. State of M.P., I.L.R. (2008) M.P. 2764 (SC)
- Section 84 - What factors are to be considered - The crucial point of time for deciding whether the benefit of this section should be given or not, is the material time when the offence takes place - In coming to that conclusion, the relevant circumstances are to be taken into consideration - It would be dangerous to admit the defence of insanity upon arguments derived merely from the character of the crime : Hari Singh Gond Vs. State of M.P., I.L.R. (2008) M.P. 2764 (SC)
- Section 84 - When provisions are attracted - The benefit is available only after it is proved that at the time of committing the act, the accused was labouring under such a defect of reason, from disease of the mind as not to know the nature and quality of the act, he was doing or that even if he did not know it, it was either wrong or contrary to law then this section must be applied : Hari Singh Gond Vs. State of M.P., I.L.R. (2008) M.P. 2764 (SC)
- Section 84 - When the provisions are not attracted - Explained : Hari Singh Gond Vs. State of M.P., I.L.R. (2008) M.P. 2764 (SC)
- Sections 84 and 300 - Murder - Plea of insanity - Plea of insanity not raised before the Trial Court - However, can be raised for the first time at appellate stage - No suggestion given to witnesses regarding insanity of accused - No evidence that accused had history of insanity or was behaving in abnormal manner on the date of incident - It cannot be held that appellant was insane at the time of occurrence - Appeal dismissed: Halkan Yadav Vs. The State of Madhya Pradesh, I.L.R. (2006) M.P. 1680 (DB)
- Sections 84, 302, 325 - Murder - Insanity - Offence committed under attack of temporary insanity - General burden of proof rests on prosecution that accused committed Penal Code (45 of 1860) 560 the crime with requisite mens rea - Burden not discharged - Accused entitled to be acquitted : Mohan Lal @ Mohan Vs. State of M.P., I.L.R. (2006) M.P. 1222 (DB)
- Section 96 - Private defence - When presumption that injuries have been caused by accused in exercise of his right of private defence can be drawn - Law explained : Beniram Vs. State of M.P., I.L.R. (2009) M.P. 885
- Section 96 - Right of private defence - A plea of right of private defence cannot be based on surmises and speculations - While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor - In order to find whether the right of private defence is available to an accused, the entire incident must be examined with care and viewed in its proper setting : Madan Vs. State of M.P., I.L.R. (2009) M.P. 327 (SC)
- Sections 96 & 98 - Sections 96 & 98 give a right of private defence against certain offences and acts - The right given u/ss 96 to 98 and 100 to 106 is controlled by Section 99 : Madan Vs. State of M.P., I.L.R. (2009) M.P. 327 (SC)
- Section 97 - Right of private defence of the body and of property - Injury to the accused - Held - Mere fact that some of the accused persons had sustained simple injuries would not ipso facto mean that they acted in exercise of right of private defense - It cannot be held as a matter of law or invariably a rule that whenever the accused sustained an injury in the same occurrence, the prosecution is obliged to explain the injury and on the failure of the prosecution to do so the prosecution case should be disbelieved : Shyam Singh Vs. State of M.P., I.L.R. (2009) M.P. 2415 (DB)
- Section 97 - Deals with the subject matter of right of private defence - The plea of right comprises the body or property (i) of the person exercising the right, or (ii) of any other person, and the right may be exercised in the case of any offence against the body, and in the case of offences of theft, robbery, mischief or criminal trespass, and attempts at such offences in relation to property : Madan Vs. State of M.P., I.L.R. (2009) M.P. 327 (SC)
- Section 97 - Right of private defence of property - Incident occurred in day time in the field of appellants - Appellants also suffered number of serious injuries - Held - Right of private defence of property occurred to appellants - Prosecution has not explained the injuries sustained by the appellants - Trial Court committed illegality by reading and considering the evidence of counter case - Conviction and sentence set-aside - Appeal allowed : Narayan Vs. State of M.P., I.L.R. (2008) M.P. 2401
- Section 97 - Right of Private Defence - Even if accused does not plead self- defence, Court can consider such plea if the same could arise from evidence : Wahid Khan Vs. State of M.P., I.L.R. (2007) M.P. 1809 Penal Code (45 of 1860) 561
- Section 99 - Right of private defence - How plea can be raised - Plea of self defence can be raised in cross-examination of prosecution witnesses or by way of defence evidence or otherwise - It need not be specifically raised in statement u/s 313 Cr.P.C. : Pardeshi @ Peetambhar Vs. State of M.P., I.L.R. (2009) M.P. 2706
- Section 99 - Section 99 lays down the limits of right of private defence - The right given u/ss 96 to 98 and 100 to 106 is controlled by Section 99 : Madan Vs. State of M.P., I.L.R. (2009) M.P. 327 (SC)
- Sections 100 & 302 - Right of private defence - Deceased broke hedge of appellant for making passage - Altercation took place between appellant and deceased - Villagers reached the spot and stop the parties from fighting - When deceased was going back, appellant went to his house, brought spear and caused injury - Held - Incident took place in two parts - It cannot be said that blow was delivered by appellant in self defence or in the course of sudden quarrel - Right of private defence not available to appellant - Appeal dismissed : Ramhit Vs. State of M.P., I.L.R. (2010) M.P. 1662 (DB)
- Sections 100 & 101 - To claim a right of private defence extending to voluntarily causing death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him - Burden is on the accused to show that he had a right of private defence which extended to causing of death - Sections 100 & 101 define the limit and extent of right of private defence : Madan Vs. State of M.P., I.L.R. (2009) M.P. 327 (SC)
- Sections 100 & 304 Part II - Right of Private Defence - Appellant had inflicted a single injury by awl (Tocha) to deceased - None of accused persons were carrying any weapon - Appellant and acquitted persons were received bleeding injuries - No explanation given by prosecution - Genesis of the incident is shrouded in mystery - Trial Court found that appellant had exceeded right of private defence - Held - Appellant received injury on thoracic - Dimension and size of injury caused to appellant indicates that he did not exceed the right of private defence - Appellant acquitted - Appeal allowed: Durga Prasad Vs. State of M.P., I.L.R. (2008) M.P. 1475
- Sections 102 & 105 - Deal with commencement and continuance of right of private defence of body and property respectively - The right commences, as soon as a reasonable apprehension of danger to the body arises from an attempt, or threat, or commit the offence, although the offence may not have been committed but not until that there is that reasonable apprehension - The right lasts so long as the reasonable apprehension of danger to the body continues : Madan Vs. State of M.P., I.L.R. (2009) M.P. 327 (SC) Penal Code (45 of 1860) 562
- Sections 107,109,306 and Criminal Procedure Code 1973, Sections 397, 401 - Revision - Abetment of suicide - Framing of charge - Requirement - Act of accused must fall in any of the three categories enumerated under Section 107 IPC - Period of two days elapsed between outrage of modesty and commission of suicide - Trial Court committed mistake of law in framing charge : Madiya @ Mahadev Vs. State of M.P.; I.L.R. (2006) M.P. 420
- Sections 107 & 306, Evidence Act, 1872, Section 113-A - Abetting the commission of suicide - Deceased (wife) found inside her house because of burning - No eye witness of incident - Deceased had also not disclosed anything - Possibility of receiving burn injury accidently or by some other person, is not ruled out - It is not proved that deceased committed suicide - No evidence that husband (appellant) instigated wife to commit suicide or deliberately harassing wife so that she could commit suicide - Deceased met with death after 7 years of marriage - Presumption u/s 113-A of Act not attracted - Offence u/s 306 I.P.C. not made out : Manoj Vs. State of M.P., I.L.R. (2008) M.P. 2093
- Section 109 - See - Prevention of Insults to National Honour Act, 1971, Sections 2 & 3 : Aamir Khan Vs. State of M.P., I.L.R. (2010) M.P. 736
- Section 116, Illustration (a) - See - Prevention of Corruption Act, 1988, Sections 7, 11 & 12 : Sharad Kumar Vs. State of M.P., I.L.R. (2009) M.P. 229(DB)
- Section 120-B - Criminal conspiracy - Criminal conspiracy can be proved by circumstantial evidence : State of M.P. Vs. Mohan, I.L.R. (2009) M.P. 2692 (DB)
- Section 141 - Unlawful Assembly - All accused persons pelted stones at the house of deceased and witnesses - When they did not come out, their houses were set on fire - As deceased and his family members came out, he and his sons were assaulted by accused persons - Since the appellants were members of unlawful assembly they constructively become liable for the act of other members of that assembly - Individual act was not required to be proved - Conviction upheld - Appeal dismissed : Bhaddu Vs. State of M.P., I.L.R. (2008) M.P. 363 (DB)
- Sections 147, 148, 323, 395 r/w 149, Criminal Procedure Code, 1973, Sections 156, 202(2) proviso - Procedure when allegation in the complaint are exclusively triable by Sessions Court - Held - The scheme of the provisions and the language employed in the proviso show that conducting of inquiry in complaint case is not left to the discretion of the magistrate concerned - Magistrate has no discretion except to call upon the complainant to produce all his witnesses and examine them on oath - The provisions of Section 202(2) of Cr.P.C. are mandatory : Nanjiram Vs. State of M.P., I.L.R. (2008) M.P. 2737 Penal Code (45 of 1860) 563
- Sections 147, 149, 294, 341, 323, 506-B, 307, Criminal Procedure Code, 1973, Sections 169 & 482, Constitution, Article 20(2) - Powers of magistrate when Final Report is in favour of the accused persons - It is true that the Final Report is not binding on the magistrate and if the magistrate differs from the opinion of the I.O., he can take cognizance or order for further investigation, but that action of magistrate is judicial action and at that stage while taking decision on the Final Report the magistrate has to act judicially as a court - When a final report is submitted in favour of the accused persons and the investigation agency is of the view that no case is made out for prosecuting the accused and prima facie, evidence is defiance, if the magistrate wants to hear complainant it is obligatory on the part of the magistrate to also hear the accused person. If any protest petition is filed it has to be treated as a complaint and law requires magistrate to record statement of complainant and his witnesses : Rajkumar Vs. State of M.P., I.L.R. (2008) M.P. 2478
- Sections 147 & 302/34 - Appeal against acquittal - Trial Court acquitted the accused persons on grounds that the evidence not reliable and FIR ante-timed - Held - The trial Court recorded the acquittal on flimsy grounds and discarded the ocular evidence without any compelling and justifying reasons - Respondents convicted u/s 302/34 IPC and sentenced to imprisonment for life - Appeal allowed : State of M.P. Vs. Paramlal, I.L.R. (2010) M.P. 2357 (DB)
- Sections 147, 324/149, Probation of Offenders Act, 1958, Section 4 - Incident took place about 20 years back when applicants no. 1 and 3 were 25 and 24 years of age and applicant no.2 was 60 years of age - Applicants first offenders - Maximum punishment under Section 324 prescribed is 3 years - Benefit of Act can be extended if offence is punishable with imprisonment upto 7 years and accused is first offender - Applicants entitled for benefit of Section 4 of Act - Revision allowed partly : Jawaharlal Vs. State of M.P., I.L.R. (2008) M.P. 960
- Sections 148, 149 & 302 - Eye witnesses' account is not duly corroborated by medical evidence - I.O. failed to assign any reason as to why these witnesses were examined after 4-5 days of the incident - Statement of witnesses regarding time of lodging of Dehati Nalishi, contradictory - Conviction and sentence passed by trial Court set aside - Appeal allowed : Radhiya @ Radheshyam Vs. State of M.P., I.L.R. (2010) M.P. 2379 (DB)
- Sections 148, 302/149, Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Section 3(1)(10) - Criminal Procedure Code, 1973, Sections 193, 465 - Case under special act filed before Sessions Court - Sessions Court taking cognizance of case without the case being committed - Charge under special Act not framed, but accused convicted under Section 148, 302/149 - Whether not committing the case vitiates proceedings - No objection raised about competence of Court during Penal Code (45 of 1860) 564 trial stage - Conflicting judgments of the Apex Court as to the legality of trial without committal - Both judgments passed by bench consisting of equal number of judges - Earlier judgment applicable as it is not discussed in the later judgment - Committing the case without trial does not vitiate the proceedings - Evidence reliable - Conviction upheld : Chhotelal Vs. State of M.P., I.L.R. (2007) M.P. 808 (DB)
- Sections 148, 449/149, 302/149, 325/149 - Non mentioning of all the names of assailents in inquest report, medical requisition form, F.I.R. - Effect - As per provision of Section 174 of the Cr.P.C. mentioning of names of assailants, use of weapon, name of eye-witness and details as to how the deceased was assaulted are not germane to the inquest proceeding : Kumersingh Vs. State of Madhya Pradesh, I.L.R. (2007) M.P. 1415 (DB)
- Sections 148, 449/149, 302/149, 325/149 - Overall assessment and appreciation of the statements of all the injured witness suggest that appellants formed an unlawful assembly whose common object was to give good beating to the opposite faction - Conviction u/s 449/149, 302/149 of the IPC set aside, instead they are convicted under Section 325/149 - Appeal allowed in part : Kumersingh Vs. State of Madhya Pradesh, I.L.R. (2007) M.P. 1415 (DB)
- Section 149 - Free fight - In free fight, Section 149 does not apply - However where the accused were attending the Court and had come to Court armed with weapons, they shared common object and formed unlawful assembly - Accused liable to be convicted with the aid of Section 149 : State of Madhya Pradesh Vs. Mukhtyar Malik, I.L.R. (2007) M.P. 647 (DB)
- Section 149 - Unlawful Assembly-7 persons causing 35 injuries to three persons out of which 2 died - Injured witness could not attribute specific role to each accused - Where several persons were inflicting injuries at the same time it may not be possible for witness to state with precision about role played by each accused - Section 149 of I.P.C. attracted - Presence of injured witness cannot be doubted : Kallu Singh Vs. State of M.P., I.L.R. (2007) M.P. 1434 (DB)
- Sections 149, 302 - Unlawful assembly - Common object - More than 35 accused persons went to the house of deceased with common object of rioting and setting ablaze the house and other property of deceased - 8 accused persons went inside the house and dragged the deceased out and caused injuries - 8 accused persons who had caused injuries to deceased had formed smaller unlawful assembly on the spot - Not safe to convict all the accused persons for sharing common object for commission of murder - Appeal partly allowed : Hari Singh Vs. State of M.P., I.L.R. (2009) M.P. 523 (DB)
- Sections 149, 302 - Murder - Unlawful Assembly - Common Object - Accused appellants came to shop of deceased together - Most of them armed with deadly weapons Penal Code (45 of 1860) 565
- One of the accused pierced spear on left side of chest of deceased - Assaults were followed by other accused persons in same transaction - Held - Knowledge of members of unlawful assembly that death of deceased would thereby be caused can be safely attributed - Inference of knowledge and formation of unlawful assembly can be drawn from behaviour of members of assembly - Accused persons rightly convicted u/Ss 302/ 149 - Appeal dismissed : Antu Vs. State of M.P., I.L.R. (2008) M.P. 1483 (DB)
- Sections 149, 326, Evidence Act Indian, 1872, Section 3 and Criminal Procedure Code, 1973, Section 386 - Appeal against acquittal - Power of appellate Court - Not less then the power exercised while hearing appeal from conviction - Injured given blows on various parts of the body - Eye witnesses also received injuries - Their evidence cannot be rejected on ground of previous enmity when enmity is not denied and prosecution case is that accused persons came to beat injured - Failure to name all who gave blows and exact nature of injury caused - Minor inconsistency - Not sufficient to disbelieve injured eye witnesses : Kallu Alias Masih Vs. State of Madhya Pradesh, I.L.R. (2006) M.P. 167 (SC)
- Section 161 - See - Prevention of Corruption Act, 1947, Section 5(1) r/w 5(2) : State of M.P. Vs. Harishankar Bhagwan Pd. Tripathi, I.L.R. (2010) M.P. 2027 (SC)
- Section 161, Prevention of Corruption Act, 1947, Section 5(1)(d) r/w Section 5(2) - Accused was not having any motive to make any demand of bribe - Offence not made out : Hifazatullah @ Nasirullah Vs. State of M.P., I.L.R. (2009) M.P. 1755
- Sections 166, 294, 451 - See - Criminal Procedure Code, 1973, Section 197 : Shameem Khatoon (Smt.) Vs. R.P. Ramanwal, I.L.R. (2008) M.P. Note *89
- Sections 177 & 181, Criminal Procedure Code, 1973, Sections 2(d) & 195 - Complaint - Challan filed by CBI on some information of somebody in Court would not partake the character of a complaint as provided under S. 2(d) - Court cannot take cognizance of complaint filed by CBI, until and unless oral or written complaint by public servant of AICTE is made : Meena Rathore (Smt.) Vs. CBI, ACB, Bhopal, I.L.R. (2010) M.P. Note *30
- Sections 177, 181 & 420 - Cheating - Society is the owner of the land - At the time of submitting application for approval to AICTE application to obtain loan was submitted to Bank and loan was sanctioned to the extent of 7.5 cores for construction of building - In undertaking and affidavit, applicant did not disclose that the land is mortgaged with Bank - Held - Property can be mortgaged at a later date for the purposes of raising finance for development of technical institution - Affidavit loaded on web portal contrary to approval process - Intention of AICTE is not that land cannot be Penal Code (45 of 1860) 566 mortgaged - No offence u/s 420 made out as intention of dishonestly inducing the delivery of property with a view to cause damage or harm to that person in body, mind, reputation or property is missing : Meena Rathore (Smt.) Vs. CBI, ACB, Bhopal, I.L.R. (2010) M.P. Note *30
- Sections 177,199, 218, Criminal Procedure Code, 1974, Section 482 - A complaint filed by Jr. Engineer against a dead person U/s 138 of Electricity Act - When this fact came into the knowledge of Court - Proceedings were dropped - Show cause notice issued against Jr. Engineer why he has filed complaint against dead person - Thereafter, applicant working as CMD was directed to conduct enquiry - Applicant submitted the report that sons of deceased had given false information at the time of inspection - Report of applicant not accepted by Special Judge and issued show cause notice as to why he be not punished U/ss 177, 199 and 218 of Code - Held - No material before Special Judge on the basis of which report of applicant could be disbelieved - Conclusions drawn by Special Judge on imaginary grounds only - Show cause notice to applicant totally unwarranted and an abuse of process of law - Petition allowed : Sanjay Mohase Vs. State of M.P., I.L.R. (2008) M.P. 974
- Section 188 - See - Criminal Procedure Code, 1973, Section 482 : Gautam Kalloo (Dr.) Vs. State of M.P., I.L.R. (2010) M.P. 536
- Section 194 - Giving or fabricating false evidence with intent to procure conviction of capital offence - Appellant, a Sub-Inspector fabricated false evidence by surreptitiously inserting timings in various documents prepared during investigation - Appellant admitted in cross-examination that timing was mentioned later on - P.W. 2 also deposed that he had seen appellant making corrections in original documents during the pendency of trial - Held - Purpose was to get the accused persons convicted - Accusations found proved by both the Courts - Appeal dismissed : Suresh Chandra Sharma Vs. State of M.P., I.L.R. (2009) M.P. 2133 (SC)
- Section 201 - See - Prevention of Corruption Act, 1988, Sections 7, 13(1)(d), 13(2) & 20, Ravindra Kumar Ganvir Vs. State of M.P., I.L.R. (2010) M.P. Note *87 (DB)
- Section 201 - Causing disappearance of evidence - No iota of evidence that cloths of respondent No.1 were seized from the house of respondent No.2 - No evidence that respondent No.2 washed the blood stained cloths of respondent No.1 - Acquittal proper : State of M.P. Vs. Habib Ahmad, I.L.R. (2009) M.P. 3187 (DB)
- Section 201 - Causing Disappearance of evidence - In order to prove charge under Section 201, it is essential to prove that some offence has taken place - No offence under Section 201 made out : Sittu Patel Vs. State of M.P., I.L.R. (2008) M.P. Note *40 Penal Code (45 of 1860) 567
- Sections 201 & 302 - Murder - Life imprisonment - Cause of death throttling - Allegation that at 3 p.m. there was hot exchange of words between deceased and appellant and thereafter matter was settled - At 8 p.m. appellant along with other accused persons was seen shifting dead body of deceased from house of one accused to the house of appellant - Nail marks found on the neck of deceased - Appellant's both palms are amputated below wrist - Held - Trial court acquitted other accused persons - If there is none else who can be connected with alleged crime then it would almost be impossible for a man who does not have the palms to firstly throw an able bodied man on the ground and thereafter throttle him with the help of legs - A man without palms could not help and assist in shifting the body from one house to another - The observation of trial court in relation to nail marks caused by toe nails is not only fanciful but is absolutely perverse and shocks the human understanding and prudence - Conviction and sentence set-aside - Appellant acquitted of all charges : Dallu Basore Vs. State of M.P., I.L.R. (2009) M.P. 875 (DB)
- Section 201, 302, 364, Criminal Procedure Code, 1973, Sections 360, 374 (2) and Evidence Act, Indian, 1872 Section 3, 45 - Murder - Death sentence - reference - Missing child found murdered - Use of sniffer dog - Reliability - Tracker dog must pass test of scrutiny and reliability by examining dog trainer - Evidence regarding past performance, achievements of Sniffer dog should be proved by documents - No evidence that tracker dog nabbed accused appellant - Evidence regarding sniffer dog suspicious - No other evidence connecting accused with the crime - Conviction and death sentence set aside - Forming opinion on basis of cited cases - Trial Court expected to go through entire judgment cited - Forming opinion by reading stray sentences from cited cases - Practice deprecated : Mahesh Vs. State of M.P., I.L.R. (2006) M.P. 1211 (DB)
- Section 216-A, Dakaiti Aur Vyapharan Prabhavit Ksheshtra Adhiniyam, M.P. 1981 Sections 11 & 13, Arms Act, 1959 Sections 25(1-B)(a) & 30 - Charges under - SDO(P) who remained active from stage of receiving information till arrest memo of respondent, not examined - There exists material contradiction in testimony of two witnesses - Entry of Roznamcha regarding movement & return of police party not produced - Gun licence was also found valid in name of father of respondent - No scope of interfering with the acquittal passed by Special Judge - Appeal dismissed : State of M.P. Vs. Veeru @ Veer Singh, I.L.R. (2010) M.P. 2187
- Section 220 - Commitment for trial or confinement by person having authority who know that he is acting contrary to law - Applicant had authority to commit the son of complainant to confinement under Section 151 of Cr.P.C. - Whether or not to release her son on bail was within discretion of the applicant - Whether demand of illegal favour from complainant can be termed as integral part of duty - Held - Demand of illegal gratification for passing an order or using discretion in favour of party can never be an Penal Code (45 of 1860) 568 act covered under duties of public servant - However, whether alleged act is covered under Section 220 of I.P.C. or not can be decided after recording of evidence during Trial - However Magistrate has committed an error in not paying attention to provisions of Sections 351/354 of I.P.C. - Magistrate may hear the parties and pass appropriate orders in this regard : Prakash Vyas Vs. Smt. Kamlesh Chauhan, I.L.R. (2007) M.P. 1721
- Section 224, Criminal Procedure Code, 1973, Section 470(4) (b) - Computing the period of limitation, the time during which the offender has avoided arrest by absconding or concealing himself, shall be excluded - Appellant released on parole - Did not surrender after expiry of Parole - Arrested after 19 years - Period of absconding can be excluded - Charge sheet was not beyond limitation : State of M.P. Vs. Shankarlal Soni, I.L.R. (2008) M.P. Note *52
- Section 287 - See - Criminal Procedure Code, 1973, Section 357(3) : Mahesh Vs. State of M.P., I.L.R. (2008) M.P. Note *79
- Sections 294, 323 & 34 - See - Evidence Act, 1872, Section 3 : Indu Vs. State of M.P., I.L.R. (2009) M.P. Note *34
- Sections 294, 452, 392, 500, 506 r/w Section 34 - See - Sahkari Krishi Aur Gramin Vikas Bank Adhiniyam, M.P., 1999, Section 50(2) : Arvind Kumar Bhargava Vs. Lalit Parashar, I.L.R. (2008) M.P. 2471
- Section 295A - Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs - Cognizance cannot be taken except with sanction of Central or State Government : In Reference Vs. Deepak Agrawal, I.L.R. (2009) M.P. 272
- Section 300 - A sudden quarrel between appellant and his wife (deceased) on spur of moment and in heat of passion, without premeditation appellant suddenly dealt one blow of hammer on head of deceased with force - Bones of her skull broken into several pieces and she died - Shows an intention of causing her death or at least causing such bodily injury as was likely to cause her death - Liable to be punished under Part-I of Section 304 I.P.C. : Vijay Gupta Vs. State of M.P., I.L.R. (2008) M.P. 918 (DB)
- Section 300 Exception 1 - Sudden and Grave Provocation - Number of persons killed the deceased, caused injuries to injured witnesses and set their houses on fire - Benefit of 1st Exception of Section 300 cannot be given to offenders who sought provocation as excuse for killing or doing harm to any person - The act must be done under immediate impulse of provocation - Provocation must be such as will upset person of ordinary sense and calmness - It cannot be held that all of them lost their power of Penal Code (45 of 1860) 569 control and committed offence - Defence of sudden and grave provocation not available: Bhaddu Vs. State of M.P., I.L.R. (2008) M.P. 363 (DB)
- Section 300 Exception 4 - Murder or culpable homicide not amounting to murder - Appellant No.1 dealt a blow by handle of axe on the head of deceased - Deceased suffered one lacerated wound on left temporal bone, no other external injury was found - Held - Plea of right of private defence was taken by the appellant for the first time in his accused statement - Appellant failed to prove right of private defence as no report was lodged by him and no injury was caused to him - Incident occurred all of a sudden in heat of passion when deceased caught son of accused - The act of causing solitary blow on the head of deceased would fall under Clause 4 of exception of Section 300 IPC, punishable u/s 304 Part-I - Offences punishable u/s 304 Part-I and not u/s 302 IPC - Appeal partly allowed : Karan Singh Vs. State of M.P., I.L.R. (2009) M.P. 859 (DB)
- Section 300, Exception 4 - Ingredients - It has to be established that act was committed without premeditation, in a sudden fight, in heat of passion upon sudden quarrel and without the offender having taken undue advantage and not having acted in a cruel or unusual manner and fight must have been with person killed : Rakesh Vs. State of M.P., I.L.R. (2008) M.P. 2153 (SC)
- Section 300 Exception 4 - Murder or Culpable Homicide not amounting to murder - Appellant No.4 had scuffled with deceased and appellant No.2 picked up a spade and dealt repeated blows from its blunt side on the head of deceased - Lacerated wounds with depressed fractures of skull bone and laceration of brain found - Lower jaw was also broken at three places - Held - For bringing in operation the Exception 4 of Section 300, it has to be established that act was committed without premeditation in a sudden fight in heat of passion upon a sudden quarrel without offender taking undue advantage and having not acted in cruel or unusual manner - Appellant No.2 has caused death of deceased with intention of causing death - Conviction of appellant No.2 u/s 302 upheld : Tok Singh Vs. State of M.P., I.L.R. (2008) M.P. 2980 (DB)
- Section 300, Exception 4, Sections 302, 304 Part 1 - Murder or Culpable Homicide not amounting to murder - For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel without premeditation - It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner - There was no enmity between the parties - There occurred a sudden fight, the appellant stabbed the deceased thrice repeatedly on vital parts - Deceased has not exercised any force against the appellant - Appellant applied the knife for causing the bodily injuries on the person of deceased which were likely to cause death - The case of appellant falls within u/s 304 Part I and not u/s 302 : Pramod Kumar Vs. State of M.P., I.L.R. (2008) M.P. 2702 (DB) Penal Code (45 of 1860) 570
- Sections 300 Exception IV, 302, 304 (II) - Culpable Homicide not amounting to Murder - Sudden quarrel - Accused, while grappling with deceased, took out a pair of scissors and assaulted the deceased in his abdomen and chest resulting in his death - For bringing case under Exception IV of Section 300 of I.P.C. it is not sufficient to show that there was sudden quarrel and there was no premeditation - It must further be shown that offender has not taken undue advantage or acted in cruel or unusual manner - Size of weapon is important in determining "undue advantage" - Scissors not a big sized weapon - Exception IV of Section 300 is attracted - Conviction altered to Section 304 (II) - Accused sentenced to seven years rigorous imprisonment : Salim Sahab Vs. State of Madhya Pradesh, I.L.R. (2007) M.P. 307 (SC)
- Section 300 - Murder - Appellants hiding behind bushes when the deceased and injured were coming back from their fields - Appellants surrounded the deceased and injured and caused as many as 35 injuries on three persons by deadly weapons - Two persons died in the incident - Evidence of injured witness and independent witnesses cannot be discarded on the ground of delay in recording Statement by Police - Merely because the witnesses could not attribute specific act to each accused prosecution case cannot be doubted - Provision of Section 149 of I.P.C. applies - Oral dying declaration made by deceased to witness reliable - Accused persons guilty of committing murder - Appeal dismissed : Kallu Singh Vs. State of M.P., I.L.R. (2007) M.P. 1434 (DB)
- Section 300 - Murder - Husband wanted to marry another girl with whom he had illicit relationship - He used to give threat of Chhor Chhuti and used to beat the deceased - Altercation took place between husband and deceased on the question of another girl - Deceased was brought to Doctor in burnt condition and three dying declarations were recorded - As per two dying declarations mother-in-law poured kerosene oil - As per third dying declaration she caught hold of her and husband poured kerosene oil and set her ablaze - Discrepancy as to who poured kerosene oil and who caught hold of her is not enough to give any benefit of doubt to husband and mother-in- law - Appeal of husband and mother-in-law dismissed : Reeta Sonkar Vs. State of M.P., I.L.R. (2007) M.P. 1255 (DB)
- Section 300 - Murder - Three persons were killed and two children were badly injured - Incident took place in the dead hours of night - Incident alleged to have been witnessed by two injured children and one girl who was staying in the same house - Trial Court relying on Test Identification Parade and statements of children convicted respondents and imposed death penalty on one respondent and awarded life sentence to another respondent - High Court on reference under Section 366 of Cr.P.C. acquitted the respondents - Held -Witnesses admitted that respondent was known to him as Pathar Phodane Wala as he had worked in their house for construction of room - Identify of respondent not disclosed in the F.I.R. - Witnesses admitted that photo of Penal Code (45 of 1860) 571 respondent was shown to them prior to holding of Test Identification Parade - Blood stains found on cloth were so small that they were not sufficient for serological examination - As photo of respondent was shown therefore, it took away the effect of Test Identification Parade - Acquittal of respondents by High Court proper - Appeal Dismissed : State of M.P. Vs. Chamru @ Bhagwandas., I.L.R. (2007) M.P. 854 (SC)
- Section 300 - Murder - Injuries on accused persons - Simple injuries found on the body of some accused persons - Nature of injuries is not such calling for explanation - Accused persons were aggressors - Right of Private Defence not available to them : Kallu Singh Vs. State of M.P., I.L.R. (2007) M.P. 1434 (DB)
- Section 300 Clause 3rdly, and 302 - Culpable homicide - Mere ommission of doctor to mention whether injury was sufficient to cause death in the ordinary Course of nature-intention of law is that Courts must objectively examine the case and the injury - Knife injury on neck cutting carotid vessels which resulted into death - Prosecution proved its case within clause 3rdly of section 300 of IPC : Hakim Khan Vs. State of M.P.; I.L.R. (2006) M.P. 882 (DB)
- Section 300 - Murder - Appeal against judgment acquitting accused persons under Section 302 of I.P.C - Trial Court disbelieving the evidence and acquitting accused persons mainly on the ground of variance between eye witnesses account and Post mortem report regarding time of incident - Statement of the Doctor in cross examination that death could have been caused within 6-12 hours of post mortem ignored by Trial Court - Doctor's opinion disagreed with by trial court after placing reliance on the extracts of Modi's Medical Jurisprudence and Toxicology and P.K. Bhattacharya's Medical Legal Companion - Extracts not brought to the notice of Doctor at the time of his examination - Evidence of doctor cannot be ignored - Appeal allowed - Judgment of acquittal set aside - Accused respondents convicted under Section 302/34 of I.P.C : The State of Madhya Pradesh Vs. Hibb, I.L.R. (2006) M.P. 1669 (DB) SYNOPSIS : Section 302
1. Blood Stain / Blood Group 14. Ligature mark 2. Circumstantial evidence 15. Medical Evidence 3. Common Intention / 16. Motive Overt Act 17. No opportunity given 4. Contradiction in Ocular to accused to explain and medical evidence incriminating circumstances 5. Culpable Homicide 18. Non-explanation of injuries amounting to Murder on accused Penal Code (45 of 1860) 572
6. Culpable Homicide not 19. Offence inside the privacy amounting to murder of a house 7. Death Sentence 20. Offence involving a large 8. Defective Investigation number of offenders and a large 9. Discrepancy on several number of victims vitals aspects 21. Plea of alibi 10. Dying Declaration 22. Right of Private defence 11. Homicidal death 23. Source of light 12. Identification of skeleton 24. Witness 13. Intention to cause death 25. Miscellaneous
1. Blood Stain / Blood Group
- Section 302 - Murder - Blood - Simple blood was found on axe, clothes - Presence of simple blood cannot be used as conclusive and substantive evidence against appellant: Bhagwanlal Vs. State of M.P., I.L.R. (2010) M.P. 1645 (DB)
- Section 302 - Murder - In absence of evidence that blood found to be of human and also blood group of the deceased the evidence can not be said to be conclusive - No evidence that blood found on the knife and on clothes of respondent was human blood and blood group of the deceased : State of M.P. Vs. Ashok, I.L.R. (2008) M.P. 1220 (DB) 2. Circumstantial evidence
(i) Not proved (iii) Proved (ii) Principle
(i) Not proved
- Section 302, Evidence Act, 1872, Section 3 - Murder - Appreciation of evidence - Last seen with the deceased - Held - Prosecution has failed to prove exact time when the deceased was seen in the company of appellant and there was long gap seeing the appellant in the company of deceased and finding his dead body on the public road - Penal Code (45 of 1860) 573
In these circumstances, it cannot be said that appellant was the perpetrator of the crime: Goru @ Goriya Vs. State of M.P., I.L.R. (2009) M.P. 2994 (DB)
- Section 302 - Circumstantial evidence - Use of vehicle by relative for committing offence would not be sufficient to prove the involvement of owner of vehicle : State of M.P. Vs. Mohan, I.L.R. (2009) M.P. 2692 (DB)
- Sections 302, 392, 397, 411, 413 & 414 - See - Evidence Act, 1872, Section 3 : Ramesh Chandra Vs. State of M.P., I.L.R. (2010) M.P. 2368 (DB)
- Section 302 - Last seen together - PW-7 stated that he had seen appellants along with one boy - He has not stated that he was able to identify the boy - Dead body of boy was not got identified by this witness - Statement of witness not sufficient to establish circumstance of last seen together : Nasir Vs. State of M.P., I.L.R. (2009) M.P. 2078 (DB)
- Section 302 - Murder - Circumstantial Evidence - Last Seen Together - Deceased and respondent who were uncle and nephew residing together - If they left home together, that alone not sufficient to make out a case of last seen together : State of M.P. Vs. Ashok, I.L.R. (2008) M.P. 1220 (DB)
- Section 302 - Murder - Dead body of deceased found hanging in the room - Room was found bolted from inside - There is no evidence on record to indicate that there was any other door or outlet in room - This creates serious dent in prosecution story : Lal Bahadur Dubey Vs. State of M.P., I.L.R. (2009) M.P. 3214 (DB)
- Section 302 - Murder - Circumstantial Evidence - Deceased, a second wife of appellant no.1 not having good terms with first wife of appellant no.1 - Deceased had shifted to her parents house on account of quarrel, however, rejoined appellant no.1 on his assurance that she will not be ill-treated - House of appellant was found locked from outside - Appellant no.1 had gone to borrow the bullock cart - Skeleton recovered after one and a half month from a distant place - Axe, Pickaxe and spade recovered at the instance of appellant no.1 from near a tree - Held - It is necessary that each circumstance should indicate guilt of accused without being compatible with any hypothesis of his innocence -- Circumstances taken together cannot make a chain indicating the guilt of accused persons - Appellants acquitted - Appeal allowed : Kishan Vs. State of M.P., I.L.R. (2008) M.P. 1273 (DB)
- Section 302 - Appreciation of evidence - Dehati Nalishi recorded on 7.5.1997 at 6.30 p.m. and crime was also registered at 8.30 p.m. against the accused - He was available but arrested on 8.5.1997 at 3 p.m. - Shows that on 7.5.1997 police was not having clear and sufficient information against the accused - A strong circumstance in favour of accused : Abhay Vs. State of M.P., I.L.R. (2008) M.P. 373 (DB) Penal Code (45 of 1860) 574
- Section 302, Evidence Act, 1872, Section 3 - Circumstantial evidence - Appellant's wife died due to 95% burn injuries - At the time of occurrence appellant was not in house as he went to evacuate - Merely because deceased suffered burn injuries inside the room and appellant has not offered any explanation - On the basis of presumption appellant can not be roped - Can not be convicted on conjectures and surmises - Conviction U/s 302 and 201 I.P.C. set aside : Lakhan Lal Vs. State of M.P., I.L.R. (2008) M.P. Note *19 (DB)
- Section 302 - Murder - Circumstantial Evidence - Last Seen Together - Brother of deceased did not disclose in his statement under Section 161 of Cr.P.C. that he himself had seen deceased in the company of appellants - Witness stating in Court evidence that he himself had seen the deceased in the company of appellant several times on that day - Contradictions and omissions are on material point - No reliance can be placed on such a statement : Sanjay Gour Vs. State of M. P., I.L.R. (2008) M.P. 390 (DB)
- Section 302 - 100% burns - Rule of Nines - Circumstantial Evidence - Second wife of appellant found died in her house with 100% burns - Trial Court ruled out possibility of suicide as deceased had suffered 100% burns - Trial Court held that in view of extent of burns it was not possible for deceased to have completely drenched herself in kerosene and then to set her on fire - Held - Degree and extent of burns are counted on the basis of formula known as Rule of Nines - Even if a small portion of head is burnt the percentage of body surface would remain 9 - Rule of Nines does not contemplate or imply that whole body should have been affected by burns - Under these circumstances it is not necessary that there should have been 100% burns in case of each and every part of body - Trial Court also ignored that even if small part of body is smeared with kerosene possibility of burns extending to dry part of body is not ruled out - Conclusion drawn by Trial Court ruling out possibility of suicide not proper - Appeal allowed : Thakurlal Vs. State of M.P., I.L.R. (2008) M.P. 170 (DB)
- Section 302 - Murder - Conviction and sentence - Appeal - Last seen together - Weak piece of evidence - In absence of corroborative evidence in would be hazardous to base conviction on 'Last seen together' - Accused deserve benefit of doubt : Subhash @ Poonam Chand Patidar Vs. State of M.P., I.L.R. (2006) M.P. 1201 (DB)
- Section 302 and Evidence Act Indian, 1872, Section 3 - Murder - Circumstantial evidence - Death due to gun shot injury of chest - Medical evidence the death was immediate - Shirt & Palm of deceased blood stained - Alleged note not stained - Not referred to forensic - Hard to believe that said note was written after receiving gun shot injury - Acquittal proper : State of M.P. Vs. Anil Kumar, I.L.R. (2006) M.P. 97 (DB)
- Sections 302/34 & 201-No Eye -Witness, report of F.S.L. indicates human blood on articles other than Article "F" which only was blood stained - Conviction based Penal Code (45 of 1860) 575 mainly on alleged extra judicial confession and F.S.L. Report - The finding of blood on articles seized from accused though creates suspicion against accused, the suspicion however strong, can not take place of the proof - The two circumstances relied upon by the prosecution do not fall in the category of the circumstances which clinchingly prove the guild of the accused persons - They are entitled to benefit of doubt - Appeal allowed : Ramesh Vs. State of M.P., I.L.R. (2008) M.P. 143 (DB)
- Sections 302, 366, 364 & 376, Evidence Act, 1872, Section 3 - Rape and Murder - Circumstantial evidence - Last seen together - Salesman of liquor shop (P.W. 15) states that appellant along with girl had come to liquor shop and had purchased liquor - He had identified the dead body of the girl and appellant from a photograph published in newspaper - Newspapers not filed - Dock identification after 12 months of incident of no use in absence of T.I.P. - Witness not reliable : State of M.P. Vs. Shankarlal, I.L.R. (2010) M.P. 717 (DB)
(ii) Principle
- Section 302 - Murder - Circumstantial Evidence - Prosecution has to prove that circumstance led to no other inference except that of guilt of accused and has to exclude every other hypothesis of his innocence : State of M.P. Vs. Ashok, I.L.R. (2008) M.P. 1220 (DB)
(iii) Proved
- Section 302 - Murder - Circumstantial evidence - Wife was seen lastly in the company of accused - No explanation given by accused regarding whereabouts of his wife - Accused also cremated body of his wife without informing anybody - No explanation given by accused in this regard - Only inference could be drawn is that appellant committed murder of his wife - Appeal dismissed : Bhagwanlal Vs. State of M.P., I.L.R. (2010) M.P. 1645 (DB)
- Section 302 - Murder - Circumstantial evidence - Last seen together - Deceased was seen for the last time in the company of the appellant when he was taking the deceased, his step mother, to his house against her wishes and also assaulted her - Appellant bound to explain that thereafter where she was taken and left by him - In absence of such explanation there is sufficient material on record to draw inference that it was appellant who caused the alleged injuries and committed her murder : Nehru Singh Vs. State of M.P., I.L.R. (2009) M.P. 3205 (DB)
- Section 302, Criminal Procedure Code, 1973, Section 374(2) - Circumstantial Evidence - Appellant convicted for offence punishable u/s 302 IPC, on the basis of circumstantial evidence - Held - Dead body of the deceased recovered from the Penal Code (45 of 1860) 576 appellant's house and recovery of Mangalsutra at his instance also proved - These two strongest circumstances coupled with suspicious conduct of the appellant, unerringly point out the guilt towards the appellant and if circumstances are taken into consideration cumulatively, forms a complete chain and there is no escape of appellant from any corner - Appeal dismissed : Gudda @ Raho @ Gajdhar Vs. State of M.P., I.L.R. (2008) M.P. 2394 (DB)
- Section 302, Evidence Act, 1872, Section 106 - Murder - Circumstantial Evidence - Burden of Proof - It is established that just before death of deceased, there had been quarrel between her and her husband/ appellant inside their house and appellant had rushed to pick up an axe - Incised wounds found on the body of deceased - Held - Appellant and deceased were last seen together inside their house and soon thereafter wife was found dead due to serious injuries - Burden was on appellant to offer reasonable explanation as to how his wife met with homicidal death inside his dwelling house - Appellant did not offer any explanation - Appellant rightly convicted u/s 302 IPC - Appeal dismissed : Bihari Vs. State of M.P., I.L.R. (2008) M.P. 2666 (DB)
- Section 302 - Murder - Circumstantial Evidence - Deceased, wife of appellant died in the house - Cause of death was asphyxia caused by strangulation - Ligature mark and abrasions found on the neck of deceased - Son of deceased clearly stated that appellant was in house and had beaten deceased with kicks and fists - Held - Appellant was in house and was in room and gave beating to deceased - Body was removed from first floor - Blood stains were found on pillow - No report was lodged by appellant or any of his family members - Appellant wanted to screen offence - Appellant guilty of committing murder - Appeal dismissed : Sanjay Vishwakarma Vs. State of M.P., I.L.R. (2008) M.P. 2693 (DB)
- Section 302 - Murder - False report lodged by husband/accused that when he came back to house he found his wife burning - Effort to remove evidence of homicidal death due to asphyxia by setting ablaze the deceased to indicate that it was a case of suicide - Extra Judicial Confession made to persons who were not having any enmity with accused persons - Attempt to influence Doctor is also a circumstance - Appellants guilty of committing murder - Judgment of acquittal set aside - Appellants convicted - Appeal allowed : State of M.P. Vs. Bharat Singh, I.L.R. (2008) M.P. 1245 (DB)
- Section 302 - Circumstantial Evidence causing death by administration of poison - Dead body of wife of appellant found hanging in the house - Examination of viscera reveals presence of Zinc Phosphide - Postmortem report revealed that hanging was postmortem - Petitioner contending that deceased committed suicide by consuming poison - Held - Appellant has not given any explanation of postmortem hanging of dead body of his wife in his dwelling house - Wrappers of Zinc Phosphide not found near the dead body suicide ruled out - Defence of 'alibi' not proved - Presence of contusions on Penal Code (45 of 1860) 577 the dead body are clinching circumstances - Appeal dismissed : Kashi Ram Vs. State of Madhya Pradesh, I.L.R. (2007) M.P. 425 (DB)
- Section 302 - Murder - Appellant charged under Section 302 I.P.C. for murder of his step brother - Appellant acquitted by trial Court on the ground that all the eye witnesses had turned hostile - High Court setting aside the judgment of acquittal on the basis of circumstantial evidence prevailing against the accused -In view of the circumstantial evidence and the motive - Accused seen on the spot with axe and going to police station with axe and blood stained clothes - No other conclusion other than the murder by appellants can be arrived at - Appellant rightly convicted by the High Court - Appeal dismissed : Swami Prasad Vs. State of Madhya Pradesh, I.L.R. (2007) M.P. 579 (SC)
- Section 302 - Murder - Deceased Police Inspector, Constable and eye witness going towards a village on a motor cycle - They noticed a truck parked in the middle of the road - Appellants having guns with them - Police Inspector exhorted miscreants - One of the accused grappled with Inspector - Firing started from both sides - Witness accompanying deceased persons ran behind the hunts of adivasis - On next morning he noticed dead bodies of Police Inspector and Constable - Other eye witnesses also corroborated the version of prosecution - Revolver, Belt, Holster, nine empty cartridges, Silver ring belonging to Police Inspector recovered from possession of accused persons - Post mortem report of both the deceased police personals disclose gun shot injuries - Held - Prosecution has proved that revolver, holster and cartridges were issued to police inspector - Direct as well as Circumstantial Evidence led by prosecution fully established guilt against appellants - Conviction and sentence recorded by Trial Court affirmed - Appeal Dismissed : Bhoneraja @ Bhonesingh @ Dhurjansingh Vs. State of M.P., I.L.R. (2007) M.P. 1425 (DB)
- Section 302 and Evidence Act, Indian, 1872, Section 3 - Murder - Appreciation of evidence - Co-accused allegedlly seen running from place of occurrence with blood stained sickle - Sickle though seized but not sent for chemical examination - It would be perilous to sustain conviction of co-accoused on basis of suspicion evoked - But so far as the conviction of main accused Sanwariya is concerned, injuries caused on frontal, occipital and temporal regions administering repeated blows - Death ensued on account of injuries - Conviction under section 302, IPC does not call for interference: Malsingh Vs. State of M.P., I.L.R. (2006) M.P. 1196 (DB)
- Section 302 - Deceased was found lying on ground in badly injured condition - Witnesses saw appellant running with knif after commission of offence and on enquiry deceased mentioned name of appellant - One witness saw appellant quarrelling with deceased and running away - In identification parade witnesses identified appellant - Nothing has been brought in cross-examination to discredit the statement of witnesses Penal Code (45 of 1860) 578
- Conviction and sentence of life imprisonment upheld - Appeal dismissed : Vikas Vs. State of M.P., I.L.R. (2008) M.P. 2416 (DB)
- Sections 302, 364 & 201 - Kidnapping & murder of a boy of 10 years - Held - The deceased child was last seen alive in the company of appellant and thereafter, his dead body was discovered from the forest on the information furnished by the appellant - The inevitable conclusion is that it was appellant only, who had kidnapped the child/ deceased from the guardianship of his parents and committed his murder by throttling him, though the motive for commission of the crime remained shrouded in mystery : Sanjay Deevan Vs. State of M.P., I.L.R. (2010) M.P. 2389 (DB)
- Sections 302 & 201 - See - Evidence Act, 1872, Section 3 : Suryakant Singh Vs. State of M.P., I.L.R. (2010) M.P. Note *55 (DB)
- Sections 302, 376 - See - Evidence Act, 1872, Section 3 : In Reference Vs. Rahul, I.L.R. (2010) M.P. 2206 (DB) 3. Common Intention / Overt Act
- Sections 302 read with 34 - Common Intention - It is doubtful that appellant no. 2 had caught the deceased, pinned in his grip till appellant no. 3 had caused him all the four injuries by a knife - Therefore it is not proved that the appellant no. 2 was sharing the same intention of causing death of the deceased along with appellant no. 3 - Appellant no. 2 can not held liable under section 302/34 : Fayyum Vs. State of M.P., I.L.R. (2008) M.P. 327 (DB)
- Sections 302 read with 149 - Constructive liability - It is not necessary to prove the overt act of accused - But once the prosecution chooses to give particulars of the overt acts and said description is found demonstratively false, it makes it doubtful that the person was on the spot and had participated in the incident : Fayyum Vs. State of M.P., I.L.R. (2008) M.P. 327 (DB)
- Section 302/34, Criminal Procedure Code, 1974, Section 161 - Police Statement - Omission regarding specific overt act of appellant in police statement - Appellant entitled to get benefit of doubt : Mahesh Vs. State of M.P., I.L.R. (2008) M.P. 582 (DB)
- Section 302/34, Evidence Act, 1872, Section 3 - Evidence - Nature of injuries - Appellant alleged to have caused injuries by lathi - Total absence of injuries which could be caused by lathi - Overt act is belied by medical evidence - Cannot be convicted with the aid of S. 34 I.P.C. : Mahesh Vs. State of M.P., I.L.R. (2008) M.P. 582 (DB) Penal Code (45 of 1860) 579
- Sections 302/34, 342 - Murder or Wrongful confinement - Appellant No.2 caught hold of deceased and appellant No.1 caused knife injuries - Appellant No.1 did not utter a single word before dealing knife blows - He also did not exhorted to appellant No.2 to catch hold the deceased - Held - It can be held that appellant No.2 was not having knowledge that suddenly appellant No.1 would cause knife blows - No circumstance to hold that appellant No.2 was sharing common intention - He is guilty of wrongfully confining the deceased - Acquitted u/s 302/34 and convicted u/s 342 of IPC : Basantlal Vs. State of M.P., I.L.R. (2009) M.P. 1431 (DB) 4. Contradiction in Ocular and medical evidence
- Section 302 - Murder - Conflict between oral evidence and medical evidence - Law discussed : Balkishan (Deleted) Vs. State of M.P., I.L.R. (2010) M.P. 1473(DB)
- Sections 302, 341 & 506-B - Appeal against conviction of appellant on basis of sole evidence of wife of deceased - Held - In view of direct conflict between medical evidence and ocular account given by solitary eye witness, who has only deposed against appellant and acquitted co-accused, is not sufficient to base conviction of appellant - Conviction and sentence set aside : Shiv Charan Vs. State of M.P., I.L.R. (2010) M.P. 2198 (DB) 5. Culpable Homicide amounting to Murder
- Section 302 or 304 - Murder or Culpable Homicide not amounting to murder - Excess land fallen to the share of accused in family partition which was being demanded by complainant and deceased - Deceased assaulted by accused persons by means of Farsi, Ballam, Karpa and lathi - One injury on forehead and remaining 28 injuries were found on different parts of body of deceased along with 5 fractures - Held - Looking to genesis of occurrence as well as evidence of witnesses that deceased was using his hands and legs as shield to stop blows, merely Doctor has not stated that injuries would in ordinary manner sufficient to cause death, ipso facto would not dilute the case of prosecution - The real intention of appellants was to cause injuries on the vital organs of deceased - No offence lesser to Section 302 of I.P.C. is made out - Appellants rightly convicted by Trial Court under Section 302/149 of I.P.C. - Appeal dismissed : Mangilal Vs. State of M.P., I.L.R. (2008) M.P. 381 (DB)
- Sections 302 & 304 - No evidence that there was a sudden fight between the appellant and his wife (the deceased) and the appellant acted in a heat of passion upon a sudden quarrel - Appellant himself has not stated anything in this regard in his examination u/s 313 Cr.P.C. - Repeated blows were wielded on the scalp of deceased with force caused 3 injuries, sufficient to cause death - The benefit of Exception 4 to S. 300 IPC can not be given to appellant - Conviction of appellant u/s 302 IPC upheld - Appeal dismissed : Pappu @ Kamod Vs. State of M.P., I.L.R. (2010) M.P. Note *47 (DB) Penal Code (45 of 1860) 580
- Sections 302, 304 - Murder or Homicide not amounting to murder - Deceased and his wife returning home when they met with Appellant - Deceased enquired whether his relative has abducted his daughter - Appellant started hurling abuses - Appellant stuck an axe blow over head of deceased - F.I.R. lodged by deceased who died while under treatment - Held - Act of appellant may be without pre-meditation but was not a case of sudden fight in which in heat of passion injury was caused - Act of appellant squarely falls within description of offence punishable under Section 302 - Appeal dismissed : Jamsingh Vs. State of M.P., I.L.R. (2008) M.P. 915 (DB)
- Sections 302, 304 - Murder or Culpable Homicide not amounting to murder - Complainant lodged F.I.R. mentioning that he was informed by witnesses that accused persons have assaulted the deceased and injured - When complainant reached on the spot he saw the deceased and his son lying there - One accused had farsi and three had sticks in their hands - Complainant came back and lodged report - Police recorded dehati nalishi made by injured - 26 injuries caused by hard and blunt object were found on the body of deceased - Held - 26 injuries on various parts of her body were found - 5 ribs of left side were found fractured - Deceased died due to syncope resulted by excessive haemorrhage and injuries to lungs and lever - Keeping in view the number and nature of injuries found on body of deceased it cannot be said that accused persons had no intention to cause death : Kanhaiya Lal Vs. State, I.L.R. (2007) M.P. 1704 (DB)
- Sections 302, 304 Part I - Murder or Culpable Homicide not amounting to murder - Appellant after having talk with deceased regarding loan amount got annoyed - Went to his house came back with khalnia and while saying that he will kill the deceased, gave a severe blow on head of deceased resulting in fracture of tempo parietal bone and damage to brain - Injury was sufficient in ordinary course of nature to cause death - Act of appellant can not be termed as act without any pre meditation - Case falls within Clause III of Section 300 of IPC - Conviction U/s 302 IPC upheld : Narayan Vs. State of M.P., I.L.R. (2008) M.P. 578 (DB)
- Section 302, 304 Part-II - Murder or culpable homicide not amounting to murder - Accused caused serious injuries on skull of his brother by heavy log like 'Kharaliya' - Eye-witness saw the accused striking over the head, chin and chest of deceased - F.I.R. lodged by father - Narration of incident by the eye-witness corroborated by other witnesses - Held - Accused caused number of injuries on vital part of body i.e. scalp - The injuries so caused clearly indicate the intention of the appellant to commit murder of the deceased - Act of appellant falls u/s 302 - Conviction and sentence affirmed - Appeal dismissed : Nasa Vs. The State of M.P., I.L.R. (2008) M.P. 3320 (DB)
- Section 302 or 306 - Murder or Suicide - Wife and daughter of accused died due to burn injuries - At the time of their death the accused was there in their company Penal Code (45 of 1860) 581
- Accused did not raise hue and cry to call the neighbours and not tried to save the deceased persons - On the contrary, he failed to answer the query made by his son as to how deceased persons were set ablaze - He silently moved away taking the bicycle and reached to the house of daughter-in-law and had made extra-judicial confession to her - He did not lodge the report - Superficial burn injuries found on the person of accused establishes his complicity and presence - It was a case of commission of murder by accused : Ramchandra Kahar Vs. State of M.P., I.L.R. (2010) M.P. 256 (DB) 6. Culpable Homicide not amounting to murder
- Section 302 or 304-(I) - Total lack of evidence regarding mal treatment of deceased (wife) by appellant and his family members - Genesis of occurrence remains shrouded in obscurity - Complete silence of deceased of any motive for appellant to suddenly ignite her - There would have probably occurred some serious altercation without any premeditation in heat of passion suddenly appellant lost control of himself and set fire to deceased - Subsequent conduct of appellant of taking deceased to hospital - Offence comes down from the first degree murder to culpable homicide not amounting to murder : Dinesh Vs. State of M.P., I.L.R. (2008) M.P. 945 (DB)
- Section 302 or 304 Part-II - Appellant dealt a single blow of gupti on right thigh of deceased - Not a vital part of body - Deceased died due to shock and hemorrhage - Stab injury was sufficient to cause his death in ordinary course of nature - Can not be said that appellant was having any intention to cause death to deceased - Though it can be inferred that appellant having knowledge that by causing injury by gupti life of a person may come to end - Appellant committed an offence not U/s 302 but U/s 304 Part-II I.P.C. : Lakhan @ Laakhan Vs. State of M.P., I.L.R. (2008) M.P. Note *18 (DB)
- Sections 302, 304 - Murder or culpable homicide not amounting to murder - Appellant assaulted the deceased by means of knife on account of peels of eggs - Case would fall under Exception 4 to Section 300 - Appellant guilty of offence u/s 304 Part 1 and not 302 - Appeal allowed : Rakesh Vs. State of M.P., I.L.R. (2008) M.P. 2153 (SC)
- Sections 302 & 304 Part-I - Murder or culpable homicide - Deceased (wife) carrying pregnancy of 32-36 weeks received one fatal/head injury out of 4 injuries - No evidence to establish motive on part of accused to kill his wife - The accused is liable to be convicted u/s 304 Part-I and not u/s 302 : Ram Bhadra Tiwari Vs. State of M.P., I.L.R. (2010) M.P. 2625 (DB)
- Sections 302, 304-I - Murder or culpable homicide - Incident took place all of a sudden, without premeditation - Due to anger and annoyance, appellant/accused caused Penal Code (45 of 1860) 582 burn injuries to deceased by pouring kerosene on his body and by lighting a matchstick, set him on fire - The appellant can be held guilty for the offence punishable u/s 304 Part-I and not u/s 302 of IPC - Appeal allowed : Shanti Bai Vs. State of M.P., I.L.R. (2010) M.P. Note *69 (DB)
- Sections 302 & 304 Part-I - Murder or culpable homicide - No previous enmity between the deceased and the appellant - Deceased remonstrated with appellant about his cattle entering the field of deceased and appellant inflicted stick injuries on the head of deceased resulting into fracture of two parietal bones - Deceased was an old man of 70 years of age - It can be readily inferred that he acted with the intention of causing such bodily injuries to deceased as were likely to cause death - Conviction of appellant u/s 302 of IPC not justified - However, he is liable to be convicted u/s 304 Part-I of IPC: Balla @ Baladeen Vs. State of M.P., I.L.R. (2010) M.P. 2620 (DB)
- Sections 302, 304 Part I - 'Murder' or 'culpable homicide' - Some dispute occurred between appellant and his wife (the deceased), prior to occurrence - Later, the appellant, on getting late as his wife delaying in cooking food, was enraged and he assaulted his wife with a pestle on her head, resulting her death - The act of appellant, being in a heat of passion on the spur of moment without any premeditation and giving a solitary below comes within the purview of S. 304 Part I of IPC - Conviction altered : Kodulal @ Laxman Vs. State of M.P., I.L.R. (2010) M.P. 2181 (DB)
- Sections 302, 304 Part I - Culpable homicide not amounting to murder - Incident occurred on the spur of moment in sudden quarrel in the heat of passion without any premeditation - Held - Sentence u/s 302 of IPC converted to that of 304 Part I of IPC: Shyam Singh Vs. State of M.P., I.L.R. (2009) M.P. 2415 (DB)
- Sections 302 & 304 Part I - Murder or Culpable Homicide not amounting to murder - Death of wife caused by husband by setting fire established - Dying declaration revealed that incident occurred suddenly when accused admonish deceased saying that she had gone to house of her paramour and involved in sinful act - Held - On appreciating mental condition it can be gathered that appellant acted on a sudden impulse, in sudden quarrel and without premeditation - Act of appellant falls u/s 304 Part I - Sentenced to 10 years rigorous imprisonment - Appeal partly allowed : Vinod Kumar Vs. State of M.P., I.L.R. (2009) M.P. 1160 (DB)
- Sections 302, 304 Part I - Murder or Culpable Homicide not amounting to murder - Deceased sitting along with her husband - Sundarlal was accompanied by his son Ramsa (appellant), Pintoo and Ramdas came there - Sundarlal hurled abuses and all of them assaulted deceased by means of axe - Appellant Ramsa has been convicted u/s 302 IPC whereas other accused persons were acquitted - Held - No evidence that accused and complainant party were on inimical terms - Incident took place in a spur of Penal Code (45 of 1860) 583 moment - Act of appellant falls under Exception 4 of Section 300 - Appellant acquitted u/s 302 and convicted u/s 304 Part I - Sentenced to 8 years rigorous imprisonment - Appeal allowed in part : Ramsa Vs. State of M.P., I.L.R. (2008) M.P. 2662 (DB)
- Sections 302, 304 Part I - Murder or culpable homicide not amounting to murder - Appellants started pelting stones at deceased and injured witness while they alighted from bus - Both tried to run away - On account of pelting and striking from a close range deceased died instantaneously - Held - No evidence that appellants had knowledge that deceased and injured witness would return by bus - No evidence that appellants came close to the deceased and pleted stones and caused injuries - It would be perilous to infer any intention on the part of appellants to cause death of deceased - However, they had caused injury intentionally knowing that injuries were likely to cause death - Case would fall u/s 304 Part I - Appeal partly allowed : Ramsingh Vs. State of M.P., I.L.R. (2008) M.P. 2110 (DB)
- Sections 302, 304-I - Culpable Homicide not amounting to murder - Deceased sitting near a well and was cleaning his teeth - Appellant came with axe and threw deceased in the well and hurled a big stone in well as a result of which deceased died - Held - Eye witnesses supporting prosecution case - Plea of alibi appears to be after thought - Post mortem report disclosed fracture of occipital bone - Medical evidence also supports prosecution case - Relations of appellant and deceased were initially cordial but became tense as deceased had gone to police station along with complainant for lodging report against appellant for outraging modesty of daughter of complainant - However, there is no evidence that how quarrel started - Case squarely covered by exception 4 to Section 300 - Appellant acquitted from offence under Section 302 and convicted under Section 304-I - Appellant already in jail for the last 12 years - Appellant directed to be released on the sentence already undergone - Appeal partly allowed : Madhuri Vs. State of M.P., I.L.R. (2007) M.P. 1445 (DB)
- Sections 302, 304-I/149 & 148 - Murder or culpable homicide - Neither any single injury found on the body was sufficient in the ordinary course of nature to cause death nor the injuries found on the body, cumulatively, were sufficient in the ordinary course of nature to cause death nor any injury was inflicted on any vital part of the body of deceased - In these circumstances, it could not be held that the injuries by the appellants were caused with the intention of causing death or causing such bodily injury as was likely to cause death of deceased - However, since the appellants wielded weapons like sword, axe, Farsa etc., it can safely be held that they had knowledge that it was likely to cause death of deceased - Conviction of appellants u/s 304-I, altered to one u/s 304 Part II : Purushottam Patel Vs. State of M.P., I.L.R. (2010) M.P. Note *66 (DB)
- Sections 302, 304 (II) - Murder or Culpable Homicide not amounting to murder - Actual incident did not start with deceased - Both appellants caused single injury to Penal Code (45 of 1860) 584 deceased - None of the appellants was having intention to cause death - Appellants no. 3 and 4 acquitted for charge under Section 302 and convicted under Section 304(II) - Sentenced to period already undergone : Rajkumar Vs. State of M.P., I.L.R. (2010) M.P. 1821 (DB)
- Sections 302 & 304 Part II - Murder or culpable homicide not amounting to murder - Appellant took lift in a truck - Appellant stretched his legs outside the window of running truck - Action of appellant objected by deceased who was second driver - Truck was parked near a Dhaba where all the persons alighted from truck - Appellant inflicted a blow by means of bamboo stick - Held - Appellant was not known to deceased from before - Incident of assault occurred at spur of moment in sudden quarrel - No evidence that assault was premeditated - Since appellant inflicted blow on the head of deceased, therefore, it could be inferred that he knew that he was likely to cause his death - Appellant acquitted for charge u/s 302 and convicted u/s 304 Part II - Appeal partly allowed : Hariram Vs. State of M.P., I.L.R. (2009) M.P. Note *42 (DB)
- Sections 302, 304 Part II - Murder or culpable homicide not amounting to murder - Accused travelling in a bus and deceased was driver of bus - Accused insisted that he will pay the concessional fare - Deceased on hearing altercation reached there and asked accused to pay full fare - Accused took out a knife and assaulted the deceased - Held - Accused in impulse inflicted a blow of knife on his chest - Intention for the offence cannot be attributed to accused - Accused guilty under Section 304 Part II as he had knowledge that he was likely to cause injury which likely to cause death - Accused sentenced to 5 years rigorous imprisonment - Appeal partly allowed : Ashok Mehra Vs. State of M.P., I.L.R. (2009) M.P. 1789 (DB)
- Sections 302, 304 Part II - Murder or culpable homicide not amounting to murder - Appellant convicted u/s 304 Part II of I.P.C. - Held - In the light of medical evidence, it cannot be accepted that the injuries were not sufficient to cause death - On the contrary, it is found that the ocular evidence adduced by prosecution has been medically corroborated - Since the deceased was having 19 injuries, therefore, it can be said that she was beaten severely : Dhapu Bai Vs. State of M.P., I.L.R. (2008) M.P. 3316
- Sections 302 & 304 Part II - Murder or culpable homicide not amounting to murder - Appellants went to house of deceased and admonished him for his making false allegation against acquitted accused of theft of buffalos - This led to hot altercation and appellants gave Lathi blow on head and sholder of deceased - Held - Only one injury found on head of deceased - Difficult to hold that who caused injury on head as witnesses have stated that both appellants each had dealt one Lathi blow on head - None of the Doctors have stated that injury was sufficient to cause death - It can be held that appellant No.2 and 3 knew that by their acts they were likely to cause his Penal Code (45 of 1860) 585 death - Convicted u/s 304 Part II - Sentenced to undergo 5 years R.I. - Appeal partly allowed : Bhaiyalal Vs. State of M.P., I.L.R. (2008) M.P. 3309 (DB)
- Sections 302, 304 Part II - Murder or culpable homicide not amounting to murder - Appellant having no prior enmity with deceased - Incident occurred on account of intermeddling with water pipe leading to altercation and scuffle - Appellant pushing deceased into empty well - Deceased died due to head injury - As deceased was pushed in empty well it could be inferred that appellant had knowledge that his act was likely to cause death - Act of appellant falls under Section 304 Part II - Appellant acquitted under Section 302 and convicted under Section 304 Part II : Rajendra Vs. State of M.P., I.L.R. (2008) M.P. Note *59 (DB)
- Sections 302, 304 Part II - Murder or Culpable Homicide not amounting to murder - Appellant who is nephew of deceased became furious seeing that deceased was providing water to another from his own motor pump - Appellant lost his balance and gave two spade blows to deceased - No enmity between parties - No pre-meditation to commit murder - Spade is a common agricultural weapon and its presence is also not uncommon - Incident took place suddenly - Offence will fall under Section 304 Part II - Appellant already undergone eight years of imprisonment - Jail sentence reduced to already undergone - Appeal partly allowed : Mithilesh Vs. State of M.P., I.L.R. (2008) M.P. 882 (DB)
- Sections 302, 304 Part II - Murder or Culpable Homicide not amounting to murder - Deceased and two witnesses were going back to their village after marketing - Deceased sat for urinating - House of appellant happened to be in front of that place - Appellant raised call as to who was there - Appellant started hurling abuses which was objected by deceased and witnesses - Appellant assaulted deceased with a lathi on his chest - Other accused persons inflicted lathi blows on the neck and waist of deceased - 3 ribs were found fractured and lungs were found ruptured at the site of fractures - Cause of death was respiratory failure due to shock resulting from laceration of lungs - Held - Appellant did not know that who is urinating in front of his house - He assaulted the deceased on a spur of moment - There was no premeditation, motive or intention to cause death - Appellant also did not repeat the blow - Exception 4 of Section 300 of I.P.C. is attracted - Appellant convicted under Section 304 Part II - Appeal partly allowed : Prem Singh Vs. State of M.P., I.L.R. (2008) M.P. 176 (DB)
- Sections 302, 304 (II) - Culpable Homicide not amounting to murder - Some altercation took place between Accused and complainant party in earlier hours of day - While complainant party was going to lodge FIR in the noon, appellants intercepted them and gave axe and lathi blows on the person of deceased by means of axe and lathis - Deceased sustained several contusions and abrasions on non vital parts of the body - Three ribs were found fractured - Held - One accused armed with axe but gave Penal Code (45 of 1860) 586 axe blow from blunt side of axe on the backside of chest of deceased - Rest of the accused persons gave lathi blows on non-vital parts of body of deceased - If intention was to kill then accused shall have used sharp side of axe - Others should have assaulted on vital part of the body of deceased - It can be inferred that appellants were having knowledge that they can cause death of deceased - Offence committed by appellants is not under Section 302 but it falls under Section 304 (II) of I.P.C. - Appellants sentenced to undergo 10 years Rigorous Imprisonment - Appeal Partly allowed : Veer Singh Vs. State of M.P., I.L.R. (2007) M.P. 1684 (DB)
- Sections 302, 304 Part-II r/w 34 - The incident occurred in a sudden quarrel in which accused caused such injury to deceased which resulted in his unfortunate death - The real genesis regarding occurrence is not placed on record, so, one cannot reach the conclusion as to who was the aggressor in the incident - Appellants/accused have not taken undue advantage or have acted in a cruel or unusual manner - In these circumstances, the offence committed by appellants in relation to deceased falls under exception 4 of S. 300 IPC and they are liable to be convicted for committing culpable homicide, not amounting to murder : Anusuiya Singh Vs. State of M.P., I.L.R. (2010) M.P. 1981 (DB)
- Sections 302/34, 326/34 - Assault by accused persons by "Lathi" and "Danda" resulting death of two persons - Injuries found on person of the deceased do not indicate so imminently dangerous that it must in all probability cause death or such bodily injury is likely to cause death - The part of body chosen cannot be said to be a vital part of the body - The injuries are contusions - The ingredients of the offence of murder is not made out - The conviction of appellants u/s 302/34 altered to S.326/34 IPC and sentenced to imprisonment for 7 years : Ramesh Kumar Vs. State of M.P., I.L.R. (2010) M.P. 1843 (SC)
- Section 302/34 and Section 364 - Liability of appellant - Deceased suffered injuries on head, four of which sufficient in ordinary course of nature to cause death - One of the blows on head caused by appellant - It is not possible to attribute individual injury to appellant - Appellant liable for individual act - Aid of Section 34 cannot be taken as other accused had also caused injuries - Accused liable under Section 325 I.P.C. - Dragging and pushing the deceased to the courtyard - Only amounts to offence of wrongful confinement. - Accused convicted under Section 325 and 342 I.P.C.: Prema Vs. State of M.P., I.L.R. (2006) M.P. 1556 (DB) 7. Death Sentence
- Section 302 - Death Sentence - The act of accused is heinous and requires to be condemned but at the same time it cannot be said that it is rarest of the rare case where accused requires to be eliminated from the society. Therefore, looking to the age Penal Code (45 of 1860) 587
(about 19 years) of the accused and antecedents, there appears no justifiable reason to impose the death Sentence on him. Sentence of death modified and commuted to imprisonment for life : In Reference Vs. Rahul, I.L.R. (2010) M.P. 2206 (DB)
- Section 302 - See - Evidence Act, 1872, Section 3 - Circumstances forming a chain even stronger than an eye-witness account - Conviction of appellant on the charge of multiple murders was fully justified - Conviction and death sentence upheld - Appeal dismissed : Jagdish Vs. State of M.P., I.L.R. (2010) M.P. 310 (SC)
- Section 302 - See - Criminal Procedure Code, 1973 (2 of 1974), Section 354 : In Reference Vs. Sheikh Arif, I.L.R. (2009) M.P. 1807 (DB)
- Manner of committing offence and its impact on society are determinative factors - Rarest of rare case - Offences committed inside the Court premises with an intention to shatter faith of litigant in due process of law - Respondents accused Mukhtyar Malik and Asif Mamu sentenced to be hanged till death : State of Madhya Pradesh Vs. Mukhtyar Malik, I.L.R. (2007) M.P. 647 (DB) 8. Defective Investigation
- Section 302 - Murder - Defective Investigation - Defective investigation by itself is not ground of acquittal if prosecution case is established by other cogent evidence : State of M.P. Vs. Mohan, I.L.R. (2009) M.P. 2692 (DB) 9. Discrepancy on several vitals aspects
- Section 302 - Murder - Place of occurrence - Witnesses stating different place of occurrence - Witnesses also admitted that because of darkness none of accused persons could be identified - Respondents were rightly acquitted by High Court in view of discrepancy as regards the place of occurrence but also on several vitals aspects like non-disclosure and non-possibility of identification - Appeal dismissed : State of M.P. Vs. Makhan @ Madan, I.L.R. (2009) M.P. 613 (SC)
- Section 302 - Appreciation of evidence - Delay in recording statement of eye witness itself not a serious infirmity of prosecution case - Eye witness did not disclose name of assailant to anybody and to police - He alleges that sister-in-law of deceased lodged Dehati Nalishi in his presence but his name was not shown as an eye witness - His statement not taken by I.O. just after lodging Dehati Nalishi - Two inferences are possible that either the police was not knowing that eye-witness witnessed the incident and Dehati Nalishi was recorded later on ante-dated and ante-time, wherein the name of eye witness is mentioned and second inference that eye witness was a got up witness - Held - Conduct of witness highly unnatural and abnormal - Testimony discarded : Abhay Vs. State of M.P., I.L.R. (2008) M.P. 373 (DB) Penal Code (45 of 1860) 588
- Section 302, Arms Act, 1959, Sections 25 & 27 - Allegation that appellants chased deceased and appellant Ganesh fired on deceased and committed his murder - Trial court convicted appellants u/s 302 r/w Section 34 I.P.C. and Sections 25 & 27 Arms Act - Appeal filed - Held - Evidence of eye witnesses do not inspire confidence and their presence on spot at the time of incident and the fact that they saw the appellant Ganesh fired on deceased is doubtful - Prosecution has not examined material witnesses which leads to the presumption against prosecution - No explanation by prosecution that why the weapons & empty cartridge were sent after 10 days to FSL - No evidence the weapons which were seized from possession of the appellants, the same were sent for analysis - Appeal allowed - Appellants acquitted : Ganesh @ Ganesha @ Ganesh Prasad Vs. State of M.P., I.L.R. (2008) M.P. 3026 (DB)
- Section 302 - Appreciation of evidence - Sister-in-law of deceased claims to be an eye witness - She accompanied with other villagers to hospital but in M.L.C. report it was not stated that deceased was brought by her - Although being literate she did not disclose name of assailant to her husband or to police nor to her advocate brother-in- law and not to villagers as well - Her conduct was highly unnatural - her testimony cannot be relied upon : Abhay Vs. State of M.P., I.L.R. (2008) M.P. 373 (DB)
- Section 302 - Deceased patient of mental illness - Her behaviour was uncommon and unusual - Doctor has not firmly opined that it is a case of Homicidal death - No injuries found on the body of deceased - Dying Declaration recorded prior to F.I.R. - Case history also written subsequent to recording of Dying Declaration - Circumstances raises reasonable doubt about truthfulness of conduct of I.O. and Doctor who had recorded dying declaration - Appellant acquitted - Appeal allowed : Kamlesh Jain Vs. State of M.P., I.L.R. (2008) M.P. 885 (DB) 10. Dying Declaration
- Section 302, Evidence Act, 1872, Section 32 - Dying declaration - Dying declaration can form the sole basis for conviction, if it is found to be true and voluntary: Dayaram Vs. State of M.P., I.L.R. (2009) M.P. 1422 (DB)
- Section 302, Evidence Act, 1872, Section 32 (1) - Deceased was caused injuries and was admitted in hospital - His dying declaration was recorded - Deceased was discharged after full treatment and healing of wounds - After lapse of 17 days, he died in his house - Conviction u/s 302 IPC - Appeal - Held - Prosecution has failed to establish that internal injury causing death had relation with the injuries caused by accused - There is no evidence to fulfill the ingredients of S.32(1) - Conviction and sentence set- aside - Appeal allowed : Kunwar Singh Vs. State of M.P., I.L.R. (2009) M.P. 1128 (DB) Penal Code (45 of 1860) 589
- Section 302, Evidence Act, 1872, Section 32 - Dying declaration - Appellant alleged to have poured kerosene oil over his wife and set her ablaze - Executive magistrate recorded her dying declaration after doctor testified that she is fully conscious and fit to give dying declaration - Held - Dying declaration can form the sole basis of conviction if found to be true and voluntary - Appeal dismissed : Raju @ Rajendra Singh Vs. State of M.P., I.L.R. (2008) M.P. 3015 (DB)
- Section 302, Evidence Act, 1872, Section 32 - Dying Declaration - Appellant had burnt his wife & son by pouring kerosene oil over them - Dying declaration of wife was recorded at Hospital by Executive Magistrate - Wife & son succumbed to burn injuries - Appellant has been convicted for committing murder of his wife - Conviction challenged in appeal - Held - Presence of appellant on the scene at the time of occurrence is proved by reliable evidence - Magistrate & Doctor deposed that deceased remained fully conscious during her statement and was in a fit condition to give statement - No inconsistency in the timings of recording of dying declaration and medical examination - No inconsistency in dying declaration and Dehati Nalishi - No ground to suspect that magistrate would himself manipulate the dying declaration as he had no animus against appellant - Declaration is true and voluntarily - Conviction upheld - Appeal dismissed : Avinash @ Gudda Vs. State of M.P., I.L.R. (2008) M.P. 2431 (DB)
- Section 302 - See - Evidence Act, 1872, Sections 3 & 32 : Shabana Bi (Smt.) Vs. State of M.P., I.L.R. (2010) M.P. Note *52 (DB)
- Section 302 - See - Evidence Act, 1872, Section 32 : Lakhan Vs. State of M.P., I.L.R. (2010) M.P. 2018 (SC)
- Section 302 - See - Evidence Act, 1872, Section 32(1) : Gopya @ Gopal Vs. State of M.P., I.L.R. (2009) M.P. 508 (DB)
- Section 302 - Murder - Dying Declaration - Reliability - Appellant convicted only on the basis of dying declaration - Held - When there is doubtful evidence whether the maker of dying declaration i.e. deceased was fully conscious or not - Court can consider the medical evidence and if the court is not satisfied that the deceased was in fit mental condition or there are contradictions in the opinion of the doctor vis-à-vis opinion of the eye witnesses - In such circumstances in a particular case that requires corroboration and if there is no corroborative evidence, the same can be discarded - If the evidence is reliable and trustworthy the conviction can be based thereon - Appeal allowed - Appellant acquitted : Karan Singh Vs. State of M.P., I.L.R. (2008) M.P. 2698 (DB)
- Section 302 - Murder - Deceased made oral dying declarations to several persons who reached on the spot immediately after the incident - Police reached on spot and Penal Code (45 of 1860) 590 recorded Dehati Nalishi - Eye witness immediately disclosed minute description of incident to police - Opinion of Doctor that deceased would have become unconscious within 10-15 minutes would not mean that deceased became unconscious within 10-15 minutes - It would depend upon the strength and resistance of individual - Oral dying declaration cannot be disbelieved on that ground - Acquittal of respondents set aside - Respondents convicted - Appeal allowed : State of M.P. Vs. Gopal Singh, I.L.R. (2008) M.P. 1265 (DB)
- Section 302 - Murder - Deceased receiving number of injuries including incised, stab and lacerated wounds - Oral dying declaration made by deceased to her daughter- in-law who reached on the spot - Fact of oral dying declaration mentioned in FIR lodged by witness - Police Statement also contains the fact of oral dying declaration - Oral dying declaration not challenged in cross examination - Reliable : State of M.P. Vs. Ashok, I.L.R. (2008) M.P. 1503 (DB)
- Section 302 - Oral dying declaration - In FIR it has been stated by witness that in oral dying declaration, deceased told that respondent no.1 was having a hockey stick and respondent no. 2 was having a knife - But no where in the entire testimony of witness anything about use of hockey stick - Respondent no. 1 is entitled for the benefit of doubt : State of M.P. Vs. Ashok, I.L.R. (2008) M.P. 1503 (DB)
- Section 302 and Evidence Act, 1872, Section 32 - Murder - Dying declaration recorded by doctor disbelieved by High Court on the ground of non-mentioning of name of eye-witness - No connection with creditworthiness of dying declaration - Non- mentioning of mental status of deceased in dying declaration - Statement of doctor giving fitness certificate well corroborated with other attending circumstances - Dying declaration can not be disbelieved - Order of High Court set aside : Heeralal Yadav Vs. State of M.P., I.L.R. (2006) M.P. 1351 (SC)
- Sections 302, 323, Evidence Act, 1872, Section 32 - Dying declaration - In FIR and report of doctor, no statement was given by the deceased in regard to cause of his death or as to any of the circumstances which resulted in his death - Statement not admissible as dying declaration - Conviction and sentence u/s 302 IPC set-aside and u/ s 323, 324 maintained - Appeal partly allowed : Aslam Vs. State of M.P., I.L.R. (2009) M.P. 1764 (DB) 11. Homicidal death
- Section 302 - Murder - Homicidal death - Held - Until the prosecution proves that a person dies of a homicidal death, an offence u/s 302 cannot be made out, but that alone cannot be a ground for acquittal of the accused and High Court will have to consider other aspects of the matter : Babloo Vs. State of M.P., I.L.R. (2009) M.P. 1780 (DB) Penal Code (45 of 1860) 591
- Section 302 - Murder - Nature of death - Prosecution had to prove that death was homicidal in nature - Doctor found the death as accidental - Trial Court relied upon one passage from Modi's Medical Jurisprudence - Said passage was not put to Doctor to explain the same - Said passage cannot be relied upon - For conviction u/s 302, prosecution is required to prove that death was homicidal - Appeal allowed : Nasir Vs. State of M.P., I.L.R. (2009) M.P. 2078 (DB)
- Section 302 - Homicidal or Suicidal - Deceased found burning in verandah by the husband - Autopsy surgeon found the cause of death was asphyxia and burns were antimortem - On query he clarified that cells remain active even after death - If a person is burnt immediately after death, burn would appear to be antimortem - Held - Deceased was not burnt in a closed room - No other article was found burnt which would have created thick smoke so as to be inhaled to cause death due to suffocation - Verandah was open place - Death due to suffocation not possible - No carbon particles found in trachea of deceased - Death was homicidal and not suicidal : State of M.P. Vs. Bharat Singh, I.L.R. (2008) M.P. 1245 (DB) 12. Identification of skeleton
- Section 302 - Murder - Circumstantial Evidence - Human skull and ribs found buried in ground - No evidence to prove that skeleton was of deceased - Cause of Death could not be ascertained - Evidence regarding identification of skeleton on account of cloths found on the spot not reliable - Prosecution failed to prove that skeleton found buried was that of deceased : Kishan Vs. State of M.P., I.L.R. (2008) M.P. 1273 (DB) 13. Intention to cause death
- Section 302 - Murder - Accused was insisting the deceased, who was a counsellor in Medical College, again and again to provide medicines of HIV - Every time deceased was refusing because the accused was not the patient of HIV - On date of incident accused threw kerosene on deceased when he was sitting in his chamber and then threw a burning match stick and thus set him on fire - Death occurred due to septicemia on account of burn injures after 6 days of incident - Held - Septicemia may occur from various causes including burn injuries - Act of setting another person on fire is so imminently dangerous on act that the wrong doer must be credited with knowledge that he was in all probability likely to cause death of another person - Act of accused would fall within clause fourthly to Section 300 and not u/s 326 IPC : State of M.P. Vs. Koushal Prasad Jaiswal, I.L.R. (2009) M.P. 292 (DB)
- Section 302 - Murder - Cause of death - Shock - Doctor opined that death has been caused by shock - Shock was result of firing by appellant - Offence u/s 302 IPC made out and not a minor offence : Munna @ Pooran Yadav Vs. State of M.P., I.L.R. (2009) M.P. 899 (SC) Penal Code (45 of 1860) 592
- Section 302 - Murder - Child of appellant was earlier treated by deceased as he was indisposed since long - Again the child was taken to deceased who subjected him to treatment (witchcraft) - No improvement was shown and child died in the morning - Appellant on the next day entered the house of deceased and assaulted him with an axe - Held - Suddenness which is important constituent to bring case within Exception 1 to Section 300 is missing - Case of appellant does not fall within Exception 1 to Section 300 - Appellant rightly convicted for said offence - Appeal dismissed : Nandu Ahir Vs. State of M.P., I.L.R. (2008) M.P. 1782 (DB) 14. Ligature mark
- Section 302 - Murder - Allegation that deceased was taken to room by dragging and assaulting and thereafter coiled a cable wire around his neck and pulled it from both ends and thereafter was hanged - However, only one ligature mark was found on the neck with mark of knot on the left side of ligature - There should have been 2 ligature marks in case the cable wire was coiled around his neck - Evidence of witnesses contrary to medical evidence - It creates doubt about truthfulness of witnesses : Lal Bahadur Dubey Vs. State of M.P., I.L.R. (2009) M.P. 3214 (DB) 15. Medical Evidence
- Section 302 - Murder - Medical Evidence - Witnesses stated that injury on head was caused by Lathi - In M.L.C., Doctor opined that injury was incised wound and was caused by sharp edged weapon - In postmortem, Doctor found lacerated wound - Held - Deceased was in serious condition when he was brought to Hospital - Doctor hastily and cursorily examined his injuries whereas Autopsy Doctor examined injuries minutely - Evidence of Autopsy Doctor more reliable if examined in juxtaposition of evidence of eye witnesses - No discrepancy in oral and medical evidence : Bhaiyalal Vs. State of M.P., I.L.R. (2008) M.P. 3309 (DB)
- Sections 302 or 302/34 - Appellant No. 1 alleged to have fired at deceased - No firearm injury was found by doctor - No ballistic expert report that Weapon had actually been fired - Appellant No. 1 fired any shot at deceased not proved : Fayyum Vs. State of M.P., I.L.R. (2008) M.P. 327 (DB) 16. Motive
- Section 302 - Motive - In circumstancial evidence, motive acquires significance - Once prosecution failed to prove the motive alleged and there is no evidence to attach culpability to the accused, merely on suspicion, surmises & conjectures accused could not have been convicted : Tukaram Vs. State of M.P., I.L.R. (2008) M.P. 2098 (DB) Penal Code (45 of 1860) 593
- Section 302 - Murder - Circumstantial evidence - Motive - Deceased, step mother of appellant was given 1/3 share in ancestral property - Appellant was not happy with partition - Deceased was also not residing with appellant - Appellant could have got her share only after her demise - Motive of appellant could be assumed that in the temptation of property he had committed murder : Nehru Singh Vs. State of M.P., I.L.R. (2009) M.P. 3205 (DB)
- Section 302 - Murder - Circumstantial evidence - Motive - Appellants residents of Rewa - Hired taxi from Amravati - Dead body of driver found in Rewa District - Motive - Highly improbable that appellants would go to Amravati to higher taxi with knowledge that only deceased would be driver of taxi and they will snatch his gold chain - It cannot be said that there was any motive to kill deceased : Pradeep Kumar Singh Vs. State of M.P., I.L.R. (2009) M.P. 1117 (DB)
- Section 302 - Murder - Circumstantial evidence - Motive - Prosecution silent on motive part and no evidence in that regard - Held - Motive assumes great significance in as much as its existence is an enlightening factor in a process of presumptive reasoning: Pradeep Kumar Singh Vs. State of M.P., I.L.R. (2009) M.P. 1117 (DB) 17. No opportunity given to accused to explain incriminating circumstances
- Section 302, Evidence Act, Indian, 1872, Section 3, Criminal Procedure Code, 1973, Sections 314, 374(2) - Appeal from conviction and sentence - Incriminating circumstances available not specifically put to accused - No opportunity given to explain - Could not be relied upon - Judgment based on inadmissible evidence - Conviction and sentence set aside : Kalu S/o Mohan Singh Vs. State of M.P. Through P.S. Kukshi District Dhar, M.P., I.L.R. (2006) M.P. 608 (DB) 18. Non-explanation of injuries on accused
- Section 302 - Non-explanation of injuries on accused - Effect - If accused has suffered any injury, it is bounden duty of prosecution to explain it in a satisfactory manner - Appellant No. 4 suffered loss of right arm below elbow apart from two incised wounds on chest and parietal region - Appellant No.5 suffered compound fracture of 4th & 5th Metacarpal of left hand - None of prosecution witness has attempted to explain the injuries suffered by appellants - Prosecution story cannot be accepted as wholly reliable - Possibility of defence version that they had acted in private defence as they were attacked while returning from hand-pump cannot be dismissed - Appeal allowed - Appellants acquitted : Champalal Vs. State of M.P., I.L.R. (2010) M.P. 1655 (DB) Penal Code (45 of 1860) 594
19. Offence inside the privacy of a house
- Section 302, Evidence Act, 1872, Section 3 - Appreciation of evidence - Death of deceased (wife) in house of accused (husband) due to head injury and others - The presence of accused on relevant time in the house is also proved - Accused failed to explain as to how the deceased received the injuries - Accused/husband is the only person who is responsible for commission of crime - Other family members (A-2) can not be held guilty on mere suspicion : Ram Bhadra Tiwari Vs. State of M.P., I.L.R. (2010) M.P. 2625 (DB)
- Section 302, Evidence Act, 1872, Sections 3, 7 & 8 - Murder - Circumstantial evidence - Appellant's wife met with homicidal death - Appellant was present with deceased in his house and took her to hospital - Appellant had given false intimation to police about consumption of poisonous substance by deceased - Appellant was having doubt on the character of deceased and also ill treating her - No explanation that how the deceased met a homicidal death - All these circumstances sufficient to bring home the guilt of appellant beyond reasonable doubt - Conviction u/s 302 IPC maintained - Appeal dismissed : Devendra Singh @ Pappu Vs. State of M.P., I.L.R. (2009) M.P. Note *47 (DB)
- Section 302, Evidence Act, 1872, Section 3 - Appreciation of evidence - Appellant, a retired military personnel, was convicted on the allegation that he has murdered his wife by his twelve bore licenced gun - Appeal filed - Held - No reliable oral evidence - Report of FSL and ballistic expert not on record - It is true that the appellant had a licenced gun and the deceased died because of gun shot injury, but unless the gun shot injury is proved to be caused by the gun belonging to the appellant, simply because the dead body was found in the house of appellant, he could not be convicted - Appeal allowed : Sadhu Singh Vs. State of M.P., I.L.R. (2009) M.P. 1137 (DB)
- Section 302 - Murder - Presence of witness - Deceased was assaulted inside his house - Presence of wife and son at the time of incident natural - Nothing substantial has been brought on record to discard their evidence - Appeal dismissed : Ram Singh Vs. State of M.P., I.L.R. (2009) M.P. 609 (SC) 20. Offence involving a large number of offenders and a large number of victims
- Section 302, Evidence Act, 1872, Section 3 - Murder - Appreciation of evidence - Election party was not allowed to go - When the S.H.O. along with other police personnels reached on the spot he was attacked by more than 200 persons as a result of which he died and 5 police personnels received injuries - Held - Where a Court has to deal with evidence pertaining to the commission of an offence involving a large number Penal Code (45 of 1860) 595 of offenders and a large number of victims, it is usual to adopt the test that the conviction could be sustained only if it is supported by two or more witnesses who give a consistent account of the incident - Those appellants, who were named by all witnesses, their conviction u/s 302 maintained and those appellants, who were named by only one witness, acquitted : Bhaskar Rao Vs. State of M.P., I.L.R. (2009) M.P. 3401 (DB) 21. Plea of alibi
- Sections 302, 307, Evidence Act, 1872, Section 3, Criminal Procedure Code 1973, Section 374 (2) - Appeal from Conviction and Sentence - Murder and attempt to murder - Appreciation of evidence - Discrepancies - Main theme to be seen whether it goes to the root of the matter - Even honest and truthful witness may differ in some details unrelated to main incident - Plea of alibi - Generally viewed with suspicion - Onus to establish is on the accused - If not discharged appellate Court will not interfere: Amritlal Vs. State of Madhya Pradesh, I.L.R. (2006) M.P. 276 (DB) 22. Right of Private defence
- Section 302 - Murder - Intention - Dispute arose beween parties on throwing mud by son of appellate No. 1 - On complaint by deceased Munnilal appellants told him that their children would act in that fashion only - Munnilal assaulted by means of axe - Baldeo reached on spot when he too was assaulted - Munnibai was set on fire - Munnilal and Baldeo died on spot whereas Munnibai succumbed to injuries later on - Trial Court imposed death sentence - High Court convicted appellants holding that free fight between parties had taken place and acquitted other accused persons for offence under Section 302 - Held - No case made out that injuries were inflicted by appellants in their self- defence - Manner in which offences have been committed was gruesome - Not only Munnilal was killed but whosoever came to save was not spared - Not a case where appellants can be absolved of charges of murder - Appeal dismissed : Moti Lal Vs. State of M.P., I.L.R. (2007) M.P. 1741 (SC) 23. Source of light
- Section 302 - Murder - Witnesses - Source of light - Spot map shows that witnesses had witnessed the incident from a distance of 55 ft - Incident took place in between 7:20 to 9:00 p.m. - No source of light as electric power was cut - Held - It cannot be said that eye witnesses had identified the assailants : Chhabilal Vs. State of M.P., I.L.R. (2009) M.P. 536 (DB) Penal Code (45 of 1860) 596
24. Witness
(i) Child witness (iii) Interested Witnesses (ii) Eye witness (iv) Witness not declared hostile
(i) Child witness - Section 302, Evidence Act, 1872, Section 3 - Murder - Reliability of child witness - The testimony of a child witness should be accepted with great caution and circumspection, because it is common experience that a child witness is susceptible to tutoring and may thereby be made to depose about the things which he/she has not seen - On being tutored, a child witness goes on repeating like a parrot - Such witnesses become dangerous witnesses - As a rule of prudence, if the court puts such evidence to close scrutiny and is conviced about its' quality and reliability, the conviction can be based by accepting the deposition of a child witness : Madan Singh Vs. State of M.P., I.L.R. (2008) M.P. 3299 (DB)
(ii) Eye witness
- Section 302, Evidence Act, 1872, Section 3 - Reliability of witness - Deceased a pillion rider going on scooter with eye witness - After stopping the scooter, deceased was assaulted by knife - Conduct of eye witness in not informing the family members of the deceased about the incident and running away from the place of occurrence immediately after the incident not unnatural as no one would dare to remain present - As this witness became perplexed, he could not see the other witnesses - Witness reliable : State of M.P. Vs. Habib Ahmad, I.L.R. (2009) M.P. 3187 (DB)
- Section 302 - Murder - Witness - Witnesses stating in court evidence that gun shot was fired from a close range of 3-4 ft - Postmortem report shows that gun shot was fired from close range - However, spot map shows that firing took place from a distance of about 20 ft away - Firing from close range does not find place either in FIR or in 161 statements of eye witnesses - Presence of eye witnesses at the time of occurrence highly doubtful : Chhabilal Vs. State of M.P., I.L.R. (2009) M.P. 536 (DB)
- Section 302 - Eye-witness, who is a son of deceased, was present and witnessed the occurrence of deadly assault on his parents by appellant - Corroborated from F.I.R. lodged by him and also corroborated from testimony of witnesses to whom the incident is narrated soon after the incident - No reason why he would twice deposed against appellant - It does not appeal to reason that he would falsely implicate the appellant who is real uncle - Witness cannot be disbelived merely on ground that he has been declared Penal Code (45 of 1860) 597 hostile by the prosecution - Conviction and sentence u/s 302 affirmed - Appeal dismissed: Ramsiya Vs. State of M.P., I.L.R. (2008) M.P. 3010 (DB)
- Section 302 - See - Evidence Act, 1872, Section 3 : Anwar @ Annu Vs. State of M.P., I.L.R. (2010) M.P. 1800 (DB)
- Section 302 - Murder - Appellants assaulted deceased with deadly weapons - Evidence of eye witness corroborated by report of F.S.L. - In doctors report appellants were not shown as assailants - Held - Primary duty of doctor is to treat a patient and not to find out by whom the injury was caused - Non-disclosure of names to doctor is of no consequence - Conviction and sentence affirm - Appeal dismissed : Ashok Vs. State of M.P., I.L.R. (2008) M.P. 2997 (DB)
- Section 302, Evidence Act, Indian 1872, Section 3 - Murder - Reaction of witness - Brother of deceased witnessed the assault on his brother by appellants while he was returning home - Brother immediately lodged F.I.R. - Held - Every witness reacts in his own way - Merely because brother of deceased did not try to rescue him will not make his statement unreliable : Lilli @ Surendra Pandey Vs. State, I.L.R. (2007) M.P. 1698 (DB)
- Section 302 - Conviction and Sentence - Appeal - Difference of opinion between the judges - Reference to third Judge - Deceased cremated soon after death and parents were intimated next day - No explanation from accused - Daughter of accused deposed that accused kicked and throttled deceased - No reason why this evidence should be discarded - Conviction upheld per majority : Juzar Singh S/o Bahadur Singh Rajput Vs. State of M.P., I.L.R. (2006) M.P. 1050
- Section 302/34, Evidence Act, 1872, Section 3 - Evidence - Independent witness - Investigating Officer interrogated independent witnesses of locality but none disclosed any material thing - Not a case where independent witnesses were available but not tried to interrogate them or examined during investigation but not produced in Court - Evidence of family members trustworthy - Conviction upheld : Mahesh Vs. State of M.P., I.L.R. (2008) M.P. 582 (DB)
- Sections 302/149, 148, 147 - Appellant Deewan Singh convicted u/s 302/149 & 148 IPC and remaining appellants convicted u/s 302/149 & 147 IPC - Conviction challenged in appeal - Held - Prosecution has come with two contradictory stories - One as per the dying declaration and other as per eye witnesses - Dying declaration was recorded by Naib Tahsildar on the certificate of Doctor - Dying declaration is more reliable in comparison to the eye witness account - In the light of that 'Dehati Nalishi' was not recorded timely and it is an afterthought document and there is no proof that it was forwarded to the Court immediately as required u/s 157 Cr.P.C. - Evidence of eye Penal Code (45 of 1860) 598 witnesses is not reliable as not supported by medical evidence as well - Therefore, the eye witness account is cooked up - Prosecution has failed to prove the charges beyond reasonable doubt - Court has acquitted the appellants : Ganga Prasad Vs. State of M.P., I.L.R. (2008) M.P. 1774 (DB)
- Sections 302, 149 - Murder - After hearing alarm raised by deceased, his wife reached on spot and found that appellants were assaulting deceased - Appellant No.1 and 2 strangulated deceased and remaining appellants kept him pinned by holding his hands and legs - Other witnesses also reached on spot - F.I.R. was lodged promptly - Deceased died due to strangulation - Complaint was filed disputing the factum of involvement of appellants - Held - Considering the prompt F.I.R. and consistency of statements of eye-witnesses, appellants are guilty of committing murder - Appeal dismissed: Nar Singh Vs. State of M.P., I.L.R. (2008) M.P. 1225 (DB)
- Sections 302 & 307 - Murder of wife and daughter and attempt of murder of 2 daughters - Evidence of two injured daughters supported by medical evidence and other evidence - Presence of accused not challenged and the explanation of accused that some unknown person caused injuries to victim found not truthful - Held - The offence is proved : In Reference Vs. Mohammad Shafiq @ Munna @ Shafi, I.L.R. (2010) M.P. 2405 (DB)
(iii) Interested Witnesses
- Section 302 - Murder - Interested and Partisan Witnesses - Three reports lodged in respect of one incident - Two reports suppressed by Prosecution - Report which was produced was not proved - There is nothing to prove authenticity of statement of interested and partisan witnesses - Difficult to place reliance on testimonies of interested witnesses - Appellants acquitted - Appeal allowed : Nan Singh Vs. State of M.P., I.L.R. (2008) M.P. 903 (DB)
(iv) Witness not declared hostile
- Section 302, Evidence Act, 1872, Section 3 - Appreciation of evidence - Two eye witnesses, who are real brothers of the deceased, present at time of incident - Appellants bounced upon having knives and caused number of injuries, resulting into an instantaneous death - Contradiction in examination in chief and cross-examination about presence and participation - Prosecution failed to declare witness hostile - Held - Prosecution witnesses are not reliable on two principles - One is that when prosecution witness gives two kinds of statements one is in favour of prosecution and another in defence then normally statement given in favour of defence has to be relied on - Second is that when prosecution witness has not been declared hostile then the prosecution is bound by his statement and same cannot be ignored if it is in favour of defence - Penal Code (45 of 1860) 599
Prosecution failed to prove its case beyond reasonable doubt - Appellants acquitted - Appeal allowed : Ramesh Vs. State of M.P., I.L.R. (2009) M.P. 1131 (DB) 25. Miscellaneous
Burden of proving special plea on accused
- Sections 302, 201, Evidence Act, 1872, Sections 106, 114 (Illustration g) - Burden of proving fact especially within knowledge - When prosecution discharge from its general and primary burden of proving its case beyond reasonable doubt then only burden will shift on accused to prove a plea specially set up by him : Nafisa Vs. State of M.P., I.L.R. (2008) M.P. 571 (DB)
Delay in examination of witness - Effect
- Section 302 - See - Evidence Act, 1872, Section 3 : Rama @ Ramlal Vs. State of M.P., I.L.R. (2009) M.P. 2660 (DB)
Identification parade
- Sections 302, 394 & 460 - Appellants alleged to have committed loot and murder - FIR lodged by eye witness who identified four accused in identification parade held after 11 months of incident - Looted material seized from all four accused - Held - Eye witness admitted that she has not seen fourth accused at the time of incident but identified him in identification parade on the basis of his conduct - In absence of reliable test identification parade, conviction of fourth accused converted to S. 411 of IPC - Appeal partly allowed : Shakir Vs. State of M.P., I.L.R. (2009) M.P. 2409 (DB)
Non-disclosure of name of assailant to Doctor
- Section 302 - Murder - Non-disclosure of name of assailant to Doctor - Witness cannot be discarded on this ground : State of M.P. Vs. Mohan, I.L.R. (2009) M.P. 2692 (DB)
Non-seizure of blood from spot
- Section 302 - Murder - Non-seizure of blood from spot - Seizure of blood from spot could only have corroborative value - Non-seizure of blood from spot not fatal in view of categorical statement of P.W. 2 : State of M.P. Vs. Mohan, I.L.R. (2009) M.P. 2692 (DB) Penal Code (45 of 1860) 600
Ornaments worn by deceased seized after a long time
- Sections 302, 397, 411 - Murder - Ornaments worn by deceased seized from accused after more than a month - Accused can be convicted at the most under Section 411, IPC - Conviction and sentence under Sections 302 & 397, IPC set aside : Radheshyam S/o Narain Singh Yadav Vs. State of M.P., I.L.R. (2006) M.P. 1206, (DB)
Power under Article 136 of Constitution
- Section 302, Constitution, Article 136 - Scope of interference - In exercise of power under Article 136 of Constitution, Supreme Court does not reappreciate evidence, review and re-weight evidence which has been appreciated by trial Court and High Court - If Sessions Court was satisfied that witnesses are trustworthy and High Court has confirmed that part, it cannot be said that any illegality has been committed by Courts below - Appeal dismissed : Dadan Vs. State of M.P., I.L.R. (2009) M.P. 615 (SC)
Presence of accused
- Sections 302, 149 - Murder - 34 persons named in Dehati Nalishi - Other 18 persons who were not named in Dehati Nalishi, but named in the statements of the witnesses - Except two witnesses, statements of all other witnesses recorded belatedly after 2½ to 3 months - Presence of 18 persons cannot be said to be established beyond periphery of reasonable doubt - 18 persons acquitted - Appeal partly allowed : Hari Singh Vs. State of M.P., I.L.R. (2009) M.P. 523 (DB)
Principle of parity
- Section 302 - Murder - Related witness - Three persons tried - Two were acquitted by High Court giving benefit of doubt - Held - It is one thing to give benefit of doubt to the accused and it is quite another to hold that witness has deliberately and falsely implicated the two other accused - Principle of parity cannot be applied when it was appellant who had fired at deceased - Appeal dismissed : Munna @ Pooran Yadav Vs. State of M.P., I.L.R. (2009) M.P. 899 (SC)
Recovery of Weapon
- Section 302 - Recovery of knife - Knife seized from open field - Seizure of knife in pursuance of disclosure statement not proved : Sanjay Gour Vs. State of M.P., I.L.R. (2008) M.P. 390 (DB) Penal Code (45 of 1860) 601
When two views are possible
- Section 302 r/w Section 34, Criminal Procedure Code, 1973, Section 378(1) - Appeal against acquittal - While dealing with a case of acquittal, it is well known, the High Court shall not ordinarily overturn a judgment if two views are possible - Appeal allowed : State of M.P. Vs. Ballu @ Vinod Kumar, I.L.R. (2008) M.P. 2420 (DB)
● - Section 304 (1) - Culpable Homicide not amounting to murder - Appellant causing injury by ballam on head of deceased - Oral testimony supported by medical evidence - Evidence of eye witnesses found trustworthy - Conviction of appellant under Section 304(1) I.P.C. proper - Appeal dismissed : Radheshyam Vs. State of M.P., I.L.R. (2008) M.P. 354
- Section 304-I - Entire body exposed but injury was caused on non-vital parts - Intention to cause death cannot be inferred - Conviction under section 302 altered to one under Section 304-Part I, IPC : Virendra Vs. State of M.P., I.L.R. (2006) M.P. 1322 (DB)
- Sections 304(I), 302 - Murder or Culpable Homicide not amounting to murder - Altercation took place between deceased and appellant in the noon - Deceased was going on a scooter along with his companions - Scooter was stopped after seeing that appellant is standing - Appellant tried to escape into a narrow lane - Appellant was followed by deceased and his companions - Appellant inflicted two blows with big needle on chest of deceased - Held - It appears that deceased and his companions wanted to take revenge of incident which had taken place in earlier hours of day - It was on sudden provocation that accused inflicted on chest of deceased - Case falls under exception (1) of Section 300 - Appellant acquitted under Section 302 of I.P.C. but convicted under Section 304(I) of I.P.C. - Appellant sentenced for period already undergone : Babloo Vs. State of M.P., I.L.R. (2007) M.P. 1670 (DB)
- Section 304 Part II - Deceased while in custody was slapped and hit on testicles by S.H.O. - No external or internal injury found in postmortem - Cause of death shown as unknown - Ethyl Alcohal found in viscera - Respondent convicted by Trial Court but acquitted by High Court - Held - If deceased had been subjected to beating internal or external injuries should have been found - Statement of witness unreliable as she had not deposed during investigation that accused kicked on the thigh - Although in case of custodial death there is less possibility of direct evidence but no external or internal injury was found - Accused rightly acquitted by High Court - Appeal dismissed : State of Madhya Pradesh Vs. Sewa Singh, I.L.R. (2007) M.P. 1014 (SC)
- Section 304 Part-II r/w Sections 149 - Culpable homicide not amounting to murder - Sentence - Incident occurred in order to save the theft of motor pump and also Penal Code (45 of 1860) 602 in the heat of passion - Appellants are the bread winners of their family - Held - Jail sentence of 10 years reduced to a period of 5 year : Jamuna Vs. State of M.P., I.L.R. (2009) M.P. 2425
- Section 304 Part II r/w Section 149 - Culpable homicide not amounting to murder - Injuries were simple in nature - No injury on vital part of deceased - Deceaced died after 4 days of incident - Autopsy was conducted twice by Medical Board - No definite opinion of doctors that death was due to sustained injuries - In post-mortem, it was found that the deceased was suffering from advance tuberculosis, bleeding from lungs resulting in failure of heart and respiratory system - FSL report was not produced - Held - It cannot be presumed that the simple injuries inflicted on non-vital parts with knowledge that it is likely to cause death or to cause such bodily injury as is likely to cause death in normal course of nature - Offence u/s 304 Part II not made out : Ramhet Vs. State of M.P., I.L.R. (2008) M.P. 3339
- Sections 304 Part-II & 304-A - Culpable homicide not amounting to murder or causing death by negligence - Applicant was cleaning his licencee revolver and at- randomly trigger was pressed and one bullet hit his grand-daughter resulting in her death - Held - Death is caused by negligent act of applicant - Offence u/s 304 Part-II not made out - Case will fall within purview of S. 304-A : Ram praksh Soni Vs. State of M.P., I.L.R. (2010) M.P. Note *8
- Sections 304 Part II & 330 - See - Criminal Procedure Code, 1973, Section 240 : Indu Jain Vs. State of M.P., I.L.R. (2010) M.P. 1 (SC)
- Section 304-A - On highway, if pedestrian crosses the road without taking note of approaching bus, the driver cannot be held guilty in absence of reliable evidence regarding speed of offending vehicle and negligental act of driver : State of M.P. Vs. Kanhaiyalal, I.L.R. (2010) M.P. 1971
- Section 304A - Causing death by negligence - Non-applicant No.1 put mask at the face of patient attached with cylinder containing no oxygen - Looking to the condition of patient, doctor checked and found cylinder to be empty - After some time patient died - Held - In absence of postmortem, cause of death remained unknown - Doctor cannot be held responsible for such criminal negligence : State of M.P. Vs. Dr. Ram Lakhan Singh, I.L.R. (2009) M.P. 2455 SYNOPSIS : Section 304-B
1. Alternative Charge 5. Dying declaration Penal Code (45 of 1860) 603
2. Cruelty or harassment in 6. Essential ingredients connection with the demand 7. Presumption for dowry 8. Seven years 3. Dowry Death or Accidental 9. Soon before her death Death 10. Suspicious circumstances 4. Dowry death or Murder
1. Alternative Charge
- Section 304(B), 306 - Criminal Procedure Code 1973, Section 228 - Alternative Charge - Trial Court framed charge under Section 304(B) - Appellant acquitted under Section 304(B) on the ground that death did not occur within seven years of marriage - However convicted under Section 306 of I.P.C. - Judgment challenged on the ground that appellant cannot be convicted under Section 306 of I.P.C. in absence of specific charge - Charge framed under Section 304(B) by Trial Court contained common ingredient of "cruelty soon before death" - Appellant cannot be said to be prejudiced by omission in framing alternative charge - No Legal or Procedural impediment in convicting under Section 306 of I.P.C : Lakhan Singh Vs. State of Madhya Pradesh, I.L.R. (2007) M.P. 271
- Sections 304-B & 498-A - Husband or relative of husband of a woman subjecting her to cruelty - No charge u/s 498-A was framed - Appellant acquitted of charge u/s 304-B and convicted u/s 498-A - Held - No impediment in convicting appellant u/s 498- A, who was charged with and acquitted of the offence u/s 304-B : Bharat Singh Vs. State of M.P., I.L.R. (2009) M.P. 1427 2. Cruelty or harassment in connection with the demand for dowry
- Sections 304-B & 498-A, Evidence Act, 1872, Sections 3 & 113-B - Appreciation of evidence - Except for certain bald statements made by PWs.1 & 3 (mother & brother of deceased) alleging that the victim had been subjected to cruelty and harassment prior to her death, there is no other evidence to prove that the victim committed suicide on account of cruelty and harassment to which she was subjected just prior to her death, which, in fact, are the ingredients of the evidence to be led in respect of S. 113- B of the Act, 1872, in order to bring home the guilt against an accused : Durga Prasad Vs. State of M.P., I.L.R. (2010) M.P. 1853 (SC)
- Sections 304-B & 498-A, Evidence Act, 1872, Sections 3 & 113-B - Appreciation of evidence - In order to bring home a conviction u/s 304-B IPC, it will not be sufficient to only lead evidence showing that cruelty or harassment had been meted out to the Penal Code (45 of 1860) 604 victim, but that such treatment was in connection with the demand for dowry - The prosecution failed to fully satisfy the requirements of both S. 113-B of Act, 1872 and S. 304-B of IPC - Conviction set-aside : Durga Prasad Vs. State of M.P., I.L.R. (2010) M.P. 1853 (SC)
- Sections 304-B & 498-A, Evidence Act, 1872, Section 113-B - No nexus established between demand of scooter and the death of deceased - The presumption u/s 113-B of Evidence Act can not be made applicable and accused can not be convicted u/s 304-B of IPC - However, from prosecution evidence (evidence of brother and mother of deceased), it can be gathered that after the marriage, both the accused persons had harassed and subjected the deceased to cruelty to meet their unlawful demand of scooter - Therefore, their conviction u/s 498-A of IPC affirmed : Ram Bhadra Tiwari Vs. State of M.P., I.L.R. (2010) M.P. 2625 (DB)
- Sections 304-B & 498-A - Dowry death - Deceased died along with her 2 year old girl by burning within 7 years of marriage in abnormal circumstances - Appellant also did not inform the incident to the police or to his in-laws - Circumstances suggest that deceased was being harassed by persistent and consistent demand of dowry - Guilt of appellant proved beyond reasonable doubt : Srikant Vs. State of M.P., I.L.R. (2010) M.P. 683
- Sections 304-B & 498-A, Evidence Act, 1872, Section 32(1) - Cruelty - Oral complaints made by deceased to her relatives regarding demand of dowry and ill treatment - Statements of relatives although admissible in respect of offence u/s 304-B by virtue of S. 32(1) of Evidence Act as it related to cause of death - But, such evidence not admissible for the offence punishable u/s 498-A and has to be termed as hearsay evidence - Therefore, could not form legal or substantive evidence for offence u/s 498-A - Appeal allowed : Ram Milan Vs. State of M.P., I.L.R. (2009) M.P. 2999
- Sections 304-B & 498-A - Dowry death - Wife of accused found dead allegedly by hanging within 4½ months of marriage - No ligature mark found on the person of deceased - No ecchymosis or fracture found - However, cruelty because of dowry demand established through evidence - Held - Prosecution has failed to rule out natural or accidental death of deceased - Necessary and important ingredient of Sec.304-B not established - Accused convicted u/s 498-A - Appeal partly allowed : Chandan Vs. State of M.P., I.L.R. (2009) M.P. 2083 (DB)
- Sections 304-B, 498-A, Evidence Act, Indian, 1872 Sections 113-B, 114(g) and Criminal Procedure Code 1973, Section 374(2) - Appeal against conviction and sentence - Dowry death - Suicide - Presumption against accused - Prosecution has to prove that deceased was being subjected to cruelty or harassment in connection with demand of dowry soon before her death - General Statement about demand of cooler, motorcycle Penal Code (45 of 1860) 605 and television in itself dose not amount to cruelty - Trial Court recorded conclusion by presuming facts not brought on record by prosecution - No evidence to prove that deceased was subjected to cruelty or harassment with specific intention of extracting dowry or in connection with dowry - Conviction and sentence not maintainable - Appeal allowed : Ram Krishan Vs. State of M.P., I.L.R. (2006) M.P. 407 3. Dowry Death or Accidental Death
- Section 304 B - Dowry Death or Accidental Death - Deceased sustained burn injuries in the house of appellant/husband - In her statement to police she stated that she accidentally caught fire from stove - Parents and brother of deceased also visited hospital after getting information of incident - They signed Panchayatnama in which it was specifically mentioned that they had no suspicion against anyone in relation to death of deceased - Mother of deceased later on submitted typed complaint alleging that Appellant and Parents-in-law of deceased had treated her for demand of dowry - Held - Order sheet of Trial Court reveals that public prosecutor did not dispute that dying declaration was recorded by police - Father of deceased also admitted in his cross examination that deceased had disclosed to him about accident - Mother of deceased had also admitted that during the entire period of treatment she was at hospital and incurred all necessary expenses - Appeal allowed - Appellant acquitted : Rajesh Vs. State of M.P., I.L.R. (2008) M.P. 166 4. Dowry death or Murder
- Section 304-B - Dowry death - Prosecution case is that sister-in-law poured kerosene oil and set the deceased ablaze - Not a case that death has occurred in abnormal circumstances - No evidence that soon before her death she was subjected to cruelty - Conviction u/s 304-B set-aside - However, conviction & sentence of sister-in- law u/s 302 maintained - Appeal partly allowed : Lakhan Singh Rajpoot Vs. State of M.P., I.L.R. (2009) M.P. 854 (DB)
- Section 304B - See - Criminal Procedure Code, 1973, Section 378(3) : State of M.P. Vs. Rajesh, I.L.R. (2008) M.P. 2670 (DB) 5. Dying declaration
- Sections 304-B & 498-A, Evidence Act, 1872, Section 32 - Dying declaration - Reliability - Principal of school recorded dying declaration of deceased - No certificate of doctor that deceased was fit to give statement - Statement not recorded in question answer form - Statement not read over to deceased - Statement of Principal of school is self contradictory on material facts - Principal of school appears to be interested witness - Evidence unreliable : Srikant Vs. State of M.P., I.L.R. (2010) M.P. 683 Penal Code (45 of 1860) 606
6. Essential ingredients
- Section 304-B - Dowry Death - Essential ingredients - Law discussed : Vijay Bahadur Singh Vs. State of M.P., I.L.R. (2010) M.P. 473 7. Presumption
- Section 304-B, Evidence Act, 1872, Section 113-B - Dowry death - Presumption - Deceased, a pregnant lady and her 2 year old daughter died due to burn injuries - Oral evidence that deceased was persistently subjected to torture by both appellants for demand of Rs.20,000 - Held - Marriage was solemnized in Samuhik Vivah Sammelan - No complaint was made either to police or any respectable member of society - Evidence of neighbor did not corroborate the evidence of domestic cruelty - No allegation of demand of dowry made in dying declaration - Medical evidence did not rule out possibility of accidental fire - Presumption u/s 113-B of Evidence Act not attracted - Conviction u/s 304-B IPC set-aside - Appeal allowed : Jamna Prasad Vs. State of M.P., I.L.R. (2009) M.P. 2686
- Section 304-B, Evidence Act, 1872, Section 113-B - Dowry Death - Presumption - "Soon before" her Death - Deceased committed suicide by burning herself within 5 weeks of marriage - Appellants in ordinary and general manner expressed dissatisfaction about dowry - No evidence that deceased was subjected to harassment or cruelty in connection with any demand of dowry soon before her death - Presumption u/s 113-B of Act would not apply - Appellants acquitted - Appeal allowed : Sumati Jain Vs. State of M.P., I.L.R. (2009) M.P. 2713
- Sections 304-B, 498-A - Trial Court recorded conclusion by presuming facts not brought on record by prosecution - No evidence to prove that deceased was subjected to cruelty or harassment with specific intention of extracting dowry or in connection with dowry - Conviction and sentence not maintainable : Ram Krishan Vs. State of M.P., I.L.R. (2006) M.P. 407 8. Seven years
- Sections 304-B, 306 - Dowry death - Three years after 'Gauna' demand of dowry was made and nine years elapsed from marriage when deceased committed suicide - Section 304-B, IPC cannot be invoked : Satyanarain Vs. The State of M.P., I.L.R. (2006) M.P. 115
- Sections 304-B, 306 '' Seven years'' should be from the date of marriage and not from the date of coming to matrimonial home after '' Gauna'' - Conviction and Sentence set aside : Satyanarain Vs. The State of M.P., I.L.R. (2006) M.P. 115 Penal Code (45 of 1860) 607
- Sections 304-B, 306, 498-A and Criminal Procedure Code, 1973, Section 374(2) - Appeal against Conviction and Sentence - Dowry death - Three years after 'Gauna' demand of dowry was made and nine years elapsed from marriage when deceased committed suicide - Section 304-B, IPC cannot be invoked - Period of '' Seven years'' should be from the date of marriage and not from the date of coming to matrimonial home after '' Gauna'' - Conviction and Sentence set aside : Satyanarain Vs. The State of M.P., I.L.R. (2006) M.P. 115 9. Soon before her death
- Section 304-B - Dowry Death - Soon before death - Allegation of cruelty or harassment for demand of dowry is of the period of seven months prior to death - Instant case can hardly be term as soon before her death : Vijay Bahadur Singh Vs. State of M.P., I.L.R. (2010) M.P. 473
- Section 304-B - Dowry death - "Soon before her death" - Evidence indicated that the deceased was subjected to cruelty before her death - Held - What would constitute the period of "soon before the occurrence" - Depending upon the facts and circumstances of each case - There appears lack of existence of a proximate and live link between the effect of cruelty based on dowry demand and the death of deceased - Conviction & sentence u/s 304-B of the Code set-aside : Baddu @ Jham Singh Vs. State of M.P., I.L.R. (2009) M.P. 2437
- Sections 304-B, 498-A and Evidence Act, Indian, 1872, Section 113-B - Appeal against conviction - Meaning of term "Soon before" - Mere lapse of time between cruelty and death by itself does not provide accused any defence - "Soon before" does not mean immediately before - There must be existence of proximate and live link - Appeal partly allowed on the question of sentence: Kailash Vs. State of M.P., I.L.R. (2006) M.P. 1471 (SC) 10. Suspicious circumstances
- Section 304-B - Dowry Death - Suspicious circumstances - Parents of deceased were not informed soon about her death and dead body was hurriedly cremated with the result that no postmortem of the body could be conducted - It is held to be unnatural death : Vijay Bahadur Singh Vs. State of M.P., I.L.R. (2010) M.P. 473
● - Section 306 - Abetment of suicide - If by suspicion at the character of husband, a wife commits suicide, the accused can not be liable - Particularly when the wife/ deceased was living with her parents in her father's house, at the time of death : Bhawar Singh Vs. State of M.P., I.L.R. (2010) M.P. 2609 Penal Code (45 of 1860) 608
- Section 306 - Abetment to commit suicide - Husband & wife committed suicide as appellant exploited their daughters sexually and did not permit them to leave his company - Appellant also intimidated them by giving threats to get them and their son beaten by gangsters - Deceased were also in embarrassed position as they had no courage to show their faces to the society - Held - Law does not require instigation to be in a particular form - Instigation may be by conduct - Act of abetment attributed to appellant is not to be viewed or tested in isolation - There was proximate and live link between the offending acts of appellant and suicides in question - Appellant guilty of offence u/s 306 IPC - Appeal dismissed : Manmohan Vs. State of M.P., I.L.R. (2010) M.P. 1006
- Section 306 - Abetment to commit suicide - Law does not require instigation to be in a particular form or that it should only be in words - Instigation may be by conduct - Whether there was any instigation or not is a question to be decided on facts of each case - Instigation must be with reference to the thing that was done and not to the thing that was likely to have been done by the person who is instigated : Manmohan Vs. State of M.P., I.L.R. (2010) M.P. 1006
- Section 306 - Sentence - Offence took place about 22 years back - Custodial sentence reduced to 7 years from 10 years : Manmohan Vs. State of M.P., I.L.R. (2010) M.P. 1006
- Section 306 - 15 years old prosecutrix all alone in her house - Accused suddenly entered there into and closed the door from inside - Accused squeezed mouth of prosecutrix and gave threats to defame her and came out of the house and run away when inhabitants of the locality came there and called the prosecutrix by name - Just after some time prosecutrix committed suicide by hanging from roof - Held - There was proximate and live link between offending act of accused and the extreme step taken by the prosecutrix - Accused was rightly held abettor of the suicide : Mohammad Hafeez Vs. State of M.P., I.L.R. (2010) M.P. 261
- Section 306 - Abetment to commit suicide - Deceased married to appellant about 1 ½ years prior to her death - Marriage was a love marriage - No question of demand of dowry and no such demand was made by appellant - Conduct of appellant was not such as was likely to drive deceased to commit suicide or to cause grave injury or endanger her life - Ingredients require to prove cruelty has not been established - Appellant acquitted - Appeal allowed : Ayub Beg Vs. State of M.P., I.L.R. (2009) M.P. Note *12
- Section 306 - Death of the deceased on account of burn - Just before the incident some hot talks were heard therefrom - One witness also heard a noise "Bachao Bachao" - Held - No evidence that for hot talks appellants alone were responsible or Penal Code (45 of 1860) 609 they were instigating the deceased for commission of suicide - Doctor has not find any external injury over the dead body of deceased and not mentioned that it was case of suicide - In view of these circumstances and also the fact that no material questions were put to the appellants u/s 313 of Cr.P.C., the conviction of the appellants u/s 306 cannot be sustained - Conviction set-aside - Appeal allowed : Meerabai Vs. State of M.P., I.L.R. (2009) M.P. 501
- Sections 306, 302 & 304-B - When accused can be convicted u/s 306 in absence of charge - Law explained : Meerabai Vs. State of M.P., I.L.R. (2009) M.P. 501
- Section 306 - See - Evidence Act, 1872, Section 113-A : Raj babu Vs. State of M.P., I.L.R. (2009) M.P. 1 (SC)
- Section 306 - Abetment to commit suicide - Applicant had threatened the deceased that he will involve him in some case under Atrocities Act and he will not sit in rest until the deceased would be sent to jail - Held - Deceased committed suicide out of sheer annoyance and frustration - Applicant cannot be blamed for the same - No material to make the case of abetment on part of applicant - Order framing charge u/s 306 set- aside - Revision allowed : Sita @ Sita Pratap Vaishya Vs. State of M.P., I.L.R. (2008) M.P. Note *74
- Section 306 - Abatement to commit suicide - Applicant No.1 grabbed money of deceased - Deceased was assaulted by applicants when he demanded his money back - Held - No material to show that applicants in any manner instigated, incited or provoked deceased to commit suicide - Nothing to indicate any intention on their part that deceased should commit suicide - Order framing charge u/s 306 set-aside - Revision allowed, Babbi @ Jitendra Vs. State of M.P., I.L.R. (2008) M.P. 3042
- Section 306 - Abetment to commit suicide - Prosecution has to establish prima facie case in the first instance, yet it is not of the law of the country that the prosecution has to eliminate all possible evidences and circumstances which may exonerate accused - If those facts are within the knowledge of accused then he has to prove them - Non- explanation of circumstances during the period intervening appellant's return from Bhopal and ultimately death of his wife was the strongest possible circumstance to discredit the defence version : Prahlad Tanwani Vs. State of M.P., I.L.R. (2008) M.P. 3284
- Section 306 - Abetment to commit suicide - There is no material on record to suggest that deceased was hypersensitive to ordinary petulance - On the contrary, tenure of the letters written by her was sufficient to indicate her maturity in understanding the complexity of an unhappy domestic life - Appellant was rightly held guilty of abetting commission of suicide by his wife : Prahlad Tanwani Vs. State of M.P., I.L.R. (2008) M.P. 3284 Penal Code (45 of 1860) 610
- Section 306 - Nature of death - Suicidal or incidental - There is no evidence to suggest that at any point of time, preceding her death, deceased had raised alarm or attempted to save herself while burning - Plastic cane, stove, lantern, match box, match stick and burned clotheing found at the spot - Dead body found lying in kitchen near oven - Kitchen was found closed from inside - No dispute either in the cross-examination or examination u/s 313 of Cr.P.C. was raised as to circumstances prevailing on the spot - Availability of carbon particles in the trachea was indicative of the fact that the burn injuries were ante-mortem in nature - In the light of these facts & circumstances coupled with the opinion of medical as well as forensic experts, it was proved beyond reasonable doubt that the nature of death was neither homicidal nor incidental but was suicidal in nature : Prahlad Tanwani Vs. State of M.P., I.L.R. (2008) M.P. 3284
- Section 306 - See - Evidence Act, 1872, Section 32(1), : Prahlad Tanwani Vs. State of M.P., I.L.R. (2008) M.P. 3284
- Section 306 - Abatement to commit suicide - Deceased (Bhuri Bai) was locked inside a room with applicant no.1 (Sittu Patel) by other applicants - Deceased felt guilty, ashamed and committed suicide - No iota of evidence regarding abatement - No offence under Section 306 made out - Applicants discharged : Sittu Patel Vs. State of M.P., I.L.R. (2008) M.P. Note *40
- Section 306 - Abatement to commit suicide - Deceased committed suicide by inflicting injury to himself as his wife did not want to live with him as he used to doubt her character - Deceased inflicted injury out of frustration or depression - No iota of evidence regarding abatement - Even if entire allegations leveled against the applicants are accepted as correct, no case for alleged commission of offence under Section 306 made out - Charge framed against applicants set aside - Revision allowed : Madholal Vs. State of M.P., I.L.R. (2008) M.P. 1282
- Section 306, Evidence Act, 1872, Section 113-A - When presumption would be applicable - Wife committed suicide within a year from marriage due to demand of dowry and cruelty - Letter found near body shows that she terminated life due to suspicion made by husband regarding her character - Trial Court held that demand of dowry and cruelty not proved however convicted on the basis of letter - Held - Letter was not admitted by defence - It was also not proved that it was written by deceased - It was not the case of prosecution that as husband suspected her character therefore due to mental cruelty she committed suicide - As cruelty was not proved therefore, presumption of Section 113-A would not be applicable - Appellant acquitted - Appeal allowed : Dinesh Vs. State of M.P., I.L.R. (2008) M.P. 1785
- Section 306 - Abatement to commit suicide - Appellant was prosecuted under Section 498A of I.P.C. which resulted in his acquittal in view of amicable settlement Penal Code (45 of 1860) 611 before panchayat - Demand of dowry persisted even after settlement - Three months before the death, deceased had complained about demand of dowry on her last visit to parents house - Conviction upheld : Lakhan Singh Vs. State of M.P., I.L.R. (2007) M.P. 271
- Section 306 - Abatement to commit suicide - Applicant/wife belonging to Upper Caste married to Deceased belonging to Scheduled Caste Community - Marriage opposed by family members - Deceased working on the post of Civil Judge - Applicant was in Bhopal for taking coaching when deceased consumed some poisonous substance at Itarsi - Deceased was taken to hospital and applicant was informed - Deceased was treated at Itarsi and Bhopal but could not be saved - Mother of deceased stated that applicant used to quarrel with deceased on trivial matters - Father of deceased stated that deceased had informed him that he had consumed milk containing poison as he had some altercation with his wife - Sister of deceased stated that applicant did not behave with her parents respectfully - Applicant did not like deceased to go at parents house - Relations between applicant and deceased were not cordial - Held - Instigate denotes incitement or urging to do some drastic or unadvisable action or to stimulate or incite - Presence of mens rea is necessary concomitant of instigation - Nothing on record to show that applicant wanted or intended that her husband should commit suicide - She was married knowing full well that he belonged to Scheduled Caste - No offence under Section 306 of I.P.C. made out - Proceedings of criminal case quashed : Aarti Arya Vs. State of M.P., I.L.R. (2007) M.P. 1733
- Section 306 - Abetement of suicide - Accused gave beating to the deceased publicly - But no question of dowry discussed - Cruelty to the wife proved - This in itself may not be a ground for committing suicide : Kashi Ram Vs. State of M.P., I.L.R. (2006) M.P. 111
- Sections 306 & 107 - Abetment to commit suicide - Abetment of suicide u/s 306 involves a mental process of instigating a person or intentionally aiding that person in doing of a thing - More active role which can be described as instigating or aiding doing of a thing is thus required before a person can be said to be abetting suicide - Cruel or insulting behaviour cannot be taken an act of abetting suicide - Ingredients of Section 306 IPC not established - Conviction of accused found to be improper : Radha (Smt.) Vs. State of M.P., I.L.R. (2008) M.P. 3333
- Sections 306 & 498-A, Criminal Procedure Code, 1973, Section 174 - Absence of allegations of demand of vehicle, cruelty or harassment to deceased in merg intimation echo the possibility of it being an afterthought : Shriram Vs. State of M.P., I.L.R. (2010) M.P. 665 Penal Code (45 of 1860) 612
- Sections 306 & 498-A - Cruelty - Merely addressing Þdkyh dywVhß or Þrsjs cki us dqN ugh fn;kß can hardly be said to be such willful conduct so as to drive a woman to commit suicide or to cause grave injury to her life or limb : Shriram Vs. State of M.P., I.L.R. (2010) M.P. 665
- Sections 306 & 498-A, Evidence Act, 1872, Section 113-A - Presumption - Although deceased committed suicide within 3 days after coming to her nuptial home but there is no evidence that appellants in any way aided, instigated or abetted commission of suicide or subjected her to cruelty or harassment for any unlawful demand - Presumption u/s 113-A cannot be attracted : Shriram Vs. State of M.P., I.L.R. (2010) M.P. 665
- Sections 306 & 498-A - Unlawful demand - Vehicle given at the time of marriage developed defects within one month - Appellant No.1 brought back the vehicle and gave it to father-in-law for getting it repaired at a place from where it was purchased - Held - If vehicle had developed some problem within one month, there was noting wrong if it was brought back for getting it repaired at a place from where it was purchased - This could not be termed as unlawful demand : Shriram Vs. State of M.P., I.L.R. (2010) M.P. 665
- Sections 306, 498-A, Evidence Act, 1872, Section 113-A - Presumption - No evidence that any of the appellants instigated deceased to commit suicide - No evidence for alleged harassment or cruelty - Evidence shows that the appellants were in good relations with deceased - In such circumstances, presumption u/s 113-A of Evidence Act will not arrive at - Appellants cannot be held guilty for the offence punishable u/ss 306 & 498-A of IPC : Anamika (Smt.) Vs. State of M.P., I.L.R. (2009) M.P. 3003
- Sections 306, 498-A and Criminal Procedure Code 1973, Section 374(2) - Appeal from Conviction and Sentence - Abetement of suicide - Accused gave beating to the deceased publicly - But no question of dowry discussed - Cruelty to the wife proved - This in itself may not be a ground for committing suicide - Conviction under Section 306 IPC set aside but conviction under Section 498-A, IPC upheld : Kashi Ram Vs. The State of M.P., I.L.R. (2006) M.P. 111
- Section 307 - See - Criminal Procedure Code, 1973, Sections 227 & 228 : State of M.P. Vs. Habib, I.L.R. (2010) M.P. 1834
- Section 307 - Attempt to murder - Medical evidence - Appellant 'A' inflicted axe blow on neck and other appellants inflicted Lathi's blows on skull, shoulders and elbow - Appellants have been convicted u/s 307/34 IPC - Held - There is no medical opinion that injuries were dangerous to life - Complainant has not given any evidence that appellant 'A' gave repeated blow and therefore intention to kill cannot be established Penal Code (45 of 1860) 613
- Offence u/s 326/34 made out and not u/s 307 : Ashok Vs. State of M.P., I.L.R. (2009) M.P. 2675
- Section 307 - See - Criminal Procedure Code, 1973, Section 227, : Sanjay Mishra Vs. State of M.P., I.L.R. (2009) M.P. 3462
- Section 307 - Attempt to murder - Sentence - Undue sympathy to impose inadequate sentence would do more harm to the judicial system to undermine public confidence in the efficacy of law and society could not long endure under such serious threats - Aggravating and mitigating factors and circumstances in which crime has been committed are to be delicately balanced - Object should be to protect society and deter criminals - Appeal allowed : State of M.P. Vs. Kashiram, I.L.R. (2009) M.P. 1552 (SC)
- Section 307, Criminal Procedure Code, 1973, Section 482 - Attempt to murder - Quashing of charge - To justify conviction u/s 307 IPC, it is not essential that bodily injury capable of causing death should have been inflicted - Court has to see whether the act, irrespective of its result, was done with intention or knowledge and under circumstances mentioned in Section - Intention to kill or knowledge that death will be caused is a question of fact - Injury caused by accused was simple or minor will not by itself rule out application of Sec.307 - Order quashing charge not sustainable - Appeal allowed : Ratan Singh Vs. State of M.P., I.L.R. (2009) M.P. 1866 (SC)
- Section 307 - Attempt to murder - Due to quarrel before eight days, appellant caused serious injuries on abdomen and head of victim by knife - Statement of eye witnesses corroborated by medical evidence - The defence story that victim and witnesses abused and assaulted appellant - Held - In absence of any report lodged by the appellant or defence witnesses and medical report of injuries sustained by appellant, defence story would not be accepted - Doctor has specifically opined that the injuries were sufficient in the ordinary course of nature to cause death - Sufficient circumstances to establish that appellant caused injuries to victim with the intention of murder - Appellant committed the offence of attempt to murder punishable u/s 307 IPC - Appeal dismissed: Arshad @ Arsad Vs. State of M.P., I.L.R. (2008) M.P. 3278
- Section 307 - See - Evidence Act, 1872, Section 9 : Nathu Vs. State of M.P., I.L.R. (2008) M.P. 2682
- Section 307, Evidence Act, 1872, Section 3 - Conflict between Ocular and Medical Evidence - Where medical evidence did not disclose any kind of injury caused by a particular weapon - It can be inferred that oral evidence regarding assault from particular weapon is not truthful : Nasir Vs. State of M.P., I.L.R. (2008) M.P. 907 (DB) Penal Code (45 of 1860) 614
- Section 307 - Private Defence - Curfew was clamped in the wake of communal tension - Police Party on wireless message that situation is explosive reached near the house of appellant - Appellant struck on the chest of injured by gupti - Defence of appellant was that police party entered in the house misbehaved with ladies, belaboured him and caused damage to his households - Appellant also receiving lacerated wound on parietal region - Held - Non explanation of injuries sustained by appellant entitled him to take plea of private defence - Appellant had no intention to kill injured - Not possible to conclude that right of private defence was exceeded - Appellant was entitled to act in exercise of his right of private defence - Appellant acquitted - Appeal allowed : Wahid Khan Vs. State of M.P., I.L.R. (2007) M.P. 1808
- Section 307 - Reduction in sentence - Validity - Sentence of 10 years reduced by High Court to the period already undergone which was about 1 years and 3 months - Aggravating and mitigating factors in which offence has been committed should be delicately balanced - Object of imposing punishment is to protect society and deter criminal - Imposed sentence should reflect the conscience of the society and the sentencing process has to be stern where it should be - Considering entire aspects including long pendency of litigation respondent sentenced to undergo 3 years R.I. and fine of Rs. 10,000/- - Appeal allowed : State of Madhya Pradesh Vs. Kedar Yadav, I.L.R. (2007) M.P. 725 (SC)
- Sections 307, 148, 302 & 326 r/w 149 - See - Evidence Act, 1872, Section 3 : Champalal Vs. State of M.P., I.L.R. (2010) M.P. Note *25 (DB)
- Sections 307, 302 - Attempt to murder or murder - Appellants convicted under Section 307 of I.P.C. for causing injuries to deceased - Held - When a person has died because of injuries caused by accused, their conviction under Section 307 of I.P.C. would not arise : Nasir Vs. State of M.P., I.L.R. (2008) M.P. 907 (DB)
- Sections 307 & 324 - Prosecution evidence comprising of testimony of the injured persons, a promptly lodged FIR, supportive eye witness account and substantially consistent medical evidence may be considered as sufficient to bring home the charges: Rajeev Lochan Vs. State of M.P., I.L.R. (2010) M.P. Note *85
- Sections 307 & 326 - Attempt to murder - 1/3 of the leg of the injured chopped off below the knee - Trial Court convicted respondents u/s 307 whereas High Court altered the conviction u/s 326 - Held - To justify conviction u/s 307, if there is present an intent coupled with some overt act in execution thereof - Determinative question is intention or knowledge and not nature of injury - Respondents conviction and sentences u/s 307 IPC awarded by trial Court restored - Appeal allowed : State of M.P. Vs. Kashiram, I.L.R. (2009) M.P. 1552 (SC) Penal Code (45 of 1860) 615
- Section 307/34 - Common intention to commit attempt to murder - Mere presence of the appellant on the spot at the time of the incident will not make him liable under the common intention for the offence - Appeal allowed : Sheetal Agrawal Vs. State of M.P., I.L.R. (2010) M.P. Note *90
- Section 307/34 - Sentence - Mitigating circumstance - Factum of compromise entered into by victims, but permission to compound the offence was declined, being the offence u/s 307 IPC non-compoundable and other offence u/s 324 IPC intrinscically connected to form the same transaction - May not be a mitigating circumstance to reduce the term of sentence to 13 months, the period already undergone - Appeal partly allowed and sentence reduced from 7 years to 2 years : Rajeev Lochan Vs. State of M.P., I.L.R. (2010) M.P. Note *85
- Section 308 - Appellants caused life threatening injuries using lethal wepons to complainant under grave and sudden provocation on account of beating given by the complainant party to the female members of the family of appellants - Injuries caused to the female members of the appellants were not of grievous nature - Held - Right of private defence in no case extends to the inflicting of more harm than necessary for the purpose of defence - Appellants exceeded the right of private defence - Conviction u/s 308/34 upheld : Pardeshi @ Peetambhar Vs. State of M.P., I.L.R. (2009) M.P. 2706
- Section 309 - Merely by the presence of injuries on the body of accused and his presence at the place where his family members were murdered, it could not be inferred that the accused inflicted injuries to himself also : In Reference Vs. Mohammad Shafiq @ Munna @ Shafi, I.L.R. (2010) M.P. 2405 (DB)
- Sections 309, 302 - Murder and attempt to commit suicide - Prosecution based on two circumstances that wife (deceased) died of poison and husband (appellant) consumed poison indicate that it was after administering poison to his wife, husband tried to commit suicide - Held - No evidence that the substance which was found in the viscera of the deceased contained the same poison as the poison consumed by the husband - It would be a far fetched conclusion that husband alone was the person who administered poison to the deceased - In view of the suspicion of the husband about her fidelity, commission of suicide by the wife was not ruled out - Conviction u/Ss. 302 & 309 I.P.C. set-aside - Appeal allowed : Tukaram Vs. State of M.P., I.L.R. (2008) M.P. 2098 (DB)
- Section 316 - Causing death of quick unborn child by act amounting to culpable homicide - If a person strikes a pregnant woman and thereby causes death of her quick unborn child, he would be guilty of the offence u/s 316 provided the blow was intended by him to cause woman's death or was one which he knew or had reason to believe to be likely to cause it - Appellant alleged to have given thrusts with a lathi on side of Penal Code (45 of 1860) 616 womb - Doctor had not found any injury on the dead fetus - Prosecution failed to prove essential ingredients of offence - Conviction and sentences set-aside - Appeal allowed: Bhaskar Prasad Vs. State of M.P., I.L.R. (2009) M.P. 2098
- Section 318, Evidence Act, 1872, Section 106 - Appellant convicted for concealment of birth of her child by secret disposal of dead body - Lady Doctor categorically opined that the appellant had delivered a full term child - Held - It is sufficient to show that a child was born - Offence becomes complete when birth of child is concealed by any means - It is not the law that the prosecution has to eliminate all possible evidence and circumstances which may exonerate appellant - If those facts are within the special knowledge of the appellant then she has to prove that - Non- explanation of the circumstances leading to removal of a newly born child from appellant's care and custody was the strongest possible circumstance to reject the plea of false implication - Conviction maintained - However, in the facts of the case, appellant released on probation of good conduct - Appeal partly allowed : Fareeda Vs. State of M.P., I.L.R. (2009) M.P. 3437
- Sections 318, 302 - Death of new born by strangulation with umbilical cord - No evidence that umbilical cord was damaged and that it was appellant who tied umbilical cord around the neck of new born - Burden lay on prosecution - Failure to discharge - Benefit of doubt extended to appellant : Ku. Hinda Bai Vs. State of Madhya Pradesh, I.L.R. (2006) M.P. 863 (DB)
- Section 323, Evidence Act, 1872, Section 3 - Appreciation of evidence - Appellant has two wives - Second wife returened to appellant's house after staying 4-5 months in her parental house - Appellant objected to her coming - Appellant got angry and slapped her repeatedly - On the following morning second wife was found dead - On postmortem, doctor found 3-4 simple external injuries on the body of second wife - Appellat charge- sheeted for an offence u/s 302 IPC - Trial Court convicted the appellant u/s 323 IPC and sentenced to rigorous imprisonment for 6 months - Appeal filed - Held - First wife has testified that appellant had slapped second wife - Nothing has been brought out in the cross-examination of first wife to discredit her evidence - There is thus ample evidence against the appellant and his conviction u/s 323 IPC is accordingly affirmed - Appeal dismissed : Madho Rao Vs. State of M.P., I.L.R. (2009) M.P. Note *25
- Section 323 - Simple injury - Sentence - Incident took place in the year 1997 - Appellants already undergone imprisonment of 9 days - Appellants are rustic villagers - Appellants sentenced for period already undergone - Sentence of fine of Rs.1000 maintained : Nema Vs. State of M.P., I.L.R. (2009) M.P. Note *27
- Sections 323 & 34 - Simple hurt - Sentence - Appellants convicted for offence punishable u/s 323/34 IPC and sentenced to three months simple imprisonment - Ample Penal Code (45 of 1860) 617 evidence on record that the appellants caused simple injuries to the complainant - Appellants have served a jail sentence of one day - They are rustic villagers having no criminal background - Held - The incidence is of the year 1998 - So, the conviction set- aside to already undergone with a fine of Rs.750 each and failure to deposit fine simple imprisonment of two months : Kanhaiyalal Vs. State of M.P., I.L.R. (2009) M.P. Note *35
- Sections 323 & 304 Part II - Punishment - Parity - All other accused convicted u/s 323 IPC - Appellant convicted u/s 304 Part II on the same set of evidence - Ground raised in appeal that on the same set of evidence appellant alone cannot be convicted u/s 304 Part II - Held - Appellant gave the fatal blow by Gupti - Keeping in view the part played by appellant in committing this offence he has been so convicted : Mohammad Yunus @ Annu Vs. State of M.P., I.L.R. (2009) M.P. 246
- Sections 323, 375, 376(2) (g) - Gang Rape - Woman cannot be said to have common intention to commit rape, therefore, cannot be prosecuted under Section 376(2)(g), IPC : Priya Patel Vs. State of M.P., I.L.R. (2006) M.P. 947 (SC)
- Section 324 - See - Criminal Procedure Code, 1973, First Schedule : Raju @ Raj Kishore Yadav Vs. State of M.P., I.L.R. (2009) M.P. Note *9
- Section 324 - Simple hurt - Injury on head alleged to be caused by axe - Lacerated wound found in M.L.C. - Held - Injury could be caused by blunt side of axe - It will fall under second category of conflict between oral and medical evidence as explained in Thaman Kumar's case [(2003) 6 SCC 380] - Trial Court did not commit any illegality in ignoring absence of any incised wound : Beniram Vs. State of M.P., I.L.R. (2009) M.P. 885
- Section 324, Criminal Procedure Code, 1973, Section 386 - Sentence - Applicant convicted U/s 324 - Incident took place about 14 years back - Applicant has already suffered imprisonment for 29 days - Sentence reduced to period already undergone : Bhure Singh Vs. State of M.P., I.L.R. (2008) M.P. Note *42
- Section 324 r/w 34 - Appellant No.1 & 3 were convicted u/s 324/34 - Conviction challenged on ground that incident occurred all of a sudden and both the parties entered into free fight - Held - No evidence on record that appellants had pre-meeting of mind, pre-meditation and pre-plan for causing simple injury or any kind of injury to complainant party - It is true that appellants have not sustained any injury but force was used by complainant party by catching hold of appellant No.2 - Therefore, appellants would be liable for their individual act - Conviction & sentence u/s 324/34 set-aside - Appellant No.1 acquitted from the charge - However, appellant No.3 is convicted u/s 323 IPC and sentenced to period already undergone - Appeal partly allowed : Karan Singh Vs. State of M.P., I.L.R. (2009) M.P. 859 (DB) Penal Code (45 of 1860) 618
- Section 325 - Sentence - Incident took on a sudden quarrel over collection of Mahua flowers - Nothing on record that applicant is a habitual offender - Applicant already undergone imprisonment of 4 months - Held - Applicant sentenced to period already undergone and sentence of fine affirmed - Revision partly allowed : Amar Singh Vs. State of M.P., I.L.R. (2009) M.P. 1476
- Section 325, Criminal Procedure Code, 1974, Section 397, 401 - Revision against acquittal - Applicant lodged F.I.R. that respondents had assaulted them while injured was constructing Pagra on government land - Respondents tried for offence under Section 325/34 - Applicants also tried for offence under Section 307/34 for causing injuries to respondents - Trial Court acquitted respondents on the ground that applicants were aggressors and respondents had acted in private defence - Held - Independent witnesses not supported prosecution case - Material omissions and contradictions in the statements of injured persons - No perversity found in finding of the Trial Court that applicants were aggressors and respondents had acted in self defence - Keeping in view the limited scope of revision such finding does not call for interference - Revision dismissed : Shrinath Vs. Trilokinath, I.L.R. (2007) M.P. 1462
- Section 326 - See - Evidence Act 1872, Section 3 : Ashok Vs. State of M.P., I.L.R. (2008) M.P. Note *71
- Sections 326, 304 Part I, 34 - See - Evidence Act, 1872, Section 3, : Sheikh Sultan Vs. State of M.P., I.L.R. (2009) M.P. 1769
- Sections 326, 367 - Grievous Hurt - Sentence - Both hands of injured amputated by appellants no. 1 and 2 due to business rivalry - Incident took place 18 years back - However looking to the nature of incident specifically that injured will be handicapped throughout his life act of appellants deserve no sympathy - Trial Court already taken liberal view by sentencing them to 4 years imprisonment - Appeal dismissed : Gopal Vs. State of M.P., I.L.R. (2008) M.P. Note *43
- Section 326 r/w 34 - Sentence - Parties entered into compromise despite the fact that offence was non-compoundable - Though compromise was not accepted, but in view of the fact that the appellant 'A' has suffered jail sentence of 2 years and other appellants 9-10 months, the interest would be sub-served if they are released on the period already undergone : Ashok Vs. State of M.P., I.L.R. (2009) M.P. 2675
- Sections 330, 201/34 - Gun shot injuries - Post mortem or ante mortem - Witness came out of his house after hearing gun shots - He did not notice any blood on or around dead body - Forensic expert has not found any trail of blood on corresponding path or nearby stone, where dead body was lying - Absence of line of blood - Indicative of fact that gun shot injuries are postmortem - Ruled out the probability of defence that Penal Code (45 of 1860) 619 deceased was shot at while he was running away : Ashok Kumar Jain Vs. State of M.P., I.L.R. (2008) M.P. 934
- Section 333 - Voluntarily causing grievous hurt to deter public servant from his duty - Injured, Secretary of Gram Panchayat standing near betel shop and was calling members of Panchayat to convene meeting - Appellant asked him to include his name in the list of Below Poverty Line - Appellant caused injuries on left leg by pump as injured stated that he will do so when next meeting shall be called - Held - Injured was not discharging any public duty - Even meeting was not held - He was sitting near betel shop - Conviction u/s 333 set-aside - However, appellant convicted u/s 325 and sentenced to undergo one year rigorous imprisonment - Appeal partly allowed : Kemalee Vs. State of M.P., I.L.R. (2009) M.P. 1113
- Sections 341, 147, 332/149, 333/149 & 353/149 - See - Criminal Procedure Code, 1973, Sections 227 & 228 : Rakesh Vs. State of M.P., I.L.R. (2009) M.P. Note *10
- Section 354 - Attempt to outrage the modesty - Prosecution to establish causation of assault or use of criminal force against a woman with intend to outrage her modesty: Mazboot Singh Vs. State of M.P., I.L.R. (2010) M.P. 674
- Section 354 - Attempt to outrage modesty - Prosecutrix having grudge against appellant - Her evidence with respect to rape already disbelieved by trial Court - Prosecutrix not a truthful witness - Plea of alibi taken by appellant appears probable - Unsafe to convict appellant u/s 354 - Appellant acquitted - Appeal allowed : Pavinder Ahluwallia Vs. State of M.P., I.L.R. (2009) M.P. 3426 (DB)
- Section 354, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Section 3(1)(xi) - Assault or criminal force to women with intent to outrage her modesty - Delay in FIR - Appellant Block Resources Coordinator went for inspection in the school of complainant and found certain irregularities - After two days, a report was lodged to the department that appellant tried to outrage her modesty - Held - Complainant did not lodge any report in police - She sent the complaint to the officer of her department who sent to concerned police station and after inquiry the FIR was lodged after about one month - There is delay in lodging the FIR - It seems that the complaint was the repercussion of the irregularities pointed by the appellant with intent to save herself from the consequences to be ensued as a result of such irregularities - Appeal allowed : Devi Prasad Vishwakarma Vs. State of M.P., I.L.R. (2009) M.P. 1140
- Section 354 - Material variance between two dying declarations - Allegedly, appellant and two accused persons intercepted deceased when she was all alone coming Penal Code (45 of 1860) 620 to home - Accused persons pressed her breast and kissed her with intention of outraging her modesty - Deceased came to her house and poured kerosene oil on herself and ignited by match stick - First oral dying declaration - When in hospital she told her father that appellant molested her and outraged her modesty - Second dying declaration recorded by Naib Tehsildar in which she did not disclose the name of the appellant as assailant but stated that 2 boys molested her - Held - It shows that appellant was not previously known to deceased that is why she did not name him in second dying declaration - In the circumstances, oral dying declaration which was given by deceased to her father is not reliable - Trial Court committed error in relying upon oral dying declaration of father of deceased - Conviction and Sentence of appellant U/s 354 of I.P.C. set aside - Appeal allowed : Mohammed Laique Vs. State of M.P., I.L.R. (2008) M.P. Note *21
- Sections 354 & 376 - Rape or attempt to outrage modesty - Medical evidence - When medical evidence is conspicuously silent about occurrence of injuries either on the person or on private part of prosecutrix, irresistible conclusion of there being no forcible intercourse could easily be drawn : Mazboot Singh Vs. State of M.P., I.L.R. (2010) M.P. 674
- Sections 354, 376, 511 and Criminal Procedure Code, 1973, Section 374(2) - Appeal for Conviction & sentence - Rape - Medical report of accused not proved by prosecution - Though filed - Can be used against prosecution - Accused impotent - Only allegation of prosecutrix that she was made to lie on his legs - It was for prosecution to prove intention behind such act - Intention not proved - Accused acquitted : Phulki @ Santosh @ Makhan Vs. The State of M.P., I.L.R. (2006) M.P. 105
- Section 363 - Kidnapping - Prosecution did not examine the husband of the prosecutrix, his cousin and the woman, who could prove the facts relating to absence of the prosecutrix from her matrimonial home and her presence in the company of the appellant - Probabilities factors favoured the defence - Appellant was entitled to benefit of doubt : Ravi Vs. State of M.P., I.L.R. (2010) M.P. 2641
- Section 363 - Kidnapping - Word 'takes' does not necessary connote taking by force and is not confined only to use of force, actual or constructive but means 'to cause to go', 'to escort' or 'to get into possession' : Nanda Vs. State of M.P., I.L.R. (2009) M.P. 3221
- Sections 363 - Kidnap - Minor girl - Age - Father of prosecutrix deposed that his daughter is 12 years of age - In support school transfer certificate produced - Head Master has proved the entries of school transfer certificate - Prosecutrix also deposed her age to be of 13 years - No effective cross-examination has been done to these witnesses on the point of age - Accused himself admitted prosecutrix age of 12 years in his statement recorded u/s 313 of Cr.P.C. - Therefore, irresistible conclusion is that Penal Code (45 of 1860) 621 prosecutrix was minor at the time of incident : Qasam Khan Vs. State of M.P., I.L.R. (2009) M.P. Note *7
- Section 363 - Kidnap - Minor girl - Consent of a minor girl - Prosecutrix was minor at the time of incident - Therefore, her consent, if any, was of no value : Qasam Khan Vs. State of M.P., I.L.R. (2009) M.P. Note *7
- Sections 363 & 366, Evidence Act, 1872, Section 3 - Prosecutrix at her own instance came from her parental home and thereafter accompanied with the appellant went and visited to various places then, the offence either for taking her from the lawful custody without consent of her parents or of the kidnapping could not be deemed established against the appellant - On premises that later on appellant did not insist her to go back to her parental home and contrary to it, by facilitating he visited various places on her consent with her, the conviction is not sustainable - Appeal allowed - Appellant acquitted : Ghanshyam @ Ghanshu Vs. State of M.P., I.L.R. (2010) M.P. Note *42
- Sections 363, 366, 376 - Kidnapping and Rape - Determination of age - Parents and prosecutrix stating that she is below 16 years of age - Date of birth recorded in school register on the information of father shows that prosecutrix was below 16 years of age - Held - Evidence of parents and school register proves that prosecutrix was 15 years and 8 months old on the date of incident : Mohammad Aslam Vs. State of M.P., I.L.R. (2008) M.P. 2708
- Sections 363, 366, 376 - Kidnapping and Rape - Prosecutrix who was washing cloths was dragged by appellant and thereafter taken to Sarni by cycle and truck - Prosecutrix was shifted in a rented house - Appellant committed sexual intercourse daily with her - Prosecutrix recovered from possession of appellant on the report of father of prosecutrix - Held - Consent of prosecutrix is immaterial as she is below 16 years of age - Violation, intention and conduct of women do not determine the offence - They only foretell upon the intent with which accused had kidnapped her - Appellant by active persuasion enticed prosecutrix below 16 years of age to come from one place to another with intent to have sex illegitimately - Appellant rightly convicted by trial court - Appeal dismissed : Mohammad Aslam Vs. State of M.P., I.L.R. (2008) M.P. 2708
- Sections 363, 366, 376(2)(f) & 302, Evidence Act, 1872, Section 3 - Circumstantial evidence - Three witnesses seen the appellant forcibly taking away the deceased (a minor girl) with him - Dead body found in a well after 3 days - Positive medical evidence regarding rape and death on relavant day - The chain of circumstances are so complete on which basis inference can be drawn against the appellant/accused that he is the person who committed the aforesaid offence of kidnapping, commission Penal Code (45 of 1860) 622 of rape on the deceased and also caused death of the deceased by throwing her into a well - Conviction and sentence affirmed : Haricharan Vs. State of M.P., I.L.R. (2010) M.P. 2201 (DB)
- Sections 364, 302, 201, Evidence Act - Section 73 - Identification of Prisoners Act - Sections 4 & 5 - Appeal against conviction - Accused convicted for kidnapping and murdering a child after demanding ransom money - Original letter containing demand of ransom not identified and sealed - Accused made to write many similar letters by police for the purpose of identification - Power to take specimen handwriting of accused at investigation stage - Specimen writing can be ordered to be given by Magistrate but not at the investigation stage - Identification of Prisoners Act empowers the police to only take specimen finger print and thumb impression of the accused preferably before or under the orders of Magistrate - Specimen handwriting wrongly taken during investigation stage by Police - Other circumstantial evidence also not favouring prosecution case - Accused acquitted : Balram @ Balla Vs. State of M.P., I.L.R. (2006) M.P. 1571 (DB)
- Section 364-A - Seven years boy was kidnapped and a demand for ransom was made - Defence plea that it was not proved that accused persons made demand of ransom for release of kidnappee and that there was no apprehension that the kidnappee might be put to death or hurt - Held - To attract the provisions of Section 364-A - It is required to prove that accused kidnapped a person and kept him under detention for a ransom : Irfan Vs. State of M.P., I.L.R. (2010) M.P. 1170
- Section 364-A - Seven years boy was kidnapped - He was not kept confined in any closed room or house but he was kept in the village, which was 200 km. away from his residence - Seven years boy could not have gone to his house himself - He was kept there by extending assurance to him that his parents would come there to fetch him - In these circumstances, such detention after his kidnapping is clearly punishable u/s. 364- A : Irfan Vs. State of M.P., I.L.R. (2010) M.P. 1170
- Section 364-A - Three accused persons kidnapped a seven years old boy and one of the accused persons communicated the demand of ransom to the grandfather of the boy - Prosecution has not proved which particular accused made or communicated the demand of ransom - Held - It is not always necessary to be proved that which particular accused made or communicated the demand of ransom : Irfan Vs. State of M.P., I.L.R. (2010) M.P. 1170
- Section 366 - Abduction - Appellant took a 10 years old girl with consent of her guardian for purchasing something for her from the shop - Appellant instead of taking her to shop, threatened and took her to forest for commission of illicit intercourse - No offence for kidnapping made out - Offence u/s 366 for abduction made out : Ramesh Vs. State of M.P., I.L.R. (2009) M.P. 218 Penal Code (45 of 1860) 623
- Section 366 - Kidnapping, abducting or inducing woman to compel her marriage - Evidence showing that 20 years old prosecutrix took four pair of clothes, jewellery and money and left her house voluntarily - She resided with accused for 10 days - No evidence that at the very inception accused made false promise to marry with intention to seduce to prosecutrix to sexual intercourse - Offence u/s 366 not made out - Conviction and sentence set-aside - Appeal allowed : Vinod Vs. State of M.P., I.L.R. (2009) M.P. 513
- Sections 366 & 376 - Rape - Appreciation of evidence - Conviction based on sole testimony of prosecutrix - Reliability - Prosecutrix making major omission and contradictions in her statements before the Court - She went to the Court for getting affidavit notarised and signing marriage papers - She nowhere disclosing her acts to be under threat to her life - Doctor opined she was habitual to sexual intercourse - Held - It is not justifiable to convict the appellant on the basis of sole evidence of the prosecutrix- Evidence of prosecutrix is not of that quality on which the conviction could be sustained solely on the basis of her testimony : Karu @ Samar Singh Vs. State of M.P., I.L.R. (2009) M.P. 1435
- Sections 366, 376 - On 10.04.1990 prosecutrix while returning home was caught and was confined in house - In the night she was ravished by appellant Chatra - Next day brother of prosecutrix alongwith two witnesses reached there - Prosecutrix and appellant Chatra were taken to village - FIR was lodged on 12.04.1990 - Appellant Chatra was arrested on 19.04.1990 - Held - Medical report of appellant Chatra dated 12.04.1990, in which 7 injuries were found, suppressed by prosecution - Manipulation found in appellant's medical report dated 19.04.1990 - No explanation why appellant was not arrested on 12.04.1990 - Material witnesses were deliberately withheld by prosecution - Deficiencies and serious infirmities in prosecution case - Defence story probable that appellant was assaulted on account of dispute over repayment of the amount, and when he lodged the report, a false case has been concocted or prosecutrix was a consenting party found in the company of appellant and both were beaten by brother and relative of prosecutrix - Thereafter, she was forced to lodge the report - Conviction & sentence set-aside - Appeal allowed : Chatra Vs. State of M.P., I.L.R. (2008) M.P. 2674
- Section 368 r/w 364-A - From the evidence of kidnappee and other circumstances proved by prosecution evidence, it has been amply established that accused had wrongfully concealed and kept kidnappee in his house knowingly that he had been kidnapped - Therefore, accused is guilty for the charge u/s 368 r/w. 364-A : Irfan Vs. State of M.P., I.L.R. (2010) M.P. 1170
- Sections 375 & 90 - Trial court held that appellant obtained consent on false promise and it was not a free consent of prosecutrix and was obtained on misconception Penal Code (45 of 1860) 624 of fact - Held - Prosecutrix aged 20 years, has nowhere stated that appellant made a proposal of marriage before her or gave assurance for marriage because of which she allowed to him sexual intercourse with her - Prosecutrix has nowhere stated that appellant committed bad act forcibly or against her cosent or will - Finding of trial court is not based on proper appreciation of evidence - Conviction and sentence set-aside - Appeal allowed : Vinod Vs. State of M.P., I.L.R. (2009) M.P. 513 SYNOPSIS : Section 376
1. Assessment of age of 11. Medical / Injury report prosecutrix 12. Non-examination of 2. Attempt to rape prosecutrix 3. Bad Act / Galat Kam 13. Penetration 4. Consent 14. Rape and Murder 5. Delay in lodging FIR 15. Rape by public servant 6. Evidence of prosecutrix 16. Sentence held not reliable 17. Sole testimony of 7. Evidence of prosecutrix prosecutrix held reliable held reliable 18. Miscellaneous 8. False promise of marriage 9. Gang rape 10. Identification parade
1. Assessment of age of prosecutrix
- Section 376 - Rape - Age of Prosecutrix - Prosecutrix is residing in a small village - In that village, neither Kotwar Book is kept nor there is any school - Father and uncle of the prosecutrix states that she is 14 to 15 years of age - Raiologist also opined that her age was below 15 years - Prosecution succeeded in proving that prosecutrix was below 16 years of age : Fulloo @ Phool Singh Vs. State of M.P., I.L.R. (2010) M.P. Note *4
- Section 376 - Rape - Assessment of age of prosecutrix - Parents of the prosecutrix were not knowing the date of birth - Basis for recording date of birth in school transfer certificate is not established - Identity of the prosecutrix with the entry in school register is also not established - In affidavit, prosecutrix mentioning her age 25 years and she has also admitted affixing her photograph on the affidavit - Court on Penal Code (45 of 1860) 625 perusal of the affidavit and photograph found that from the photograph prosecutrix is not appearing minor girl below 18 years of age - Prosecutrix has specifically stated that before 5-7 years she was married and at that time she was aged about 18 or 19 years - This fact remained unchallenged and fortified her age 25 years in her affidavit - Prosecution has failed to prove that prosecutrix was minor on the date of incident : Kailash Vs. State of M.P., I.L.R. (2009) M.P. Note *2
- Section 376 - Rape - Prosecutrix minor - School Registrar showing age below 16 years - Statement of parents corroborative of entries made in school register - Entry in school register - Though not conclusive but has evidentiary value - Prosecutrix proved to be minor - Order of acquittal reversed - Prosecutrix lived with accused for some time in a rented house and was a consenting party - Sentence reduced to the period already undergone : State of Chhattisgarh Vs. Lekhram, I.L.R. (2006) M.P. 1119 (SC) 2. Attempt to rape
- Sections 376 & 511 - Attempt to commit rape - Prosecutrix admitted that she sustained injury in her urethra that had come into contact with a stick - Veracity of testimony of young girl aged about 8 years having no experience of sexual assault cannot be examined by reading admission in isolation - Nevertheless not possible to conclude safely that there was a partial penetration within labia majora or vulva or pudenda - Appellant liable to be convicted for attempt for rape : Motilal Gwal Vs. State of M.P., I.L.R. (2009) M.P. 1154
- Section 376 & 511 - Attempt to commit rape - Sentence - Appellant sentenced to undergo imprisonment of 5 years and to pay fine of Rs.400 : Motilal Gwal Vs. State of M.P., I.L.R. (2009) M.P. 1154
- Section 376/511 - Attempt to commit rape - Appellant did not remove the cloth of prosecutrix - Did not expose his male organ - Did not try to penetrate his male organ - He sat on her chest and stood up the moment she raised cry - No offence u/s 376/511 made out - Appellant guilty of committing offence u/s 354 : Ramesh Vs. State of M.P., I.L.R. (2009) M.P. 218
- Sections 376 or 376/511 - Prosecutrix aged 11 years - Appellant committed sexual intercourse after throwing her on ground - In medical evidence hymen membrane was not torned but there was redness and marks of rubbing were present - Pubic hair were not found containing semen and human permatozoa whereas both were present on underwear and slides of semen of appellant - Appellant held guilty for commission of attempt to commit rape : Babu @ Babariya Vs. State of M.P., I.L.R. (2008) M.P. 1495 Penal Code (45 of 1860) 626
- Section 376/511 or 354 - Prosecutrix aged 11 years was made to lie on cot by appellant after untying her Salwar - Appellant thereafter laid on her - No evidence that appellant removed his own undergarment and tried to penetrate his male organ in the vagina of prosecutrix - Medical evidence also does not show use of any kind of force on private part of prosecutrix - Appellant guilty of committing offence U/s 354, Jeevan Vs. State of M.P., I.L.R. (2008) M.P. 1498 3. Bad Act / Galat Kam
- Section 376 - Duty of prosecutor and court - Prosecutrix stated that appellant took her to different places and committed bad act with her - It was the duty of the prosecutor as well as the court to clarify from the prosecutrix whether there was any penetration of male organ into her - Held - There is absolutely no evidence on record about commission of sexual intercourse - Offence u/s 376 not made out - Conviction and sentence set-aside - Appeal allowed : Vinod Vs. State of M.P., I.L.R. (2009) M.P. 513
- Section 376, Evidence Act, 1872, Section 3 - Rape - "Mere Sath Usne Galat Kam Kiya" - In dying declaration prosecutrix disclosed that when she went to answer call of nature, appellant caught hold of her from behind and swathe her mouth and then "Mere Sath Usne Galat Kam Kiya" - Held - If the words used by prosecutrix are considered coupled with other circumstances, it becomes clear that prosecutrix wanted to say that accused ravished her : Annu @ Anoop Kumar Vs. State of M.P., I.L.R. (2008) M.P. 2435 4. Consent
- Section 376 - Rape - Merely because the victim was more than sixteen years of age, that cannot be a ground to hold that she was a consenting party - Also the mere fact that the prosecutrix was found habitual to sexual intercorse by Doctor, shall be no ground to suspect her testimony as against the appellant : Girish Kumar Vs. State of M.P., I.L.R. (2010) M.P. 2373
- Section 376 - Rape - Prosecution has failed to prove that prosecutrix was minor on the date of incident - Prosecutrix moved freely with the appellant from one place to another and passed more than month time - She also visited court, executed affidavit and marriage agreement - Her photographs were also taken during the course of all these activities - If she was not a consenting party - She could have disclosed her forcible taking or taking by inducement or fraud to police, advocate and citizen of that area - Looking to the totality of the circumstances, there cannot be two opinion that prosecutrix was a consenting party - Conviction and sentence u/ss 363, 366, 376(1) set- aside - Appeal allowed : Kailash Vs. State of M.P., I.L.R. (2009) M.P. Note *2 Penal Code (45 of 1860) 627
- Section 376 - Rape - Consent and Submission - Difference - There is a difference between consent and submission - Every consent involves a submission, but the converse does not follow, and a mere act of submission does not involve consent - Consent of woman in order to relieve an act of a criminal character like rape, must be an act of reason, accompanied with deliberation, after the mind has weighed as in a balance, the good and evil on each side, with existing capacity and power to withdraw the assent according to one's will or pleasure - Therefore, a woman is said to consent only when she freely agrees to submit herself, while in free and unconstrained possession of physical and moral power to act in a manner she wanted : Kaptan Singh Vs. State of M.P., I.L.R. (2008) M.P. 2715
- Section 376 - Rape - Prosecutrix below 16 years of age - Appellant took her knowingly that she will be seduced to illicit intercourse and committed sexual intercourse though with her consent - Act of appellant comes within purview of Section 375(Sixthly) - Appellant rightly convicted - Appeal dismissed : Vinod Kumar Vs. State of M.P., I.L.R. (2008) M.P. 3327 5. Delay in lodging FIR
- Section 376, Criminal Procedure Code, 1973, Section 154 - Delay in lodging FIR - Explanation - Record shows that prosecutrix was constantly in fear of the appellant - Therefore, she could not disclose the incident to any body - Prosecution has explained the delay in making the FIR - Delay does not adversely affect the prosecution case : Fulloo @ Phool Singh Vs. State of M.P., I.L.R. (2010) M.P. Note *4
- Section 376, Criminal Procedure Code, 1973, Section 154 - Delay in lodging FIR - FIR was lodged after the father returned back to home as reputation of the family and future of the prosecutrix were at stake - Explanation is sufficient and delay in lodging FIR is inconsequential : Nanda Vs. State of M.P., I.L.R. (2009) M.P. 3221
- Section 376 - Rape - Delay in lodging FIR - Prosecutrix aged about 8 years - Incident took place at 8 p.m. - Police Station situated at distance of 8 Kms. - FIR lodged after 60 hours - Explanation that FIR was lodged after return of father plausible - Held - Cogent and credible explanation is sufficient to treat delay as inconsequential : Motilal Gwal Vs. State of M.P., I.L.R. (2009) M.P. 1154 6. Evidence of prosecutrix held not reliable
- Section 376 - Rape - Prosecutrix gave a materially different version in her sworn testimony - No medical or forensic evidence to support the specific allegation about rape - Probabilities factors favoured the defence - Appellant was entitled to benefit of doubt - Appeal allowed : Ravi Vs. State of M.P., I.L.R. (2010) M.P. 2641 Penal Code (45 of 1860) 628
- Section 376 - Rape - Appellant and prosecutrix residents of Delhi - Prosecutrix was called at Jhansi by the appellant for procuring job for her brother or in the alternative for refund of amount which prosecutrix has given to appellant - Railway ticket of train alleged to be of appellant produced by prosecutrix - Held - Railway ticket did not contain name of appellant - Merely because age of passenger was about 40 years would not prove that ticket belonged to appellant - Ticket also not seized from the place of incident but was produced by prosecutrix - Prosecution failed to prove that railway ticket was of appellant : Pavinder Ahluwallia Vs. State of M.P., I.L.R. (2009) M.P. 3426 (DB)
- Section 376(1) - See - Evidence Act, 1872, Section 3 : Dinesh Jaiswal Vs. State of M.P. I.L.R. (2010) M.P. 1839 (SC)
- Section 376(2)(f) - Appellant alleged to have committed offence of rape on a minor girl aged 8 years - Prosecutrix and her mother supporting prosecution case in their examination-in-chief - Their statements are corroborated by medical evidence & F.I.R. - Trial court convicted appellant u/s 376(2)(f) of IPC - Conviction & sentence challenged - Held - Prosecutrix and her mother took somersault in cross-examination and contradicted their statements of examination-in-chief with the explanation that on insistence of police they stated against the appellant in examination-in-chief - Father and brother of prosecutrix turned hostile - Appellant was in police custody previous to the date of incident - Factum of non-sustaining injury on genetile organ of appellant also weakens prosecution case - Evidence of prosecutrix and her mother cannot be relied beyond doubt - Conviction and sentence not tenable - Appellant acquitted : Chhota @ Chhotelal Vs. State of M.P., I.L.R. (2008) M.P. 3019 7. Evidence of prosecutrix held reliable
- Section 376 - Rape - Evidence of prosecutrix corroborated by her mother and further corroborated by FIR and FSL report - The possibility of false implication is also ruled out - The offence is proved beyond reasonable doubt : Shesh Upadhyaya @ Sheshmani Vs. State of M.P., I.L.R. (2010) M.P. Note *91
- Section 376, Evidence Act, 1872, Section 3 - Rape - Appreciation of evidence - Absence of exonerating circumstances to show that statement of prosecutrix is not trustworthy - Due weightage and credence should be given to the same and relied upon - Minor discrepancies in the statements of prosecutrix and her minor son are not fatal - Appeal dismissed : Randhir Singh Vs. State of M.P., I.L.R. (2010) M.P. 485
- Section 376, Evidence Act, 1872, Section 3 - Appreciation of evidence - Rape - Held - It does not appeal to reason that rustic villagers like prosecutrix, her husband and his brother would concoct or manipulate the story of rape against the appellant within Penal Code (45 of 1860) 629 short span of two hours - Even otherwise, upon close scrutiny of entire evidence on record, the incident of rape as narrated by the prosecutrix does not appear to be false and concocted : Bhanu Singh Vs. State of M.P., I.L.R. (2009) M.P. 224
- Section 376, Evidence Act, 1872, Section 3 - Appreciation of evidence - Rape - Prosecutrix was meticulously cross-examined, but nothing has been elicited so as to distrust her version - The mere fact that she had gone to police station with her husband, his brother and two other prominent persons of the village, does not vitiate her testimony: Bhanu Singh Vs. State of M.P., I.L.R. (2009) M.P. 224
- Section 376 - Rape - Prosecutrix coming back to home after taking vegetables from uncle - Appellant threw her on ground and committed sexual intercourse with her - Prosecutrix informed the incident immediately to her mother - Incident took place at about 8 P.M. - FIR lodged at 11 P.M. - Held - Soon after incident the same narrated by prosecutrix to her mother and father - Report was lodged promptly - FIR fully corroborated by testimony of prosecutrix and her parents - No apparent reason to falsely implicate accused after scatting her own prestige and honour - Conviction of appellant upheld - Appeal dismissed : Jandel Singh Vs. State of M.P., I.L.R. (2008) M.P. 396
- Sections 376, 506-I - Rape - Testimony of the prosecutrix against the appellant if found to be clear, cogent and trustworthy and it inspires confidence, it can be acted upon without any corroboration : Girish Kumar Vs. State of M.P., I.L.R. (2010) M.P. 2373
- Section 376 r/w 511 - See - Evidence Act, 1872, Section 3 : Nandan @ Shiv Nandan Vs. State of M.P., I.L.R. (2009) M.P. Note *21 8. False promise of marriage
- Section 376 - Rape - Ingredient - Consent given by prosecutrix on a false promise of marriage - Not a fact within the meaning of Penal Code - Court below erred in convicting appellant : Abdul Salam Vs. State of M.P., I.L.R. (2006) M.P. 876 9. Gang rape
- Section 376, Evidence Act, Indian 1872, Section 114-A - Appeal against acquittal - Trial Court acquitting respondents on the ground that prosecutrix was not proved to be below 16 years of age and that she was a consenting party - Determination of age - Radiological examination not conducted but sufficient evidence available to the effect that she was below 16 years on the date of incident - Trial Court committed error in not framing charge of gang rape - Presumption regarding absence of consent also available Penal Code (45 of 1860) 630 as per Section 114-A Evidence Act - Judgment of acquittal set aside - Accused convicted under Section 376 IPC and sentenced to 7 years R.I. alongwith fine of Rs.1,000/- each: State of Madhya Pradesh Vs. Daulat, I.L.R. (2006) M.P. 1659 (DB)
- Section 376/34 - Rape - Accused & Co-accused were convicted for offence of rape on prosecutrix, an illiterate rustic village girl - Appeal against, by the appellant - Held - There is no dispute regarding incident and place of occurrence - Defence could not establish that it was a case of consent - FIR was lodged most promptly - Accused were arrested on next day - There is no reason for which prosecutrix would have enroped them falsly - Appeal dismissed : Vijay @ Chinee Vs. State of M.P., I.L.R. (2010) M.P. 2257 (SC)
- Section 376(2)(g), Evidence Act, 1872 Section 114-A - Age of Prosecutrix - Whether prosecutrix was minor at the time of incident or not is irrelevant in view of the fact that offence of gang rape attracts the statutory presumption under Section 114-A of Evidence Act : Rajesh Vs. State of M.P., I.L.R. (2010) M.P. 1814
- Section 376(2)(g) - Gang Rape - Details of incident - Prosecutrix described as to how she was ravished by both the appellants - Clinching proof of completed act of rape by each one of appellant is not required in view of Explanation 1 : Rajesh Vs. State of M.P., I.L.R. (2010) M.P. 1814
- Section 376(2)(g) - Gang Rape - Medical opinion - Doctor opined that hymen was found ruptured and vagina was admitting only one finger - Held - Opinion of Doctor about penetration cannot be discarded as muscles must have contracted by the time of medical examination : Rajesh Vs. State of M.P., I.L.R. (2010) M.P. 1814
- Section 376(2)(g) - Gang rape - Prosecutrix an unmarried minor girl - Presence of semen and human spermatozoa in slide of vaginal swab as well as on her Kurti is very incriminating evidence and corroborating to testimony of prosecutrix : Subhash Vs. State of M.P., I.L.R. (2009) M.P. 3226
- Section 376(2)(g) - Prosecutrix dumb & deaf - It is true that normally conviction for commission of offence u/s 376 of IPC can be based on the statement of prosecutrix without any corroboration - Moreover, the statements of the prosecutrix in the present case are not corroborated by any evidence even Doctor has not given a definite opinion about the commission of rape - Evidence of the prosecutrix is not legal evidence to support the conviction - Conviction & sentence set-aside - Appeal allowed : Vinod Vs. State of M.P., I.L.R. (2009) M.P. 3440
- Section 376(2)(g) - See - Evidence Act, 1872, Sections 3 & 119 : Vinod Vs. State of M.P., I.L.R. (2009) M.P. 3440 Penal Code (45 of 1860) 631
- Section 376(2)(g), Criminal Procedure Code, 1973, Section 154 - Delay in FIR - Incident took place at 8 p.m. - FIR lodged on next day at 2.30 p.m. - Place of incident 12 kms away from Police Station - Held - Family members are required to think over matter whether the matter is to be informed to police or not - No delay in lodging FIR : Kummer Singh Vs. State of M.P., I.L.R. (2009) M.P. Note *20
- Section 376(2)(g), Criminal Procedure Code, 1973, Section 154 - FIR - Defence plea that FIR was not lodged by prosecutrix herself but lodged by her father - Held - Prosecutrix's father stated that report was lodged by prosecutrix herself - Sub-Inspector has stated that report was lodged by prosecutrix herself and he himself has written the report thereafter thumb impression of prosecutrix was affixed - There is presumption that the official acts are done in the regular way - Therefore, it cannot be accepted that prosecutrix herself did not lodge the report : Kummer Singh Vs. State of M.P., I.L.R. (2009) M.P. Note *20
- Section 376(2)(g) - Gang Rape - Prosecutrix, a blind women identifying the accused persons from their voices - Prosecutrix not accustomed from the voices of respondents - No Identification parade on the ground of voice conducted - She could not identify any person on the basis of their voices in Court - Two parties in village - Prosecutrix brought by one party to implicate the members of other party - False implication of respondents not ruled out - Respondents rightly acquitted by Trial Court - Appeal dismissed : State of M.P. Vs. Babloo, I.L.R. (2008) M.P. 879 (DB)
- Section 376 (2)(g) - Section 3(2)(5) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Rule 7 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995, Section 465 of the Code of Criminal Procedure - Effect of investigation by a Police Officer not competent to investigate - Trial not vitiated - Defect or illegality in investigation, however serious, has no direct bearing on the competence or procedure relating to cognizance or trial : Keshav Singh Vs. State of Madhya Pradesh, I.L.R. (2006) M.P. 1443
- Sections 376(2)(g), 376, Criminal Procedure Code, 1973, Section 215 - Defect in charge - Appellants charged simplicitor for offence u/s 376 of IPC - Not mentioned that they committed sexual intercourse with prosecutrix in furtherance of common intention - Appellants' conviction converted from S. 376(2)(g) to S. 376 IPC and sentenced to 7 years R.I. - Appeal partly allowed : Subhash Vs. State of M.P., I.L.R. (2009) M.P. 3226 10. Identification parade
- Section 376, Evidence Act, 1872, Section 9 - No test identification parade - Effect - Prosecutrix remained in company of accused persons for a pretty long time - Penal Code (45 of 1860) 632
She had sufficient time to see, identify and keep their features and personality in mind - Description and features of accused persons was stated in FIR which was lodged without any delay - No harm would cause to prosecution case if no test identification parade was held : Subhash Vs. State of M.P., I.L.R. (2009) M.P. 3226 11. Medical / Injury report
- Section 376 - Rape - Absence of injuries - Prosecutrix has stated about pain and sufferings - Neither prosecution nor Court took pain to brought the medical report on record in accordance with provisions of Evidence Act - However, FSL report is sufficient to corroborate the statement of prosecutrix : Subhash Vs. State of M.P., I.L.R. (2009) M.P. 3226
- Section 376 - Rape - Prosecutrix alleged that she was thrown on the ground and rape was committed - No injury on the body of the prosecutrix found - No seminal stains or spermatozoa detected on her clothes or in slides prepared of her vaginal swab - No injury on her private part - Acquittal of appellant of offence u/s 376 by trial Court proper - Appeal by State dismissed : Pavinder Ahluwallia Vs. State of M.P., I.L.R. (2009) M.P. 3426 (DB)
- Section 376, Evidence Act, 1872, Section 3 - Appreciation of evidence - Rape - Absence of injuries - Absence of visible marks of the injuries of the prosecutrix would not necessarily mean that she had not suffered any injury or that she had not offered any resistance at the time of commission of rape - Absence of injury is not necessarily an evidence of falsity of allegations or an evidence of consent on the part of the prosecutrix : Bhanu Singh Vs. State of M.P., I.L.R. (2009) M.P. 224 12. Non-examination of prosecutrix
- Section 376 - Rape - Whether conviction can be awarded in case the prosecutrix has not been examined - Held - Merely because a victim is dead and consequently could not be examined can never be a ground to acquit an accused if there is evidence otherwise available proving the criminal act of the accused concerned : Bhola Prasad Raidas Vs. State of M.P., I.L.R. (2009) M.P. 2433
- Section 376, Evidence Act, 1872, Section 3 - Appreciation of evidence - Prosecutrix, who had lodged the F.I.R., was not examined as she could not be traced - Appellant convicted on the basis of hearsay evidence - Held - In absence of the evidence of prosecutrix, who was an adult married women, the mere hearsay statement of witness that the husband was complaining of rape with his wife by the appellant, was not sufficient to establish that appellant committed rape with her : Suresh Vs. State of M.P, I.L.R. (2008) M.P. 3324 Penal Code (45 of 1860) 633
- Section 376 - See - Criminal Procedure Code, 1973, Section 154 : Suresh Vs. State of M.P., I.L.R. (2008) M.P. 3324 13. Penetration
- Section 376 - Rape - Slight penetration - Even a slight penetration is sufficient to constitute an offence of rape : Dagdu Lal Vs. State of M.P., I.L.R. (2010) M.P. Note *6
- Section 376 - Rape - Penetration - Even slightest penetration of penis into vagina without rupturing hymen would constitute rape : Motilal Gwal Vs. State of M.P., I.L.R. (2009) M.P. 1154
- Section 376(2)(f), Evidence Act, 1872, Section 3 - Rape of a minor girl - Appreciation of evidence - Rape on the prosecutrix a minor girl aged 9 years - Hymen was not ruptured - Conviction u/s 376(2)(f) of IPC challenged - Held - To constitute offence of rape, penetration, however slight, is sufficient and non-rupture of hymen or absence of injury on the private part of victim would not belie the testimony of the prosecutrix - Evidence of prosecutrix clear and cogent coupled with the medical evidence that swelling with redness was found around the labia minora and labia majora - It was clearly evident and established that there was penetration sufficient to constitute the offence of rape - Conviction u/s 376(2)(f) and sentence of imprisonment for 7 years upheld by the High Court : Angad Vs. State of M.P., I.L.R. (2009) M.P. Note *24
- Section 376(2)(f) - Rape of a minor girl - Appellant alleged to have committed offence of rape on a minor girl aged 8 years old - Trial court convicted the appellant - A defence was raised that there was no offence of rape as there was no rupture of hymen - Held - Rupture of hymen is not necessary, penetration, however slight, is sufficient to constitute the offence of rape - Appeal dismissed : Santosh Vs. State of M.P., I.L.R. (2009) M.P. 241 14. Rape and Murder
- Sections 376, 302, 201 - Rape and Murder - Circumstantial Evidence - Witnesses stated that appellant was putting lungi of brown colour - Fabric threads seized from place of incident - Lungi seized from the house of appellant on his memorandum - As per FSL report fabric threads were found to be of lungi - Held - This is material clinching circumstance to fasten the guilt upon accused : Mithilesh Vs. State of M.P., I.L.R. (2008) M.P. 333 (DB)
- Sections 376, 302 and 201 - Rape and murder - Deceased a 13 years old girl and her brother were in agricultural fields - Younger brother met with appellant while he Penal Code (45 of 1860) 634 was returning home - Appellant told brother that he will take his sister towards river and he should not disclose to any body - Younger brother ran back and informed deceased - Deceased told him to call grand father and hide herself in standing crop of wheat - Hue and cry heard by some witnesses who saw that appellant was lying on a girl - Grand father also came to spot and called deceased number of times - On next day dead body of deceased was found in the river - Ante mortem injuries were found on the body of deceased - Injuries were also found on the body of accused - Fabric threads also seized from spot which were lateron found to be that of lungi belonging to appellant - Deceased was subjected to rape - Conviction of appellant affirmed - Appeal dismissed: Mithilesh Vs. State of M.P., I.L.R. (2008) M.P. 333 (DB) 15. Rape by public servant
- Section 376B - Intercourse by public servant with woman in his custody - Appellant working as a school teacher - Appellant having sexual intercourse with prosecutrix studying in Class VII-prosecutrix became pregnant - Appellant took her to a hospital at Satna where abortion took place - Prosecutrix came back herself and claimed to be 13 ½ years of age - Trial Court acquitted appellant holding prosecutrix to be above 18 years of age and being consenting party - High Court convicted appellant under Section 376B of I.P.C. - Held - 376B of I.P.C. requires that there would be consent but the same has been obtained by taking undue advantage of position as public servant - Custody implies guardianship - Custody must be lawful custody within provisions of statute or actual custody conferred by reason of an order of Court of law or otherwise - When two ingredients are satisfied then whether the public servant has taken advantage of his official position is required to be seen - Merely because teacher and student fell in love would not mean that he had taken advantage of his position - Intercourse must take place at a place where woman was in custody - Prosecutrix admitted that intercourse did not take place within precincts of School but outside School - Ingredients of Section 376B not satisfied - Appellant acquitted - Appeal allowed : Omkar Prasad Verma Vs. State of M.P., I.L.R. (2007) M.P. 840 (SC) 16. Sentence
- Section 376 - Sentence - Life imprisonment - Father continuously committed rape with his own daughter - If the protector himself becomes violator, the degree of vulnerability becomes more greater and, accordingly, leniency in passing the sentence finds no place in such a case - Appellant rightly sentenced to life imprisonment by trial court - Appeal dismissed : Ambaram Vs. State of M.P., I.L.R. (2009) M.P. 866 (DB)
- Section 376 (1) - Proviso - "Adequate and special reasons" - Depends upon several factors - There may not be straight jacket formula - Rapist is an illiterate Penal Code (45 of 1860) 635 agriculturist, fined Rs 2500/- - Reasons neither special nor adequate : State of M.P. Vs. Babulal, I.L.R. (2008) M.P. 6 (SC)
- Section 376 (1) - Rapist should be handled with a heavy hands - Court must be conscious and mindful of proportion between an offence committed and penalty imposed as also its impact on society and victim of crime - Rapist conviction upheld by High Court but jail sentence reduced up to period already undergone (i.e. two months and three days) - Sentence inadequate - Supreme Court set-aside the sentence and restored it to the sentence awarded by the trial court (i.e.7years) : State of M.P. Vs. Babulal, I.L.R. (2008) M.P. 6 (SC)
- Section 376(2)(f) - Punishment for committing rape on a woman when she is under twelve years of age - Appellant sentenced to 10 year rigorous imprisonment and a fine of Rs.5000/- with default stipulation for committing rape on a minor girl of eight years of age - In appeal prayed for leniency in awarding the sentence - Held - The aims of punishment are now considered to be retribution, justice, deterrence, reformation and protection and modern policy reflects a combination of several or all of these aims - No 'adequate and special reasons' appears to reduce the sentence - Rape is a heinous crime and against the society and a deterrent punishment is required to weed it out - Appeal dismissed : Suneel Vs. State of M.P., I.L.R. (2008) M.P. 2406 17. Sole testimony of prosecutrix held reliable
- Section 376 - Evidence of prosecutrix - Under what circumstances the solitary statement of prosecutrix without corroboration can be believed - law discussed : Bharat Vs. State of M.P., I.L.R. (2010) M.P. 1469
- Section 376 - Rape - Prosecutrix - Conviction can be solely recorded on the sole testimony of prosecutrix provided that her evidence doesnot suffer from any basic infirmity and probabilities fact doesnot render it unworthy of credence : Rajesh Vs. State of M.P., I.L.R. (2010) M.P. 1814
- Section 376 - Rape - Conviction on the sole testimony of the prosecutrix challenged in appeal - Held - Prosecutrix had tried to resist the act of the appellant and also shouted for help and had a scuffle with him - Some of her bangles had broken, but she did not sustain any injury - Mere fact, that prosecutrix did not sustain any injury in the incident would not ipso facto mean that she did not resist or was a consenting party - Evidence of the prosecutrix is found to be cogent, natural and trustworthy, which also stood corroborated by the promptly lodged FIR as well as by the evidence of a witness to whom the incident was narrated by her - It was thus established beyond periphery of doubt that appellant committed rape - Appeal dismissed : Harakh Chand Vs. State of M.P., I.L.R. (2009) M.P. 1760 Penal Code (45 of 1860) 636
- Section 376 - Rape - Corroboration - No corroboration necessary to act upon evidence of prosecutrix : Motilal Gwal Vs. State of M.P., I.L.R. (2009) M.P. 1154
- Section 376 - Rape - Evidence of Prosecutrix - If evidence of prosecutrix is reliable, then conviction can be based solely on the testimony of prosecutrix - High Court found that the evidence of prosecutrix is natural, probable and reliable and further her evidence is also corroborated from the evidence of other witnesses - Conviction u/s 376(2)(g) affirmed - Appeal dismissed : Kummer Singh Vs. State of M.P., I.L.R. (2009) M.P. Note *20 18. Miscellaneous
Alternative Charge
- Section 376-A to 376-D - Minor offences of Section 376 of I.P.C. - Charge framed under Section 376 of I.P.C. and not under Section 376B of I.P.C. - In absence of Charge under Section 376B of I.P.C., by virtue of Section 222(2) of Criminal Procedure Code no error committed by Trial Court in convicting accused under Section 376-B of I.P.C. : Onkar Prasad Verma Vs. State of Madhya Pradesh, I.L.R. (2006) M.P. 1462
Capability of accused
- Section 376 - Rape - Old age - Nothing on record to suggest that appellant's penis was attenuated and not capable of penetration - Evidence of doctor is that appellant was capable of committing sexual intercourse - Argument that appellant being sixty years old person could not have such erection of penis, is bereft of any substance - Appeal dismissed : Dagdu Lal Vs. State of M.P., I.L.R. (2010) M.P. Note *6
Dying declarations
- Section 376 - Rape - Appellant committed rape with girl of 13 years who became disgusted and committed suicide - Dying declarations made by prosecutrix found reliable - Appellant guilty of committing rape - Offence of appellant in these circumstances becomes more heinous - Trial Court awarded rigorous imprisonment of 10 years - No adequate or special reason for reducing the jail sentence - Appeal dismissed : Annu @ Anoop Kumar Vs. State of M.P., I.L.R. (2008) M.P. 2435
Power of investigation
- Sections 376 & 506 - See - Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Section 3(1)(xii) : State of M.P. Vs. Chunnilal @ Chunni Singh, I.L.R. (2009) M.P. 1857 (SC) Penal Code (45 of 1860) 637
Presence of seminal stains
- Section 376 or 354 - Mere availability of seminal stains found on the trousers of the appellant, who was a married man, would not be sufficient to connect him with the offence of rape : Prakash Dabar Vs. State of M.P., I.L.R. (2010) M.P. 2349
● - Section 379, Electricity Act, 1910, Sections 39 & 50 - Person aggrieved - Junior Engineer, who was an officer-in-charge was competent to file a complaint of theft of electricity committed in the concerned area - As an aggrieved person and the prosecution could be initiated at his instance - Conviction of appellant U/s 379 I.P.C. r/w Section 39 of Electricity Act does not suffer from any legal or factual infirmity - Conviction maintained - However being a very old case sentence reduced to the period already undergone : Kaluram Vs. State of M.P., I.L.R. (2008) M.P. Note *17
- Section 394 - Voluntarily causing hurt in committing robbery - Constructive liability - One accused assaulted the injured - Other two accused persons, who did not cause injury to Doctor, are constructively liable to be convicted for offence u/s 394 : Ganesh Singh Vs. State of M.P., I.L.R. (2009) M.P. 2101
- Section 394 - See - Criminal Procedure Code, 1973, Sections 173 & 210 : Vinod Dixit Vs. Satish Mishra, I.L.R. (2009) M.P. 317
- Section 394, Criminal Procedure Code, 1973 (2 of 1974), Section 320 - Compromise - Appellants convicted u/s 394 I.P.C. - They are first offenders - Matter has already been compromised by parties - However application for compromise was rejected as offence is not compoundable - Held - Considering the circumstances they are sentenced to imprisonment which they have already undergone (one year two months & 26 days) and fine of Rs.4000/- - Fine amount be paid to complainant by way of compensation : Bharat Singh Vs. State of M.P., I.L.R. (2008) M.P. 2126
- Section 394 r/w 397, 302 - Murder - Circumstantial Evidence - Complainant was in her office on 13.05.1998 - Her domestic servant deceased was murdered at her house and her cash and valuables were robbed - On the date of occurrence, deceased was last seen in the company of the appellant at the house of complainant and the appellant was also found going towards the house of complainant and thereafter seen with black bag, a suitcase and other things - On the same day, appellant gave Rs.2000 on credit to PW3 - And PW3 escorted the appellant to the railway station - Appellant had boarded in train for Howrah - On the morning of 14.05.1998, appellant was apprehended from Howrah coach and was found in possession of various items robbed from the place of complainant, which were itendified by the complainant at the identification parade - These circumstances formed a complete chain and were sufficient to conclude that it was the appellant and none else, who committed robbery and murder Penal Code (45 of 1860) 638
- Appeal dismissed : Sadhan Nayak @ Deepak Vs. State of M.P., I.L.R. (2009) M.P. 234 (DB)
- Sections 395 & 397 - See - Evidence Act, 1872, Section 9 : Mahendra Singh Vs. State of M.P., I.L.R. (2008) M.P. 2989
- Sections 395 and 397 - Accused can not be convicted for offence U/s 397 IPC with the aid of S. 34 or 149 IPC - No clear evidence that which appellant was having which kind of deadly weapon at the time of commission of dacoiti - Held - Conviction U/s 397 set aside - Appeal partly allowed : Ranchhod Vs. State of M.P., I.L.R. (2008) M.P. 148
- Sections 395, 397 & 450 - Dacoity - Appellant along with other accused persons committed dacoity in bank - Currency notes of Rs. 13,95,720/- & a bag of bank official taken away - Rs. 40,000/- with bank slips & a bag recovered from appellant - And also gun recovered which was brandished against witness and a jeep used for committing offence was seized at the instance of appellant - No explanation given by appellant as to how a huge sum of Rs. 40,000/-, bank slips and a bag could be recovered from him - Appellant also identified by witnesses - Appellant rightly convicted - Appeal dismissed: Pravin Vs. State of M.P., I.L.R. (2008) M.P. 1023 (SC)
- Section 397 - Robbery with attempt to cause death or grievous hurt - Appellants guilty of attempt to commit robbery by demanding key of almirah and ornaments from injured witness - Section 397 had no application to the case where robbery was not actually completed : Ganesh Singh Vs. State of M.P., I.L.R. (2009) M.P. 2101
- Section 397 - Robbery with attempt to cause death or grievous hurt - Three persons assaulted complainant and snatched Rs.1,000/- - One accused given benefit of doubt - Two persons convicted as Rs.1,000/- was seized from one and lathi from another - Held - No evidence that seized lathi was used for beating complainant - No specific overtact attributed to any of appellant for causing grievous hurt - Because of acquittal of one accused, appellants also entitled for getting benefit regarding causing grievous hurt : Bharat Singh Vs. State of M.P., I.L.R. (2008) M.P. 2126
- Section 398 - Prescribes punishment for attempt to commit robbery or dacoity armed with deadly weapon - In the case, Charge was not for attempt, but it was for complete commission of offence punishable 395 r/w S. 397 of IPC - Trial Court has failed to apply correct section for commission of offence on the basis of evidence available on record : Sachin Vs. State of M.P., I.L.R. (2008) M.P. 1242
- Section 406 - See - Criminal Procedure Code, 1973, Section 482 : Chandanmal Vs. Suryakant, I.L.R. (2008) M.P. 1554 Penal Code (45 of 1860) 639
- Sections 406, 409, 420, 424 - See - Criminal Procedure Code, 1973, Section 482 : V.C. Raam Sukaesh Vs. State of M.P., I.LR. (2008) M.P. Note *70
- Sections 406, 420, 120-B - See - Criminal Procedure Code, 1973, Section 482 : Tej Singh Vs. Rewa Ram, I.L.R. (2008) M.P. 2145
- Section 409 - Criminal Breach of Trust - Applicant working as Sarpanch - Applicant awarded certain funds for execution of certain works in village - Applicant could not complete work - Money not refunded by applicant inspite of notice - Held - After having admitted receipt of money applicant guilty of criminal breach of trust as he did not complete the work - Appeal dismissed : Prahladsingh Vs. State of M.P., I.L.R. (2008) M.P. 1287
- Sections 409 & 465 - See - Criminal Procedure Code, 1973, Sections 438 & 439 : Ram Kishor Saket Vs. State of M.P., I.L.R. (2009) M.P. 270
- Section 420 - Applicant was convicted for cheating the complainant by inducing and obtaining from him a sum for providing a job of peon in Tahsildar Office - Held - Alleged receipts and letter not proved to be written by the applicant - Sole testimony of complainant is contradictory from the averments of FIR lodged by him and also is inconsistent inter se - The complaint also not in position to identify the applicant - Such witness could not be relied on for holding conviction - Conviction and sentence set aside : Heeralal Vs. The State of M.P., I.L.R. (2010) M.P. 2220
- Section 420 - See - Criminal Procedure Code, 1973, Section 482 : TCL India Holdings Pvt. Ltd. Vs. Murtaza, I.L.R. (2009) M.P. Note *46
- Section 420 - See - Criminal Procedure Code, 1973, Section 197 : Ramesh Chandra Vs. State of M.P., I.L.R. (2009) M.P. 255
- Section 420 - See - Criminal Procedure Code, 1973, Section 216 : Prakash Kanthed Vs. M/s Maheshwari Protins Ltd., I.L.R. (2009) M.P. 259
- Section 420 - See - Criminal Procedure Code, 1973, Section 482 : General Manager Vs. State of M.P., I.L.R. (2009) M.P. 591
- Section 420 - See - Criminal Procedure Code, 1973, Sections 397, 401 : Pramod Vs. State of M.P., I.L.R. (2008) M.P. 2466
- Section 420, Negotiable Instruments Act, 1881, Section 138 - Cheating - Even after introduction of S. 138 of the Act, prosecution u/s 420 of I.P.C. for dishonour of cheque is maintainable - Mere fact that cheque was dishonoured by itself would not mean that accused has cheated the complainant - But when the allegations show that Penal Code (45 of 1860) 640 the accused had a dishonest intention not to pay even at the time of issuance of cheque in question : Govind Singh Parmar Vs. Jai Prakash Mishra, I.L.R. (2008) M.P. Note *64
- Section 420 - See - Criminal Procedure Code, 1973, Section 482 : LML Limited Vs. Kailash Narain Rai, I.L.R. (2008) M.P. Note *33
- Section 420 - Cheating - Inducement which is important ingredient of offence is missing no offence of cheating is made out against petitioners : Larsen & Toubro Ltd. Vs. Anand Bangad, I.L.R. (2008) M.P. 600
- Sections 420, 120-B, 467, 468 & 471 - Civil or Criminal Dispute - Criminal prosecution should not be used as an instrument of harassment - Tendency is growing to convert purely civil disputes into criminal cases - Charges quashed : Gyanendra Tripathi Vs. State of M.P., I.L.R. (2009) M.P. 1515
- Sections 420/34, 120-B, Criminal Procedure Code, 1973, Section 482 - Cheating - Business Transaction - Huge money due against petitioner in business transactions - Petitioners assured that all dues will be cleared after selling or mortgaging immovable properties - Cheques were issued which were dishonoured - Complaints filed under Section 138 of Negotiable Instruments Act were forced to be withdrawn by petitioner on the ground that otherwise form "C" shall not be issued - Business dealings were made to continue with promise to make payment by sale of immovable property which were subsequently found unsaleable - Held - Substantial ingredients of offence are made out in complaint - Merely on the defence of the accused prosecution cannot be terminated - At present facts are incomplete and evidence is yet to be recorded - Not a fit case to quash prosecution under Section 482 - Petition dismissed : Suresh Goel Vs. Grasim Industries Ltd., I.L.R. (2008) M.P. 1841
- Sections 420, 467 & 468 - Failure to repel - Suspicion, howsoever strong, created against an accused person, and his failure to repel the same is not sufficient to record a conviction : K.N. Sharma Vs. State of M.P., I.L.R. (2010) M.P. Note *13
- Sections 420, 467, 468 & 471 - Obtaining arms license by suppressing pendency of criminal case - Applicant disclosed pendency of six criminal cases in his application for grant of arm licence - Such declaration was found to be true by S.P. and Arm license was granted - Subsequently, it was found that one more case was pending which was not disclosed in the application - Held - Cheating or fraud could not be brought into the matter in absence of mens rea or criminal intention of securing arms licence by concealment of remaining solitary criminal case - No prosecution could be launched except for dealing the matter under the provisions of Arms Act only : Ummed Singh Vs. State of M.P.,I.L.R. (2010) M.P. 530 Penal Code (45 of 1860) 641
- Sections 420, 467 & 468 - See - Criminal Procedure Code, 1973, Section 438 : Jagdish Kumar Arora Vs. State of M.P., I.L.R. (2009) M.P. 604
- Sections 449 & 302, Evidence Act, 1872, Section 32(1) - Dying declaration - Reliability - Prosecution relying on three dying declarations - Defence plea that there are material contradictions in dying declarations - Deceased was not sure and was changing her version time to time - Not be safe to rely upon dying declarations - Held - On reading of all the three dying declarations conjointly, do not find any contradictions much less substantial one - Appellant Yuvraj came to the spot, decased went inside the house to save herself - Yuvraj followed her, poured kerosene oil on her and set her ablaze - The role of Yuvraj is consistent in all the three dying declarations - No iota of doubt that the facts mentioned in dying declarations are correct and can be acted upon: Yuvraj Vs. State of M.P., I.L.R. (2009) M.P. 214 (DB)
- Section 451 - Sentence - Incident took place 15 years back - Sentence of 6 months reduced to 3 months and fine of Rs.200 : Gulam @ Farukh Vs. State of M.P., I.L.R. (2010) M.P. 1660.
- Sections 467 & 468 - Forgery - Applicant dishonestly obtained money from complainants and issued cheques to them which were not encashed - No allegation that cheques were false or fabricated - It cannot be said that cheques were forged with intent to defraud complainants - Conviction of applicant for offence u/s 467 & 468 set- aside - Revision partly allowed : Anil Kumar Gupta Vs. State of M.P., I.L.R. (2008) M.P. 2453
- Sections 467, 468 - Forgery and making a false document - Applicant induced and deceived several persons to delivery money to him on assurance that he would return them by making it double - On demand, applicant issued cheques which could not encashed - Held - No allegation that cheques were false or fabricated - Signature of applicant on cheques not disputed - It cannot be held that cheques were forged with intent to defraud complainants - Ingredients of making false document not established - Conviction under Sections 467, 468 set aside - Appeal allowed in part : Anil Kumar Gupta Vs. State of M.P., I.L.R. (2007) M.P. 1824
- Section 489-C - Possession of forged or counterfeit currency-notes or banknotes - Appellant Mohan Singh found in possession of one counterfeit currency note of Rs.500/ - - No evidence on record to conclude that appellant was having knowledge that he is in possession of counterfeit currency note or he had any intention to use the same as genuine or it may be used as genuine - Mere possession is not sufficient to convict u/s 489-C - Appellant acquitted : Laxmi Narayan Vs. State of M.P., I.L.R. (2008) M.P. 2115 Penal Code (45 of 1860) 642
- Section 498-A - See - Criminal Procedure Code, 1973, Section 125 : Prashant Shrivastava Vs. Smt. Sushma Shrivastava, I.L.R. (2010) M.P. 1216
- Section 498-A - See - Criminal Procedure Code, 1973, Sections 320 & 482 : Bhavuk Sharma Vs. Smt. Anju Sharma, I.L.R. (2010) M.P. 1493
- Section 498-A, Evidence Act, 1872, Section 32(1) - Cruelty - Oral evidence - Admissibility - No direct evidence about torture and harassment to deceased wife - Death of wife was accidental - Oral evidence of witnesses about what the deceased told them against the accused about the torture & harassment - Oral evidence of witnesses has no connection with any circumstance of transaction which resulted in death of deceased - Such evidence cannot be looked into for any purpose except S. 32 of Evidence Act - Conviction u/s 498-A of IPC cannot be upheld : Bhairon Singh Vs. State of M.P., I.L.R. (2010) M.P. 301 (SC)
- Section 498-A, Criminal Procedure Code, 1973, Section 177 - Cruelty - Territorial jurisdiction - Complaint for offence u/s 498-A I.P.C. made before JMFC, Neemuch - No allegation that any demand of dowry was made at Neemuch - Complainant specifically mentioned that demand was made at Indore - Nothing to show that any part of offence was committed at Neemuch - Court directed to return complaint with liberty to file it before competent Court - Petition allowed : Jitendra Vs. State of M.P., I.L.R. (2009) M.P. Note *43
- Section 498-A - Cruelty - Illicit relations - Illicit relations with another women being first wife alive, could not be treated to be the act of cruelty - Wife also could not state any specific act of cruelty or harassment - Particulars like date, place and time of incident also not stated - Mere vague allegations of demanding some articles could not deemed that any such demand was ever made - Acquittal of respondents proper - Leave refused : State of M.P. Vs. Santosh Kumar, I.L.R. (2009) M.P. Note *52
- Section 498-A - Cruelty - Deceased in her dying declaration stated that she was being harassed on account of bringing insufficient dowry articles - Offence u/s 498-A proved : Lakhan Singh Rajpoot Vs. State of M.P., I.L.R. (2009) M.P. 854 (DB)
- Section 498-A - See - Criminal Procedure Code, 1973, Section 482 : Ankush Golecha Vs. State of M.P., I.L.R. (2009) M.P. 589
- Section 498-A - Cruelty - Penal provision of Sec. 498-A inserted by way of Criminal Law (Second Amendment) Act, 1983 w.e.f. 25.12.1983 - The instances prior to introduction of Sec. 498-A cannot be taken into account for ascertaining the corresponding liability : Prahlad Tanwani Vs. State of M.P., I.L.R. (2008) M.P. 3284
- Section 498-A - Husband (appellant) after consuming liquor used to beat wife (deceased) - Appellant was also having suspicion over her character and always teasing her on the score - Husband was scolded as well as admonished for his cruel behivour Penal Code (45 of 1860) 643 with wife but there was no improvement - Conviction u/s 498-A upheld : Manoj Vs. State of M.P., I.L.R. (2008) M.P. 2093
- Section 498 A - Conviction based on letters purported to be written by deceased (wife of appellant) and oral evidence of parents of deceased - No evidence produced that letters were written by deceased - Hand writing expert report filed but not duly proved - No explanation sought in accused statement regarding contents of letters - Such letters can't be used as evidence - Material omission and contradiction in oral evidence - Cruelty by husband (appellant) not proved - Conviction and sentence set aside - Appeal allowed : Ayyub Vs. State of M.P., I.L.R. (2008) M.P. 343
- Section 498-A - Cruelty - Wife died by drowning in well - Appellant used to beat and harass his wife for securing his job through her brothers, to get sale deed of a house and Rs. 1 lakh - What has happened on day of incident is within knowledge of husband and wife - Wife is no more - No women will end her life without intolerable miseries, troubles, tortures and harassments - Death of wife not reported to authorities or brothers of deceased - Earlier report of harassment was not made to avoid further harassment - Appellant rightly convicted under Section 498-A of I.P.C. - Appeal dismissed : Bhairon Singh Vs. State of M.P., I.L.R. (2008) M.P. 893
- Section 498 A - Prosecution witnesses have given a positive evidence that appellant was ill-treating deceased (wife) and was causing marpeet to her - Trial Court has rightly convicted appellant U/s 498A I.P.C. - Conviction and Sentence affirmed by High Court : Lakhan Lal Vs. State of M.P., I.L.R. (2008) M.P. Note *19 (DB)
- Section 498-A - General Statement about demand of cooler, motorcycle and television in itself dose not amount to cruelty : Ram Krishan Vs. State of M.P., I.L.R. (2006) M.P. 407
- Sections 498-A, 306 - See - Evidence Act, 1872, Section 8 : Prahlad Tanwani Vs. State of M.P., I.L.R. (2008) M.P. 3284
- Sections 498A, 306 - Cruelty and Abetment to commit suicide - Deceased committing suicide by consuming poison - Death occurred within 7 years of marriage - In-laws of appellant/husband clearly stating about harassment due to demand of dowry - Letters written by deceased also disclose harassment due to demand of dowry - Threat to expel from home and to remarry due to failure of deceased to conceive - Dying declaration of the deceased that she committed suicide on account of death of two children not found reliable - Conduct of appellant in not informing police and relatives of deceased does not appear to be bonafide - Appellant guilty of committing offence under Section 498A and 306 of I.P.C. - Appeal dismissed : Shashi Kumar Vs. State of Madhya Pradesh, I.L.R. (2007) M.P. 1449 Pensioner's Welfare Fund Rules, M.P. 1997 644
- Section 500 - Defamation - Quashing of proceedings - Complaint did not contain actual words alleged to have been used by applicant - Relevant news item also not exhibited in evidence during enquiry U/s 202 - Held - Evidence was not sufficient to constitute defamation either by spoken words or intended to be read in newspaper - Complaint quashed - Petition allowed : Rajesh Nandini Singh Vs. Rakesh Khare, I.L.R. (2008) M.P. Note *49
- Section 500 - Defamation - Applicant posted as S.D.M. - Private complaint filed against applicant on allegation that son of complainant/respondent arrested by police under Section 151 of Cr.P.C. and produced before applicant - Applicant did not grant bail and directed to send him to jail - Respondent went inside the chamber of applicant to request for release of her son on bail - Applicant looked at her with evil eye and suggested her to do what he wants - On clarification applicant asked her to sleep with him - Complainant came out of the chamber and informed other persons - Held - Defamation can be committed by words or signs or by visible representation, makes or publishes any imputation intending to harm or knowing or having reason to believe that such imputation will harm that person - Alleged proposal was extended in chamber - It cannot be the intention of applicant that others should know it - As this important ground does not exist framing of charge under Section 500 I.P.C. erroneous : Prakash Vyas Vs. Smt. Kamlesh Chauhan, I.L.R. (2007) M.P. 1721
- Section 500 and Criminal Procedure Code, 1973, Section 378 - Revision against acquittal - Complaint lodged to Lawful authority police filed challan but applicant acquitted on benefit of doubt - Person who made the report cannot be prosecuted under Section 500 IPC : Bashir Ulla Khan Vs. Mohd. Rafi, I.L.R. (2006) M.P. 1114
- Sections 506 & 509, Information Technology Act, 2000, Section 67 - Publishing of information which is obscene in electronic form - Photographs of a girl taken, transmitted by bluetooth in electronic form and published by CD recovered from the possession of applicant - Counsel for applicant conceding framing of charge u/ss. 506 & 509 of IPC - Basis for framing of charge is some obscene photographs and gestures of a girl - Objection with regard to framing of charge u/s 67 of Act, 2000 cannot be accepted - Application dismissed : Prakash Chattrani Vs. State of M.P., I.L.R. (2009) M.P. 3454 Pensioner's Welfare Fund Rules, M.P. 1997
- Rule 3 (a) - See - Service Law : Prasanna Kumar Sharma Vs. State of M.P., I.L.R. (2010) M.P. 1271 Petroleum Rules, 2002 645
Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (1 of 1996)
- Sections 32, 33 - Reservation to persons with disability made available to orthopaedically handicapped but no solace offered to blind, deaf and dumb - Bureaucratic system failed to implement legislation - Government is duty bound to identify the posts in establishment to which reservation must be made to blind, deaf, dumb and cerebral palsy - By issuing notification, subject to condition, any establishment may be exempted from purview of reservation - No such notification issued - Held - Real benefit has not been extended to the class of blind, deaf, dumb and cerebral palsy - State Government directed to identify the class of blind, deaf, dumb and cerebral palsy and implement provisions of Act and Rules : Nilesh Singhal Vs. State of M.P., I.L.R. (2008) M.P. 2264
- Section 33 - See - Service Law : Kailash Swarnkar Vs. State of M.P., I.L.R. (2009) M.P. 795
- Section 35 - Writ Appeal - Reservation of Seats for M.B.B.S. Course - Reservation for disabled candidates to be made out of seats for general candidates and not by diverting seats reserved for Scheduled Castes - Diversion of Seat reserved for Scheduled Caste candidate for a Scheduled Caste disabled person -Improper - MGMMC college, Indore directed to give admission to appellant in MBBS Course after creating an additional seat : Sunil Harioudh Vs. State of M.P., I.L.R. (2006) M.P. 1499 (DB)
- Clauses (i), (o) & (t) of Section 2 - Disability - Petitioner selected for the post of Civil Judge Class II as Orthopaedically Handicapped candidate - State Government declined to appoint petitioner as he was not found to be suffering 40% disability - Held - Only Medical Board constituted under Rule 4 can issue disability certificate - Duly constituted Medical Board will examine candidates who have been placed in merit list for appointment - Petitioner can place all materials in support of his claim of 40% disability - Petition allowed : Siddharth Shrivastava Vs. State of M.P., I.L.R. (2009) M.P. 440 (DB)
- Rule 4 - Medical Board - Medical Board constituted under Rule 4 with composition mentioned therein can issue a disability certificate - No Medical Board constituted so far - Sate Government directed to immediately constitute Medical Boards under Rule 4: Siddharth Shrivastava Vs. State of M.P., I.L.R. (2009) M.P. 440 (DB) Petroleum Rules, 2002
- Rule 154(2) - Appeal against any order of the District Authority - Sub-rule does not provide for an appeal when the District Authority refuses to cancel the no-objection certificate - Petition Allowed : Yogesh Kumar Gulati Vs. Satya Prakash Dhingra, I.L.R. (2010) M.P. 2324 Police Regulations, M.P. 646
Pleadings
- No alternative accommodation suitable for the need of plaintiff available pleaded in the plaint - Held - Landlord is obliged under the law to put forth the account of available alternate accommodation of his own and regarding unsuitability of the same for the alleged need in the pleadings - In absence of such pleading in view of availability of such alternate accommodation with the landlord the alleged need of the landlord regarding disputed premises could not be held to be bona fide or genuine for passing the decree of eviction against the tenant : Ramkishore Vs. Gyanchand Jain, I.L.R. (2010) M.P. 1481 Police Regulations, M.P.
- Regulation 70-A - See - Service Law : Atma Ram Sharma Vs. State of M.P., I.L.R. (2010) M.P. 25 (DB)
- Regulation 70-A - Out of turn promotion - Prior Approval by DGP is sine-qua- non - No office order regarding promotion issued - Petitioner cannot be treated to have been promoted in accordance with law - DGP within his power to refuse grant of approval for out of turn promotion : Hassan Khan Vs. State of M.P., I.L.R. (2008) M.P. 742
- Regulation 70-A - Refusal to accord approval - Opportunity of Hearing - Petitioner given out of turn promotion on the strength of a wireless message sent by I.G. to D.G.P. for grant of approval - Refusal to grant approval by DGP - Does not amount to Reversion - No opportunity required - However, purpose of petitioner is served if post decisional opportunity of hearing is granted to him - Petition disposed of accordingly : Hassan Khan Vs. State of M.P., I.L.R. (2008) M.P. 742
- Regulation 70-A - Out of turn promotion - Direction by High Court to grant out of turn promotion instead of directing authorities to consider the case for promotion - Respondent took part in Anti Dacoity Operation - Case of respondent strongly recommended by departmental officer for out of turn promotion in view of Regulation 70-A - Screening Committee without assigning reason turned down for grant of out of turn promotion - Writ Court directed to grant out of turn promotion - Held - No dispute that respondent had participated in Anti Dacoity Operation - No reasons recorded by Screening Committee that he is not fit for promotion - Nothing has been stated by State that respondent was not otherwise fit for promotion on any ground - High Court competent to pass such directions in appropriate cases - No ground to interfere in such direction nor such direction is contrary to law - However, while issuing promotion order appellants shall be free to consider that the respondent is not otherwise unsuitable for promotion : State of M.P. Vs. Mahendra Kumar Sharma, I.L.R. (2008) M.P. 208 (DB) Police Regulations, M.P. 647
- Regulation No.221, 228 & 270 - Power of review - Petitioner inflicted with minor penalty of withholding of one increment for a period of one year - Subsequently new Superintendent of Police cancelled the order of minor penalty and issued a charge- sheet on the identical charges and the same incident and reopened the matter - After departmental enquiry petitioner dismissed from service and appellate authority also rejected the appeal - Held - Regulation No.220 does not repose any power of review in disciplinary authority and also does not vest any power to the disciplinary authority to exercise suo motu power of revision or to reopen the order passed by his predecessor who is equal in rank - Order of dismissal quashed and order of minor penalty restored - Petition allowed : Anil Soni Vs. State of M.P., I.L.R. (2008) M.P. 1636
- Regulations 238 - Conviction in criminal offence - Appellant convicted u/ss 498A, 304B of IPC - Sentence suspended in appeal - There is no stay of judgment of conviction - Authority was entitled to impose the punishment of removal - Appeal dismissed : Shiv Babu Shukla Vs. State of M.P., I.L.R. (2008) M.P. 2500 (DB)
- Regulations 238 & 240 - Conviction in criminal offence - Appellant working as Head Constable - Convicted u/ss 498A, 304B of IPC - Sentence suspended in appeal - Appellant removed from service on the ground of conviction - Held - Regulation 238 is peremptory in nature and discretion granted is in the proviso - It is not inherent that authority has no option but to wait till conviction is affirmed in appeal - Authority was entitled to impose the punishment of removal - Appeal dismissed : Shiv Babu Shukla Vs. State of M.P., I.L.R. (2008) M.P. 2500 (DB)
- Regulations 238, 240, M.P. Civil Services (Classification, Control and Appeal) Rules, 1966, Rule 19 - Dismissal from service on conviction - Petitioner convicted for offences punishable under Sections 304-B, 498-A/34 of I.P.C. and under Section 3 /4 of Dowry Prohibition Act - Appeal against judgment and sentence pending before Appellate Court - Petitioner removed from service on account of his conviction - Held - Service of Petitioner is governed by Rules, 1966 - Detailed procedure prescribed for conducting departmental enquiry is excluded in view of non-obstante clause in Rule 19 - Regulation 238 of Police Regulations cannot be read in isolation and has to be read subservient to Rule 19 of Rules, 1966 along with Regulation 240 - Police Regulations are only by way of executive instructions and Rules, 1966 have precedence over the Police Regulations - No illegality in impugned order - However, if petitioner succeeds in his appeal he may approach the authorities for reconsideration of his case - Petition dismissed : Shiv Babu Vs. State of M.P., I.L.R. (2008) M.P. 75
- Regulation 241 - See - Service Law : H.R. Kaurav Vs. State of M.P., I.L.R. (2009) M.P. 1233 Practice and Procedure 648
- Regulation 270 - See - Service Law : Rajendra Kumar Chaturvedi Vs. State of M.P., I.L.R. (2010) M.P. 374
- Regulation 270, Civil Services (Classification, Control & Appeal) Rules, M.P. 1966, Rule 29(iii) - Petitioner, Inspector of Police - In departmental proceeding, punishment of penalty of Rs.1000/- inflicted by I.G.P. - Show cause notice by D.G.P. exercising suo-moto revisional power - Held - Power of review could not be exercised after six months of order of punishment - Order quashed - Petition allowed : Angad Singh Rathore Vs. State of M.P., I.L.R. (2009) M.P. 2310
- Regulation 744 - See - Criminal Procedure Code, 1973, Section 154 : Ashok Vs. State of M.P., I.L.R. (2008) M.P. 2997 (DB) Policy Matters
Policy Matters - Judicial review - Law discussed : Chingalal Yadav Vs. State of M.P., I.L.R. (2010) M.P. 788 (FB) Post Graduate Medical Education Regulation, 2000
- Regulation 10(3) - See - Chikitsa Shiksha Niyantran Adhiniyam, M.P., 1973, Section 10 : Medical Council of India Vs. Dr. Teena Khatri, I.L.R. (2008) M.P. 2799 (DB) Powers of the Courts
- It is well settled principle of law that court by way of direction cannot introduce a new clause which has been deleted by the legislature - It would mean enacting a new law which is beyond the powers of the court : Ganesh Prasad Madan Vs. State Transport Appellate Tribunal, I.L.R. (2008) M.P. 2601 Practice and Procedure
- Civil - Findings recorded by the criminal Court cannot be treated as binding in the civil cases - Acquittal of the accused persons in the criminal case on account of witnesses turned hostile - It cannot be held that for the purpose of deciding the claim case, the judgment passed by the criminal Court is binding : United India Insurance Co. Ltd. Vs. Smt. Gayatri Yadav, I.L.R. (2009) M.P. 817
- Interim order - Whether binding - Held - The interim order does not have a binding force : Barwani Sugar Vs. Union of India, I.L.R. (2010) M.P. Note *40 Pre-Engineering & Pharmacy Test Rules 2004 649
- Judgments - Judicial discipline - Held - Decisions rendered on the same facts of law have to be followed and subsequently no authority, whether quasi-judicial or judicial, can generally be permitted to take a different view - However this mandate is subject to the usual gateways of distinguishing the earlier decisions or where the earlier decision is per incuriam : Ravindra Kumar Gupta Vs. State of M.P., I.L.R. (2010) M.P. 2511
- New plea - At the stage of Writ Appeal - Permissibility - Prosecution of juvenile by Court of regular Magistrate even with other accused was without jurisdiction in view of S. 24 of Juvenile Justice Act, 1986 - Such new plea involving no factual dispute may be raised even at the stage of Writ Appeal : Ashok Sharma Vs. Union of India, I.L.R. (2010) M.P. 326 (DB)
- Practice and Procedure - Duty of counsel to place before the Single Bench earlier decision passed by the Division Bench : United India Insurance Co. Ltd. Vs. Nandlal, I.L.R. (2008) M.P. Note *13
- Strict rule of pleadings are not applicable in proceedings under the Protection of Women from Domestic Violence Act, 2005 - Wife did not refer name of her foster son in original application before JMFC - However Appellate Court granted Rs. 500/- maintenance to foster son - Order upheld by High Court : Razzak Khan Vs. Shahnaz Khan, I.L.R. (2008) M.P. 963 Pre-Engineering & Pharmacy Test Rules 2004
- Rule 2.4.1,1 and 2.3.9.2 and Constitution of India, Articles 226, 227 - Writ petition - Education - Admission - Candidates required to have passed XII with Mathematics, Physics and Chemistry as main subjects - Would necessarily mean passing individually each of the subject : Kumari Ankita Sinha Vs. The Rajjiv Gandhi Proudyogiki Vishwavidyalaya, I.L.R. (2006) M.P. 203
Pre Engineering Pharmacy Test, Pre Agriculture Test-2004 Rules-2.4.1.1 - Question whether student who was declared pass in qualifying examination can be declared disqualified merely on the ground that individually main subjects have not been cleared by him referred to Division Bench - Petitioner completed Class XII Board Examination conducted by ISCE - Petitioner was declared pass as per rules although he had not obtained minimum passing marks in Mathematics - Petitioner was declared successful in Pre Engineering Pharmacy Test and Pre - Agriculture Test - He was given admission in B.E. course - Admission was cancelled as he had not cleared qualifying examination - Held - Words Passing of Examination and with the main subjects cannot be read in isolation - Candidate may have been declared pass in qualifying examination but he can be declared disqualified on the foundation that he has not passed individually in the main subjects - Reference answered accordingly : Jayant Pratap Singh Vs. Director, Technical Education, I.L.R. (2007) M.P. 1234 (DB) Precedent 650
Pre P.G. Entrance Examination for Medical & Dental Post Graduate Courses, 2008
Pre P.G. Entrance Examination for Medical & Dental Post Graduate Courses, 2008, - See - Medical Council Act, 1956, Sections 10A & 11(2) : Vinod Kumar (Dr.) Vs. State of M.P., I.L.R. (2008) M.P. 3090 (DB) Precedent
- Balakram's case [2007(1) MPWN 10] has urged that the decree for restitution of conjugal rights passed in favour of husband, even though ex parte, was sufficient to disentitle the wife from claiming maintenance - The earlier decision of the High Court rendered in Babulal's case [1987 CrLJ 525] does not find reference in Balakram's case - In such a situation, as explained by the Full Bench in Jabalpur Bus Operators Association [2003(1) MPLJ 513] the earlier decision by bench of equal strength, still holds the field as the binding precedent : Prashant Shrivastava Vs. Smt. Sushma Shrivastava, I.L.R. (2010) M.P. 1216
- Conflict between two decisions of the Apex Court - Judgment of 2 Judges Bench in National Insurance Co. Ltd. v. Mubasir Ahmed & anr. [2007 LIC 1452] not noticing the earlier judgment of 4 Judge Bench of Pratap Narain Singh Deo v. Shrinivas Sabata & anr [AIR 1976 SC 222] - Judgment of the Larger Bench will have to be followed : Suraj Prasad Vs. Executive Engineer (Supply/Maintenance) M.P. State Electricity Board, Shajapur, I.L.R. (2009) M.P. 1385
- Conflict between two decisions of the Apex Court - In presence of division bench decisions and larger bench decisions, the decisions of larger bench are binding on the High Court and subordinate courts - In the case of Kalyan Sundaram [(1996) 3 SCC 87], the judgment of the M.S. Sheriff [AIR 1954 SC 397] was not placed for consideration before division bench - Therefore, M.S. Sheriff's case, decided by five judges bench, being a larger bench judgment of the Apex Court - It is having a binding effect : Ved Prakash Vs. Guru Granth Saheb Sthan Meerghat Town Vanaras Sarvrahi, I.L.R. (2009) M.P. 752 (DB)
- Per incuriam - Applied where a Court omits to consider a binding precedent of the same Court or the superior Court rendered on the same issue or where a Court omits to consider any statute while deciding that issue - In cases Prakash Babu [2005(1) MPLJ 430], Shiv Kumar [2005(4) MPLJ 117] and Arvind Kumar [ILR (2008) MP 1479], the Clause 4 of 1960 Order and formation of fresh Scheme 1991 in pursuance thereof have not been considered at all, therefore, all the three judgments cannot be considered as precedent and are rendered per incuriam : Kishore Kumar Vs. State of M.P., I.L.R. (2009) M.P. 1184 Prevention of Corruption Act (2 of 1947) 651
Prevention of Corruption Act (2 of 1947)
- Section 5(1) r/w 5(2), Penal Code, 1860, Section 161 - Acquittal of respondent that the sanction for prosecution was improper and given without application of mind, though the trap was found to have been proved - Held - While granting sanction the officer concerned is not required to indicate that he had personally scrutinized the file and had arrived at the satisfaction for granting sanction - The narration of events granting sanction for prosecution clearly indicates the case and the reason for grant of such sanction - Matter remitted for passing orders on the merits of case : State of M.P. Vs. Harishankar Bhagwan Pd. Tripathi, I.L.R. (2010) M.P. 2027 (SC)
- Sections 5(1)(d), (2) - Material contradictions - Material contradiction as to from where the shadow witness was called by the complainant - Material discrepancy with regard to time of preparation of preliminary panchnama - Admission of appellant that he went to the house of complainant twice for giving bribe whereas documents show that he had gone only for once - Preliminary Panchnama not prepared in presence of shadow witness although it bears his signatures - Held - Material contradictions are fatal to prosecution case : Chhotelal Vs. State through C.B.I., Jabalpur, I.L.R. (2010) M.P. Note *16 (DB)
- Sections 5(1)(d), (2) - Motive - Appellant working as Bank Manager - Loan for opening Flour Mill sanctioned - Amount was to be paid by bank directly to seller of Flour Mill - Complainant admitted that till the date of trap he had not submitted the quotation for purchasing machine, had not chose the place for fixing the flour mill and had also not applied for electric connection - Defence of appellant that complainant was demanding money in cash probable : Chhotelal Vs. State through C.B.I.,Jabalpur, I.L.R. (2010) M.P. Note *16 (DB)
- Sections 5(1)(d), (2) - Non production of FSL report and bottles - FSL report and material sent to Laboratory not filed by prosecution - This is major lacuna in prosecution case : Chhotelal Vs. State through C.B.I.,Jabalpur, I.L.R. (2010) M.P. Note *16 (DB)
- Section 5(1)(d) r/w Section 5(2) - Complainant died before he could be examined - Charge can be proved by other evidence : Hifazatullah @ Nasirullah Vs. State of M.P., I.L.R. (2009) M.P. 1755
- Section 5(1)(d) r/w Section 5(2) - Evidence of complainant about making demand of bribe and its acceptance should be corroborated by independent evidence in order to ascertain what actually transpired between complainant and accused at the time of handing over the money : Hifazatullah @ Nasirullah Vs. State of M.P., I.L.R. (2009) M.P. 1755 Prevention of Corruption Act (XLIX of 1988) 652
- Section 5(1)(d) r/w Section 5(2) - See - Criminal Procedure Code, 1973, Section 313 : Hifazatullah @ Nasirullah Vs. State of M.P., I.L.R. (2009) M.P. 1755
- Section 5(1)(d) r/w Section 5(2) - See - Penal Code, 1860, Section 161 : Hifazatullah @ Nasirullah Vs. State of M.P., I.L.R. (2009) M.P. 1755
- Section 5(1)(e) - Disproportionate to Known sources of income - Corruption is believed to have penetrated into every sphere of activity - It connotes allowing decisions and actions of a person influenced by monetary gains - Appellant found in possession of property worth Rs. 8,71,377/- which was disproportionate to his known sources of income - Trial Court as well as High Court has analysed the evidence in detail so far as valuation of properties is concerned - No scope for interference - Appeal dismissed : N.P. Jharia Vs. State of M.P., I.L.R. (2007) M.P. 1119 (SC)
- Section 5(2)/5(1)(d) and Indian Penal Code, 1860 - Section 161 - "Public Servant" - Appellant being employee of cooperative society - Not a public servant within the meaning of Section 21 of IPC read with Section 2 of Prevention of Corruption Act - Could not be convicted under Section 161 of IPC and section 5(1)(d) read with Section 2(d) of the Prevention of Corruption Act - Conviction set-aside : Subhash Navin Vs. State of M.P., I.L.R. (2006) M.P. 1454 Prevention of Corruption Act (XLIX of 1988)
- Section 2(i)(c) - Public Servant - Accused working as Executive Engineer, M.P. Vidyut Mandal - Accused facing trial for offences under Section 7, 13(1)(d) & 13(2) of Prevention of Corruption Act - Officers of State Electricity Board are required to carry out public functions - They are public authorities - Officers of Electricity Board are Public Servant and can be prosecuted for such offences - Petition dismissed : O.P.Gupta Vs. State of M.P., I.L.R. (2007) M.P. 1731
- Section 3 - Local areas for the court to try cases - Notification dated 24.01.1991 provided that the special courts shall have exclusive jurisdiction for trial of cases - Special Judge, Bhopal has no jurisdiction to entertain any complaint involving an offence under the Act which is said to have taken place at Indore : Vivek Aggarwal Vs. Premchand Guddu, I.L.R. (2009) M.P. 568
- Section 7 - Demand - Complainant changed his version every step and so his testimony is not reliable & acceptable - Younger brother of complainant, who accompanied him, not examined - Tape recorded conversation also not proved - Held - Apparently, there is no dependable evidence of any demand or acceptance of bribe by the appellant - Conviction and sentence set aside - Appeal allowed : Hareram Kaurav Vs. State of M.P., I.L.R. (2010) M.P. 2612 (DB) Prevention of Corruption Act (XLIX of 1988) 653
- Sections 7, 11 & 12, Penal Code, 1860, Illustration (a) to Section 116 - Sections 161, 165 and 165-A of IPC replaced by Sections 7, 11 and 12 of Act - No implied repeal of illustration (a) to Section 116 IPC - Cases falling u/s 7, 11 and 12 of Act may be decided by taking aid of illustration (a) of 116 IPC - Case of Rajaram v. State rightly decided - Reference answered accordingly : Sharad Kumar Vs. State of M.P., I.L.R. (2009) M.P. 229 (DB)
- Sections 7, 13(1)(d) r/w Section 13(2), Criminal Procedure Code, 1973, Section 374(2) - Burden of Proof - Held - The onus on an accused is not as heavy as that of the prosecution - It may be compared with a defendant in a civil proceeding - Appeal allowed : Navkant Sharma Vs. State of M.P., I.L.R. (2008) M.P. 2425
- Sections 7,13(1)(d) read with Section 13(2) - Appeal against acquittal - Accused/ respondent was convicted by Trial Court holding that he had accepted bribe for not seizing guns and not arresting the complainant - High Court acquitting the respondent on the ground that upper pocket of shirt is not the normal place for keeping bribe and also that it cannot contain 35 currency notes - Appeal by State - The demand and acceptance of bribe by respondent is fully corroborated by the evidence of complainant and two independent witnesses - Defence plea that upper pocket of shirt is not the normal place to keep bribe money not tenable - Respondent guilty of accepting bribe - Judgment of acquittal set aside : State of Madhya Pradesh Vs. Shambhu Dayal Nagar, I.L.R. (2006) M.P. 1587 (SC)
- Sections 7, 13(1)(d), 13(2) & 20, Penal Code, 1860, Section 201 - Demand of bribe from complainant for getting the possession of shop delivered to him is proved - Conversation of complainant and accused/appellant was recorded in a cassette, also proved - Conversation at 12 O'clock of night at residence of appellant between complainant and appellant regarding matter of shop and when the bribe money was delivered was also recorded in cassette and proved - The hands of appellant when dipped into solution of sodium corbonate, its colour turned to light pink - Bribe money/ currency notes were recovered from the sewage chamber connected to the house of appellant - The defence/explanation furnished by the appellant did not appear reliable - It stands established that the appellant demanded and accepted the bribe money by way of illegal gratification and also attempted to obtain further money as bribe for himself and also for SDM as a motive for showing favour to complainant in getting possession of the shop to him - Conviction affirmed : Ravindra Kumar Ganvir Vs. State of M.P., I.L.R. (2010) M.P. Note *87 (DB)
- Section 13(1)(d) - Acceptance of money - It is essential for holding the possession and acceptance of the bribe money by the accused that it was voluntary and conscious : Ramesh Thete Vs. State of M.P., I.L.R. (2010) M.P. 1633 (DB) Prevention of Corruption Act (XLIX of 1988) 654
- Section 13(1)(d) - Acceptance of money - Prosecution failed to prove that appellant was in voluntary and conscious possession of tainted money recovered from room of a hotel - Explanation given by accused that currency notes were planted either by complainant or by any of member of trap party could not be ruled out : Ramesh Thete Vs. State of M.P., I.L.R. (2010) M.P. 1633 (DB)
- Section 13(1)(d) - Tape recording of conversation - When cassette was played before Court, except a noise of fan, nothing was found discernible - The transcript of tape recorder, provided by trap party, cannot be accepted as a substitute of tape recording : Ramesh Thete Vs. State of M.P., I.L.R. (2010) M.P. 1633(DB)
- Section 13(1)(d) - Motive - Appellant alleged to have demanded money for issuing Labour Payment Certificate - Prosecution failed to prove motive as at relevant time LPC was not required as wages of employees was being made through bank - Appeal allowed - Appellant acquitted : Sanjay Kumar Vs. State of M.P., I.L.R. (2010) M.P. 490 (DB)
- Section 13(1)(d) - See - Criminal Procedure Code, 1973, Section 482 : H.S.S. Raghuvanshi Vs. State of M.P., I.L.R. (2008) M.P. 1569
- Section 13(1)(d) - Illegal gratification - Demand of money made by SHO - No demand made by appellant nor party to any agreement - Appellant posted as Head Constable not in a position to show favour or render any service in connection with his official duty - Money accepted by appellant for giving the same to SHO - Where demand of bribe is not proved, accused cannot be convicted - Appeal allowed : Chironjilal Vs. State of M.P., I.L.R. (2008) M.P. 922
- Section 13(1)(d), Criminal Procedure Code, 1974 - Section 227 - Framing of Charge - Purchase Committee recommended purchase of articles from Laghu Udyog Nigam - Articles purchased from private suppliers without inviting tenders - No objection Certificate purported to have been issued by Laghu Udyog Nigam found to be forged - Members of Accepting Committee and Assistant Quarter Master forged the record of verification and receipt of goods on 27-3-1997 whereas most of the articles were not received on 27-3-1997 - Money withdrawn from treasury and kept in Chest - Roles assigned to various accused persons right from issuing purchase orders to the verification and acceptance of goods in store appear to be different step in same direction forming a complete whole - It cannot be said that there is no material prima facie sufficient for proceedings against applicants - Submission that it is a case of mere irregularity/ misconduct which could be dealt with by departmental action cannot be accepted - Criminal Revision dismissed : I.J. Diwan Vs. State of M.P., I.L.R. (2007) M.P. 1465
- Section 13(1)(d), (2) - See - Criminal Procedure Code, 1973, Section 216 : Manjulata Tiwari (Smt.) Vs. State of M.P., I.L.R. (2008) M.P. 2731 Prevention of Corruption Act (XLIX of 1988) 655
- Section 13(1)(d) r/w 13(2) - Phenolphthalein test - First Phenolphthalein test in respect of solution of the pocket was found negative - Shirt was again sent for test and presence of phenolphthalein was found - Held - This throws considerable doubt about the presence of phenolphthalein in the pocket of the accused : Sanjay Kumar Vs. State of M.P., I.L.R. (2010) M.P. 490 (DB)
- Sections 13(1)(e) read with Section 13(2) - Property Disproportionate to known sources of income - Prosecution assessing household expenses at the rate of 60% of salary - Inference of household expenses at 60% is arbitrary as there is no circular, rule or regulation or reliable evidence to that effect - The life style of the accused while assessing household expenses should be taken into consideration - Looking to the simple life style of the appellant, the household expenses were taken to be 50% of the salary - As the difference in income and expenditure is less than 10%, the accused entitled for acquittal : Bhogilal Saran Vs. State of Madhya Pradesh, I.L.R. (2007) M.P. 137
- Section 19 - Proof of sanction - Sanction order was clearly passed by District Magistrate in discharge of routine official functions - Hence, there is a presumption that the same was done in a bona fide manner - There was no requirement for the District Magistrate to be examined as a witness by the prosecution : State of M.P. Vs. Jiyalal, I.L.R. (2009) M.P. 2487 (SC)
- Section 19, Criminal Procedure Code, 1974, Section 300 - Invalid Sanction - Applicant tried for offences punishable under Section 13(l)(d) read with Section 13(2) of Prevention of Corruption Act - Trial Court acquitted applicant for want of valid sanction - Fresh Charge sheet filed - Held - Accused acquitted or discharged on the ground of invalid sanction for Prosecution - Filing of new charge sheet not barred by Section 300 of Criminal Procedure Code : Ajay Rai Vs. State of M. P., I.L.R. (2007) M.P. 1821
- Section 19(3) - Error, omission or irregularity in sanction order - High Court reversed the judgment of conviction on the ground of irregularity in passing of the sanction order as well as sanction order has not been proved - Held - No finding has been made which shows that serious failure of justice had been caused to respondent - High Court was not justified in setting-aside the judgment of conviction in absence of such finding - Matter remanded back to High Court to consider the appeal on merits and dispose of accordingly : State of M.P. Vs. Jiyalal, I.L.R. (2009) M.P. 2487 (SC)
- Section 20 - Presumption - U/s 20 of the Act there is statutory presumption of acceptance of bribe if offence u/s 7 or 11 or 13(1)(a) or 13(1)(b) is proved - It is for accused to explain and rebut the presumption by leading evidence : Baijnath Prasad Patel Vs. State of M.P., I.L.R. (2008) M.P. 3304 Prevention of Food Adulteration Act, (XXXVII of 1954) 656
Prevention of Cruelty to Animals Act, (59 of 1960)
- Sections 10 & 11 - See - Criminal Procedure Code, 1973, Sections 451 & 457 : Mohammad Ajeem Khan Vs. State of M.P., I.L.R. (2010) M.P. 1187 Prevention of Food Adulteration Act, (XXXVII of 1954)
- Sections 2(vii), 9, 10 - Public Interest Litigation - Petition seeking to appoint sufficient number of Food Inspector in various "Local Area" - Food Inspectors are invested with wide powers to enforce provisions of the Act & Rules - If Sufficient number of Food Inspectors are not appointed, provision of the Act & Rules cannot be enforced and unscrupulous traders or businessmen will continue to sell adulterated food stuff to consumer - State Government directed to appoint sufficient number of Food Inspectors for local areas in the State - Direction to be complied with by Secretary, Department of Health of the Family Welfare within a period of 3 months - Compliance report to be filed within 4 months : Nagrik Upbhokta Margdarshak Manch Vs. The State of Madhya Pradesh, I.L.R. (2007) M.P. 185 (DB)
- Section 2(xiia) - Primary Food - Turmeric Powder cannot be held to be a primary food : Radhika Prasad Gupta Vs. State of M.P., I.L.R. (2008) M.P. Note *58
- Section 2(xiii) - Sale - Packets of Turmeric Powder lying at the shop - In absence of any evidence it cannot be held that turmeric powder kept along with other articles was not intended for sale or applicant had bought them for personal use - Even sale of an article to a Food Inspector for analysis is also a sale : Radhika Prasad Gupta Vs. State of M.P., I.L.R. (2008) M.P. Note *58
- Sections 2 (13), 7, 10(1)(a) and 16(1) (a), Criminal Procedure Code, 1973. Section 482 - Sale -Petition for quashing proceeding in complaint case - Food Inspector purchasing 'Besan' from Indian Coffee House for analysis and finding the same adulterated, complaint filed - Contention of petitioners that they are not dealers and 'Besan' was not stored for sale but for preparing items and, therefore, provision of Section 7 are not attracted - Held, selling food article for analysis amounts to sale as per Section 2(13) of the Act - Person from whom article of food purchased, need not be a dealer - Accused can be prosecuted - Petition quashed : Indian Coffee House, Marhatal Jabalpur Vs. State of Madhya Pradesh, I.L.R. (2007) M.P. 432
- Sections 7(1) & 16(1)(a)(i) - See - Criminal Procedure Code, 1973, Section 433 : Antar Singh Vs. State of M.P., I.L.R. (2008) M.P. Note *91
- Sections 7(i), 16(1)(a)(i) - Sentence - Applicant convicted and sentenced to rigorous imprisonment for 6 months and fine of Rs.1000/- - Held - In view of mandatory Prevention of Food Adulteration Act, (XXXVII of 1954) 657 provision of Section 16(1) of Act, no sentence lesser than the minimum prescribed by the statute can be imposed - Revision dismissed : Munnalal Vs. State of M.P., I.L.R. (2008) M.P. Note *80
- Sections 7(1), 16(1) (a)(i), 20 and Prevention of Food Adulteration Rules 1955, Rules 14, 15, 16, 17, 18 - Appeal against Acquittal - Sanction required not obtained from competent authority - Procedure for taking sample not followed - Service of notice - Original Postal receipt not produced - Photocopy cannot take place of the original - Accused rightly acquitted : Nagar Nigam Khandwa Vs. Bhanwarlal, I.L.R. (2006) M.P. 1329
- Sections 7(1) / 16(1)(a)(i) - In view of mandatory provisions of Section 16(1) of Act, no sentence lesser than the minimum prescribed by the statute could be awarded for the offence u/s 16(1)(a)(i) of the Act : Shankar Vs. State of M.P., I.L.R. (2008) M.P. Note *69
- Sections 10 (4) & 10 (4-A) - Powers of the Food Inspector - Held - As per Ss. 10(4) & 10(4-A) of the Act, if any article seized is found adulterated and Local Authorities have satisfied that it is unfit for human consumption, the Authorities could destroy the adulterated food article : Hind Dairy and Food Products, Maharajpura, Gwalior Vs. State of M.P., I.L.R. (2010) M.P. 583
- Sections 11, 12, 20 (1), 13(2A) and 2(E), Prevention of Food Adulteration Rules, 1955, Rule 16 - Drawing of sample and Analysis of food sample at the behest of purchaser, who is member of recognized consumer association - Local Health Authority not issuing paper slips bearing signature and code and serial of Local Health Authority for the purpose of wrapping of the container - Local Health Authority directed to discharge their respective duties as provided in Section 11 of the Act, and Rules 16 of the Rules : Nagrik Upbhokta Margdarshak Manch Vs. State of M.P., I.L.R. (2007) M.P. 185 (DB)
- Section 13 (2) - Presumption of service of notice sent by registered post - Notice alongwith report of Public Analyst was sent to applicant's address by registered post - Held - There would be presumption of service of notice sent by registered post - Mere fact that A.D. receipt was not filed was not sufficient to rebut or dislodge the presumption of service of notice in absence of any evidence to the contrary : Chhotelal Vs. State of M.P., I.L.R. (2008) M.P. 2458
- Section 13(2) - Report of Public Analyst - Report of Public Analyst sent after 75 days - Applicant not availed opportunity for getting another part of sample to be analyzed by Central Food Laboratory - Nothing to show how applicant became prejudiced on that account - Applicant cannot avail any benefit for his own lapse - Revision dismissed : Bhanwarlal Vs. State of M.P., I.L.R. (2008) M.P. Note *75 Prevention of Food Adulteration Act, (XXXVII of 1954) 658
- Section 13(2), General Clauses Act, 1897, Section 27, Evidence Act, 1872, Section 114 - Presumption - Notice u/s 13(2) of Act 1954 sent by registered post at correct address - Merely because AD receipt was not received back will not be sufficient to rebut or dislodge the presumption of service of notice : Shankar Vs. State of M.P., I.L.R. (2008) M.P. Note *69
- Section 13(2), General Clauses Act, 1897, Section 27 - Report of Public Analyst - Service of Report - Report of Public Analyst sent to applicant by registered post - No suggestion that address described by Local Health Authority was not correct - Held - There would be presumption of service of notice sent by registered post on correct address - Merely AD was not received would not be sufficient to rebut or dislodge presumption of service : Gulab Vs. State of M.P., I.L.R. (2008) M.P. 1535
- Section 13(2) - Report of Public Analyst - Report of Public Analyst sent by U.P.C. - Applicant has not denied receipt of the same - Not exercised his right for getting part of sample analysed by Central Laboratory - Applicant has not been prejudiced in any way : Gyasi Lal Napit Vs. State of M.P., I.L.R. (2008) M.P. Note *54
- Section 16(1)(a) r/w Section 7(1), Criminal Procedure Code, 1973, Section 433 - Reduction of minimum sentence in the domain of the State Government - Conviction u/s 16(1)(a) of the Act upheld by High Court - Provisions mandate that 6 months' minimum imprisonment to be imposed for such offence - Applicant aged 63 years and more than 17 years elapsed since incident - Applicant had suffered 37 days of imprisonment - Looking to the agony and mental harassment already faced - High Court directed applicant to deposit Rs.10,000/- as fine in commutation of the sentence of 6 months imprisonment and State Government to consider such commutation u/s 433(d) of Code : Tulsiram Vs. State of M.P., I.L.R. (2008) M.P. 2462
- Section 16(1)(a)(i) - Petitioners were prosecuted u/s 7/16 of the Act for violation of Rule 32(e) of the Food Adulteration Rules, 1955 - Violation of Rule 32(e) which has been declared to be ultra-vires, can not be said to be an offence - Conviction of petitioner for misbranding on account of violation of Rule 32(e) cannot be allowed to sustain : Manoj Vs. State of M.P., I.L.R. (2010) M.P. 1990
- Section 16(1)(a)(i) - Prevention of Food Adulteration Rules, 1955, Rules 17 & 18 - Whether the entire quantity of article of food stored in the container required to be stirred at the time of taking of sample - Held - If it was a usual practice to stir entire quantity of Dahi stored in a container before sale, it ought to have been done before selling to Food Inspector also - Accused cannot blame anybody and raise it as a technical defence to escape liability - Revision dismissed : Om Prakash Agrawal Vs. State of M.P., I.L.R. (2008) M.P. Note *73 Prevention of Food Adulteration Act, (XXXVII of 1954) 659
- Section 16(1)(a)(ii) - Documents filed by the prosecution itself, which goes to show that on the relevant date petitioner was possessing the license - Petitioner was possessing the license on the date of alleged offence, therefore, the conviction of the petitioner on that account also can not be allowed to sustain : Manoj Vs. State of M.P., I.L.R. (2010) M.P. 1990
- Section 16(1)(a)(ii) - Delay in prosecution - Sample of milk collected on 25.04.1987 - Complaint filed on 15.03.1988 - Nothing on record to show that another part of sample became unfit for analysis - No question to quash complaint - Revision dismissed : Gyasi Lal Napit Vs. State of M.P., I.L.R. (2008) M.P. Note *54
- Section 17 - Duty of Food Inspector in case of prosecution of company or firm - Food Inspector is required to prosecute a right person - Burden does not lie on such accused who has been wrongly arrayed as an accused, as to who is the right person to be prosecuted : Hindustan Food Products India Vs. State of M.P., I.L.R. (2008) M.P. 1313
- Section 17(2) - Offences by companies or partnership firms - Nomination- nominee alone can be prosecuted - But in exceptional cases, Director's of a company or partners of a firm or the concerned person can be prosecuted : Hindustan Food Products India Vs. State of M.P., I.L.R. (2008) M.P. 1313
- Section 17(2) - Liability of petitioners - No material to show that the Society nominated any person in particular to be the in-charge of and responsible to the Society - All active members of the society cannot escape liability : Indian Coffee House, Marhatal, Jabalpur Vs. State of M.P., I.L.R. (2007) M.P. 432
- Sections 17(2), 7 r/w 16 - Offence by Partnership firm - Liability of Partners - NA-2 has been authorized and nominated as per provisions of Section 17(2) - Liability also accepted by NA-2 - Nomination Form has been accepted by Local (Health) Authority - Only NA-2 can be prosecuted on behalf of the registered partnership firm for the offence punishable under Act - Prosecution of applicants as partners of registered firm is erroneous and liable to be quashed : Kailash Agarwal Vs. State of M.P., I.L.R. (2010) M.P. 1201
- Sections 17(2), 7 r/w 16(1)(a) - Offence by Companies/Partnership firm - Sample was sold by accountant (Muneem) to food inspector and Panchnama has been prepared in his presence - Accountant of the firm cannot be held liable for the prosecution because he is not responsible for day to day manufacturing and sale - His duty is only to maintain the accounts of the firm : Kailash Agarwal Vs. State of M.P., I.L.R. (2010) M.P. 1201 Prevention of Food Adulteration Act, (XXXVII of 1954) 660
- Section 17(4) - For prosecuting a partner or a director specific averments as required in sub section 4 of section 17 of the Act is to be mentioned in the complaint that alleged act has been committed with the consent or connivance of, or is attributable to, any neglect on his part : Hindustan Food Products India Vs. State of M.P., I.L.R. (2008) M.P. 1313
- Section 19 - Penalties - Mens Rea - Container of Cadbury Drinking Chocolate manufactured and sold by Petitioner did not contain the words Batch No. given at the bottom or on the lid - Complaint filed by Food Inspector - Petition Under Section 482 of Cr.P.C. for quashing the complaint dismissed - Held - Mens rea is essential ingredient of criminal offence unless statutory provision creating offence expressly or by necessary implication excludes mens rea - Batch No. mentioned either at the bottom or on the lid of container - If words that Batch No. is given at bottom or on lid donot appear on the body of container it cannot be said that there is mens rea in not complying with provisions of proviso to Rule 32(e)-magistrate to keep in mind observations while deciding the complaint pending before it : Cadbury India Limited Vs. Union of India, I.L.R. (2007) M.P. 1226 (DB)
- Section 20(i) - Reference - Local Authority (deleted by amendment Act No.34 of 1976)-Complaint filed by Municipal Corporation through Food Inspector against respondent for selling adulterated Milk - Question regarding competence of Local Authority to file complaint in view of conflicting judgments being the point of reference - Held - Local Authority has been deleted from Section 20(i) of the Act - Local Authority or any person authorized by Local Authority cannot file complaint - Complaint on behalf of Municipal Corporation not maintainable - No conflict in different judgments - Reference answered accordingly: Municipal Corporation, Gwalior Through Food Inspector Vs. Lurindamal, I.L.R. (2007) M.P. 278 (DB)
- Section 20(1) - Notification dated 31.12.59 & 19.10.83 authorising Food Inspector to institute prosecution - Food Inspector was competent to file complaint : Tulsiram Vs. State of M.P., I.L.R. (2008) M.P. 2462
- Section 24, Prevention of Food Adulteration Rules, M.P. 1962, Rule 4 - Powers & duties of State Authority - Held - State Authority i.e. Food (Health) Authority and Controller, Food & Drugs Administration, Bhopal has power to suspend the production & manufacture of articles of food if on inspection after a report of Public Analyst, it has been found that the aforesaid article of food is adulterated or misbranded : Hind Dairy and Food Products, Maharajpura, Gwalior Vs. State of MP, I.L.R. (2010) M.P. 583 Prevention of Food Adulteration Rules, M.P. 1962 661
Prevention of Food Adulteration Rules, 1955
- Appendix B Item No. A.16.16 - Pickles in Oil - Percentage of Oil - Layer of oil not less than 0.5 cm above contents or percentage of oil shall not be less than 10 percent - Samples of pickle taken by Food Inspector - Report of public analyst mentioned that percentage of oil was less than 10 percent - Report silent about layer of oil above contents - Trial Court held that prosecution cannot continue as report is incomplete - Revisional Court remanded the matter - Held - Word 'and' is ordinarily conjunctive while 'or' is disjunctive - 'Or' cannot be read as 'and' to mean that if sample fails to meet either of requirement, then it would be taken to be adulterated - Report appears to be incomplete - If prosecution does not prove all requirements to constitute an offence, then prosecution would certainly be abuse of process of law - Order of Trial Magistrate restored - Revision allowed : Bansal Stores Vs. State of M.P., I.L.R. (2008) M.P. 1830
- Rule 9B - Delay in sending Report of Public Analyst - Copy of report of Public Analyst sent to applicant after one month and seven days instead of 10 days after the institution of prosecution - Applicant did not apply to send the other part of sample to Central Food Laboratory - Applicant cannot complain that sample had deteriorated and could not be analyzed - Revision dismissed : Gulab Vs. State of M.P., I.L.R. (2008) M.P. 1535
- Rule 22B - Quantity of sample - 220 ml. of milk sample sent to Public Analyst - Public Analayst nowhere pointed out that sample was insufficient for analysis - Cannot be said that insufficient quantity was sent for analysis : Bhanwarlal Vs. State of M.P., I.L.R. (2008) M.P. Note *75
- Rule 32 (e) - Package of food to carry a label - Validity of Proviso to Rule 32(e) of Prevention of Food Adulteration Rules challenged - In case of canned food, it should be mentioned on the body of container that batch number given at the bottom or on lid of container - Held - In absence of such provision purchaser may not be able to know that batch number has been given either on bottom or lid of container - Proviso to Rule 32(e) is not unnecessary or unreasonable causing any substantial Prejudice to the legal rights of a person - Proviso to Rule 32(e) not ultra vires to the Constitution : Cadbury India Limited Vs.Union of India, I.L.R. (2007) M.P. 1226 (DB) Prevention of Food Adulteration Rules, M.P. 1962
- Rule 4 - See - Prevention of Food Adulteration Act, 1954, Section 24 : Hind Dairy and Food Products, Maharajpura, Gwalior Vs. State of M.P., I.L.R. (2010) M.P. 583 Prisoners Act (III of 1900) 662
Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act (46 of 1988)
- Section 3 - Maintainability or continuance - Whether a Writ Petition of habeas corpus in the case of preventive detention can be maintainable/continue even after the period of detention is over - Yes - If the effect of detention is forfeiture of the property of detenu - High Court can go into legality, propriety and validity of the order of detention - However, can not issue writ of habeas corpus on efflux of the period of detention : Kailashbai Vs. Union of India, I.L.R. (2008) M.P. 768 (DB)
- Section 3 - Satisfaction of Detaining Authority - At the time of passing detention order - Subjective satisfaction is required to be derived from some objective criteria and cannot be capricious or whimsical - Eminent possibility of release of detenu must be based on cogent material - Order suffers from undue delay of 8 ½ months after incarceration of detenu - No cogent material has been placed before Detaining Authority to reached the satisfaction - Order unsustainable in law : Kailashbai Vs. Union of India, I.L.R. (2008) M.P. 768 (DB) Prevention of Insults to National Honour Act (69 of 1971)
- Section 2 - Penalty - Film 'LOC Kargil' exhibited the coffins of the soldiers covered by National Flag - It was alleged that National Flags were wrongly used for covering the coffins - Held - It is no where stated that how the flag has to be used - Offence under the Act can only be constituted if any person within public view burns, mutilates, defaces, disfigures, destroys, tramples upon or otherwise brings into contempt : J.P. Dutta Vs. R.V. Antarolia, I.L.R. (2010) M.P. 729
- Sections 2 & 3, Flag Code of India, 2002, Sections 2(B)(5), 3, 5, 6 & 11, Penal Code, 1860, Section 109 - National Flag was hosting even after sunset - Film Actor Aamir Khan was chief guest of function in which complainant was also present - Nothing in complaint or in evidence has been stated against Aamir Khan except that he was present in the said function - Prima facie no evidence to prove that he has caused insult to National Flag - Application allowed : Aamir Khan Vs. State of M.P., I.L.R. (2010) M.P. 736 Prisoners Act (III of 1900)
- Prison Rules, M. P., 1968 are replaced by M.P. Prisoner's Leave Rules, 1989 - After the Rules 1989 have come into force, the releasing authority will have to be guided by Rule 4 of the Rules 1989, while considering grant of leave under sub-section (1) of Section 31-A of the Prisoners Act, 1900 as amended by the Prisoners (M.P. Amendment) Act, 1985 : Kamlesh Gour Vs. State of M.P., I.L.R. (2007) M.P. 1745 (DB) Prisoners Act (III of 1900) 663
Prisoners' Release on Probation Act, M.P. (16 of 1954)
- Petitioner was convicted u/s 302 of IPC - Application for release on probation on completion of 11 years - Held - Petitioner can not be released on probation prior to completion of 14 years as specified in notification - However, his case can be considered for release on probation even prior to completion of 14 years as he is in jail for more than 10 years - Manner of commission of crime is also relevant consideration for release on probation - State has dealt with the aspect while considering the case of petitioner - No irregularity of any kind has taken place while rejecting the case of petitioner for release on probation - Petition dismissed : Pradeep Dantre Vs. State of M.P., I.L.R. (2010) M.P. 2045
- Section 2 - Release on Probation - Division Bench of High Court deprecated practice of releasing convicts on probation whose applications for bail were already rejected - Inspector General of Prisons issued circular that persons whose appeals are pending before appellate court are not entitled to be considered for the purpose of release on probation - Circular quashed by High Court - Held - Judgment by Division Bench of High Court was rendered to curb illegality in decision making process - High Court in its earlier decision had not held that even making of application is to be barred - There cannot be any bar for making application - While considering the application principles set out by Supreme Court in the case of Arvind Yadav v. Ramesh Kumar and others are to be kept in view - Appeal dismissed : State of M.P. Vs. Kusum, I.L.R. (2007) M.P. 1475 (SC)
- Sections 2, 9, Prisoners Release on Probation, Rules, Madhya Pradesh, 1964, Rule 4 - Question whether amendment in Rule 4 is ultra vires the rule making power of the State Government under section 9 of the Act - Held - The long title of the Act clearly indicates that the intention of the Act is to extend the benefit of release on probation for good conduct in prison only to "certain prisoners' and not to all - Under rule making power conferred under section 9, particularly sub-section (4), the State Government can frame rules defining the classes of offenders who may be conditionally released and the periods of imprisonment after which they may be so released - The amended Proviso to Rule 4 cannot be held as beyond the rule making power of the State Government and is ultra vires : Anni @ Ramesh Vs. State of M.P., I.L.R. (2010) M.P. 1687 (FB)
- Section 9, Prisoners' Release on Probation Rules, M.P 1964, Rule 2 - Consideration for release - Held - The manner of commission of offence is a relevant consideration - In the instant case, petitioners along with others committed brutal and preplanned murder with lethal weapons in broad day light - Not entitled for release on licence under the provisions of the Act and rules - No perversity or material irregularity found in rejecting Prisoners Release on Probation Rules, M.P., 1964 664 the application of the petitioners for releasing on probation : Siyaram Vs. State of M.P., I.L.R. (2009) M.P. Note *51
- Section 9, Prisoners' Release on Probation Rules, M.P. 1964, Rule 4 - Eligibility for release - Constitutional validity of notification dated 24.03.2008 making 14 years of actual imprisonment for becoming eligibile for release challenged - Rule 4 not ultra vires to Section 433-A of Cr.P.C. or any of the provisions of the Act : Gori Shankar Vs. State of M.P., I.L.R. (2009) M.P. 1966 (DB) Prisoners Release on Probation Rules, M.P., 1964
- Release on Probation - Heinous crime - Factors to be taken into consideration - Appellant inflicted one knife blow to the deceased - Held - The nature of offence is not heinous and appellant could be entitled to be released on Probation - Matter remanded back for consideration afresh : Pradeep Dantre Vs. State of M.P., I.L.R. (2010) M.P. 1694 (DB)
- Release on Probation - Likelihood of commission of offence in future - Held - Presumption to commit an offence is no ground for rejection for release on probation when there is no past criminal history - The recommendations of family members and other authorities should also be taken into consideration : Pradeep Dantre Vs. State of M.P., I.L.R. (2010) M.P. 1694 (DB)
- Rule 2 - See - Prisoners' Release on Probation Act, M.P., 1954, Section 9 : Siyaram Vs. State of M.P., I.L.R. (2009) M.P. Note *51
- Rule 4 - Release on Probation - Entitlement - Amendment in the rule vide notification dated 24.03.2008 that a life convict would be entitled to be released on Probation after undergoing actual sentence of 14 years - Case of Appellant for release was rejected prior to amendment - Held - The amended Rule 4 is not applicable in the case of appellant : Pradeep Dantre Vs. State of M.P., I.L.R. (2010) M.P. 1694 (DB)
- Rule 4 - See - Prisoners' Release on Probation Act, Madhya Pradesh, 1956, Sections 2, 9 : Anni @ Ramesh Vs. State of M.P., I.L.R. (2010) M.P. 1687 (FB)
- Rule 4 - Eligibility for release - Judgment passed in State of Haryana v. Mahender Singh and others [(2008 CrLJ 444(SC)] has no application as Supreme Court was dealing with validity of policy decision vis-à-vis rules : Gori Shankar Vs. State of M.P., I.L.R. (2009) M.P. 1966 (DB) Professional Examination Board Pre MCA and MET Rules, M.P., 2008 665
Private Medical and Dental Postgraduate Course Entrance Examination Rules, M.P. 2009
- Rules 7 & 15(9) - See - Niji Vyavsayik Shikshan Sanstha (Pravesh Ka Viniyaman Avam Shulk Ka Nirdharan) Adhiniyam, M.P., 2007, Section 8 : Association of Private Dental & Medical Colleges Vs. State of M.P., I.L.R. (2009) M.P. 2269 (DB)
- Rule 10 - See - Niji Vyavsayik Shikshan Sanstha (Pravesh Ka Viniyaman Avam Shulk Ka Nirdharan) Adhiniyam, M.P., 2007, Sections 3(a) & 5 : Association of Private Dental & Medical Colleges Vs. State of M.P., I.L.R. (2009) M.P. 2269 (DB) Private Medical and Dental Under Graduate Entrance Examination Rules, M.P. 2009
- Rule 9 - See - Niji Vyavsayik Shikshan Sanstha (Pravesh Ka Viniyaman Avam Shulk Ka Nirdharan) Adhiniyam, M.P., 2007, Section 8: Akanksha Pandey Vs. State of M.P., I.L.R. (2010) M.P. 2541 (DB) Probation of Offenders Act (20 of 1958)
- Section 4 - Release on Probation - There should be equilibrium between guilt and punishment - Undue sympathy would do more harm to justice by undermining public confidence in efficacy of law - Every Court has duty to award proper sentence having regard to nature and manner of execution of offence - Appellant not entitled to be released on probation : Radheshyam Vs. State of M.P., I.L.R. (2008) M.P. 354 Professional Examination Board Pre MCA and MET Rules, M.P., 2008
- Rule 1.4.8, Rajiv Gandhi Prodyogiki Vishwavidyalaya Bhopal Ordinance, Clause 2.1 - Admission to MCA course - After permitting petitioner to undertake examination, admission in MCA course denied on the ground that she did not have mathematics as subject either at Higher Secondary or at Graduation level - Held - Petitioner had business mathematics at Higher Secondary level as additional subject - Syllabuses and chapters of mathematics and business mathematics are quite different - Distinction was in knowledge of petitioner - Rule, ordinance and norms issued by All India Council for Technical Education prescribes minimum admission qualification for MCA course that one should have passed either Higher Secondary or Graduation with mathematics as one subject - Petitioner does not possess requisite qualification - Admission rightly denied - Petition dismissed : Smriti Agarwal (Ku.) Vs. M.P. Professional Examination Board, I.L.R. (2009) M.P. 747 (DB) Protection of Women from Domestic Violence Act (43 of 2005) 666
Promissory Estoppel
- Grant of license for cultivation of opium poppy - Petitioner alleged that once the license has been granted it cannot be cancelled on the principle of promissory Estoppel - Held - When the grant of license to the petitioner is illegal on the ground of their ineligibility under the law - The principle of promissory estoppel has no application in such cases : Radheshyam Vs. Union of India, I.L.R. (2010) M.P. Note *34 Promotion
- Merit-cum-Seniority vis-à-vis Seniority-cum-Merit - Defined - Rule of seniority-cum-merit has to be applied then minimum marks are to be prescribed and if a candidate secure minimum merit marks then only on the basis of seniority he is to be placed in the select list but when the rule prescribes merit-cum-seniority then merit and ability has to be given great emphasis and seniority plays a less significant role : R.S. Mehta (Dr.) Vs. State of M.P., I.L.R. (2008) M.P. 1912 Protection of Human Rights Act, 1993 (10 of 1994)
- Sections 14 & 16 - Whether the findings in a D.E. in respect of conduct of police personnel leading to breach of human rights of a citizen, will have a precedent over the findings of the Human Rights Commission recorded earlier - Held - On the basis of such enquiry the Commission returns a finding and directs the employer to take action - It will not be within the power of authorities to dilute the finding of the Commission in a domestic enquiry : M.P. Human Rights Commission Vs. State of M.P., I.L.R. (2010) M.P. Note *45
- Section 16 - Death of prisoner due to lack of proper treatment - Findings of Human Rights Commission holding petitioner guilty of negligence in discharge of his duties challenged - Petitioner being senior officer and incharge of Central Jail was required to discharge his duties more efficiently and should not have confined himself to writing letters through his sub ordinate officers for providing police guard for taking the prisoner to hospital - Petitioner Should have brought the fact of non availability of police guard to higher authorities and should have ensured proper treatment to prisoner as was done in some other cases - Commission rightly found the petitioner guilty of negligence in discharge of his duties : Umesh Kumar Gandhi Vs. State of Madhya Pradesh ; I.L.R. (2006) M.P. 1636 Protection of Women from Domestic Violence Act (43 of 2005)
- Section 2(q) - The word used in S. 2(q) of the Act is that 'respondent' means any adult male person and not any adult person - Therefore, complaint against relatives Protection of Women from Domestic Violence Act (43 of 2005) 667 of husband cannot include female members - Female members cannot be made respondents in proceeding under the Act : Tehmina Qureshi Vs. Shazia Qureshi, I.L.R. (2010) M.P. 296
- Sections 9 & 37 - Applicants were alleged to have committed offence under the Act between 12.11.2005 to 06.06.2006 - Act come into force on 26.10.2006 - Trial Court considering the offence to be of continuous nature held the applicants guilty - Held - It is nowhere stated that the non-applicant was subjected to violence after 06.06.2006 - Act has having no retrospective effect - Applicants can not be prosecuted for the period prior to the enforcement of the Act - Criminal proceeding stands dropped: Naveen Vs. Rajni, I.L.R. (2009) M.P. 2120
- Sections 12 & 28, Protection of Women from Domestic Violence Rules 2006, Rule 6(5), Criminal Procedure Code, 1973, Section 125 - Application to Magistrate - Procedure - As provided by Section 28(1) of the Act r/w Rule 6(5), the application u/s 12 of the Act shall be dealt with and the order enforced in the same manner as laid down u/s 125 of Cr.P.C., for which providing opportunity of leading their evidence to the parties is required : Madhusudan Bhardwaj Vs. Mamta Bhardwaj, I.L.R. (2009) M.P. 1506
- Section 17 - Right to reside in a shared household - Whether divorcee wife has right to reside in an ancestral house of husband - Yes, every woman in a domestic relationship has right to reside in the shared house : Razzak Khan Vs. Shahnaz Khan, I.L.R. (2008) M.P. 963
- Sections 18 & 31, Protection of Women from Domestic Violence Rules, 2006, Rule 6 - Economic Violence - As per Rule 6, application of the aggrieved person u/s 12 of the Act is required to be filed in Form No.II - Sub-clause (iii) of Clause 4 of Form No.I deals with economic violence, according to which not providing money for maintenance or food, clothes, medicines etc. is amounting to economic violence for which the Court is empowered to pass a protection order - Therefore, interim order of maintenance u/s 18 is a protection order and on account of breach of protection order, the proceedings can be initiated against the respondent u/s 31 of the Act : Sunil @ Sonu Vs. Smt. Sarita Chawla, I.L.R. (2010) M.P. Note *5
- Section 19 (1) (f) - Alternate accommodation or to pay rent for the same - The claim for alternative accommodation can only be made against husband - Wife is entitled a right to residence in a shared house belonging to husband or house which belongs to joint family of which husband is a member : Razzak Khan Vs. Shahnaz Khan, I.L.R. (2008) M.P. 963
- Sections 28 & 12 - Proceedings are governed by the provisions of Cr.P.C. - However, the Court is not prevented from laying down its own procedure for disposal Public Gambling Act (3 of 1867) 668 of an application u/s 12 of the Act : Sunil @ Sonu Vs. Smt. Sarita Chawla, I.L.R. (2010) M.P. Note *5 Protection of Women from Domestic Violence Rules, 2006
- Rule 6 - See - Protection of Women from Domestic Violence Act, 2005, Sections 18 & 31 : Sunil @ Sonu Vs. Smt. Sarita Chawla, I.L.R. (2010) M.P. Note *5
- Rule 6(5) - See - Protection of Women from Domestic Violence Act, 2005, Sections 12 & 28 : Madhusudan Bhardwaj Vs. Mamta Bhardwaj, I.L.R. (2009) M.P. 1506 Provisions of the Panchayats (Extension to the Scheduled Areas) Act (40 of 1996)
- Section 4 - Exception and modification to Part IX of the Constitution - Notwithstanding anything contained under Part IX of Constitution State Government shall not make any law under this part which is inconsistent with any feature mentioned in Clause 4 - Held - The embargo u/s 4 is not on Parliament but on Legislature of State - Acquisition of land for mining is under Coal Bearing Area (Acquisition and Development) Act, 1957 which is Act of Parliament - Section 4 of Act of 1996 not applicable : Naresh Singh Vs. Union of India, I.L.R. (2009) M.P. 730 (DB) Public Distribution System Control Order, 2001
- Public Distribution System Control Order, 2001 - See - Essential Commodities Act, 1955, Section 6(A) : Mohd. Sahabuddin Vs. State of M.P., I.L.R. (2010) M.P. 1191 Public Funded Project Rules, 1997
- Rule 11 - See - National Highways Act, 1956, Section 9, National Highways (Fees for the use of National Highway Section and Permanent Bridge : Truck Owners Association Vs. State of M.P., I.L.R. (2010) M.P. 364 (DB) Public Gambling Act (3 of 1867)
- Section 3 - A perusal of Section 3 would make it clear that it provides for punishment against a person who is owing or keeping or is having charge of a gaming house - In fact there is no evidence on record that the applicant was owing or keeping or was having charge of a gaming house - The FIR and the other evidence available on the record clearly show that the allegation of the prosecution were that the house was Public Interest Litigation 669 in charge of one Ram Babu Rai who was deducting commission and was providing facilities to the gamblers to enjoy the occupation of the gaming house - There is no material evidence to connect the applicant with the requirement of Section 3 of the Act - Applicant acquitted : Indraveer Singh Vs. State of M.P., I.L.R. (2009) M.P. 548
- Sections 3 & 4 - Chief Judicial Magistrate convicted the applicant u/s 3 & 4 of the Act and awarded a sentence for Section 3 of the Act - But, no separate sentence has been awarded to the applicant u/s 4 of the Act - Law explained how the High Court can sentence the applicant u/s 4 of the Act : Indraveer Singh Vs. State of M.P., I.L.R. (2009) M.P. 548
- Sections 3,4,5,6 - Power to enter and authorize police to enter and search - House of applicant was searched after obtaining authorization from City Superintendent of Police - Applicant ran away from the house whereas several persons were found gaming - Playing Cards, money were seized - Applicant convicted by Courts below under Section 3 and 4 of Act, 1867 - Held - Authorization Warrant not proved in trial - City Superintendent of Police not examined - Un-exhibited Authorization warrant which is in on shows that warrant is a printed proforma - It means non application of mind by officer - Authorization Warrant has no force in the eyes of law - No presumption can be drawn under Section 6 of Act - Applicant acquitted : Rakesh Rai Vs. State, I.L.R. (2007) M.P. 1717
- Section 4-A - See - Rajya Suraksha Adhiniyam, M.P. 1990, Section 6(c) [As amended w.e.f. 05.09.2006] : Sunil @ Sannu Vs. State of M.P., I.L.R. (2010) M.P. 1574
- Section 5 - See - Evidence Act, 1872, Sections 61, 62 & 64 : Indraveer Singh Vs. State of M.P., I.L.R. (2009) M.P. 548 Public Interest Litigation
- Alternative remedy - Petitioner sought direction to hold an enquiry against the respondent No.5 and to take suitable action regarding different Government construction works - Held - Since the provisions of the M.P. Lokayukt Evam Up-Lokayukt Adhiniyam, 1981 are a complete Code in itself and provide a remedy to an aggrieved person, he should at the first instance resort to the remedy provided under the Act - In such a case the PIL should not be entertained : Abdul Naim Vs. State of M.P., I.L.R. (2010) M.P. 2486 (DB)
- Can PIL be entertained on the basis of information in the newspapers - Normally, a PIL cannot be entertained solely on the basis of information published in the newspapers but if the Chief Justice or a Judge designate finds that a particular information Public Liability Insurance Act (6 of 1991) 670 published in the newspapers reveals gross violation of a fundamental right guaranteed under Part-III of the Constitution of a person who does not have ready access to the court for some incapacity or the other, particularly the right to life and liberty granted under Article 21 of the Constitution, and the Chief Justice or a Judge designate has reason to believe the information to be true, a PIL can be entertained only on the basis of such information published in the newspapers for the same reasons as have been given by the Supreme Court in Bandhua Mukti Morcha (AIR 1984 SC 802) for entertaining a letter petition : S.P. Anand Vs. The Registrar General, M.P. High Court, Jabalpur, I.L.R. (2008) M.P. 2172 (FB)
- Payment of court fees - Held - Court fees are payable on a PIL filed as a writ petition under Article 226 of the Constitution, except where the Chief Justice or a Judge designate directs on the basis of information received in a letter or any other document and considers that it is a fit case for registering a case under Article 226 of the Constitution even though no court fee is paid on such letter or document : S.P. Anand Vs. The Registrar General, M.P. High Court, Jabalpur, I.L.R. (2008) M.P. 2172 (FB) Public Liability Insurance Act (6 of 1991)
- Section 3 - Liability to give relief in certain cases on principle of no fault - The victim died due to electric shocks and the application by his legal representative u/s 6 of the Act rejected - Held - The death was due to 'handling' of hazardous substance being the proximate cause for death, sufficient it is for the person who claims through such deceased to maintain the claim for relief - On principle of no fault liability the Collector was not justified in rejecting the claim - Petition allowed : Mankunwar Bai (Smt.) Vs. Chairman, I.L.R. (2010) M.P. Note *82
- Section 3 - PIL - Extent of Liability of owner in respect of accident arising out of handling of hazardous substance - Liability independent of obligation to take out insurance policy caste under Section 4 -Owner liable to give relief specified in Schedule to the Act for the death, injury or damage to the property caused by an accident, irrespective of fact whether he has taken out policies of insurance to cover their liability or not : Gyan Prakash Vs. General Manager, Ordnance Factory, Khamaria, I.L.R. (2006) M.P. 1485 (DB)
- Section 4 - Owner not handling in hazardous substance - Not required to insure against his liability : Gyan Prakash Vs. General Manager, Ordnance Factory, Khamaria, I.L.R. (2006) M.P. 1485 (DB)
- Section 7A(3) - Central Govt. to notify scheme within three months for payment of relief out of Environment Relief Fund : Gyan Prakash Vs. General Manager, Ordnance Factory, Khamaria, I.L.R. (2006) M.P. 1485 (DB) Public Services (Promotion) Rules, M.P. 2002 671
Public Premises (Eviction of Unauthorised Occupants) Act (40 of 1971)
- Section 7 - Payable - Meaning - Held - The word "payable" in S. 7 of the Act in the context in which it occur s means legally recoverable : Lakhanlal Rawat Vs. Union of India, I.L.R. (2010) M.P. 699
- Section 7 - Power to require payment of rent or damages in respect of public premises - Time barred claim - Permissibility - Section 7 of the Act only provides of special procedure for realization of rent in arrears and does not constitute a source or foundation of a right to claim debt otherwise time barred - When a duty is cast on an authority to determine the arrears of rent, the determination must be in accordance with law : Lakhanlal Rawat Vs. Union of India, I.L.R. (2010) M.P. 699 Public Prosecution (Gazetted) Service Recruitment Rules, M.P. 1991
- Rule 8(i)(a), Schedule III Column 3 - Rule prescribes the minimum age limit for the post of ADPO to be 24 years - Vires of rule challenged on the ground that minimum age limit for Civil Judge Examination is 21 and mind has not been applied in fixing minimum age limit - Held - Fixation of minimum age limit is not illegal or arbitrary and the posts of Civil Judges are different than that of ADPOs - Petition dismissed : Bindu Patel (Ku.) Vs. State of M.P., I.L.R. (2010) M.P. 1956 (DB) Public Service (SC, ST & OBC) Reservation Act, M.P. (21 of 1994)
- Section 18 - Reservation of seats - Common Law Admission Test - Age relaxation - No age relaxation given to OBC candidates - Held - S. 18 only deals with SC, ST and OBC shall have the same meaning assigned to them and it was open for the core committee of the university to lay down the age criterion for CLAT : Smriti Patel Vs. State of M.P., I.L.R. (2010) M.P. Note *37 (DB) Public Services (Promotion) Rules, M.P. 2002
- Rule 7(4) - See - Service Law : Ashok Kumar Shukla Vs. State of M.P., I.L.R. (2010) M.P. 870
- Rules 7(8) and (9) - Lowering the standard of evaluation - Benchmark Very Good is requirement for promotion from Class I to higher pay scale of Class I post - Petitioner No. I promoted from the post of Assistant Professor to the post of Professor in the year 2006 - State Govt. by order dated 24-5-07 reduced the standard of benchmark Public Trusts Act, M.P. (30 of 1951) 672 from very good to good retrospectively w.e.f. 1-1-2004 for promotion from the post of Asstt. Professor to the post of Professor as one time measure - Held - As per Rule 7(9) of Rules, 2002, Lowering the Standard of evaluation is permissible only for public servants of S.C. or S.T. categories and none else - No whisper either in impugned decision or return that decision to relax criteria from Very Good to Good for promotion to the post of Professor has been taken in favour of public servants of S.C. or S.T. categories - Decision of State Govt. to relax and reduce benchmark from Very Good to Good not justified being contrary to Rules, 2002 - Promotion made during pendency of petition giving benefit of relaxation stand cancelled - Petition allowed : Dr. Kailash Tyagi Vs. State of M.P., I.L.R. (2007) M.P. 1769
- Public Services (Promotion) Rules, M.P. 2002 - See - Constitution, Article 16(4A) [77th and 85th Amendment] : Shiv Nath Prasad Vs. Saran Pal Jeet Singh Tulsi, I.L.R. (2008) M.P. 3059 (SC) Public Trusts Act, M.P. (30 of 1951)
- Review by a Quasi-Judicial Authority - Permissibility - Registrar reviewed its earlier order and recorded a finding that the Church should be registered as a Public Trust and declared the Church property as a public trust property - Held - A Quasi- Judicial Authority cannot review its own order, unless the power of review is expressly conferred on it by the statute under which it derives its jurisdiction - Provisions of Act and the rules made thereunder do not confer any power of review on the Registrar - Order of review quashed : Julious Prasad Vs. State of M.P., I.L.R. (2009) M.P. 2886 (DB)
- vis a vis Society Registrikaran Adhiniyam, M.P. 1973 - Distinguished - Held - Under the Adhiniyam, 1973, the Registrar and the State Government exercise more powers of control over a registered society in comparison to powers exercised by the Registrar under the Act, 1951 over a registered Public Trust - The object of the Act, 1951 was to provide for control over the affairs of a Public Trust - The same object is achieved in case of societies by elaborate provisions contained in the Adhiniyam, 1973 : Julious Prasad Vs. State of M.P., I.L.R. (2009) M.P. 2886 (DB)
- Sections 2(4), 4 & 5 - Private temple is not covered by provisions of the Act : Gayaprasad Vs. State of M.P., I.L.R. (2008) M.P. 3200
- Sections 5, 6 & 7 - Registrar directed that the registered society of disciples of Christ Church be registered as a Public Trust - Held - All societies registered under the M.P. Society Registrikaran Adhiniyam, 1973 and formed for charitable purposes are not Public Trusts and the provisions of Act, 1951 are not applicable - Order passed by Registrar, Public Trusts quashed : Julious Prasad Vs. State of M.P., I.L.R. (2009) M.P. 2886 (DB) Public Works Department Engineer-in-Chief and Chief Engineer Recruitment Rules, 673 M.P. 1983
- Section 14 - Trust property in dilapidated condition and not in any use - Alienation in any manner restricted in trust deed - Held - It will be beneficial for the object of the trust that trust property can be sold out and after obtaining entire sale proceeds, another property can be purchased in the name of trust so that by the income of that purchased property, the object of the trust can be fulfilled - Appeal allowed : Narayan Dharmshala Vs. Registrar, Public Trust, I.L.R. (2010) M.P. 2463 (DB)
- Section 32 - Suit filed for eviction by Public Trust through its President - Resolution filed in Court shows that some other person was authorized to take part in pending litigations - Court below found that resolution was mentioned with different ink in small place which was left over - Held - Suit must be brought by all trustees acting together - However, such suit may be brought by one trustee with sanction and approval of co- trustees but sanction or approval must be strictly proved - Finding regarding resolution is finding of fact, therefore, not required to be interfered - Suit not maintainable - Appeal dismissed : Manderam Namdeo Vaishnav Samaj Trust Vs. Harivallabh Mali, I.L.R. (2010) M.P. Note *18
- Section 32, Land Revenue Code, M.P. 1959, Sections 57 & 158 - Whether a Pujari, Manager or Trustee be the owner of temple, when it is recorded in the name of deity in the revenue records - Held - It is a Public Temple, if the land is recorded in the name of deity, deity is having right to hold property being juristic person - Pujari has a limited right to perform Pooja-Archana - He has the right of inheritance subject to qualification and is not automatic - No Pujari or Trustee or Manager can claim the title in respect of the religious property and such property shall always belong to deity - Pujari can be removed if he is otherwise disqualified or is not able to manage the temple property : Gayaprasad Vs. State of M.P., I.L.R. (2008) M.P. 3200 Public Works Department Engineer-in-Chief and Chief Engineer Recruitment Rules, M.P. 1983
- Shaskiya Sewak Adhiwarshiki Ayu Adhiniyam, M.P. 1967, Shaskiya Sewak Adhiwarshiki Ayu Sansodhan Adhiniyam, M.P. 1998 - Re-appointment after retirement - The State Government has granted re-appointment to a competent and experienced officer in the larger public interest and the same does not suffer from legal malice at all - It is not a case where a Government servant is being continued in service by virtue of his initial appointment beyond 60 years of age : Lalan Thakur Vs. State of M.P., I.L.R. (2008) M.P. 3116
- Rule 6(1) - See - Service Law : Anand Selot Vs. Chief Secretary, Govt. of M.P., I.L.R. (2010) M.P. 1357 Railways Act, Indian (XXIV of 1989) 674
Public Works Department Work Charged and Contingency Paid Employees Recruitment and Conditions of Service Rules, M.P. 1976
- Clause 3(A) - Wireman - Age of Superannuation - Post of Wireman falls within category of Class IV employees and entitled to get benefit of extended period of age from 60 to 62 - Since Petitioner has already attained the age of 62 years, he will not be entitled for arrears of pay for the period he remained out of employment, however, will be entitled to all pensionary benefits : Jwala Prasad Batham Vs. State of M.P., I.L.R. (2008) M.P. 1590 (DB) Qanoon Registry, Riyasat Gwalior Samvat 1971
- Section 9 - See - Transfer of Property Act Gwalior State Samvat 2001, Section 119 : Savitribai Vs. Krishna Morari (Dead) Through L.R., I.L.R. (2010) M.P. 956 Railways Act, Indian (XXIV of 1989)
- Sections 2(29), 23, 55, 124-A, 125 - Appellant holding ticket for passenger train travelling in Express Train with the permission of conductor Is a passenger with valid ticket - Entitled for compensation for injuries sustained by him as engine dashed the bogie from behind - Appeal allowed : S.K. Sharma Vs.The General Manager, Railway, I.L.R. (2007) M.P. 397
- Section 65 - Railway receipt - Receipt not bearing endorsement that goods have not been weighed - In absence of endorsement, receipt shall be taken to be prima facie evidence of weight of consignment : Mahavir Traders Vs. Divisional Railways Manager, I.L.R. (2010) M.P. 1528 (DB)
- Section 73 - Punitive charges for overloading - Dispute of overloading raised after delivery of goods - Demand for recovery without hearing or enquiry - Held - Every step was taken by Railways behind the back of petitioner - Petitioner was never afforded any opportunity of hearing - Demand notice quashed - Petition allowed : Mahavir Traders Vs. Divisional Railways Manager, I.L.R. (2010) M.P. 1528 (DB)
- Sections 85, 95, 103 & 110 - Damages for delayed delivery - Delay in transit - Appellant claimed negligence on part of railways in handing over consignment of lemon - Consignment handed over to appellant in damaged condition and after scheduled date - No objection raised by appellant at the time of delivery - Undated Panchnama not proved in accordance with law - Appellant did not specify the cost of purchase and also not established prevailing market price - No evidence as to how many pieces of lemon were in each consignment - Order dismissing claim of appellant proper - Appeal dismissed : Krishna Kumar Sethi Vs. Union of India, I.L.R. (2009) M.P. 2376 Rajya Suraksha Adhiniyam, M.P., 1990 (4 of 1991) 675
Rajiv Gandhi Prodyogiki Vishwavidyalaya Bhopal Ordinance
- Clause 2.1 - See - M.P. Professional Examination Board Pre MCA and MET Rules, 2008, Rule 1.4.8 : Smriti Agarwal (Ku.) Vs. M.P. Professional Examination Board, I.L.R. (2009) M.P. 747 (DB) Rajya Anusuchit Jati Ayog Adhiniyam, M.P., (25 of 1995)
- Section 9 - See - Constitution, Article 226 : S.K. Verma Vs. State of M.P., I.L.R. (2008) M.P. 1892 (DB)
- Sections 9 & 10 - Functions of Commission - Commission has not been constituted to act as a superior body or an adjudicating authority having judicial or quasi- judicial powers sitting over and above all departments of State Government - It has not been empowered to try and inquire into individual complaints like Civil Court, Disciplinary Authority or Trial Court - Cannot conduct trial or departmental enquiry - Cannot give finding as to guilt - Cannot direct authorities of State Government to take particular actions - Cannot enforce its orders and cannot call for compliance report - Appeal allowed : S.K. Verma Vs. State of M.P., I.L.R. (2008) M.P. 1892 (DB) Rajya Prashasnik Adhikaran (Lambit Evam Nirakrat Avedano Ka Antaran) Adhyadesh, M.P. 2003
- Rajya Prashasnik Adhikaran (Lambit Evam Nirakrat Avedano Ka Antaran) Adhyadesh, M.P. 2003 - See - Constitution, Article 14, 16 & 226 : Nandkishore Narolia Vs. State of M.P., I.L.R. (2008) M.P. 2591 Rajya Suraksha Adhiniyam, M.P., 1990 (4 of 1991)
- And Constitution of India, Article 19 (1) (d) - Externment - Order passed after recording statement of witnesses in camera - Petitioner's right to hearing - Does not include right to cross-examination of witnesses : Sanjay @ Oondar Vs. State of M. P., I.L.R. (2006) M.P. 46
- Sections 3(2), 5 & 6 - Externment - Opportunity of hearing - Show cause notice issued to petitioner who filed his Vakalatnama - But, no one appeared for petitioner and statements of witnesses were recorded in his absence - Notice sent to petitioner to show cause as to why an order of externment be not passed - After considering reply of petitioner order of externment was passed - Held - No substance in the claim that there was no fair trial and petitioner was not afforded any opportunity of hearing : Bhola Vs. State of M.P., I.L.R. (2009) M.P. 377 Rajya Suraksha Adhiniyam, M.P., 1990 (4 of 1991) 676
- Section 5 - Externment - Petitioner was indicted and externed for one year from the district - Held - Merely because in past the petitioner has admittedly paid fine in the cases under Public Gambling Act, 1867 and that cases u/ss. 107, 116(3) of Cr.P.C., registered against the petitioner the same cannot be the basis for drawing a nexus with the case which is registered against the petitioner - Petition allowed and externment order quashed : Balbir @ Bunty Vs. State of M.P., I.L.R. (2010) M.P. Note *76
- Section 5 - Order of externment - Delay of more than 2 years in passing order - Held - Delay establishes that the order of externment was not warranted during the said period : Naresh Bilwar Vs. State of M.P., I.L.R. (2009) M.P. 2173
- Section 5 - Order of externment - Order passed on the basis of old and stale cases in which petitioner was already acquitted - Held - There was no material before the District Magistrate which could satisfy the condition mentioned in Section - Order of externment set-aside - Petition allowed : Naresh Bilwar Vs. State of M.P., I.L.R. (2009) M.P. 2173
- Section 5(b) - Removal of person about to commit offence - Externment - Ingredients when not attracted - Held - If a person was engaged in commission of offence or in abetment of an offence of type mentioned in S. 5(b), several years or several months back, there cannot be any reasonable ground for believing that the person is engaged or is about to be engaged in commission of such offence : Ashok Kumar Patel Vs. State of M.P., I.L.R. (2009) M.P. 3090 (DB)
- Section 5(b) - Removal of person about to commit offence - Externment - Ingredients when not attracted - In absence of any existence of material to show that witnesses are not coming forward by a reason of apprehension to danger to their person or property to give evidence against the concerned person in respect of alleged offences, an order u/s 5(b) of the Act cannot be passed by District Magistrate by merely repeating the language of S. 5(b) of the Act : Ashok Kumar Patel Vs. State of M.P., I.L.R. (2009) M.P. 3090 (DB)
- Sections 5(b) 6(a) - Externment - Statements of witnesses recorded but no order passed for more than 2 years - On the second report of S.P., order of externment passed - Held - Nothing on record to show that how and who requisitioned second report from S.P. - Nothing to show that why order of externment was withheld for more than 2 years - Nothing on record to suggest any subsequent event providing basis for externment - Inaction for more than 2 years suggests order of externment was not warranted - Petitioner also acquitted in most of the cases - Subjective satisfaction vitiated due to non application of mind - Order of externment quashed : Dharmendra Singh Vs. State of M.P., I.L.R. (2007) M.P. 746 Rajya Suraksha Adhiniyam, M.P., 1990 (4 of 1991) 677
- Section 6(c) [As amended w.e.f. 05.09.2006], Public Gambling Act, 1867, Section 4-A - Order of externment on the ground of involvement in gaming activities and repeated conviction u/s 4-A of Act, 1867 between 2004 and 2008 - Held - S. 4-A of Act, 1867 inserted in its application to State of M.P. w.e.f. 05.09.2006 by M.P. Rajya Suraksha (Sanshodhan) Adhiniyam, 2006 - Petitioner was convicted thrice u/s 4-A of Act, 1867 in the year 2004 and despite that continued his gaming operation and convicted in year 2007 and 2008 - District Magistrate did not commit any illegality in considering the conviction in respect of cases prior to 2006 while passing order of externment - Petition dismissed : Sunil @ Sannu Vs. State of M.P., I.L.R. (2010) M.P. 1574
- Section 6(c) [as amended w.e.f. 05.09.2006] - Externment - Whether bar contained in Article 20 of Constitution of India would bar action to be taken on past conduct and whether such action would tantamount to retrospective operation of statute - Petitioner convicted for five times u/s 4A of Public Gambling Act, 1867 between the period 1997-2000 - Section 6(c) of Adhiniyam 1990 amended in the year 2006 - Held - Penal statute which create disabilities and authorize some action based on past conduct may be interpreted retrospectively - Consideration of conviction of petitioner prior to amendment - Cannot be said that Section 6 of Adhiniyam 1990 as it existed after amendment has been applied retrospectively - Petition dismissed : Bhola Vs. State of M.P., I.L.R. (2009) M.P. 377
- Section 8 - Externment - Natural Justice - While passing an order under the provisions of Adhiniyam, the District Magistrate must have to provide all the material documents including the statements of witnesses examined in the matter to the person concerned : Ravindra Singh Sikarwar Vs. State of M.P., I.L.R. (2010) M.P. 86
- Section 8 - Petitioner served with show cause notice of externment on the basis of report of police - In the proceeding, the District Magistrate after preponing the date of hearing and without informing the petitioner of preponed date examined the independent witnesses and fixed the case for final decision - Held - Right of hearing to arrive at a finding that the stay of petitioner would not be in larger public interest - Right of hearing under the Act can not be stretched to cross-examine witnesses, otherwise, the very purpose of the Act to provide security and maintenance of public order would be defeated - Noticee under the Act has no right to cross-examination - Petition dismissed : Guddu @ Amit Sahu Vs. State of M.P., I.L.R. (2009) M.P. 1917
- Section 29 - Delegation of powers - Competence to delegate - Externment - Held - The State Government alone can delegate the power as contemplated u/s 13 - Such delegation of power cannot be in favour of a person who is below the rank of a District Magistrate - If there is exercise of the delegated powers by the State Government the delegation of same cannot be to an officer below the rank of a District Magistrate - The District Magistrate cannot further delegate the power of passing order of Reference made by Division Bench to Full Bench 678 externment - The order of externment passed by Additional District Magistrate quashed : Ratichand Vs. State of M.P., I.L.R. (2010) M.P. 1936 Rani Durgawati Vishwavidyalay
- Ordinance No.6, 7 & 8 - Revaluation of answer books - The average of marks awarded by two of the examiners, the original examiner and the two revaluers and nearest to each other will be taken to represent correct valuation - Any other interpretation of clause would cause violence to the language and it would usher in different meaning which is not intended - Petition dismissed : Dharamdas Vs. Rani Durgawati V.V., Jabalpur, I.L.R. (2009) M.P. 639 (DB) Recovery of Debts Due to Banks and Financial Institutions Act (51 of 1993)
- Section 22(2)(e), Debts Recovery Tribunal (Procedure) Rules, 1993, Rule 5A - Review - Respondent Bank filed application for review of order passed by Appellate Tribunal along with application for condonation of delay - Appellate Authority not only condoned delay but reopened the original ex parte order - Appellate Authority has taken into consideration certain documents which were not filed in original suit and before DRT - Appellate Tribunal has taken into consideration the award of arbitration which was passed after the order of DRT - Held - Power of review can be exercised by the Tribunal and Appellate Tribunal in the same manner as are vested in civil courts under CPC while trying suits - Order of review is arbitrary and de hors the provisions - Order set-aside - Petition allowed : Suresh Sharma Vs. Punjab & Sindh Bank, I.L.R. (2010) M.P. 1371 (DB) Redressal of Public Grievances Rules, 1998
- Ombudsman - Is only a non-adversarial adjudicator of disputes - Finding given by the insurance ombudsman will not come in the way of petitioner in case petitioner approaches any other forum for redressal of his grievance : Veerpal Singh Gurjar Vs. Insurance Ombudsman for M.P. & Chhattisgarh, I.L.R. (2008) M.P. 1155 Reference made by Division Bench to Full Bench
- Full Bench declined to answer the reference on the ground that when the question under reference was not involved before the referring Bench, it need not be answered : Director General, Indian Council of Medical Research, New Delhi Vs. Dr. S.C. Dixit, I.L.R. (2007) M.P. 1293 (FB) Registration Act (16 of 1908) 679
Registration Act (16 of 1908)
- Section 17 - Where there is an oral partition of the ancestral property, a subsequent memorandum embodying the factum of partition would not require registration : Prahlad Vs. Shiv Nandan Kumari (Dead) Through L.Rs., I.L.R. (2010) M.P. 2441 (SC)
- Section 17 - See - Transfer of Property Act, 1882, Section 107 : Balvant Rai Agrawal Vs. Bharat Petroleum Corporation, I.L.R. (2010) M.P. 646
- Section 17 - See - Transfer of Property Act, 1882, Section 53-A : Champat Giri Vs. Ramdayal, I.L.R. (2009) M.P. 2630
- Section 17 - Instrument is an unregistered agreement of sale which, as per stipulations contained u/s 17 of the Act requires a compulsory registration and unless the document is compulsory registered the same cannot be taken on evidence in any manner : Narbada Prasad Agrawal Vs. Tarun Bhawasar, I.L.R. (2009) M.P. 1255
- Section 17 - Registration of Partition deed - Instrument effecting partition in presenti - Not admissible in evidence being un-registered document : Mohammad Nisar Vs. Rajesh Kumar, I.L.R. (2007) M.P. 623
- Section 17 - Requirement of registration of gift-deed - There is no such law that valid gift can only be made by registered deed - Gift under Mohammedan law is not compulsorily registerable : Riyaz Khan Vs. Smt. Rashida Begum, I.L.R. (2006) M.P. 1648
- Section 17(2)(i) - Whether family settlement requires registration - Held - A former oral partition was amongst the family members in metes and bounds and respective members were placed in possession - Therefore, the document did not evidence any partition by metes and bounds - But is a mere recital of former oral partition - Registration not required - Petition dismissed : Chandra Prakash Soni Vs. Dwarka Prasad Soni, I.L.R. (2009) M.P. 370
- Sections 17 & 49 - Unregistered & unexecuted sale deed - When document has not been executed by all the sellers - Document could not be presented for registration - Ss. 17 & 49 not applicable : Narbada Prasad Vs. Manik Darbar, I.L.R. (2010) M.P. 595 (DB)
- Sections 17 (b), 49 - Admissibility of Unregistered relinquishment deed - Unregistered relinquishment deed in respect of immovable property is inadmissible in evidence - Admission in unregistered document which amounted to declaration of title in the property could not be used in evidence : Ghasitibai Vs. Ramgopal Singh, I.L.R. (2008) M.P. 872 Reorganization Act, M.P. (XX of 2000) 680
- Section 32 (c) - Registered Power of Attorney - If Power of Attorney is executed by a registered document, for its cancellation, registered document is required - Intimation of its revocation by serving notice is not a proper one : Bhivji through LRs. Vs. Rajesh, I.L.R. (2008) M.P. 1199
- Section 49 - See - Rewa State Registration Act, 1917, Section 21 : Rajendra Kumar Khandelwal Vs. Smt. Rajkumari Khandelwal, I.L.R. (2009) M.P. 424 (DB) Registration of Births and Deaths Act (18 of 1969)
- Section 8, Municipalities Act, M.P. 1961, Sections 307 & 308 - Death Certificate - Appellate Authority - Additional Collector can not entertain an appeal against a death certificate issued in accordance with the Act of 1969 - The Additional Collector apparently exceeded his jurisdiction while entertaining an appeal against the issuance of death certificate : Shyam Murari Sharma Vs. Additional Commissioner, Sagar Division, I.L.R. (2010) M.P. Note *92 Regularization of Ad hoc Appointment Rules, M.P. 1986
- Rule 12 - See - Service Law : Dwarka Das Mahajan Vs. State of M.P., I.L.R. (2009) M.P. 67 Regulations of Medical Council of India, 2000
- Clauses 3, 7 & Note (a) - See - Constitution, Article 226 : Muniraj Patel Vs. State of M.P., I.L.R. (2008) M.P. 1377 (DB) Reorganization Act, M.P. (XX of 2000)
- Section 67(4), Indian Administrative Service (Cadre) Rules, 1954, Rule 5 - Allocation - Petitioner an I.A.S. officer working on the post of Additional Commissioner allocated to State of Chhattisgarh - Allocation challenged on the ground that - Transfer is against govt. memorandum of keeping spouses posted at one station - Petitioner claiming that her husband posted in M.P. as Bank manager, can never be transferred to Chhattisgarh - Further, Petitioner has been discriminated as representations of other persons were accepted by Govt. and have been allowed to work in State of Madhya Pradesh - Held - Consideration of hardship of one employee in comparison to other employee can never be a question of discrimination - Rejection of representation not arbitrary or discriminatory - Husband can apply for his transfer to nearest station State where Petitioner is posted - Without rejection of any such application it cannot be said that husband cannot be transfered to Chhattisgarh - Petition dismissed : Smt. M. Geeta Vs. Union of India, I.L.R. (2007) M.P. 511 (DB) Representation of the People Act (43 of 1951) 681
- Section 68 - Allocation - Employees getting Kramonnati forming separate group as per notification dated 22.03.2001 - Circular dated 26.12.2001 issued by State Government making provision that only those employees will be included in Kramonnati Pay Scale whose orders have been issued prior to publication of Tentative Final Allocation List - Held - Government servants getting Kramonnati Pay Scale forms separate group - It was incumbent on Government to have harmonized Clause 6(4) and (5) instead further classify by picking up separate cut off date - State Government was not justified in carving out a separate rule by introducing new cut off date vide its circular dated 26.12.2001 - Does not satisfy principle of equality enshrined under Article 14 of Constitution - Allocation of appellants to Chhatisgarh quashed - Appeal allowed : R.S. Chourasiya Vs. Union of India, I.L.R. (2008) M.P. 2802 (DB)
- Section 72 - See - Constitution, Articles 14, 16, 21, 226, 227, 257, 323-A, 323-B : Vinay Shukla Vs. State of M.P., I.L.R. (2008) M.P. 2898 Representation of the People Act (43 of 1951)
- Section 20 - See - Constitution (Scheduled Caste) Order, 1950, Clause 2 & Entry 22 : Rashmi Khedle (Kumari) Vs. State of M.P., I.L.R. (2009) M.P. 2563
- Section 28A - Order of suspension and disciplinary action issued by Commissioner (Admn) during election duty of petitioner - Held - Any person appointed to conduct election shall be on deputation to Election Commission for period commencing on and from the date of notification calling for such election and ending with the date of declaration of result - During the period, the officer shall be subject to control, superintendence and discipline of Election Commission - Order of suspension by Commissioner (Admn) during that period is not permissible - Petition allowed : K.P.Dubey Vs. State of M.P., I.L.R. (2010) M.P. 1301
- Section 28-A - See - Civil Services (Classification, Control & Appeal) Rules, M.P. 1966, Rule 9 : S.K. Tripathi Vs. State of M.P., I.L.R. (2009) M.P. 2567
- Sections 36, 80 & 100, Constitution, Articles 226 & 329 - Rejection of nomination paper - Writ Petition - Maintainability - Rejection or acceptance of nomination papers has to be taken as a part of election process - Remedy available to appellant is to challenge the election of returned candidate in an election petition - When statutory remedy, albeit, an urgent one is available, irrefragably, disputed questions of facts are involved, and hence, it can be said with certitude that a petition under Article 226 of Constitution should not be entertained : Jaswant Singh Vs. Chief Election Commission, New Delhi, I.L.R. (2009) M.P. 946 (DB) Representation of the People Act (43 of 1951) 682
- Sections 80 & 100 - Rejection of nomination paper by Returning Officer - Held - Act provides the improper rejection of nomination paper as a ground for challenging the election in election petition - Writ petition can not be filed : Jaswant Singh Vs. Chief Election Commission, I.L.R. (2009) M.P. 717
- Sections 80-A, 81, 83, 100, 123(1) - Corrupt Practice - Petitioner and first respondent contested election for Lok Sabha - First respondent declared elected - Election challenged by filing election petition on the ground of corrupt practice alleging distribution of liquor and money based upon information received from residents of villages - Preliminary Objection raised by First Respondent on the ground that election petition lacks material particulars - Held - Election Petition alleging corrupt practice must set forth full particulars of any corrupt practice including full statement of names of parties alleged to have committed such corrupt practice, date and place of commission of such practice - It is not duty of Court to direct furnishing of better particulars when objection is raised - Averments made in election petition in regard to corrupt practice are vague and cannot be said to be fulfilling requirement of Section 83(1) of the Act - Election Petition dismissed : Kankar Munjare Vs. Gaurishanker, I.L.R. (2007) M.P. 1636
- Section 81(3) - Illegibility or incompleteness in the matter of verification is not substantial defect, more so, on account of having been cured by supplying a fresh copy causing no prejudice : Rajendra Bharti Vs. Narottam Mishra, I.L.R. (2010) M.P. 1132
- Section 81(3) - In case of substantial compliance of S. 81(3) of the Act, dismissal of Election Petition at the threshold is not justified : Rajendra Bharti Vs. Narottam Mishra, I.L.R. (2010) M.P. 1132
- Section 81(3) - Preliminary objections not going to the root of the case and the respondent having not been mislead or prejudiced in any manner - More so, in view of substantial compliance, preliminary objections are not liable to be accepted - Petition dismissed : Rajendra Bharti Vs. Narottam Mishra, I.L.R. (2010) M.P. 1132
- Section 81(3) - Preliminary objection of respondent that copy served on the respondent is not attested as true copy and the same being in violation of S. 81(3) of the Act, the election petition is liable to be dismissed u/s 86(1) of the Act - Held - In the absence of complete & total non-compliance of S. 81(3) of the Act, Election Petition cannot be legally dismissed in limine : Rajendra Bharti Vs. Narottam Mishra, I.L.R. (2010) M.P. 1132
- Section 81(3) - There should not be variation in the true copy which may mislead or caused prejudice to the respondent : Rajendra Bharti Vs. Narottam Mishra, I.L.R. (2010) M.P. 1132 Representation of the People Act (43 of 1951) 683
- Section 81(3) - Attested copies - Copy of election petition supplied to respondent neither attested nor verified as true copy by petitioner - Report of Registry as to checking of election petition raises presumption though rebuttable that the copy of petition filed by petitioner was a true copy - Copy supplied to respondent was photo copy of petition and cannot be considered as sufficient to mislead a reasonably prudent person in meeting the allegations made therein or prejudicing his defence - Objection not sustainable : Sahab Singh Patel Vs. Smt. Shashi Prabha, I.L.R. (2009) M.P. 455
- Section 81(3) - Attested copies - Objection raised after period of 1 month and 8 days - Non-compliance of Section 81(3) does not assume any significance : Sahab Singh Patel Vs. Smt. Shashi Prabha, I.L.R. (2009) M.P. 455
- Section 83(1) - Contents of petition - Affidavit - Where petitioner alleges corrupt practice, the petition shall be accompanied by an affidavit - It does not say that allegation of corrupt practice and particulars thereof should be given in affidavit - Affidavit cannot be termed to be defective : Sahab Singh Patel Vs. Smt. Shashi Prabha, I.L.R. (2009) M.P. 455
- Section 83 (1) (a) - Contents of Petition - Cause of action - Explained - Held - Cause of action in an Election Petition cannot be equated with cause of action as normally understood because of different nature of consequence that follow-A election petition challenging on the ground of corrupt practice is a serious matter and if the allegations is proved the returned candidate suffers disqualification : Shriniwas Tiwari Vs. Rajkumar Urmalia, I.L.R. (2010) M.P. 1761
- Section 83(1)(a) - Contents of Petition - Non disclosure of Cause of action - The written statement filed on the allegation of corrupt practices - Application for rejection of plaint made for non disclosure of cause of action - Held - It is not a case where the defendant may complain that the allegations are so vague that prejudice would have caused in filing written statement - The petition discloses cause of action : Shriniwas Tiwari Vs. Rajkumar Urmalia, I.L.R. (2010) M.P. 1761
- Sections 83 & 86, Civil Procedure Code, 1908, Order 7 Rule 11(a) - Rejection of election petition for want of cause of action - Election petition not disclosing the source of information of corrupt practices and such allegations were not verified - Effect - Held - Accordingly, in the case on hand, where neither the verification in the petition nor the affidavit gives any indication of the sources of information of the petitioner as to the facts stated in the petition which are not to his knowledge and the petitioner persists that the verification is correct and affidavit in the form prescribed does not suffer from any defect, the allegations of corrupt practices cannot be inquired and tried at all : Shushil Kumar Khatri Vs. Sartaj Singh, I.L.R. (2010) M.P. 204 Representation of the People Act (43 of 1951) 684
- Section 86, Civil Procedure Code, 1908, Order 7 Rule 11 - Election Petition - Non-disclosure of cause of action - Election challenged on the ground of correctness and authenticity of counting carried out by means of EVMs - Petitioner is under obligation to demonstrate as to how EVMs could be tempered with to get desired result - No expert opinion placed on record regarding chances of misalignment of EVMs - Even if the averments made in Election Petition are taken at their face value and are accepted in entirety, no triable issue between the parties would arise in absence of complete, precise and specific pleading in respect of alleged irregularities in counting of votes through EVMs - Petition rejected : Mukesh Nayak Vs. Brijendra Pratap Singh, I.L.R. (2010) M.P. 420
- Section 87, Civil Procedure Code, 1908, Order 17 - It is well settled - The provisions of Order 17 of the Code are applicable to an election petition : Rajkumar Patel Vs. Shivraj Singh Chauhan, I.L.R. (2009) M.P. 3063
- Section 87 - See - Civil Procedure Code, 1908, Order 6 Rule 17 : Rampal Singh Vs. Devendra Patel, I.L.R. (2009) M.P. 2915
- Section 100(1)(a) - Grounds for declaring election to be void - 'Office of Profit' - Meaning - Explained - Held - If a profit does actually accrue from an office, it is an 'office of profit', no matter how it accrues - An office of profit is an office, which is capable of yielding a profit that means any pecuniary gain : Tarun Sharma Vs. Vishwas Sarang, I.L.R. (2010) M.P. Note *38
- Section 123 - Corrupt practice - Petitioner quoted certain instances of violation of Code of Conduct by various compaigners canvassing in favour of respondent - Deficiency of particulars as to consent of returned candidate or his election agent may be allowed to be amended or amplified : Sahab Singh Patel Vs. Smt. Shashi Prabha, I.L.R. (2009) M.P. 455 Revenue Book Circular, M.P.
- Section 18 - See - Constitution, Article 226 : State of M.P. Vs. Nerbudda Valley Refrigerated Products Company Pvt. Ltd., I.L.R. (2010) M.P. 1858 (SC)
- Rule 31, Section IV, Sr.No.1 - See - Constitution, Article 226 : Kuldeep Singh Punjabi Vs. State of M.P., I.L.R. (2010) M.P. 2068
- Part VI, Para 4, Clause (7) - Natural calamity - Petitioner's son died of drowning - Claimed compensation under the Revenue Book Circular - Held - Financial assistance under the RBC is available only in the case of loss, damage or death on account of the natural calamity like heavy rains, hail, cold wave, loss caused by insect, flood, storm, Right to Information (Regulation of Fee and Cost) Rules, 2005 685 earth quake and fire - Petitioner's son not died as a result of natural calamity - Application rightly rejected : Badri Nath Vs. State of M.P., I.L.R. (2009) M.P. Note *39 Revenue Recovery Act (1 of 1890)
- Section 5 - To invoke the provisions of Section 5, the Collector was required to satisfy himself that a sum was recoverable as arrears of land revenue and the authority who approached to the Collector was empowered to make such a request to the Collector and after satisfying with the aforesaid requirement of law only then the Collector was empowered to issue RRC and not otherwise : Harcharan Rajpali Vs. The Collector, Tikamgarh, I.L.R. (2008) M.P. 1702 Revision of Pay Rules M.P. 1990
- Rule 7(1) - Govt. servant gets benefits of two advance increments when pay is fixed in revised scale above pre-fixation emoluments - Once pay is fixed in accordance with Sub-Rule (1) of Rule 7, Government Servant cannot claim any further benefit in the event of his promotion or payment of higher scale of pay : State of M.P. Vs. R.K. Chaturvedi, I.L.R. (2006) M.P. 655 (FB) Rewa State Registration Act 1917
- Section 21, Registration Act, 1908, Section 49 - Effect of non-registration of document - Section 21 of Act 1917 provides that document which is required to be compulsorily registered cannot be received in evidence with respect to the property in any of litigation - No provision made for its admissibility for collateral purposes - Unregistered partition deed executed in 1934 cannot be received in evidence even for collateral purposes in view of Section 21 of Act, 1917 : Rajendra Kumar Khandelwal Vs. Smt. Rajkumari Khandelwal, I.L.R. (2009) M.P. 424 (DB)
- Section 21, Registration Act, 1908, Section 49, Merged States (Laws) Act, 1949, Sections 5 & 6 - Repeal - Repeal by Section 5 of any corresponding law in force in the new Provinces or merged States immediately before the commencement of this Act shall not affect the previous operation of any such law - Partition deed executed on 01.01.1934 - Provisions of Act, 1917 will be applicable and not provisions of Act, 1908 : Rajendra Kumar Khandelwal Vs. Smt. Rajkumari Khandelwal, I.L.R. (2009) M.P. 424 (DB) Right to Information (Regulation of Fee and Cost) Rules, 2005
- Rules 2(e), 4 - See - Right to Information Act, 2005, Section 6 : Amar Chand Bawaria Vs. Union of India, I.L.R. (2008) M.P. 3132 Right to Information Act (22 of 2005) 686
Right to Information Act (22 of 2005)
- Section 6, Right to Information (Regulation of Fee and Cost) Rules, 2005, Rules 2(e), 4 - Competent Authority - Cantonment Board prescribed rates for issue of information and copies under R.T.I. Act by passing resolution - Held - Cantonment Board is not a Competent Authority as defined under Rule 2(e) of Rules, 2005 - Resolution prescribing rates beyond powers and had no legal sanctity - Board directed to refund the money received by them in excess of fee liable to paid according to Rules, 2005 to the persons who deposited the money - Petition allowed : Amar Chand Bawaria Vs. Union of India, I.L.R. (2008) M.P. 3132
- Section 8(1) - Exemption from disclosure of information - Department claiming exemption u/s 8(1) from disclosure of information regarding materials forming the basis for issuance of the charge-sheet and initiation of a D.E. - Held - A Govt. Servant have an access to the material forming basis of the charges and initiation of D.E., which can be utilized for his defence - It cannot be presumed that the D.E. gets impeded : Union of India Vs. Central Information Commissioner, I.L.R. (2009) M.P. 2824
- Section 8(1)(e) - Exemption from disclosure of information - Disclosure of vigilance investigation report - Department claiming exemption on the basis of fiduciary relationship - Held - Vigilance Department is not a private secrete service but an establishment operating under the rules - It, therefore, cannot be said that a fiduciary relationship exist between the Vigilance Department and other department of Union of India as would deprive an employee, who has been subjected to a D.E. on the basis of Vigilance Department's investigation report, to have an access to the information or the record : Union of India Vs. Central Information Commissioner, I.L.R. (2009) M.P. 2825
- Section 8(1)(g) - Exemption from disclosure of information - Department claiming exemption on the basis that the disclosure of information sought for would endanger the life or physical safety of person associated with the investigation - Held - No such material is brought on record to justify the averments - Since the investigation report forms the basis of initiation of a D.E. - It cannot be presumed that the report was submitted for law enforcement or for the security purposes : Union of India Vs. Central Information Commissioner, I.L.R. (2009) M.P. 2824
- Section 8(1)(h) - Exemption from disclosure of information - Department claiming exemption on the basis that grant of information would impede the powers of investigation or apprehension on prosecution of offenders and being the basic document on which charges were framed, will affect the prosecution - Held - There is no chance for impeding of process of investigation as apprehended, because already a charge-sheet has been framed and the D.E. is initiated : Union of India Vs. Central Information Commissioner, I.L.R. (2009) M.P. 2824 Rural Banks Act, 1976 687
- Section 11 - Third party information - Access to personal service books - Entitlement - Held - The respondents were right in declining the right of the petitioner to have access to certified copy of the service record and personal record of third party - Petition dismissed : Srikant Pandey Vs. State of M.P., I.L.R. (2010) M.P. 2473
- Section 20 - See - Constitution, Article 226 : Lajjaram Pandey Vs. M.P. State Information Commission, I.L.R. (2010) M.P. 2064 Rules of Legal Education, 2008
- Rule 28 - Age on admission - Common Law Admission Test - Age relaxation - No age relaxation given to OBC candidates - Held - CLAT has aimed high degree of professional commitment by catching the students immediately after passing 12th examination as normally the students clear the 12th exams at the age of 17-18 years and for maintaining the discipline in the college decision has been taken in public interest - It is not violative of Rule 28 : Smriti Patel Vs. State of M.P., I.L.R. (2010) M.P. Note *37 (DB)
- Rule 28 - Age on admission - Common Law Admission Test - Age relaxation - No age relaxation given to OBC candidates - Held - The Bar Council of India has not intended to supersede the condition stipulated by the university aiming for high degree of professional commitment - It has prescribed the maximum age - Criterion laid down by the CLAT cannot be said to adversely impinged upon the standard prescribed by the Bar Council of India : Smriti Patel Vs. State of M.P., I.L.R. (2010) M.P. Note *37 (DB) Rules of the Road Regulations, 1989
- Rules 8 & 9 - See - Motor Vehicles Act, 1988, Section 166 : Usha (Smt.) Vs. Rajesh, I.L.R. (2009) M.P. 1390
- Rule 20(3), (4) - See - Motor Vehicles Act, 1988, Section 166 : Meera (Smt.) Vs. Jolly Road Lines, I.L.R. (2008) M.P. 3273 (DB) Rural Banks Act, 1976
- Sections 17, 29 and Regional Rural Banks (Appointment & Promotion of Officers, and other Employees)-Rules, 1988 - Service Law - Promotion - Where procedure adopted does not provide minimum standard for promotion, selection with reference to comparative marks is contrary to the rule of 'seniority-cum-merit' : Harigovind Yadav Vs. Rewa Sidhi Gramin Bank, I.L.R. (2006) M.P. 931 (SC) Sahkari Bhumi Vikas Bank Adhiniyam, M.P., (28 of 1966) 688
S.A.F. Rules, M.P. 1973
- Rule 26 - Probation - Rule 26 provides that services of probationer can be brought to an end if in opinion of appointing authority there is no likelihood of such person becoming suitable officer - No such finding in the cancellation order of appointment - Order not sustainable - Petition allowed : Kadir Khan Vs. State of M.P., I.L.R. (2008) M.P. 1375 Sah Chikitsa Parishad Adhiniyam, M.P. 2000
- Sections 2(b)(i), 2(c), 2(d), 26, 28, Criminal Procedure Code, 1974, Section 133 - Petitioner running pathological laboratory - Prohibitory order under Section 133 Cr.P.C. passed restraining petitioner from running lab as she did not possess recognized qualifications - Chief Medical and Health Officer directed to close the laboratory forthwith - Order of CMHO challenged by filing writ petition - Petitioner claimed to have diploma in Medical Laboratory Technology issued by Institute of Continuing Medical and Career Making Education, Mumbai - CMHO recalled the order of closure during the pendency of petition on the certificate of Doctor that petitioner is working under his guidance - Doctor issuing certificate admitted in his statement before High Court that he was not working in Laboratory prior to issue of certificate by him and permission granted by CMHO - Held - Nothing on record to show that ICME, Mumbai has been recognized by State Govt. - Doubtful whether petitioner can obtain instructions of diploma training by attending practical classes on each Sunday at Mumbai - DMLT is laboratory technicians qualification and cannot practice as pathologist or run clinical pathology laboratory independently - CMHO before recalling order did not verify that Doctor who had issued certificate is working in laboratory - Doctor also admitting that he use to visit laboratory only twice or thrice a week - Pathologist must attend the laboratory regularly and must get test performed under his supervision and only then he can sign the report - CHMO must mention in permission that laboratory is equipped for which kind of test and only such tests can be performed in laboratory - Laboratory cannot be allowed to be run by unqualified person - Laboratory technician can work in established laboratory which is to be run by pathologist and not vice versa - Directions issued : Smt. Kamla Patel Vs. State of M.P., I.L.R. (2007) M.P. 1086 Sahkari Bhumi Vikas Bank Adhiniyam, M.P., (28 of 1966)
- Sections 27, 64 & 82 - See - Civil Procedure Code, 1908, Section 9 : Sitaram Vs. Cooperative Bhumi Vikas (Land Mortgage) Bank Ltd, Khandwa, I.L.R. (2009) M.P. 1707 Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (33 of 1989) 689
Sahkari Krishi Aur Gramin Vikas Bank Adhiniyam, M.P., 1999 (20 of 2000)
- Section 50(2), Penal Code, 1860, Sections 52, 294, 452, 392, 500, 506 r/w 34, General Clauses Act, 1897, Section 3 Clause 22 - Good Faith - Defined & Explained - Without serving the notice on non-applicants and in pressing them to pay the entire amount on the same date and taking the steps to recover such amount forcibly can not be said to be justified. Apart from this, committing house trespass, abusing filthy languages, criminally intimidating, insulting and lowering down the prestige of the non-applicants can not be said to be done in good faith and can not form the part of their duties : Arvind Kumar Bhargava Vs. Lalit Parashar, I.L.R. (2008) M.P. 2471
- Section 50(2), Penal Code, 1860, Sections 294, 452, 392, 500, 506 r/w Section 34, Criminal Procedure Code, 1973 Sections 190 & 197 - Applicants working in Shakari Bank seeking quashment of criminal proceedings on the ground of protection given u/s 197(1) Cr.P.C. - Held - The applicants are not removable by the Government, therefore, protection given u/s 197(1) Cr.P.C. is not available to them - Petition dismissed : Arvind Kumar Bhargava Vs. Lalit Parashar, I.L.R. (2008) M.P. 2471 Sales of Goods Act, (III of 1930)
- Section 64-A - Subsequent variation of rate of tax - Intimation given for modification in terms of purchase order - Dispute arose and bills withheld - Material available with supplier - Inaction on part of appellant to settle the dispute - Respondent entitled to be compensated : Hindustan Copper Ltd. Vs. M/s United Forgings, I.L.R. (2006) M.P. 252(DB) Samaj Ke Kamjor Vargon Ki Krishi Bhumi Hadapane Sambandhi Kuchakron Se Paritran Tatha Mukti Adhiniyam, M.P. (3 of 1976)
- Section 2(c)(d)(f) - Prohibited Transaction of Loan - Appellants having purchased the lands in dispute in Court Auction - No material before S.D.O., Collector or High Court to show that appellants had any role to play in Court auction or that they were responsible for non-payment of revenue for which court auctions were held - Adhiniyam has clearly no application to the facts of case - Claim made by respondent no.1 dismissed - Appeal allowed : Baboolal Sharda Vs. Savitribai, I.L.R. (2008) M.P. 993 (SC) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (33 of 1989)
- Section 3(1)(v) - Interference with enjoyment of rights over any land - Appellant caused his cattle to enter upon fields of complainant and caused damage to crop and Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (33 of 1989) 690 field - Held - The damage was not caused on account of complainant being member of Scheduled Caste - Conviction of appellant under Section 3(1)(v) of Act not proper - Appellant acquitted for offence under Section 3(1)(v) of Act - Appeal partly allowed : Jagannath Vs. State of M.P., I.L.R. (2008) M.P. 162
- Section 3(1)(ix), Criminal Procedure Code, 1974, Section 154 - Delay in lodging F.I.R - Prosecutrix a girl aged about 10 years was going from Bhopal to Patan along with her parents - They alighted at Jharkheda to change bus - Father sat near a hotel and girl also went there - Appellant went there and caused her to sit in his lap - Appellant inserted his finger in her vagina - Girl and her parents proceeded to Patan to attend marriage - Lodged F.I.R. after returning therefrom - Held - Delay in lodging F.I.R. has been properly explained by prosecution - It cannot be said that appellant has been falsely implicated - Girl is not resident of Jharkheda - No reason to implicate appellant falsely - Appeal Dismissed : D.N. Bharthare Vs. State of M.P., I.L.R. (2008) M.P. 156
- Section 3(1)(x) - Calling by caste - Appellant said "Chamarawala garra raha hai" - Held - Calling a person by caste with intent to insult or humiliate in a place within public view is an offence u/s 3(1)(x) of Act - Appeal dismissed : Himmat Singh Vs. State of M.P., I.L.R. (2010) M.P. 503
- Section 3(1)(x), Evidence Act, 1872, Section 76 - Caste Certificate - Caste Certificate is not a public document - Prosecution bound to prove the same as other documents are proved in a criminal case : Mangal Singh Vs. State of M.P., I.L.R. (2009) M.P. 2671
- Section 3(1)(x) - Complainant and accused were unaware with each other before the incident - Caste of complainant was not known to accused - Incident took place at the house of accused - It was not in public view - Essential ingredients to prove offence u/s 3(1)(x) that insult or intimidation done with intent to humiliate a member of particular community not proved - Conviction and sentence set-aside - Appeal allowed : Kavindra Nath Thakur Vs. State of M.P., I.L.R. (2009) M.P. Note *15
- Section 3(1)(x) - Intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view - Applicants assaulted the complainant as he had lodged a police report against applicant in past - No nexus between commission of offence and caste of victim - Mere uttering the word 'Chamra' cannot be taken as sufficient for holding commission of offence - Order framing charge u/s 3(1)(x) set-aside - Revision allowed : Surendra Kaurav Vs. State of M.P., I.L.R. (2008) M.P. Note *83
- Section 3(i)(x) - Necessary ingredients for proving the offence - Trial Court is required to give positive finding on the question as to whether the accused/appellant has Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (33 of 1989) 691 been proved to be not a member of Scheduled Caste or Scheduled Tribe or not - Held - It is not proved that the appellant is not a member of scheduled caste or scheduled tribe and it is also not proved that word "Harijan Balai" was used by the appellant for the purpose of insulting or intimidating the complaint - Appeal Allowed - Conviction and sentence under Section 3(i)(x) of the S.C./S.T. Act set aside : Nanooram Vs. State of Madhya Pradesh, I.L.R. (2006) M.P. 1686
- Section 3(1)(xi) - See - Penal Code, 1860, Section 354 : Devi Prasad Vishwakarma Vs. State of M.P., I.L.R. (2009) M.P. 1140
- Section 3(1)(xi) - There is no iota of evidence that the appellant committed the offence knowing the complainant being a member of Scheduled Tribe - No offence made out u/s 3(1)(xi) : Devi Prasad Vishwakarma Vs. State of M.P., I.L.R. (2009) M.P. 1140
- Section 3(1)(xii), Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995, Rule 7 - Investigating Officer - Investigation to an offence u/s 3 of Act, 1989 by an officer not appointed in terms of Rule 7 is illegal : State of M.P. Vs. Chunnilal @ Chunni Singh, I.L.R. (2009) M.P. 1857 (SC)
- Section 3(1)(xii), Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995, Rule 7, Penal Code, 1860, Sections 376 & 506 - Investigating Officer - Order framing charge quashed by High Court on the ground that offence under Act, 1989 was not investigated by Dy.S.P., but by Sub-Inspector - Held - Offences complained are both under IPC and any of offence enumerated in Section 3 of Act, 1989 - Investigation made by competent police officer in accordance with provisions of Cr.P.C. cannot be quashed for non-investigation of offence u/s 3 of Act, 1989 by a competent police officer - Proceedings shall proceed in appropriate Court for offences punishable under IPC - Appeal allowed : State of M.P. Vs. Chunnilal @ Chunni Singh, I.L.R. (2009) M.P. 1857 (SC)
- Sections 3(1)(xii) & 3(2)(v), Dakaiti Aur Vyapharan Prabhavit Ksheshtra Adhiniyam, M.P., 1981 - Special Judge empowered under the Act of 1989 framed charge against NA-2 to 6 for the offence u/s 302/149 IPC along with offence u/s 3(2)(v) of the Act of 1989 and against NA-2 u/s 376(1) IPC r/w Section 3(2)(v) of the Act, 1989 - Charge u/s 395 & 396 of IPC r/w Section 11/13 of the Adhiniyam, 1981 not framed on the ground that a separate special court has been established to try such offence - Order challenged in revision before High Court - Held - Prima facie offence u/s 3(1)(xii) & 3(2)(v) are not made out - Revision partly allowed with the direction that charge-sheet be returned to Police for filing before Special Court established u/s 6 of the Adhiniyam of 1981 - That Court will consider whether any charge is made out or not : Mahesh Jatav Vs. State of M.P., I.L.R. (2008) M.P. 1834 Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 692
- Sections 3(1)(xii) & 3(2)(v) - Offence u/s 3(1)(xii) of Act of 1989 - When a women belonging to SC/ST if sexually exploited by such a person, who is not in a position to dominate her will and without such position that women is not expected to have otherwise agreed for such act - This offence is not made out if the rape is committed by using criminal force : Mahesh Jatav Vs. State of M.P., I.L.R. (2008) M.P. 1834
- Sections 3(2)(iv), 3(2)(v) - Section 3(2)(v) provides that a person who commits crime on ground that such person is a member of SC or ST, but these words are missing in Section 3(2)(iv) of Act - Requirement of knowledge of accused that victim is member of S.C. or S.T. is not in Section 3(2)(iv) - Court when record conviction U/s 3(2)(iv) has no discretion but to award sentence of life imprisonment : Bhupendra Vs. State of M.P., I.L.R. (2008) M.P. 950 (DB)
- Section 3(2)(v) - Offence u/s 3(2)(v) of the Act - Offence is not made out if the concerning offence under I.P.C. punishable with imprisonment for a term of 10 years or more against a person or property, on the ground that such person is a member of Scheduled Caste or Scheduled Tribe or such property belonging to such member : Mahesh Jatav Vs. State of M.P., I.L.R. (2008) M.P. 1834
- Section 4 - Criminal complaint filed by non-applicant discloses that atrocities began on 03.11.1987 - Act was not in force at the relevant time - Even if complaint is filed after coming into force of Act, it has got no retrospective effect - No cognizance could have been taken : Saubir Bhattacharya Vs. Jai Prakash Kori, I.L.R. (2008) M.P. 1849
- Section 18 - See - Criminal Procedure Code, 1973, Section 438 : Kapil Durgwani Vs. State of M.P., I.L.R. (2010) M.P. 2003 Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995
- Rule 7 - See - Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Section 3(1)(xii) : State of M.P. Vs. Chunnilal @ Chunni Singh, I.L.R. (2009) M.P. 1857 (SC)
- Rule 7 - Mandatory - Non-compliance will not vitiate entire trial but vitiate trial relating to offences under Atrocities Act, unless and until the offence under I.P.C. has nexus with the offences under Atrocities Act - Accused can take such objection at appellate stage also but has to satisfy Court that grave prejudice has been caused to him which has resulted in miscarriage of justice - If objection is taken at initial stage, Court can direct for reinvestigation : Bhagwan Singh Vs. State of M.P., I.L.R. (2008) M.P. 1514 Securitisation and Reconstruction of Financial Assets and Enforcement of Security 693 Interest Act (54 of 2002)
Scheduled Commodities Dealers (Licensing & restriction on Hoarding) Order, M.P., 1991
- Clause 2(e) - Dealer - Meaning - A person who is engaged in purchase of the food grains in the quantity which has been specified in schedule-I would be covered under the definition of dealer, even if milling activity is undertaken in partnership or on one's own account or in association with any other person or as a commission agent or Adhatiya, such a person is dealer : Larsen & Toubro Ltd. (M/s.) Vs. State of M.P., I.L.R. (2010) M.P. 1707 (DB)
- Clauses 2(e), (m) and 3 - Question whether Form B annexed to order is ultravires of clause 3 which provides for licensing of dealers only - Held - Producer and processor who are miller are also included in the definition of dealer in clause 2(e) of Order, 1991 - Form B cannot be said to be ultra vires : Larsen & Toubro Ltd. (M/s.) Vs. State of M.P., I.L.R. (2010) M.P. 1707 (DB)
- Clause 2(m) - Processor - Meaning - A person carrying on the business of milling or processing of scheduled commodities - Activity of milling is also covered in the word Processor : Larsen & Toubro Ltd. (M/s.) Vs. State of M.P., I.L.R. (2010) M.P. 1707 (DB)
Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (2 of 2007)
- Sections 3 & 4 - Claims be decided in accordance with provisions of Act and till then claimants would not be evicted from forest land under their occupation till the recognition and verification procedure is completed : Shamim Modi (Ms.) Vs. Ms. Sudha Chowdhary, District Collector Betul, I.L.R. (2009) M.P. 84 (DB)
Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (54 of 2002)
- Section 2(c) - Various debts owed to respondent No.1 are assigned to respondent No.3 which is a private bank - Held - Respondent No.3 is a banking company within the meaning of Section 2(c) - No prior notice is required before assignment of N.P.A. - No prohibition that one bank could not assign its debts together with underlying securities to another bank under guidelines of RBI dated 13.07.2005 - Respondent No.3 competent to take action - Petition dismissed : Paresh Spinners Ltd. Vs. State Bank of India, I.L.R. (2008) M.P. 2571
- Sections 2(f), (ha), (j), 11, 13(4), 17, 34, 37, Recover of Debts Due to Banks and Financial Institutions Act, 1993, Sections 1(4), 2(g) (o) (zd)(ze) (zf), 3(1), 17, Civil Securitisation and Reconstruction of Financial Assets and Enforcement of Security 694 Interest Act (54 of 2002)
Procedure Code, 1908, Order VII Rule 11 - Bar of Jurisdiction of Civil Court - Plaintiff purchased house from borrower for Rs. 8,27,000/- -Plaintiff/purchaser thereafter came to know that first floor portion was under mortgage and bank has taken action under Act, 2002 - Suit filed for declaration that plaintiffs are absolute purchaser - Defendant/ Bank filed application under Order VII Rule 11 C.P.C. contending suit as not maintainable - Held - Debt as defined in Section 2(ha) Act 1993 is not regulated by financial constraint - Section 13(4) of Act 2002 not applicable only to cases where amount of debt due is more than Rs. Ten Lacs - Section 17 of Act 2002 cause no fetter on power of D.R.T. to entertain application only in those cases were debt is above Rs. Ten Lacs - D.R.T. empowered to deal with matter under Section 17 of Act 2002 - Section 14 of Act 1993 cannot govern applicability of Act 2002 - Operation of Section 17 of Act 2002 is unfettered by amount of loan that has been taken - There is remedy of filing appeal/application under Section 17 of Act 2002 - Jurisdiction of Civil Court barred under Section 34 of Act 2002 - Appeal dismissed : Manoj Kumar Jain Vs. Corporation Bank, I.L.R. (2008) M.P. 88 (DB)
- Sections 4, 10, 12, 13 & 38, The Security Interest (Enforcement) Rules, 2002, Rules 8 & 9(2) - Whether authorised officer is bound to sell the immovable property with the consent of the borrower and secured creditor, if he fails to obtain higher price than reserve price or it is the discretion of the authorised officer to obtain the consent of the borrower and secured creditor or without consent he can effect the sale lower than the reserve price - Held - Bank is obliged not to auction sale the property below the reserve price - However the word 'may' used cannot be interpreted as mandatory dictate to the Bank to not sell the property below the reserve price - Petition disposed of : Godawari Shridhar (Smt.) Vs. Union Bank of India, I.L.R. (2008) M.P. 2918
- Sections 13 & 14, Transfer of Property Act, 1882, Section 53-A - The accounts of the borrowers become non-performing assets and thus action u/s 14 of Act 2002 was initiated for taking possession of mortgaged property - The appellants contended that substantial consideration was paid by them in pursuance of an agreement to sale, therefore, entitled to retain possession of mortgaged property u/s 53-A of T.P. Act - Learned Single Judge held that agreement of sale was on plain paper and did not disclose the mode of payment, therefore, agreement was doubted and unreliable - Order challenged in W.A. - Held - Appellants can, on the basis of agreement on plain paper, claim that in pursuance of agreement to sale they were inducted - The claim of appellants is anchored on the provisions of Section 53-A of T.P. Act and such disputed questions cannot normally be decided in a Writ Petition - Admittedly, appellants are in possession of the property, therefore, time granted upto 31.10.2008 to vacate the property : Abhay Kumar Vs. Chief Manager, State Bank of Indore, I.L.R. (2008) M.P. 2780 (DB) Service Law 695
- Section 13(2), Constitution, Article 226 - Writ Petition - Maintainability - Held - Proceeding under the Act and violation of guidelines framed by Reserve Bank of India in respect of a Cooperative Bank - Writ petition is not maintainable as an alternative remedy is available under the Act : Aman Trading Company (M/s) Vs. Vyavisayik Evam Audhyogik Sahakari Bank, I.L.R. (2009) M.P. 2830 Service Law
- A lower stage in the incremental scale - Meaning - Held - It cannot be given a restrictive meaning or be interpreted as "one lower stage in the incremental scale" - "A lower stage in incremental scale" can only mean any one of the lower stages in the incremental scale including the lowest and that is the only meaning that can be assigned to the rule : Gurudayal Gupta Vs. Satpura Narmada Kshetriya Gramin Bank, Chhindwara, I.L.R. (2010) M.P. 2101
- Absorption - Maintenance of lien - Permissibility - Petitioners substantively appointed to a different post by OTL, due to their selection, their lien if any held in a different post with MPSEDC, previously, automatically comes to an end after their appointment and confirmation to a different post, substantive in nature with OTL : G.V.S. Shastri Vs. M.P. State Electronics Development Corporation Ltd., Bhopal, I.L.R. (2010) M.P. Note *79
- Appeal - The order passed by appellate authority, which is bereft of any reason cannot be sustained in the eye of law - Order passed by appellate authority is quashed : G.P. Dewangon Vs. State of M.P., I.L.R. (2010) M.P. 2547
- Appointment - Age relaxation - Entitlement - Petitioner is orthopaedically handicapped person to the extent of 40% and his candidature for appointment to the post of Peon was rejected for the reason that he was over 40 years of age - Action challenged - Held - Orthopedically handicapped persons cannot be denied age relaxation in the matter of appointment as disabled persons are entitled to age relaxation of 10 years as per the policy decision of the State Government as per the provisions of S. 38 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 : Amar Das Bairagi Vs. State of M.P., I.L.R. (2010) M.P. 1596
- Appointment - Challenge to selection process when not justified - Petitioner undergoing the selection process and after being unsuccessful in the process challenging the condition of the advertisement - Held - If a candidate is of the opinion that the advertisement and selection process were not in accordance with the rules, he was required to challenge the advertisement and selection process without participating in the selection process - Petitioner has participated in the process of selection with open Service Law 696 eyes, and therefore, he is estopped from challenging the same in respect of the alleged irregularity in respect of the qualifications : Padam Singh (Dr.) Vs. M.P.P.S.C., I.L.R. (2010) M.P. 1331
- Appointment - The new employer is entitled to verify the previous antecedents of the person, who is being appointed and after being satisfied about his service record with the previous employer, can take a decision regarding his appointment : Ashutosh Sharma (Dr.) Vs. School of Planning and Architecture, Bhopal, I.L.R. (2010) M.P. Note *75
- Appointment & Selection - Whether the High Court can scrutinize the list of selected candidates furnished by the District Judge - Held - Yes, as per advertisement, computer operation was an essential condition apart from eligibility - But, according to the selection list, most of the candidates did not possess qualification in computer operation - No test was conducted in that regard by District Judge - Only one candidate produced a certificate from a registered institution in this regard - However, it was thought proper by the High Court not to select one candidate but to go for a re-advertisement in respect of the vacant post - Decision taken by High Court is correct - Stamp of approval given by learned Single Judge cannot be found fault with - Writ Appeal dismissed : Ramakant Choudhary Vs. District & Sessions Judge, Guna, I.L.R. (2009) M.P. 3265 (DB)
- Appointment of Patwari - Petitioner not included in the select list for providing incorrect information - Held - When furnishing of the said information was only for the statistical purposes - Any bona fide mistake by the petitioner which was not with view to have some undue advantage could not have been made basis for not including the petitioner's name in the select list : Yogesh Tembhurne Vs. M.P. Professional Examination Board, I.L.R. (2010) M.P. 2085
- Appointment on contractual basis - Opportunity of hearing - Assistant Engineer served for more than 10 years on contractual basis under Rajiv Gandhi Shiksha Mission - Without granting any opportunity of hearing a stigmatic order was passed for discontinuance of service on the ground that he has committed large irregularities - Held - Termination is not a termination simpliciter - It is punitive in nature without providing opportunity of hearing - Order set-aside : Rakesh Chandra Kein Vs. State of M.P., I.L.R. (2010) M.P. 1107
- Army Act, 1950, Sections 27, 84 & 87, Army Rules, 1954, Rules 22, 23 & 26 - Punishment - Loss of seniority of one year in the rank - Court Martial - Natural Justice - Petitioner was court marshaled and was not supplied with the relevant documents relied in the court martial as well as was not permitted to examine defence witness - Held - Denial of documents to petitioner in spite of specific provisions of Rule 23 & 26(2) and request for examining the defence witness rejected by simply stating that Service Law 697 they were irrelevant - Petitioner has been punished without giving him due and proper opportunity to defend himself - Total violation of procedure prescribed by law - Petition allowed : Subodh Shukla Vs. Union of India, I.L.R. (2009) M.P. 359
- Averments of fact - If not denied the same is taken to be admitted : G.P. Dewangon Vs. State of M.P., I.L.R. (2010) M.P. 2547
- Back wages - No work no wages - Petitioner convicted u/s 409 IPC - Termination - Subsequently, before Supreme Court offence was converted into offence u/s 406 IPC - Since the offence was compounded, therefore, it has resulted into the acquittal - Re- instatement but without wages - Held - Supreme Court granted permission to compound the offence though it is an acquittal but on a technical ground - Since petitioner had involved himself in crime, though he was later acquitted, he had disabled himself from rendering services on account of conviction - Not entitled to payment of back wages - Petition dismissed : Shambhu Dayal Rawat Vs. State of M.P., I.L.R. (2009) M.P. 1025
- Back Wages - Quantum of - Petitioner compulsorily retired after holding departmental enquiry - Learned Single Judge set aside order of dismissal and directed for reinstatement and payment of 50% backwages from the date of order passed in writ petition - Held - Principle with regard to backwages has gone sea-change - It would depend upon many a factor - Pragmatic view has to be taken - Petitioner stood dismissed in 1989 - Grant of 25% backwages would meet ends of justice - Writ Appeal allowed in part : Y. Yohannan Vs. State of M.P., I.L.R. (2007) M.P. 1573 (DB)
- Back wages - When can be granted - Central Administrative Tribunal passed order of reinstatement but without back wages - Order was stayed by the High Court due to which the employee could not work - Held - Petitioners obtained a stay order and did not allow the employee to join & work - For an action on part of the petitioner/ emp1oyer, the emp1oyee who was kept away from working and receiving salary cannot unnecessarily be punished - Department should always think twice before asking for a stay because in case of dismissal of the petition or the proceedings filed at the instance of the Department, Department may have to pay the entire back wages at least from the date of the order passed by the Subordinate Court/Tribunal or from the date the proceedings were initiated in the High Court or before the higher forum : Union of India Vs. Ashok Kumar Debey, I.L.R. (2010) M.P. 1717 (DB)
- Back wages - Workmen were involved in criminal case on their own and absented for considerable period - Department was not involved in criminal prosecution - Workmen not entitled for back wages - Petition dismissed : State of M.P. Vs. Ram Kumar Pathak, I.L.R. (2009) M.P. 2514 (DB) Service Law 698
- Backwages when not entitled - There is no material on record to suggest that the petitioner is not gainfully employed - Therefore, not be entitle for any backwages : Devilal Tanwar Vs. Registrar General, I.L.R. (2009) M.P. 446
- Casual or Daily Wage Employee - A casual or a daily wage employee is not entitled to pay in the pay scale but is entitled to receive the minimum wages as prescribed by the State Government - Petitioner, a Semi Skilled Daily Wager is not entitled to get minimum of the pay scale and daily allowance total Rs.4055/-, but was entitled minimum wage i.e. Rs.2438/- prescribed by the Collector for a Semi Skilled labour : Janki Prasad Garg Vs. State of M.P., I.L.R. (2009) M.P. 1942
- Central Civil Services (Pension) Rules, 1972, Rule 54 - Family pension - Whether payable to a dependant after attaining the age of 25 years - The pension of the dependant who was mentally challenged was stoped after he attained 25 year of age for the reason he got married - Held - A person who is mentally challenged is a perpetual minor, and therefore, he would never attain the age of 25 years - The family pension shall be paid to such person for the life : Union of India Vs. Smt. Begum Bee, I.L.R. (2010) M.P. 1340 (DB)
- Character and Antecedents Verification Roll - Non-disclosure of fact that appellant was prosecuted under offences of Indian Penal Code - Appellant was juvenile on the date of the commission of the offence - Held - His prosecution by regular Magistrate during his juvenile status was without jurisdiction and by such disclosure, he could not have earned any disqualification - Appellant cannot be said to have suppressed any substantial information : Ashok Sharma Vs. Union of India, I.L.R. (2010) M.P. 326 (DB)
- Charge-sheet - Quashment - Merely because, a charge-sheet has been issued that does not give rise to any cause of action, until and unless a final order has been passed in the matter after evaluating the material established on record by the competent disciplinary authority - However, if any adverse order is passed by the competent disciplinary authority, the petitioner shall be at a liberty to challenge the same in accordance with law - Resultantly, no case for interference with the charge-sheet is made out : Sant Kumar Agrawal Vs. Laxmibai National Institute of Physical Education, I.L.R. (2009) M.P. 144
- Civil Services (Classification, Control & Appeal) Rules, M.P. 1966, Rule 14(5) - Departmental Enquiry - Enquiry Officer - Presenting Officer - Enquiry Officer acting as a presenting officer - Held - Enquiry Officer acted as a prosecutor and a judge and thus the entire enquiry stand vitiated : Balveer Singh Vs. State of M.P., I.L.R. (2010) M.P. 191 Service Law 699
- Civil Services (Classification, Control & Appeal) Rules, M.P. 1966, Rule 14(5), Police Regulations, M.P. - Departmental Enquiry - Enquiry Officer - Presenting Officer - Enquiry Officer acting as a presenting officer - The respondent's stand was there is no provision in the Police Regulation to appoint presenting officer - Held - The Rules of 1966 are very much applicable in the case of police personnels and, therefore, once there is provision of appointment of a prosecuting officer, under the Rules of 1966, the same has to be adhere to : Balveer Singh Vs. State of M.P., I.L.R. (2010) M.P. 191
- Civil Services (Classification, Control & Appeal) Rules, M.P. 1966, Rules 14 & 20 - Departmental Enquiry - Charge-sheet - Delay in completion of proceedings - Quashment - Quashment of charge-sheet sought on the ground that proceeding continued for 11 long years - Held - The delay can be a ground for interfering in departmental proceeding but in the case at hand delay is not only attributed to the department but to the petitioner also hence no intereference called for : Pramod Kumar Agrawal Vs. State of M.P., I.L.R. (2010) M.P. 145
- Civil Services (Classification, Control & Appeal) Rules, M.P. 1966, Rules 14 & 20 - Departmental Enquiry - Charge-sheet - Quashment of charge-sheet sought on the ground that petitioner being on deputation cannot be charge-sheeted by the borrowing department - Held - Under sub-rule (1) of Rule 20, the borrowing authority has the powers of the appointing authority for the purpose of placing such government servant, on deputation, under suspension and of the disciplinary authority for the purpose of conducting a disciplinary proceeding : Pramod Kumar Agrawal Vs. State of M.P., I.L.R. (2010) M.P. 145
- Civil Services (Classification, Control & Appeal) Rules, M.P. 1966, Rules 14 & 20 - Departmental Enquiry - Charge-sheet - Quashment sought on the ground that various enquiry officers were changed - Held - It is the procedural fairness which is to be observed in the D.E. - In the case at hand procedure envisaged in Rule 14 & 15 has been adhered to and no prejudice is said to have been caused : Pramod Kumar Agrawal Vs. State of M.P., I.L.R. (2010) M.P. 145
- Civil Services (Classification, Control & Appeal) Rules, M.P. 1966, Rule 18 - Departmental Enquiry - Common proceedings - Two delinquent employees tried in a common proceeding but no order in respect of common proceeding under Rule 18 was passed - Held - The requirement of passing such an order arises where the delinquent employees are holding the different ranks - In the present case, the delinquent employees were holding the same ranks and therefore no such order was required to be passed under Rule 18 : Balveer Singh Vs. State of M.P., I.L.R. (2010) M.P. 191 Service Law 700
- Civil Services (Classification, Control & Appeal) Rules, M.P. 1966, Rule 10 - Warning - ASJ has made certain observations against the SDM (petitioner) in his order - On this basis show cause notice issued and thereafter a warning was issued to petitioner - Held - An opportunity was given to the petitioner and there has been adequate compliance with the principle of natural justice - Competent Authority considered the facts and circumstances of the case and thereafter passed the order of warning which does not constitute punishment - Petition dismissed : Prakash Chandra Prasad Vs. State of M.P., I.L.R. (2009) M.P. 3139
- Civil Services (Classification, Control & Appeal) Rules, M.P. 1966, Rule 10 - Warning - Whether is a punishment - Held - No - Warning is not a penalty in Rule 10 and as such does not require the detailed enquiry procedure as contemplated under Rule 14 - It will not come on the way of the petitioner for his further promotion : Prakash Chandra Prasad Vs. State of M.P., I.L.R. (2009) M.P. 3139
- Civil Services (Classification, Control & Appeal) Rules, M.P. 1966, Rule 10, Civil Services (Conducts) Rules, M.P. 1965, Rule 3(i) & (ii) - Misconduct - Dismissal from service - Disciplinary authority found respondent gross negligent and of doubtful integrity and passed order of dismissal - Learned Single Judge quashed the order of dismissal - Writ Appeal - Held - Gross negligence towards duty, even without involvement of mens rea, can constitute misconduct - Single Judge was not correct in holding that respondent can not be held guilty of misconduct - Since no reliable material had been placed on record to establish that respondent had wrongfully gained anything by his conduct, merely on the basis of presumption, the disciplinary authority could not have held respondent of doubtful integrity - Case remitted to the disciplinary authority to decide quantum of punishment on the charge of misconduct - Appeal allowed : M.P. Housing Board Vs. K.V. Shrivastava, I.L.R. (2009) M.P. 1589 (DB)
- Civil Services (Classification, Control & Appeal) Rules, M.P. 1966, Rule 12 - Departmental Enquiry - Charge sheet dated 04.07.1995 issued against appellant - Enquiry Officer appointed in relation to charge sheet dated 04.07.1995 but the said enquiry was abandoned - Another charge sheet on different allegation issued on 15.04.1997 - Enquiry Officer who was appointed to enquire into the first charge sheet assumed jurisdiction to make enquiry into the charge sheet dated 15.04.1997 - Held - No enquiry officer appointed relating to charge sheet dated 15.04.1997 - In absence of order of appointment of enquiry officer, some person would not have jurisdiction to conduct enquiry - Entire enquiry vitiated - Appeal allowed : B.N. Verma Vs. State of M.P., I.L.R. (2009) M.P. 336 (DB)
- Civil Services (Classification, Control & Appeal) Rules, M.P. 1966, Rules 14(5) & 30 - Departmental Enquiry - Copy of charge sheet with documents supplied by enquiry officer - Petitioner repeatedly sought time but did not file any reply nor Service Law 701 adduce any evidence in defence - Held - Petitioner did not object to proceedings and accepted notice of charge sheet - Contention of petitioner regarding Rules 14(5) & 30 cannot be considered : Nanhe Bhai Raikwar Vs. District & Sessions Judge, I.L.R. (2009) M.P. 107
- Civil Services (Classification, Control & Appeal) Rules, M.P. 1966, Rule 15 - Punishment - 48 hours notice given by disciplinary authority to file reply to findings recorded by enquiry officer - Charges which were neither stated in charge sheet nor communicated to petitioner also taken into consideration while imposing punishment of dismissal - Held - Order of punishment violates principle of natural justice - Matter remitted back to disciplinary authority for reconsidering the order of punishment after giving due and proper opportunity of filing reply to inquiry report - Petition partly allowed : Nanhe Bhai Raikwar Vs. District & Sessions Judge, I.L.R. (2009) M.P. 107
- Civil Services (Classification, Control & Appeal) Rules, M.P. 1966, Rule 29 - Review - The word 'any order' in Rule 29 is not confined to an original order of disciplinary authority - But includes the order of appellate authority also - Circular dated 20.01.2000 stating that no review is permissible against appellate order - Circular quashed - Petition allowed : O.P. Pandey Vs. State of M.P., I.L.R. (2009) M.P. 436 (DB)
- Civil Services (Classification, Control & Appeal) Rules, M.P. 1966, Rule 29(2) - Power of Appellate Authority to enhance the penalty - Disciplinary Authority giving lesser punishment - The appellate authority enhanced the punishment to dismissal from service - Action challenged as the appellant is acquitted in criminal appeal, the appellate authority could not have enhanced the punishment - Held - In exercise of its powers under Rule 29, the appellate authority has power to enhance the penalty after giving an opportunity of hearing : Krishna Kumar Pateriya Vs. State of M.P., I.L.R. (2009) M.P. 47 (DB)
- Civil Services (Classification, Control and Appeal) Rules, M.P. 1966, Rule 14(8) - Departmental enquiry against judicial officer - Legal assistance during course of D.E. denied - Petitioner participated in entire departmental proceeding without challenging order rejecting application for assistance by legal practitioner - Petitioner himself was equally qualified and was trained as presenting officer and he could even ask for assistance for fellow colleague with similar experience and status as that of presenting officer which he choose not to do - Having given up the right, he can not now be permitted to turn back and raise a grievance in this respect : Dinesh Chandra Pandey Vs. High Court of M.P., I.L.R. (2010) M.P. 2007 (SC)
- Civil Services (Classification, Control and Appeal) Rules, M.P. 1966, Rule 14(8) - Expression 'may' would have to be construed as directory and not absolutely mandatory with reference to the facts & circumstance of a given case : Dinesh Chandra Pandey Vs. High Court of M.P., I.L.R. (2010) M.P. 2007 (SC) Service Law 702
- Civil Services (Classification, Control and Appeal) Rules, M.P. 1966 - Compulsory retirement - Petitioner dismissed from service on being convicted u/s 302 r/w 109 IPC and Section 30 of Arms Act - Criminal appeal allowed and petitioner was acquitted from the charge u/s 302 r/w 109 IPC but conviction u/s 30 of the Arms Act was maintained - In compliance of the order passed by SAT, the petitioner was reinstated on 06.03.1999 and was again placed under suspension - Thereafter, he was compulsorily retired - Order challenged - Held - Order of compulsory retirement demonstrates total non-application of mind on the part of the disciplinary authority - No reasonable or prudent person could have recorded a finding that the petitioner was involved in the commission of a heinous crime like murder after the acquittal u/s 302 r/w 109 IPC by the High Court - Order suffers from arbitrariness and unreasonableness accordingly quashed - Petitioner has already superannuated from service, therefore, no useful purpose would be serve in remitting the matter back for a fresh decision - Petitioner would be deemed to have been in service till the date of superannuation and would be entitled to revised pension and retiral benefits - As petitioner stand convicted u/s 30 of Arms Act, he shall not be entitled for back wages : Ram Abhilash Shukla Vs. State of M.P., I.L.R. (2009) M.P. 648
- Civil Services (Classification, Control and Appeal) Rules, M.P. 1966, Rule 2(f), General Clauses Act, M.P. 1957, Section 16 - Government Servant - Suspension - Appointing Authority - Petitioner placed under suspension by the State Government while working as Managing Director of Madhya Pradesh Khadi & Village Industries Board - Action challenged on the ground that State Government has no competence to pass the order of suspension - Held - The appointing authority of the petitioner on the post of M.D./Addl.M.D. is the State Government - By virtue of the provisions of Section 16 of the Act of 1957, the State Government being the appointing authority is empowered to suspend or dismiss the petitioner : Ashok Noronha Vs. M.A. Khan, I.L.R. (2009) M.P. 662
- Civil Services (Classification, Control and Appeal) Rules, M.P. 1966, Rule 9 & 20, Gramodyog Adhiniyam, M.P. 1978, Section 29, Khadi and Gramodyog Regulation, M.P. 1980 - Suspension - Competance - Petitioner placed under suspension by the State Government while working as Managing Director of Madhya Pradesh Khadi & Village Industries Board - Action challenged on the ground that State Government has no competence to pass the order of suspension - Held - Rules of 1966 are applicable to the petitioner, then the right to suspend the petitioner u/R 9 is available to the appointing authority i.e. State Government - State Government has appointed the petitioner on the post of M.D. of the Board, and the power u/R 20 entitles the borrowing department to take action in the matter - As the petitioner is on deputation to Khadi & Gramodyog Board, the Gramodyog Department being the borrowing department is empowered to take action by virtue of the powers vested in it u/R 20(1) of the Rules of 1966 : Ashok Noronha Vs. M.A. Khan, I.L.R. (2009) M.P. 662 Service Law 703
- Civil Services (General Conditions of Service) Rules, M.P. 1961, Rule 12(1)(a) & 12(1)(f) - Fixation of seniority - Petitioners' probation period extended and they were confirmed after the extended period - The juniors of the petitioner who were selected in a subsequent batch completed probation in time and they were granted seniority above the petitioners - Held - There is a marked and sharp distinction between selection, appointment and confirmation - Such direction could not be kept in oblivion by the State Government - Petitioners could not be awarded seniority below the persons who have been selected/appointed under the subsequent selection process : Suresh Kumar Vs. State of M.P., I.L.R. (2010) M.P. 815 (DB)
- Civil Services (General Conditions of Service) Rules, M.P. 1961, Rule 12(1)(a) & 12(1)(f) - Fixation of seniority - Rule 12(1)(a) and Rule 12(1)(f) do not operate different fields - These rules are to be read in juxta position : Suresh Kumar Vs. State of M.P., I.L.R. (2010) M.P. 815 (DB)
- Civil Services (Medical Attendance) Rules, M.P. 1958, Rules 2 & 8 - Medical assistance - Petitioner an employee of High Court after his retirement employed on contract basis and his application for medical assistance was rejected as the treatment undergone by him was not in a recognized hospital of the respondents - Held - Rule 2(b) of Rules, 1958 provides that the Rules shall apply to government servants employed on contract basis - Petitioner, after his retirement, has been employed on contract basis and during such employment he suffered a massive heart attack and was required to perform open heart surgery in a hospital which has recognition under Rules, 1958 - Petitioner could have applied for reimbursement in Form I u/R 8(1) of Rules, 1958 and his application for reimbursement could have been allowed by the respondents after its scrutiny in accordance with law - Petitioner directed to apply for reimbursement under Rules of 1958 and same directed to be decided within a period of 3 months : Prasanna Kumar Sharma Vs. State of M.P., I.L.R. (2010) M.P. 1271
- Civil Services (Pension) Rules, M.P. 1976, Rule 42(1)(a) - Voluntary retirement - Petitioner working as peon - He applied on 07.11.2006 seeking voluntary retirement w.e.f 07.02.2007 - Application accepted on 09.11.2006 and communicated to petitioner on 07.02.2007 - Petitioner withdrew the said application on 02.12.2006 - Held - The application seeking withdrawal of the application for voluntary retirement much before the effective date of voluntary retirement and having regard to the reasons stated by him seeking withdrawal of the application for voluntary retirement the respondents ought to have allowed his prayer : Ganpatlal Vyas Vs. State of M.P., I.L.R. (2010) M.P. 1900
- Civil Services (Pension) Rules, M.P. 1976, Rule 42(1)(b) - Compulsory retirement - Petitioner compulsorily retired after 24 years of service - Held - If the entire record of the petitioner is seen then in 23 years his remarks are either Good or Service Law 704
Average only one adverse entry cannot be a ground to compulsorily retire him as he cannot be said to be deadwood especially when his integrity, honesty and decrease in physical efficiency are not at all adverse - Order even does not state that the decision is taken in public interest - Petition allowed : Bhagvant Singh Parihar Vs. State of M.P., I.L.R. (2010) M.P. 199
- Civil Services (Pension) Rules, M.P. 1976, Rule 47 - Family Pension - Denied on the ground that deceased government servant didn't complete 25 years qualifying service - Held - If a government servant, who is not governed by the Workmen's Compensation Act, 1923, dies while in service after having rendered not less than 7 years continuous service, the family pension is payable - Petition allowed : Kamla (Smt.) Vs. State of M.P., I.L.R. (2010) M.P. 593
- Civil Services (Pension) Rules, M.P. 1976, Rule 65 - Whether dues would include Miscellaneous Advance - Held - No - For applicability of Rule 65, firstly the amount should fall into the category of 'dues' and secondly such dues should be specified dues like house building or conveyance advance or arrears of rent or overpayment of salary or allowances as prescribed in the explanation appended to Rule 65, but it would not include, "Miscellaneous Advance" upon not falling into the category of 'dues' - Respondents are directed to release the entire amount of GPF and gratuity and all other retiral dues - Petition allowed : Ramesh Chandra Gupta Vs. State of M.P., I.L.R. (2010) M.P. 2506
- Civil Services (Pension) Rules, M.P. 1976, Rule 9(b)(2) - Withholding of Gratuity and GPF without obtaining sanction from the Governor - Held - Any outstanding amount against a retired employee can only be deducted or withheld after obtaining proper sanction/approval of the Governor - No such sanction/approval taken by the respondents before withholding retiral dues - The action of respondents seriously violates the mandate reflecting in the Pension Rules - Withholding of the retiral dues (GPF and Gratuity) would run counter to the Pension Rules : Ramesh Chandra Gupta Vs. State of M.P., I.L.R. (2010) M.P. 2506
- Civil Services Pension Rules, M.P. 1976, Rule 42(1)(b) - Compulsory Retirement - Search and seizure conducted in various premises belonging to petitioner and his relatives by Income Tax Department - Media highlighted the matter - Income Tax Department sending a report that petitioner has acquired disproportionate assets to his known source of income - Petitioner suspended, charge sheet served and D.E. initiated - Suddenly without completing the D.E. petitioner compulsorily retired in public interest - Action challenged - Held - Public interest is evaluated on extraneous consideration, influenced by media reports without any supporting material in the service record - Without scrutiny of the entire service record and in absence of service record supporting the allegations levelled in the communication received from the Income Tax Service Law 705
Department - Action taken to compulsorily retire the petitioner is wholly unjustified - Order of compulsory retirement quashed - Petition allowed : Yogiraj Sharma (Dr.) Vs. State of M.P., I.L.R. (2009) M.P. 959
- Civil Services (Promotion) Rules, M.P. 2002 - Promotion - D.P.C. recommending the name of the petitioner for promotion but D.E.O. withholding the same - Action challenged - Held - When the candidature of the petitioner gets scrutinized by the D.P.C. and recommendation for promotion are made by D.P.C. for promoting the petitioner, it could not be subjected to further scrutiny at the hands of the D.E.O. - The benefit of promotion could not be denied on the ground of appearance or non- appearance of the employee before the authority competent to issue promotion order : Fuljencia Kujur (Smt.) Vs. State of M.P., I.L.R. (2010) M.P. 2504
- Class III (Non-ministerial) Forest Service Recruitment Rules, M.P. 1967, Rule 15, Class III (Non-ministerial) Forest Service Recruitment Rules, M.P. 1999, Rule 16 - Petitioner selected as Forester by State level examination and posted in forest circle - His seniority is maintained at forest circle level - His other batch mates or some other juniors have been allotted to some other circles and obtained promotions earlier by virtue of availability of earlier vacancies - Held - It could not be said to be a case of discrimination : N.K. Dubey Vs. State of M.P., I.L.R. (2010) M.P. 836 (DB)
- Class III (Non-Ministerial) Forest Service Recruitment Rules, M.P. 1967, Rule 15, Class III (Non-Ministerial) Forest Services Recruitment Rules, M.P. 1999, Rule 16 - Seniority of Forester is maintained circle wise under Rules of 1967 and also under Rules 1999 - Held - Rules not in violation of Article 14 & 16 of Constitution - Rules cannot be said to be arbitrary or ultra vires in any manner : N.K. Dubey Vs. State of M.P., I.L.R. (2010) M.P. 836 (DB)
- Compassionate appointment - Deceased Government Servant was a Hindu and has contracted second marriage during subsistence of first marriage - Children bron out of second marriage - They were legitimate though the marriage itself was void - Legitimate children were entitled for family pension and compassionate appointment : Rahul Singh Vs. State of M.P., I.L.R. (2009) M.P. 186
- Compassionate appointment - Grant of annual increments - Entitlement - The petitioner having obtained advantage of the special benefit under the compassionate appointment scheme and having accepted appointment subject to the condition of passing the typing examination - Held - The petitioner cannot be permitted to turn around and assail the clauses of the scheme for compassionate appointment or the condition in his appointment order as he is prohibited from doing so on the principle of acquiescence and estoppel : Pawas Shrivastava Vs. State of M.P., I.L.R. (2009) M.P. 131 Service Law 706
- Compassionate appointment - It would be the obligation of the employer to deal with the application with immediacy and promptitude so that the grievance of a family in distress gets a fair treatment in accordance with law : Bank of Maharashtra Vs. Manoj Kumar Deharia, I.L.R. (2010) M.P. 1876 (FB)
- Compassionate appointment - Petitioner's application for compassionate appointment rejected - Held - Compassionate appointment is an exception and is not a right of an employee - Petitioner for the first time approached before High Court after 6 years of submitting application - Petitioner's case has been rightly considered twice by the Competent Authority and a finding has been arrived at that the petitioner is not living in penury and her financial condition is not such making her entitle for compassionate appointment - No case is made out to make interference in the decision taken by Competent Authority - Petition dismissed : Sushma Yadav (Smt.) Vs. State Bank of Indore, I.L.R. (2009) M.P. 3382
- Compassionate appointment - Policy - When the employer or the Government is at liberty to evolve a scheme for granting such appointment from time to time, then the consideration for appointment has to be made in accordance with the Scheme or Policy that is in existence : Bank of Maharashtra Vs. Manoj Kumar Deharia, I.L.R. (2010) M.P. 1876 (FB)
- Compassionate appointment - Powers of High Court to interfere with the decision of the Competent Aurhority - Petitioner's application for compassionate appointment rejected - Held - Courts should not normally interfere with the decision of Competent Authority - Competent Authority twice in the year 2004 & 2006 taking into consideration that petitioner was getting family pension and also entitled for terminal benefits of her husband and she inherited a double storied house - It was found that she was financially well placed and is not living in penury - Decision of Competent Authority needs no interference by High Court : Sushma Yadav (Smt.) Vs. State Bank of Indore, I.L.R. (2009) M.P. 3382
- Compassionate appointment - The grant of compassionate appointment is not a vested legal right - It is only benefit granted in certain circumstances de hors the normal rule of appointment and when the employer has a right to evolve an appropriate policy after considering various factors for granting such a benefit, the considerations have to be made in accordance with the policy that is prevailing at that time : Bank of Maharashtra Vs. Manoj Kumar Deharia, I.L.R. (2010) M.P. 1876 (FB)
- Concurrent finding of fact by Disciplinary Authority and Appellate Authority - Held - Cannot be interfered with when dealing with the charge both the authorities applied their mind and no document was produced by the petitioner in support of his case in respect of a particular charge before the Disciplinary Authority : Nathuram Vs. Food Corporation of India, I.L.R. (2009) M.P. 1658 Service Law 707
- Constitution, Articles 14 & 16 - Recruitment - Advertisement for recruitment to the post of Constable - Condition in advertisement that the candidates must have passed Higher Secondary or obtained Bachelor degree from school/college situated in M.P. - Name of appellant deleted from select list as he had not obtained educational qualification from any school situated in M.P. - Held - Condition is discriminatory and violative of Articles 14 & 16 in as much as it denies equality of opportunity in the matters of public employment in M.P. to persons who have passed Higher Secondary from other State - Respondents directed to appoint appellant - Appeal allowed : Saurabh Singh Vs. State of M.P., I.L.R. (2009) M.P. 1893 (DB)
- Constitution, Articles 16(2) & (3), Circular dated 10.07.2007 of the State Government - Equality of employment - Appointment of Aaganwadi Worker for Aaganwadi Centre, Devpur - As per State Government's policy with regard to eligibility criteria for appointment that the applicant must be resident of the same village and ward - Candidature of petitioner has been rejected only on the ground that she is not a resident of village Devpur - Held - State Government's policy suffers from constitutional infirmity and is against the provision of Article 16(2) of the Constitution - In fact petitioner is a resident of village Gurichchha which is part and parcel of Gram Panchayat, Devpur - Hence, exclusion of petitioner for consideration to the post of Aaganwadi Worker for Aaganwadi Centre, Devpur is arbitrary and illegal : Lalita Tomar Vs. State of M.P., I.L.R. (2009) M.P. 3302
- Constitution, Article 226 - Compassionate appointment - Husband of petitioner died while in service - Application for compassionate appointment should have been considered as per policy in vogue - Rejection on the basis of subsequent policy is bad in law - Petition allowed : Sunita Sharma (Smt.) Vs. Satpura Narmada Kshetriya Gramin Bank, I.L.R. (2010) M.P. Note *22
- Constitution, Article 226 - Damages for malicious prosecution - Criminal proceedings instituted against the appellant obviously was in accordance with the procedure established by law - There is no violation of right of the appellant under Article 21 of the Constitution - Therefore, High Court cannot, in exercise of its powers under Article 226 of the Constitution, award compensation to the appellant : P.G. Kshatriya Vs. State of M.P., I.L.R. (2009) M.P. 10 (DB)
- Constitution, Article 226 - Delay and laches - Petitioner claimed stepping up of pay and placement above respondent No.5 in gradation list as respondent No.5 was junior to him but was promoted earlier - Writ Petition filed after 17 years of supersession despite knowledge - Held - Delay cannot be condoned in approaching the Court on the ground of submitting large numbers of representation from time to time - Delay of 17 years is not a reasonable delay - Petitioner is not entitled for any relief - Petition dismissed : Ram Babu Rajak Vs. M.P. Madhya Kshetra Vidyut Vitran Co. Ltd., I.L.R. (2010) M.P. 1351 Service Law 708
- Constitution, Article 226 - Departmental Enquiry - Charge sheet - Quashing of - High Court cannot go into the merits of allegations on the basis of which charge- sheet has been issued and record finding that no merit in the charges : Sunil Kumar Jain Vs. State of M.P., I.L.R. (2009) M.P. 373
- Constitution, Article 226 - Departmental Enquiry - Charge-sheet - Writ jurisdiction - Writ petition should not be entertained against a mere charge-sheet - Issuance of charge-sheet does not amount to an adverse order effecting rights of any party or giving rise to cause of action - Writ petition should be entertained in some very rare exceptional case where charge-sheet is found to be wholly without jurisdiction : Sunil Kumar Jain Vs. State of M.P., I.L.R. (2009) M.P. 373
- Constitution, Article 226 - Departmental Enquiry - Competence & Jurisdiction of Enquiry Officer - Question of competence & jurisdiction can be raised in writ petition for the first time : B.N. Verma Vs. State of M.P., I.L.R. (2009) M.P. 336 (DB)
- Constitution, Article 226 - Departmental Enquiry - Inordinate delay of 10 years in initiation of D.E. and 4½ years of delay in continuation of said enquiry not convincingly explained - Continuation of enquiry may severely prejudice promotion prospects of petitioner - Charge sheet and D.E. liable to be quashed - Respondents directed to pass appropriate orders in the matter of grant of senior selection list to petitioner and if found fit, to extend benefit at par to the incumbent juniors - Petition allowed : Pramod Kumar Gupta Vs. State of M.P., I.L.R. (2010) M.P. 2074
- Constitution, Article 226 - Departmental proceeding - During pendency of departmental proceeding, order of acquittal passed in criminal case - Allegation in departmental proceeding relating to wilful damage or attempt to cause damage to the property of Bank and negligence - Charge-sheet in criminal case pertains to offence of criminal breach of trust, cheating, forgery - Held - Evidence adduced in D.E. is entirely different than the one led in criminal case - Acquittal in criminal case is not on merit instead benefit of doubt is granted to petitioner - Since criminal case and D.E. are not based on identical set of circumstances, the acquittal in criminal case is not relevant for consideration in D.E. - Petition dismissed : Gurmit Singh Vikhu Vs. Punjab & Sindh Bank, I.L.R. (2010) M.P. 1551
- Constitution, Article 226 - Disputed facts - Cannot be decided in writ petition - Application filed for correction of date of birth along with transfer certificate, scholar's register and duplicate copy of the mark-sheet of Board of Secondary Education - These documents were never submitted before the respondents for correction of date of birth - Their authenticity is disputed - Disputed questions of fact cannot be decided in writ petition - Petition dismissed : Vishvanath Mishra Vs. Chief Managing Director, Western Coal Fields Ltd , I.L.R. (2010) M.P. 864 Service Law 709
- Constitution, Article 226 - House Rent Allowance - Petitioner filed an application for allotment of a quarter - Subsequently, constructed his own house with the permission of respondent Board and withdrew his application prior to allotment - Held - Rejection for grant of H.R.A. on the ground that he had refused to occupy the house allotted to him per se indicates total non-application of mind when the respondents themselves had full knowledge of the fact that the petitioner has withdrawn his request - Petitioner is entitled to H.R.A. in accordance with the circular - Petition allowed : Ravindra Kumar Jain Vs. M.P. State Electricity Board, I.L.R. (2009) M.P. Note *36
- Constitution, Article 226 - Petitioner was allowed to work till his retirement on the basis of entry of date of birth recorded in service record - Recovery of amount after retirement on the finding of wrong entry of date of birth - Held - Finding regarding petitioner's date of birth was behind his back - It is not open for respondents to have recovered the salary paid to petitioner for period during which he was allowed to continue in service - Recovery quashed - Petition allowed : Chhotelal Rai Vs. State of M.P., I.L.R. (2010) M.P. 1532
- Constitution, Article 226 - Petitioner's claim for refixing pension by counting his service rendered in Rewa State rejected in 1997 - Order not challenged - Writ petition after 13 years for direction to count services rendered in Rewa State - Held - Order of rejection attained finality - Respondents did not commit any continuous wrong or inflict any continuing injury upon petitioner from day to day or month to month while paying pension in accordance with concluded determination of pension - Petition barred by limitation hence, dismissed : Qadeer Mohammad Vs. State of M.P., I.L.R. (2010) M.P. Note *20
- Constitution, Article 226 - Selection - M.P.P.S.C. Examination - Names of petitioners appeared in waiting list - During validity period of waiting list some posts fell vacant due to either non-joining of selected candidates or resignation of selected candidates after joining - Held - As vacancy arose is same vacancy for which advertisements were issued and the selection process took place, the same will go to the candidates in waiting list so long as the waiting list is within the validity period and alive - Petition allowed : Jinendra Kumar Jain Vs. State of M.P., I.L.R. (2010) M.P. 1910
- Constitution, Article 226 - Termination without departmental enquiry - Petitioners daily wager workmen, due to involvement in criminal case absented from service - Termination without departmental proceedings - Held - Petitioners were acquitted in criminal proceedings - Termination without departmental enquiry cast stigma upon workmen - Order of termination rightly set-aside by Labour Court - Writ petition dismissed : State of M.P. Vs. Ram Kumar Pathak, I.L.R. (2009) M.P. 2514 (DB) Service Law 710
- Constitution, Article 226, Gram Tatha Raksha Samiti Niyam, M.P. 2003 - Petitioner, a Tahsil Organizer appointed under Niyam, 2003 - Claimed relief that a policy for creating promotional post be formulated with specific time frame - Learned Single Judge allowed petition and directed the State to provide two channels of promotion - Writ Appeal - Held - Court cannot exercise the powers under Article 226 of the Constitution for creating promotional avenues by way of issuance of writ of mandamus - Order passed by learned Single Judge set-aside - Appeal allowed : State of M.P. Vs. Shyam Sunder Savita, I.L.R. (2009) M.P. 2168 (DB)
- Constitution, Article 226, Public Works Department Engineer-in-Chief and Chief Engineers Recruitment and Conditions of Service Rules, M.P. 1983, Rule 6(1) - Current charge of post of Engineer-in-Chief due to administrative difficulties - Held - Even though respondent No.3 does not fulfil the requisite qualification as prescribed under Recruitment Rules but when it is an officiating or incharge arrangement, it is not recognition of his right to the post then it may not be in the interest of justice to issue a writ of Quo warranto - Petition dismissed : Anand Selot Vs. Chief Secretary, Govt. of M.P., I.L.R. (2010) M.P. 1357
- Constitution, Article 235 - Appointing authority - Control over subordinate Courts - Control on subordinate courts conferred to High Court under Article 235 of Constitution is not confined only to matters pertaining to District Judge or subordinate Judges but also expands to ministerial officers and servants of establishment of subordinate Courts - Although District Judge is appointing authority, however, if control exercised by High Court with regard to functioning by District Courts in the matter of recruitment and appointment, it cannot be said that the same is unsustainable or illegal : Ramakant Choudhary Vs. District & Sessions Judge, Guna, I.L.R. (2009) M.P. 1666
- Constitution, Article 235 - Appointment & Selection - Whether the High Court has supervisory control on the appointment and selection of ministerial staff of the District Court when the District Judge is the Competent Authority to appoint - Held - Yes, High Court has control over the ministerial and official services of the subordinate courts on the basis of the language employed in Article 235 of the Constitution : Ramakant Choudhary Vs. District & Sessions Judge, Guna, I.L.R. (2009) M.P. 3265 (DB)
- Constitution, Article 309 - Termination of temporary employee - Petitioner temporary appointed on the post of Process Writer - His services were terminated on the findings arrived at by Resp. No.3 holding him guilty of misappropriating process fee - Order challenged - Held - Findings arrived at by Resp. No.3 were definitive and punitive in nature not like preliminary report - No opportunity of hearing was given - Order of termination was passed in violation of principles of Natural Justice - Order of termination quashed - Petitioner reinstated without backwages - However, respondents Service Law 711 may proceeds against petitioner afresh with departmental enquiry - Petition allowed : Devilal Tanwar Vs. Registrar General, I.L.R. (2009) M.P. 446
- Constitution, Article 311 - If, the order of termination is punitive and based on the finding of misconduct - Even a temporary government servant can not be terminated without complying with the provisions of Art. 311 : Devilal Tanwar Vs. Registrar General, I.L.R. (2009) M.P. 446
- Constitution, Article 311 - In the attestation form, it was a term that an employee could be terminated without notice if he furnishes false informations - Held - Such term may bind a probationer, but not a confirmed government servant - No term in the attestation form nor any consent given by government servant can take away the constitutional safeguard provided to a government servant under Article 311 : Kamal Nayan Mishra Vs. State of M.P., I.L.R. (2010) M.P. 17 (SC)
- Constitution, Article 311 - Termination without notice or enquiry - A confirmed employee holding a civil post terminated without notice or enquiry on furnishing wrong information in attestation form during the course of employment - Held - Once a probationer is confirmed in the post, his position and status becomes different as he gets the protection of Article 311 - If it is found that the confirmed government servant has given any false information during the course of employment, that will have to be treated as misconduct and punishment can be imposed only after subjecting him to an appropriate disciplinary proceeding as per the relevant service rules : Kamal Nayan Mishra Vs. State of M.P., I.L.R. (2010) M.P. 17 (SC)
- Constitution, Article 311 - The ratio decidendi of Ram Ratan Yadav's case [(2003) 3 SCC 437] is not applicable in this case - There are several features in this case which distinguish it from Ram Ratan Yadav's case - Discussed : Kamal Nayan Mishra Vs. State of M.P., I.L.R. (2010) M.P. 17 (SC)
- Correction of date of birth - Alternative remedy - Writ Petition filed neared the age of superannuation for issuing direction for correction of date of birth - Petitioner is a workman under the provisions of Industrial Disputes Act, 1947 - He has an alternative remedy of raising the dispute under the provisions of Industrial Disputes Act, 1947 - Petition dismissed : Vishvanath Mishra Vs. Chief Managing Director, Western Coal Fields Ltd., I.L.R. (2010) M.P. 864
- Correction of date of birth - At the fag end of service when notice of superannuation is issued - Held - Such correction can be accepted only when prayer is made within a reasonable time and it is shown that the employee concerned has cogent and irrefutable proof and evidence available with him - Documents produced are mostly those which are obtained after notice of superannuation - Genuineness of documents Service Law 712 doubtful - Correction can not be ordered - Petition dismissed : Mirza Sharif Beg Vs. State of M.P., I.L.R. (2009) M.P. 778
- Correction of Date of Birth - At the fag end of the career - Permissibility - Held - Not permissible - But, once the employer took up the claim and on the basis of mark-sheet of Board of Secondary Education placed by employee referred the matter to the Age Determination Committee, employer is estopped to raise a plea that there has been belated approach by the employee - It is a somersault which has to be taken exception to - The same is not permissible : South Eastern Coalfields Ltd. Vs. Nijamuddin, I.L.R. (2009) M.P. 3053 (DB)
- Correction of date of birth - Delay - Application for correction of date of birth filed after 34 years of service - No reliable documentary evidence adduced in support of claim - No explanation for delayed action - No direction can be issued - Petition dismissed : Vishvanath Mishra Vs. Chief Managing Director, Western Coal Fields Ltd., I.L.R. (2010) M.P. 864
- Counting of previous service - Petitioner, rendering service with Allahabad University, subsequently selected and appointed as Professor in Awdhesh Pratap Singh University - After retirement when he applied for pensionary benefits, his previous service and probation period was not calculated for the benefit on the ground that the petitioner's lien continued to be at two places - Held - Merely because lien is terminated with the previous employer subsequently after the date of employment with the new employer, does not mean that services rendered by the petitioner with the present employer shall be ignored - The services of the petitioner, rendered with the earlier employer, have to be counted : Radhakant Verma (Dr.) Vs. State of M.P., I.L.R. (2010) M.P. 2558
- Daily Rated Employee - A daily rated employee can be transferred in exceptional cases - Where appointment is made to a project or a scheme and the project or a scheme is itself transferred or shifted the daily rated employee moves alongwith the project or the scheme to the new place : Ashok Tiwari Vs. M.P. Text Book Corporation, I.L.R. (2010) M.P. 1032(FB)
- Daily Rated Employee - A daily rated employee is appointed in a Establishment, Department or the Office - The entire Establishment, Department or the Office is shifted, the 'daily rated employee' moves with Establishment, Department or the Office - Otherwise, a daily rated employee cannot be transferred from one place to another : Ashok Tiwari Vs. M.P. Text Book Corporation, I.L.R. (2010) M.P. 1032 (FB)
- Daily Rated Employee - Transfer - A daily rated employee is not appointed to a post - His services are not governed by any service rules, cannot be transferred from Service Law 713 one place to another - As he does not hold a transferable service : Ashok Tiwari Vs. M.P. Text Book Corporation, I.L.R. (2010) M.P. 1032 (FB)
- Daily wages employee - Challenged his disengagement on attaining the age of 60 years - Held - The petitioner's services are not governed by any rules which prescribe an age of superannuation - He cannot claim continuance in service as of right up to the age of 62 years - Petition dismissed : Mathura Prasad Yadav Vs. State of M.P., I.L.R. (2010) M.P. 1950
- Delay and laches - Appellant was given out of turn promotion in 1997 for his exemplary gallantry act in 1992 - Held - Appellant had approached High Court after lot of delay - If the appellant is given promotion w.e.f. 07.09.1992, then all those officers who were promoted between 1992 to 1997 would be adversely affected - Single Judge rightly dismissed the writ petition on the ground of delay & laches : Atma Ram Sharma Vs. State of M.P., I.L.R. (2010) M.P. 25 (DB)
- Departmental Enquiry - Charge of demand of illegal gratification and misbehave with complainant - During the enquiry proceedings, complainant himself has categorically denied the involvement of the employee in the incident - Even though enquiry officer has recorded findings against employee - The findings are perverse in nature : Rajesh Upadhyay Vs. State of M.P., I.L.R. (2010) M.P. 844
- Departmental Enquiry - Charge sheet - Criminal trial - Allegation of similar charges in D.E. and criminal trial - Whether both can run simultaneously - Held - D.E. is being held regarding conduct of the petitioner, which is unbecoming of a police official which is different than the charges in the criminal case under offence punishable under the Public Gambling (Madhya Pradesh) Act, 1867 - Petition dismissed : Sunil Pillai Vs. State of M.P., I.L.R. (2010) M.P. 77
- Departmental Enquiry - Delay in initiation - Charge-sheet issued after a period of 2 years 4 months - Challenged on the ground of delay - Held - Such period in issuance of charge-sheet cannot be said to be a period which can be termed as period of inordinate delay warranting quashment of charge-sheet when no prejudice has been caused due to delay : Binda Prasad Vs. Narmada Malwa Gramin Bank, I.L.R. (2010) M.P. 833
- Departmental Enquiry - Enquiry Officer after recording of evidence found employee to be not guilty of any charge - Disciplinary authority on the basis of final finding recorded by the Board holding employee to be guilty of charge, issued show cause notice - Held - Since show cause notice issued was containing final decision taken by the Board holding employee guilty - An opportunity of hearing should have been provided to employee so that there may still be some room left for convincing the Service Law 714
Disciplinary Authority that findings recorded by the enquiry officer were just and proper - Findings of Board and Disciplinary Authority are perverse - Impugned order imposing penalty quashed - Petition allowed : Nilu (Smt.) Vs. M.P. State Electricity Board, I.L.R. (2009) M.P. 1959
- Departmental enquiry - May be continue after acquittal by criminal court - Appellant in criminal appeal acquitted by the appellate court giving him the benefit of doubt - The departmental enquiry continued - Action challenged - Held - There is no bar in proceeding with the departmental enquiry even after the acquittal by the criminal court : Krishna Kumar Pateriya Vs. State of M.P., I.L.R. (2009) M.P. 47 (DB)
- Departmental enquiry - Misappropriation - Absence from duty - Dismissal - Departmental enquiry instituted against the appellant for misappropriation of government money and absence from duty for 4 years 7 months - For the charge of misappropriation, criminal court acquitted the appellate - However, departmental enquiry continued and appellant dismissed from service - Action challenged as the appellant is acquitted by criminal court - Held - Even though the appellant has been acquitted by the criminal court for the charge of misappropriation, then the penalty of dismissal has also been imposed on the appellant for the charge that he remained absent without any justified reason for a period of 4 years 7 months - No right has accrued in favour of appellant for reinstatement - Writ appeal dismissed : Krishna Kumar Pateriya Vs. State of M.P., I.L.R. (2009) M.P. 47 (DB)
- Departmental Enquiry - Natural Justice - Departmental enquiry concluded and petitioner, eventually was punished with order of compulsory retirement - Order challenged on grounds that without any justification after the delay of 15 years, D.E. was completed ex parte without affording proper opportunity of hearing to petitioner - Held - It is not a case of petitioner that he did not have the notice of departmental enquiries - Respondent's version in the return that the petitioner was served with notice and he did not participate in the departmental enquiries proceedings, so he was proceeded ex parte, has not been disputed by the petitioner by filing the rejoinder - Petitioner failed to show that prejudice has been caused to him on account of violation of principles of natural justice - No fault can be found with the order passed by the Disciplinary Authority : G.P. Dewangon Vs. State of M.P., I.L.R. (2010) M.P. 2547
- Departmental enquiry and recovery of rent - Petitioner after his transfer got relieved on the strength of forged vacation report of Govt. accommodation - Petitioner was punished in D.E. - Initiation of realization of rent from the salary of petitioner - Action challenged on ground that demand of rent amounts to double jeopardy - Held - Payment of rent was not subject matter of D.E. - Realization of rent is independent liability from submitting forged vacation report - He cannot escape liability to pay rent - Petition dismissed : Laxminarayan Dixit Vs. Union of India, I.L.R. (2009) M.P. 709 (DB) Service Law 715
- Departmental Promotion Committee - Powers of judicial review by High Court - Can the High Court reassess the findings of the Departmental Promotion Committee - Held - No - Normally, High Court or the Tribunal should not sit as an appellate court over the decision of the selection committee and should not take the task of selection on itself by considering the fitness of the candidates unless there are mala fides or the selection is arbitrary : Amolak Singh Chhabra Vs. State of M.P., I.L.R. (2009) M.P. 3046 (DB)
- Deputation - Permissibility - Petitioner was sent on deputation from Forest Department to Narmada Valley Development Department, which is another department of State Government, without his consent - Held - Deputation without consent of an employee not permissible - Petition allowed : K.P. Bhalse Vs. State of M.P., I.L.R. (2010) M.P. 2292
- Deputation - Petitioner working as Deputy Director, NVDA, Indore - His services repatriated to his parent department, i.e. Water Resource Dept. - Action challenged that Secretary, NVDA is not competent authority to pass such order - Held - Petitioner cannot claim his retention in NVDA merely because other employees have been retained in NVDA - At the relevant time Secretary was empowerd to discharge the functions of Commissioner (Admn.) of NVDA - Thus, order was passed by competent authority - Order is well within jurisdiction - Petition dismissed : Mukesh Nahar Vs. State of M.P., I.L.R. (2009) M.P. 2599
- Deputation - Person appointed on higher post from one Government Department to another - Question of higher pay - Held - F.R. 22 (D) (C.C.A. 1966) apply to only regular promotion to the post, not applicable to cases of Deputation - Where a purported order of Promotion has been affected from one cadre to another and that to, without following statutory rules - How ever if the person discharged higher responsibility and fixation of his higher salary is not based on his misrepresentation or fraud - But, fixation of higher salary took place on misconception of Law-excess pay and excess recovery - Bad in the eye of Law : Babulal Jain Vs. State of M.P., I.L.R. (2007) M.P. 1278
- Development Authority Services (Officer and Servants) Recruitment Rules, M.P. 1987, Rules 2(b), 8 & 53 - Show cause notice for disciplinary action issued by C.E.O. - Held - C.E.O. is nowhere shown to be a disciplinary authority - No delegation of power in his favour - Action initiated by C.E.O. without authority - Show cause notice quashed - Petition allowed : Ramesh Singh Thakur Vs. Jabalpur Development Authority, I.L.R. (2010) M.P. 827
- Development Authority Services (Officers and Servants) Recruitment Rules, M.P. 1987, Rules 7 & 17 - Promotion - Petitioner working on the post of Steno-typist - DPC recommended to Board the name of petitioner for promotion to the Service Law 716 post of Stenographer which is Class III post - Board in its turn sent the proposal to State Government for approval - Held - Promotions on Class III and IV posts have to be made by Chairman with prior approval of the Board - Board directed to consider the case of petitioner and take decision as per Rules - Petition allowed : Devendra Kumar Tripathi Vs. State of M.P., I.L.R. (2009) M.P. 341
- Development Authority Services (Officers and Servants) Recruitment Rules, M.P. 1987, Rules 7, 8 & 17 - Appointment by promotion - Rule 17 which deals with appointment by promotion, makes the provision of Rule 7(a) & 7(b) applicable in respect of promotion to all posts - Rule 17 further indicates that while this rule refers to the appointing authority, it does not confer the power of promotion upon any authority different or other than the authority named in Rule 8 : Devendra Kumar Tripathi Vs. State of M.P., I.L.R. (2009) M.P. 341
- Disciplinary Authority - Competence - Punishment - Petitioner removed from service by an order of Senior Regional Manager - He filed an appeal before the Zonal Manager which was entertained - Prior to passing of the order Regulations were amended and Regional Manager was made the Disciplinary Authority - Action challenged on the ground that the order of punishment was passed by an authority senior to the Disciplinary Authority and his right of appeal was prejudiced - Held - Order of removal was passed by an authority higher than the one prescribed in the Regulations as on the date the order was issued, no prejudice or discrimination resulted therefrom as the petitioner successfully availed of the remedy of appeal and even though the remedy of review was also available to him, he chose not to avail the same : Nathuram Vs. Food Corporation of India, I.L.R. (2009) M.P. 1658
- Disciplinary Enquiry - Misconduct of the Bank Officer - What amounts to? - Held - It is no defence available to say that there was no loss or profit resulted in the case when the officer employed acted without authority - The very discipline of an organization more particularly a Bank is dependent upon each of its offices and officers acting and operating within their allotted sphere - Acting beyond once authority is by itself a breach of discipline and a misconduct : Satyapal G. Purswani Vs. Central Bank of India, I.L.R. (2010) M.P. Note *36
- Disciplinary Enquiry - Quantum of punishment - Scope of interference - Held - The scope of judicial review is limited to the deficiency in the decision making process and not the decision unless the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the Court there is no scope for interference and if the Court comes to the conclusion that the punishment is shockingly disproportionate, it would be appropriate to direct the disciplinary authority or the appellate authority to reconsider the penalty imposed or it may make an exception in rare case and impose appropriate punishment with cogent reasons in support thereof : Satyapal G. Purswani Vs. Central Bank of India, I.L.R. (2010) M.P. Note *36 Service Law 717
- Disciplinary Enquiry - Scope of judicial review - Held - Power of judicial review available to the Court under the Constitution takes in its stride domestic enquiry as well and it can interfere with the conclusions reached therein if there is no evidence to support the findings or the findings recorded were such as could not have been reached by an ordinary prudent man or the findings were perverse or made at the dictates of the superior authority : Satyapal G. Purswani Vs. Central Bank of India, I.L.R. (2010) M.P. Note *36
- Disciplinary proceedings - Joint enquiry - Quantum of punishment - Three officials tried in a joint enquiry - All three awarded punishment - In appeal, the penalty of two officials reduced substantially but the appeal filed by the petitioner dismissed and punishment of demotion was maintained - Held - Petitioner has been singled out in regard to imposition of penalty by awarding a severe penalty as against the other two similarly placed employees - Respondents directed to reconsider the matter keeping view that in a joint enquiry other two employees have been awarded lesser punishment : Jeevanram Vs. State of M.P., I.L.R. (2009) M.P. 3125
- Disciplinary proceedings - Natural justice - Complainant not produced in the enquiry and could not be cross-examined - Held - Non-examination of complainant tantamount to violation of principle of natural justice : Vijay Jalali (Smt.) Vs. HMT Limited, I.L.R. (2010) M.P. 1405
- Disciplinary proceedings - Sexual harassment at work place - Dismissal - Quantum of punishment - The petitioner making complaints regarding sexual harassment at work place against the complainant at whose behest the D.E. was initiated against the petitioner - Prior to the initiation of D.E., no action was taken against such a complaint of the petitioner by the management - Held - Behaviour and attitude of the petitioner of slapping by Chappal and abusing the complainant was not irritating in any manner - Since the petitioner was sexually harassed in the past and complaints were made by her but no action was taken thereupon and on the date of incident also the sexual harassment was practiced on her, therefore, it cannot be said that the petitioner was unjustified in defending herself against the sexual harassment - Order of dismissal set aside with a direction to reinstate the petitioner with 75% back wages : Vijay Jalali (Smt.) Vs. HMT Limited, I.L.R. (2010) M.P. 1405
- Disciplinary Proceedings - Supply of documents - Documents sought by petitioner were not mandatory requirement under any statutory provision - Most of the documents sought by the petitioner were either produced and made available and those which were not produced were either not available or were not relevant - It was not shown that non-supply caused prejudice to petitioner - Merely on the basis of vague and unspecified allegation regarding non-supply of documents, interference into matter not Service Law 718 warranted - Petition dismissed : S.C. Mukherjee Vs. Chairman, State Bank of India, I.L.R. (2010) M.P. 391
- Dismissal - Delay in challenge - Effect - Held - Petitioner's services were dispensed with on account of irregularities and he did not take any proceeding for assailing dismissal from service and for seeking reinstatement for a period of nineteen years - Petitioner has not filed any filed order passed by High Court or any order passed by the Tribunal along with the petition in which similarly situated employees were granted benefit - Petitioner not entitled to any relief : Chandrabhan Singh Rajput Vs. State of M.P., I.L.R. (2010) M.P. Note *12
- Double jeopardy - Once the punishment of censure was inflicted by the disciplinary authority in respect of absence from the duty without prior sanction of the leave - The question of punishing the employee on the basis of charge of misconduct amounts to double jeopardy - Even though disciplinary authority has subsequently cancelled the order of censure and order of dismissal has been passed : Rajesh Upadhyay Vs. State of M.P., I.L.R. (2010) M.P. 844
- Educational Service (Collegiate Branch) Recruitment Rules, M.P. 1967, Rule 12(5) - Emergency appointment - Higher pay scale - Whether past services rendered in emergency appointment would be counted for grant of higher pay scale - Held - Yes - The appointment were made after following the procedure prescribed u/R 12(5) which provided for emergency appointment and subsequently the services of employees were regularized - State Government has taken the decision vide circular dated 12.02.1992 for counting of such services for the purpose of higher pay scale and for selection pay scale, the benefit of which could not have been denied to the employees : State of M.P. Vs. Dr. Smt. Sandhya Prasad, I.L.R. (2010) M.P. 1259 (DB)
- Employees' State Insurance Act (34 of 1948), Section 75(2-B) - Constitutional validity challenged being unreasonable and oppressive - Act is beneficial piece of legislation intended to provide benefit to employees - Adjudication by ESI Court u/s 75 is not an adjudication in the first instance to make the requirement of pre- deposit as arbitrary, unreasonable and oppressive - Beneficial legislation should not be allowed to be frustrated by adopting pedantic approach to Article 14 of Constitution - Constitutional validity of Section 75(2-B) upheld - Petition dismissed : Harshal Paper and Board Mill Ltd. Vs. Union of India, I.L.R. (2009) M.P. 55 (DB)
- Enquiry officer - Judge/Prosecutor - Enquiry officer has conducted a regular cross-examination of witnesses - He has also conducted the cross-examination of delinquent - Meaning thereby, the enquiry officer, has assumed the role of the prosecutor while acting as a Judge in the departmental proceedings - Not permissible : Rajesh Upadhyay Vs. State of M.P., I.L.R. (2010) M.P. 844 Service Law 719
- Family Pension - Delay in claim - Held - Even if there exist some delay in approaching the Court, the same would not come in the way of Widow Petitioner, who is claiming Family Pension : Shanti Devi (Smt.) Vs. State of M.P., I.L.R. (2010) M.P. 2316
- Family Pension - Respondents not disputing the widow to be the legally wedded wife of the deceased who was getting pension until his death - The petitioner would be fully competent and eligible to obtain the benefit of disbursement of Family Pension - Petition allowed : Shanti Devi (Smt.) Vs. State of M.P., I.L.R. (2010) M.P. 2316
- Fundamental Rules, Rules 24 & 26 - Compassionate appointment - Grant of annual increments - Entitlement - Petitioner appointed on compassionate ground and was not granted annual increments on account of not passing the Hindi typing examination - Held - FR 24 provides that increment would be granted as a matter of course unless they are withheld - It deals with case of a regular employee who has been appointed after following the due procedure prescribed by law - FR 24 & 26 would not be attracted to the petitioner's case as he was not a regular member of the service and as his increments were deemed to be withheld in view of the policy and the specific condition in his appointment order which clearly makes a stipulation to that effect : Pawas Shrivastava Vs. State of M.P., I.L.R. (2009) M.P. 131
- Gramin Dak Sewak (Conduct and Employment) Rules, 2001, Rule 4(3) - Chief Postmaster General in exercise of powers u/R 4(3) issued a show cause notice as to why the service be not terminated - As per the instructions contained in letter dated 27.11.1997, it was incumbent upon the appointing authority to take sanction of higher authority for appointment of OBC category candidates in place of ST category candidates - Held - High Court, after interpreting the instructions contaiend in the letter dated 27.11.1997, found that sanction of higher authority was not necessary - Therefore, appointment could not be said to be illegal - Show cause notice was issued without any basis and has been rightly set-aside by the tribunal - Petition dismissed : Union of India Vs. Sidd Prakash Singh, I.L.R. (2009) M.P. 714 (DB)
- Guest Faculty for giving lectures required to swear in affidavit that he/ she is not involved in teaching in other institution - Purpose - Held - A close scrutiny and comparative analysis of Clause (8) and Condition No.10(4) clearly reveal that the purpose of seeking such an affidavit from a candidate, is to secure an undertaking that the Guest Faculty shall devote his/her optimum time, effort and energy in preparing and delivering good lectures to the students and shall not treat the assignment to be a multiple engagement with multiple educational institutions, with a solitary objective of earning more and more honorarium : Manish Gupta Vs. State of M.P., I.L.R. (2010) M.P. Note *64 Service Law 720
- In earlier W.P. in the light of decision of HC in W.P. 3838/05(S) (Daddi Lal's case) it was ordered that petitioner Semi Skilled Daily Wager is entitled for the salary at the lowest grade - But, subsequently Daddi Lal's case has been overruled by DB of HC in W.A. 491/07 - DB held that grant of minimum pay in the scale is contrary to the judgment of SC in Uma Devi's case [(2006) 4 SCC 1] - Subsequent W.P. claiming minimum of the scale dismissed : Janki Prasad Garg Vs. State of M.P., I.L.R. (2009) M.P. 1942
- Industrial Training (Gazetted) Services Recruitment Rules, M.P. 2008, Rule 8 - Appointment of Principal Class I & II - Eligibility - The candidature of the petitioner rejected for the reason that they were holding B.E. Degree in Computer Science and executive instructions provided that B.E Degree with Civil, Mechanical, Electrical and Electronics are only eligible - The recruitment rules provided B.E. in any discipline - Held - The executive instructions issued by the State Government to the Public Commission cannot supersede the Statutory Recruitment Rules in the matter of recruitment for the post of Principal Class I and Class II i.e. the M.P. Industrial Training (Gazetted) Services Recruitment Rules, 2008 : Sanjeev Kumar Batham Vs. State of M.P., I.L.R. (2010) M.P. 1931
- Inter-Commissionerate Transfer - Validity - Group 'B', 'C' and 'D' employees of Central Board of Excise and Customs - Whether can be transferred from one Zone to another - Circulars dated 19-2-2004 and 9-3-2004 issued by the Deptt. Of Revenue - Held - Circulars deals with inter-commissionerate transfers on compassionate ground and are not applicable in case of transfer on administrative ground from Indore to Nagpur Zone - Transfer is governed by Circulars dated 24-8-1984, 16-1-2003 and 24-8- 2004 - Both Zones have common cadre as Chief Commissioner of Bhopal Zone is Cadre Controlling Authority, therefore, transfer was permissible - Appeal dismissed : Prabir Banerjee Vs. Union of India, I.L.R. (2008) M.P. 413 (SC)
- Interest on retiral benefits - Petitioner attained the age of superannuation on 30.04.2007, but terminal dues have not been finalized after lapse of more than 2 years - Petitioner is entitled for interest on delayed payment of retiral dues : Kirti Saxena (Dr.) (Smt.) Vs. State of M.P., I.L.R. (2010) M.P. 368
- Irregular appointments and illegal appointments - Distinction - A distinction has been drawn between the irregular appointments and illegal appointments, and a clarification has been issued that appointments made without advertisement and inviting names from employment exchange would be treated as irregular appointments, and therefore, as one time measure, would be entitled to be regularized, as per the law laid down by the Supreme Court, whereas the illegal appointments could not be rectified : Rajesh Ahirwar Vs. Principal Secretary Health Department, I.L.R. (2009) M.P. 2590 Service Law 721
- Irregular attendance - Charge contained recital of irregular attendance even after award of penalties four times - Punishment of removal changed to compulsory retirement in appeal - Finding of Tribunal that earlier chargesheets did not fourm part of articles of charge - Erroneous : Union of India Vs. Delan Prasad Shukla, I.L.R. (2006) M.P. 649 (SC) (FB)
- Judicial Review - Decision of the Age Determination Committee - Order passed by the authorities suffers from procedural irregularity - Procedural irregularity would include where relevant factors have not been considered - Age Determination Committee has not considered at all mark-sheet of Board of Secondary Education - Held - An error has crept in the decision of the Committee as it has ignored the mark-sheet of Board of Secondary Education which reflects the date of birth : South Eastern Coalfields Ltd. Vs. Nijamuddin, I.L.R. (2009) M.P. 3053 (DB)
- Land Revenue Code, M.P. (20 of 1959), Sections 22 & 104(2) - Termination of Patwari - Held - The Sub Divisional Officer has the authority to exercise powers of the Collector u/s 104(2) of the Code regarding appointment of Patwaris - The Sub Divisional Officer has the power to appoint and dismiss Patwari : Ravindra Kumar Gupta Vs. State of M.P., I.L.R. (2010) M.P. 2511
- Lower Judicial Service (Recruitment and Conditions of Service) Rules, M.P. 1994, Rule 7, Panchayat Samvida Shala Shikshak (Recruitment and Conditions of Contract) Rules, M.P. 2005, Rules 10, 12, 12(a) & 12(h) - Age relaxation - Petitioner working as Samvida Shala Shikshak Class-II in the Government School - He applied for the post of Civil Judge claiming relaxation of 3 years on the ground that he is a Government Servant - Held - Appointing authority of the petitioner is Janpad Panchayat and thus he is not a Government Servant and cannot be granted age relaxation : Arun Singh Bhadouriya Vs. State of M.P., I.L.R. (2009) M.P. 1939 (DB)
- Mala fide transfer - Person against whom allegations of mala fides are made, has to be personally impleaded and plea of mala fides has to be properly pleaded and proved : Bhagwati Singh Verma Vs. State of M.P., I.L.R. (2010) M.P. 2466 (DB)
- Municipalities Act, M.P. (37 of 1961), Section 94, Municipal Employees Recruitment and Conditions of Service Rules, M.P. 1968, Rule 12 - Promotion - Absorbtion - Competent Authority - Promotion of an employee of Municipal Council from feeder post to higher post can be considered by any other Municipal Council and not by a particular Municipal Council to which he belongs - Absorption of such employee can be made with the approval of State Government : Munna Lal Karosiya Vs. State of M.P., I.L.R. (2009) M.P. 2854
- Municipalities Act, M.P. (37 of 1961), Sections 95 & 355, Municipal Employees Recruitment and Conditions Rules, M.P. 1968, Rule 23, Shaskiya Sevak (Adhivarshiki- Service Law 722
Ayu) Tritiya Sanshodhan Adhyadesh, M.P. 1998, Section 3, State Municipal Service (Executive) Rules, M.P. 1973 - Age of retirement of municipal employees - Parity in employment - Petitioner a Safai Karamchari was retired from service on attaining age of 60 years on 28.02.1999 - Subsequently, State Government issuing notification that Safai Karamchari of Municipality entitled to continue upto 62 years w.e.f. 27.09.2003 - However, the members of M.P. State Municipal Service have been given the benefit of 60 years of age of retirement w.e.f. 26.09.1998 at par with the employees of State Government - Petitioner seeking parity in age of retirement with other municipal employees - Held - Petitioner was entitled to the benefit of age of 62 years on the basis of Article 14 because she has been retired at the age of 60 years when at that time the benefit of retirement of age of 62 years has been given by the State Government to its employees and same benefit has been given to the class IV municipal employees by the Government w.e.f. 27.09.2003 : Mathuro (Smt.) Vs. State of M.P., I.L.R. (2009) M.P. 765
- Natural justice - 22 Shiksha Karmis were selected and appointed - Before Appellate Authority allegations were made only against 8 candidates - Appellate Authority set-aside the whole selection list - Held - When no allegations were made against others, setting-aside the entire selection process has caused serious injustice to those persons who were not extended even an opportunity of hearing before the Appellate Authority - Principle of natural justice requires that such an opportunity of hearing should be extended until & unless it is found that no such opportunity was necessary - Order of Appellate Authority quashed - Petition allowed : Anjum Shekh (Smt.) Vs. State of M.P., I.L.R. (2010) M.P. 901
- Natural Justice - Petitioner granted compassionate appointment as child constable on 29.08.2001 but by the order dated 06.11.2002 the order has been withdrawn - While issuing the order, the respondents have not granted any opportunity of hearing to the petitioner - Held - In case an order is passed recalling another administrative order, an opportunity of show cause to the adversely affected person has to be given in the matter - Petition allowed : Rahul Singh Vs. State of M.P., I.L.R. (2009) M.P. 186
- Necessary party - Select list of Shiksha Karmis challenged without impleading appointed candidates as party in appeal - Appellate Authority set-aside the selection list - Held - When the appointed candidates were directly affected in the matter they ought to have been impleaded as party - In such circumstances by non-impleading such candidates, there was serious defect of non-joinder of necessary party : Anjum Shekh (Smt.) Vs. State of M.P., I.L.R. (2010) M.P. 901
- Panchayat Raj Evam Gram Swaraj Adhiniyam, M.P. 1993 (1 of 1994), Section 69(1), Panchayat (Resignation by Office Bearer) Rules, M.P. 1995, Rules 3 & 4 - Appointment of Panchayat Secretary challenged on the ground that his brother was Service Law 723 working as Panch in the Gram Panchayat - Panch resigned before the meeting in which the resolution for appointment of Panchayat Secretary was passed - Held - In absence of acceptance of resignation, brother of Panchayat Secretary continued to be a Panch and Panchayat Secretary being his near relative could not be selected as Panchayat Secretary : Lallu Kol Vs. State of M.P., I.L.R. (2009) M.P. 1607 (DB)
- Panchayat Samvida Shala Shikshak (Employment and Condition and Contract) Rules, M.P. 2005, Rules 9, 10 & 11 - Appointment of Shiksha Karmi - Termination - Natural Justice - Petitioner applied for being appointed as Shiksha Karmi - Even being more meritorious not selected - Action challenged - Mass irregularities found in the entire selection process - Held - It is well settled principle of law that when the entire selection is being cancelled due to writ large irregularities hearing to individually candidates is not necessary - Respondents directed to conduct fresh recruitment process in pursuance to the aforesaid order shall be limited to on such candidates who had applied and participated in the previous selection process and the same be completed within a period of 3 months : Kanchan Upadhyay (Ku.) Vs. State of M.P., I.L.R. (2009) M.P. 155
- Panchayat Service (Recruitment and General Conditions of Services) Rules, M.P. 1999, Rule 20 - Promotion - Seniority-cum-fitness - Criterion explained - Held - While promoting an employee on the basis of seniority-cum-fitness, there is no requirement of assessment of comparative merit and an employee is to be promoted if he fulfills the minimum merit of satisfying a benchmark fixed by the DPC : Bharat Bhusan Sharma Vs. State of M.P., I.L.R. (2009) M.P. 1204 (DB)
- Panchayat Service (Recruitment and General Conditions of Services) Rules, M.P. 1999 - Deputation - Treasury Officer holding a cadre post in the State Government send on deputation to Zila Panchayat without his consent - Action challenged - Held - State Government has a right to post such Treasury Officer to Zila Panchayat, but such a posting would amount to transfer on deputation to Panchayat as per Rules of 1999 - Therefore the same can be done only by seeking his consent and following rules and procedure contemplated for posting of an employee on deputation - Order without consent unsustainable : P.K. Jain Vs. State of M.P., I.L.R. (2009) M.P. 1010
- Patwari Selection and Examination Conduction Rules, M.P. 2008, Rule 1.8 - Appointment of Patwari - A condition in the advertisement for appointment as Patwari that passing of Higher Secondary or High School is necessary - In addition 'O' level certification from DOEACC/IETE or one year Diploma in Computer Application (DCA) from an institute registered/recognized/affiliated with the university recognized by the UGC or higher education in computer - A further clarification issued that only those certificates which are issued under the seal and signature of the university shall be valid and the certificate issued by the institutes shall not be valid - Held - The institutions are established by the University but the diplomas are eventually conferred Service Law 724 by the University itself - What is required by the letter-circular is to produce diplomas or certificates with the seal of the University and with the signature of the competent authority of the University - There is no change in the terms incorporated in the advertisement - It does not remotely transgress the stipulation in the Rule - The letter- circular postulates is only the method how the certificate is to be produced as per law - It is in accord with the Rule and the advertisement : Neelesh Shukla Vs. State of M.P., I.L.R. (2010) M.P. 1050 (DB)
- Patwari Selection and Examination Conduction Rules, M.P. 2008, Rule 1.8 - Appointment of Patwari - A condition in the advertisement for appointment as Patwari that passing of Higher Secondary or High School is necessary - In addition 'O' level certification from DOEACC/IETE or one year Diploma in Computer Application (DCA) from an institute registered/recognized/affiliated with the university recognized by the UGC or higher education in computer - Said condition challenged as irrelevant and not in nexus to the object sought to be achieved - Held - Patwari are required to maintain Data and thus the prescription of requirement for having DCA cannot be treated to be arbitrary or irrational to invite wrath of Article 14 of the Constitution - The rule is intra vires : Neelesh Shukla Vs. State of M.P., I.L.R. (2010) M.P. 1050 (DB)
- Pension - Annuity - Date when its gets crystallized - Held - Right of the employees to receive the annuity and the quantum of the annuity gets crystallized at the time of purchase of the annuity and once they have retired the connection between the trust and the fund of the retirees are served and the LIC under law is obliged to make payment as promised : R.S. Shastri Vs. M.P. State Ware House Corporation, I.L.R. (2010) M.P. 1386
- Pensioner's Welfare Fund Rules, M.P. 1997, Rule 3 (a) - Medical assistance - Petitioner's application for medical assistance was rejected as the treatment undergone by him was not in a recognized hospital of the respondents - Held - Treatment undergone by the petitioner was not in the approved hospital list of the respondent and thus rejection for the medical assistance can not be said to be unjustified - It appears that under some misconception the petitioner approached to the respondents seeking 'assistance' under Rules of 1997 : Prasanna Kumar Sharma Vs. State of M.P., I.L.R. (2010) M.P. 1271
- Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (1 of 1996), Section 33 - Appointment on the post of Stenographer - Reservation - Petitioner, who is a visually disabled person, claiming appointment on the post of Stenographer - Held - As per the policy of State Government, out of the total posts 6% are reserved for persons with disabilities i.e. 2% for visually disabled persons, 2% for hearing impaired persons and 2% for orthopaedically disabled persons - In the present case, 6 posts reserved for persons with disabilites - 2 posts should have been filled up by the persons belonging to visual disabled category - High Service Law 725
Court has arrived at a conclusiion that the number of posts reserved should have been 7 instead of 6 - As still one post is to be filled up from visually disabled person, the respondent/State is directed to consider the case of petitioner against this one additional post : Kailash Swarnkar Vs. State of M.P., I.L.R. (2009) M.P. 795
- Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (1 of 1996), Section 33 - Appointment on the post of Stenographer - Reservation - Total number of posts of Stenographers are 110 - As per the instructions issued by the State Government dated 31.10.2003, total 6% reserved posts for the persons with disabilities - It comes to 6.6 as it is more than half it has to be counted in round figure as 7 - The total number of posts which ought to have been reserved for disabled persons should have been 7 instead of 6 : Kailash Swarnkar Vs. State of M.P., I.L.R. (2009) M.P. 795
- Petitioner was terminated on account of pendency of criminal case - Thereafter, he was acquitted and order of acquittal was affirmed - Application for reinstatement filed on 11.10.1980 - Re-appointed on 22.07.1996 with the direction that intervening period has been treated as break in service - Held - Delay in passing order of reinstatement was on the part of authorities & State - Petitioner shall be deemed to have been reinstated in service on his acquittal and the entire period shall be counted for the purpose of pension and entitled for 25% back wages for the period 11.10.1980 to 22.07.1996 : Dwarka Prasad Kasyap Vs. State of M.P., I.L.R. (2010) M.P. 417
- Police Regulations, M.P., Regulation 241 - Petitioner acquitted in criminal case - Petitioner prayed for quashing the charge-sheet and not to proceed further in D.E. initiated against him - Held - Petitioner has been acquitted by the criminal Court on the same charges on which the D.E. was instituted - Petitioner is entitled to reinstatement in accordance with the provisions of Regulation 241 of Police Regulations - Charge- sheet quashed - Petition allowed : H.R. Kaurav Vs. State of M.P., I.L.R. (2009) M.P. 1233
- Police Regulations, M.P., Regulation 270 - Suo motu revision - Natural Justice - Petitioner was inflicted with punishment of censure which suo motu revised by the Higher Authority and D.E. was initiated against him - Held - Before cancelling the order of penalty and ordering for issuance of the charge-sheet and for holding D.E., it was necessary for the revising authority to have issued a notice to the petitioner to show cause and to have given an opprtunity of hearing to him - Action not only contrary to the provisions contained in the Regulation 270 but is also violative of principles of natural justice : Rajendra Kumar Chaturvedi Vs. State of M.P., I.L.R. (2010) M.P. 374 Service Law 726
- Police Regulations, M.P., Regulation 70-A - Out of turn promotion - Relevant date - Appellant was given out of turn promotion in 1997 for his exemplary gallantry act in 1992 - Petition filed that he should be given promotion from the date of incident - Single Judge held that there is no provision in Regulation 70-A that out of turn promotion is to be given w.e.f. the date of the incident - Writ Appeal - Held - D.B. affirmed the judgment - Writ Appeal dismissed : Atma Ram Sharma Vs. State of M.P., I.L.R. (2010) M.P. 25 (DB)
- Policy decision - Judicial review - Held - Courts would be slow in interfering with matters of government policy except where it is shown that the decision is unfair, mala fide or contrary to any statutory directions - Courts will not dictate the decision of the statutory authority in exercise of its discretion and formulation of its policies - Court will not direct the statutory authority to exercise the discretion in a particular manner not expressly required by law : Y.L. Chopra Vs. Rani Durgawati Vishwavidyalaya, I.L.R. (2010) M.P. 1280
- Policy for regularization - The candidate to be regularized should be a candidate whose appointment at the initial stage is irregular and he should have been appointed 10 years back and working continuously and should have been appointed on the basis of fulfillment of criteria laid down in recruitment rules - At the time of appointment petitioner was not possessing qualification of Diploma or Degree in Engineering which is minimum criteria for appointment to the post of Sub-Engineer - His appointment would fall in the category of illegal appointment - Held - The criteria of possessing Diploma or Degree for period of 10 years laid down in policy is a criteria laid down on the basis of principles of law as has emerged from judgment of Supreme Court in Umadevi's case [(2006) 4 SCC 1] - State Government and Competent Authority have not committed any error in rejecting claim of petitioner : Shailendra Kumar Sahu Vs. State of M.P., I.L.R. (2010) M.P. 1922
- Probation and confirmation - By confirmation, an incumbent is deemed to have been absorbed in the service on a post to which he was initially appointed on probation : G.V.S. Shastri Vs. M.P. State Electronics Development Corporation Ltd., Bhopal, I.L.R. (2010) M.P. Note *79
- Promotion - Illegal denial - Grant of back wages - Petitioner illegally denied promotion and juniors were promoted - Petitioner given retrospective promotion from the date her juniors were given promotion but without any back wage for the reason she did not actually work on the promoted post - Held - Petitioner was denied promotion for no fault on her part and at any point of time, the petitioner has not stated that she is not willing to work on the promotional post - Petitioner is entitled for back wages along with all monetary benefits including enhanced pension and arrears on account of promotion to the post of Principal : Pushpa Usgaonkar (Smt.) Vs. State of M.P., I.L.R. (2010) M.P. 1545 Service Law 727
- Promotion - Non-availability of confidential reports of previous year, availability of anticipated vacancies, objection of employee's union, recommendation of Minister for postponement of DPC ignored by DPC - Department acted in a very unreasonable, unjust and arbitrary manner in promotion - Held - The Government was justified in ordering review DPC : Ashok Kumar Shukla Vs. State of M.P., I.L.R. (2010) M.P. 870
- Promotion - When promotion is granted by way of absorption in a higher cadre post after due scrutiny, it will only have prospective effect : Umakant Mudgal Vs. State of M.P., I.L.R. (2010) M.P. 2552
- Promotion and seniority - Petitioners promoted on ad hoc basis as Head TTE - Subsequently, reverted back to post of TTE as they had failed in interview - Circular dated 25.01.1976 which provides that employees working in the posts on ad hoc basis quite satisfactorily are not declared unsuitable in interview - Circular dated 25.01.1976 has binding force - Petitioners already given promotion during pendency of petition - Seniority be accorded from the day from which their juniors were promoted - Petition allowed : N.K. Chakrabarti Vs. Union of India, I.L.R. (2009) M.P. 711 (DB)
- Promotion Minimum qualification prescribed "five years experience as Lecturer (Cardiology) in a Medical College" for promotion to the post of 'Reader' - Not open to State Government to prescribe qualification lesser than the minimum prescribed by Medical Council of India : Dr. Yogesh Verma Vs. State of M.P., I.L.R. (2006) M.P. 1130 (DB)
- Public Services (Promotion) Rules, M.P. 2002, Rule 7(4) - Number of vacancies for promotion during the course of year shall be worked out after taking into account the existing and anticipated vacancies on account of retirement and promotions to higher cadres/part of service/higher pay scale of posts, vacancies arising out of deputation for periods exceeding one year - The intention when rule speaks about vacancies arising out during the course of the year could be for all the vacancies that may arise for any reason, during the course of year : Ashok Kumar Shukla Vs. State of M.P., I.L.R. (2010) M.P. 870
- Punishment - Double jeopardy - Disciplinary Authority initially imposed a punishment of reversion to a lower post for 2 years upon the petitioner - Authority modified the order of punishment to stoppage of four increments with cumulative effect but by that time the petitioner had already suffered reversion for 2 years - Held - No further punishment would have been imposed upon petitioner for the same incident - Order of second punishment smacks of total arbitrariness and perversity - Second order quashed : K.R. Rai Vs. State of M.P., I.L.R. (2009) M.P. 2526 Service Law 728
- Punishment - Petitioner directly appointed as an Additional Treasury Accountant - After conducting the departmental enquiry punished with reversion to the post of Accountant Assistant for a period of 2 years - Held - A direct recruitee could not be reverted to a post below the one to which he was recruited : K.R. Rai Vs. State of M.P., I.L.R. (2009) M.P. 2526
- Railways Services (Pension) Rules, 1993, Rules 9(3), 10(1)(c) - Gratuity - Entitlement - Gratuity of petitioner withheld after his superannuation due to pendency of a criminal case against him - Held - Rule 10(1)(c) of the Rules of 1993 lays a postulate that no gratuity shall be paid under to the railway servant until the conclusion of departmental or judicial proceedings and issue of final orders thereon - Petition dismissed : Mohd. Abdul Saeed Vs. Union of India, I.L.R. (2009) M.P. 70 (DB)
- Reasonable restriction on multiple employment - Clause 10(4) of the invitation letter stipulated that the Guest Faculty member should not be involved in teaching in any other college - Held - There appears to be a clear objective behind asking a Guest Faculty about his other engagements with other college and even if the same is taken or felt as a "restriction" for obtaining analogous employment, the same seems to consist of a pious nexus with the objective, sought to be achieved by the Higher Education Department and/or the college - It passes the test of reasonableness and could not be classified as "unreasonable" in any manner : Manish Gupta Vs. State of M.P., I.L.R. (2010) M.P. Note *64
- Recovery - Appointment of petitioner on monthly salary - After 4 years of appointment, recovery directed on the ground that appointment of petitioner in work charged and contingent establishment should have been made on fixed Collector's rate for 3 years and only thereafter he became entitled for salary in regular pay scale - Held - There was no misrepresentation on the part of petitioner - Appointment on monthly salary was mistake of employer - Recovery of excess amount would cause hardship to petitioner - Order of recovery quashed on equitable grounds - Petition allowed : Sudhir Prasad Dwivedi Vs. State of M.P., I.L.R. (2009) M.P. Note *23
- Recovery - Increment wrongly paid to Shiksha Karmis - It was not a payment by any kind of misrepresentation by Shiksha Karmis - It was erroneous payment by authorities - Recovery of amount not warranted : State of M.P. Vs. Raghvendra Sohgaura, I.L.R. (2009) M.P. 623 (DB)
- Recovery - Petitioner granted pay scale as per salary mentioned in the appointment order - Order of recovery issued on the ground that petitioner appointed in the work charged and contingent establishment and thus would be entitled to salary as per the rates fixed by the Collector - Held - Petitioner was given compensionate appointment on the regular pay scale without any misrepresentation on his part - The recovery of Service Law 729 excess payment would cause grave hardship to him - Therefore, it is directed that no steps be taken against the petitioner to recover or to adjust any excess amount paid to him due to the fault of respondents : Shrinivas Verma Vs. State of M.P., I.L.R. (2009) M.P. 195
- Recovery - Petitioner's date of birth in mark-sheet was 20.02.1942 - But, it was entered as 15.01.1948 in the service-book - Petitioner continued in service on the strength of judgment passed by the High Court in earlier writ petition - Pay and allowances already drawn by the petitioner shall not be recovered from the petitioner as he has worked for respondents during the aforesaid period - However, terminal dues of the petitioner shall be calculated treating 28.02.2002 as the date of retirement for all purposes : Sant Kumar Agrawal Vs. Laxmibai national Institute of Physical Education, I.L.R. (2009) M.P. 144
- Recovery from Family Pension - Petitioner was paid excess pension than the pension order and the same was sought to be recovered in installments from future family pension admissible to her - Action challenged - Held - When the amount was wrongly paid more than the Pension Payment Order for which only the petitioner was entitled it has rightly been ordered to be recovered - Recovery of the amount has been ordered after giving opportunity of hearing to the petitioner - Action in ordering recovery cannot be said to be illegal or arbitrary : Ratan Bai Vs. State of M.P., I.L.R. (2010) M.P. 1578
- Recruitment - Filling up Police Verification form - Lodging of FIR cannot be treated as commencement of prosecution - Petitioner not aware of lodging of FIR on the date of filling up form that he has not been prosecuted - No suppression of fact : Pushpraj Singh Vs. State of M.P., I.L.R. (2006) M.P. 1144
- Recruitment - Qualification - Recruitment process for appointment on various posts started in the year 2002 in pursuance of advertisement issued by State Government - Advertisement challenged before SAT - Recruitment process was stayed - Petition allowed with direction to issue fresh advertisement - Petitioners had applied for appointment and were eligible to appear in 2002 became ineligible having crossed the upper age limit - No recruitment to post in question taken place in between - Held - Petitioners have a right to participate in selection process initiated in the year 2007 by virtue of the right, which was existing in their favour in the year 2002 : Sanjay Singh Baghel Vs. State of M.P., I.L.R. (2009) M.P. 386
- Recruitment of Clerk-Steno / Assistant Grade-III - Rejection of application forms of candidates on ground that the certificates of diploma have not been issued by a university recognised by UGC or by DOEACC or by a Govt. Polytechnic College - Held - It is clear and apparent that none of the certificates have been issued by the Service Law 730 affiliating institutions i.e. the concerned universities, the DOEACC or the Government and, therefore, none of them conform to the requirement - No fault in rejection of the petitioners' forms - Petition dismissed : Mukesh Tripathi Vs. Registrar General, I.L.R. (2010) M.P. Note *31
- Regularization of Ad hoc Appointment Rules, M.P. 1986, Rule 12 - On 23.09.1980 petitioner was appointed on ad hoc basis as Lecturer - Regularized on 10.03.1987 with the condition that on the date of regular appointment he shall be placed below the persons who have been appointed under Recruitment Rules prior to him - Claim for senior pay scale after completion of 8 years from 23.09.1980 - Held - Rule provides entitlement of seniority from date of regularization - Petitioner once accepted regularization with condition, can not claim senior pay scale prior to regularization - Petition dismissed : Dwarkadas Mahajan Vs. State of M.P., I.L.R. (2009) M.P. 67
- Reimbursement of legal and travelling expenses - Appellant was trapped allegedly taking bribe while he was collecting fine - Appellant acquitted by trial court - Appellant entitled for reimbursement of legal expenses and travelling expenses as criminal case was in respect of matters arising out of or connected with official duties or official position : P.G. Kshatriya Vs. State of M.P., I.L.R. (2009) M.P. 10 (DB)
- Reversion of a probationer - Whether punitive in nature - Held - The petitioner's work was under observation during the probation period and he was given repeated opportunity to improve his performance for which purpose his probation was extended for a further period of one year - The competent authority did not find him fit for confirmation on the promotional post because during probation period his services were unsatisfactory - The order of reversion not punitive in nature : Phool Singh Kushwaha Vs. Food Corporation of India, I.L.R. (2010) M.P. 1343
- Service Regulations, 2001, Section 2(i) - Departmental Enquiry - Charge- sheet challenged on the ground that General Manager was not competent to issue charge-sheet - Held - On the basis of proposal made by the Chairman, Board of Directors, in their resolution in a meeting, accepted and have designated Controller/Regional Officer/ General Manager not below scale IV as the competent authority within the meaning of Service Regulation - Issuance of charge-sheet by the General Manager is well within his competence and authority : Binda Prasad Vs. Narmada Malwa Gramin Bank, I.L.R. (2010) M.P. 833
- Shaskiya Sevak (Adhivarshiki-Ayu) Dwitiya Sanshodhan Adhiniyam, M.P. (28 of 1998), Section 2, Vishwavidyalaya Adhiniyam, M.P. 1973, Statute 28(1)(d), College Code (Statute 28) - Two advance increments awarded for Ph.D. withdrawn on the ground that petitioner is a Principal and not a teacher - Held - Principal is also involved in teaching activities - The post of Principal cannot be excluded from the definition of a Service Law 731 teacher - Respondents have extended the benefit of continuance in service by treating the petitioner as a teacher upto the age of 62 years - Withdrawal of benefit of two advance increments is bad in law - Petition allowed : Kirti Saxena (Dr.) (Smt.) Vs. State of M.P., I.L.R. (2010) M.P. 368
- Shiksha Karmis - Shiksha Karmis are not government employees : State of M.P. Vs. Raghvendra Sohgaura, I.L.R. (2009) M.P. 623 (DB)
- Standing Order No.79 (Revised w.e.f. 04.10.2007), Clause 2(b) - Modification in cut off date of age for recruitment - Petitioner contended that modification in Clause 2(b) of Order 79 w.e.f. 04.10.2007 i.e. much after the advertisement dated 15-21.09.2007 and was thus not applicable retrospectively for a recruitment process of Sub-Inspectors in RPF/RPSF already initiated - Held - Modification was in pursuance to decision dated 31.07.2007 which was taken before the issuance of advertisement - There being no accrual of right in favour of the petitioner - The contention that change of cut off date for the purpose of age has prejudicially effected the chance of the petitioner to participate in the selection is of no consequence because the entitlement of a person is only for consideration and the same is on the basis of the rules in vogue - Petition dismissed : Ashwini Kumar Mishra Vs. Union of India, I.L.R. (2009) M.P. 3133
- State Road Transport Employees Conduct, Discipline and Appeal Regulations, M.P. 1975, Regulations 34 & 36 - Inquiry Officer - Competence - An authority under the regulation could be delegated the power to inquire into the truth by the Competent Authority as Inquiry Officer - Admittedly, Inquiry Officer posted on deputation as Deputy Secretary and not an employee of Corporation - His substantive post was Professor in Higher Education Department - Consequently, enquiry conducted by such officer is against the provisions of Regulations and beyond his power - Proceedings null & void - Appointment of Inquiry Officer and subsequent proceedings conducted by him quashed - Petition allowed : Mohd. Ismail Khan Vs. M.P. Road Transport Corporation, I.L.R. (2009) M.P. 3115
- Stay of departmental enquiry during pendency of criminal case - There is no rule of automatic stay of D.E. during pendency of criminal proceeding - Only where complicated questions of law and facts are involved, discretion may be exercised - Since employee has disclosed his defence and charge has been framed in criminal case and evidence has been started in D.E. - No prejudice is going to be caused to employee in D.E. - Application for stay rightly rejected - Petition dismissed : Gulab Chandra Vishwakarma Vs. South Eastern Coalfields Ltd., I.L.R. (2010) M.P. 413 (DB)
- Suspension - Mala fide - As serious charges leveled against the petitioner and the charges are based on complaint made by the Local MLA, the same cannot be Service Law 732 interefered with on merit at this stage, when the enquiry is pending - If a complaint is made by the MLA and action is taken, that by itself cannot be a ground to attribute mala fides : Ashok Noronha Vs. M.A. Khan, I.L.R. (2009) M.P. 662
- Teaching staff and library staff - Distinction - The teaching staff has to do some research work, deep study in their respective subjects and to make preparations for the daily lectures in the class rooms and other academic work while this is not so in the case of library staff - The experience of library staff is totally different from the one which is required for the teaching staff - Working pattern of the two sets of employees cannot be said to be identical so as to claim parity between the library staff and the teaching staff : Y.L. Chopra Vs. Rani Durgawati Vishwavidyalaya, I.L.R. (2010) M.P. 1280
- Technical Education Polytechnic College (Teaching Cadre) Service (Recruitment) Rules, M.P. 2004, Rule 8(c) - Age relaxation - Held - Grant of age relaxation for the recruitment by M.P.P.S.C. - There should not be any distinction between the employees who are working on temporary posts, short term, contractual or ad hoc employees and the regular employees : Raghavendra Agrawal Vs. State of M.P., I.L.R. (2009) M.P. 1017
- Termination - Petitioners appointed to various posts of paramedical staff on a regular basis - They worked for more than 10 years and were getting all service benefits of regular employees - State Govt. suddenly termed their appointment as illegal and being contrary to rules and thereby ordered their termination - Held - At the time of appointment a regular selection process had been resorted to and on the recommendations made by District Selection Committee, they were selected and so appointed - Petitioners were eligible for the posts and they had worked for a period of more than ten years - In the circumstances of the case High Court found that at the most the appointments of the petitioners were to be treated as irregular and not illegal - It would be hardship not only to the petitioners, but to their families if the termination orders were to be maintained - Termination orders quashed - Petition allowed : Rajesh Ahirwar Vs. Principal Secretary Health Department, I.L.R. (2009) M.P. 2590
- The appointment in favour of the petitioner being not obtained by misrepresentation or fraud, creates vested rights in favour of petitioner and cannot be taken away unless & otherwise in accordance with law : Ramesh Singh Thakur Vs. Jabalpur Development Authority, I.L.R. (2010) M.P. 827
- The petitioners initially appointed as Assistant Engineer were subsequently promoted as Executive Engineer vide order dated 07.02.2005 on probation - They were reverted back by impugned order dated 12.05.2010 on the ground that they have not successfully completed their period of probation, as they Service Law 733 were not awarded 2 'B' grades during period of the years 2006, 2007 & 2008 - Held, - The period of probation of the petitioners includes the entire period of service rendered by them on probation on the promotional post of Executive Engineer i.e. from 07.02.2005 to 12.05.2010 - Thus the respondent authorities are required to consider the entire service record of the period of probation for the purpose of considering the case of the petitioners for confirmation on the post of Executive Engineer - The petitions were allowed and order dated 12.05.2010 quashed - The matter reverted back for reconsideration taking into consideration the entire period of probation i.e. from 07.02.2005 to 12.05.2010 : Narendra Kumar Singh & Raj Kumar Jain Vs. MPSEB, I.L.R. (2010) M.P. Note *46
- Transfer - Arbitrary exercise of power - Petitioner was transferred within 3 months and transfer order of resp. No.2 was cancelled who was working as in-charge of the post since last 3 years - Held - Department failed to explain any reason or administrative exigency to cancel transfer order of resp. No.2 and transfer of petitioner within 3 months of joining - Petitioner transferred to accommodate resp. No.2 - Order is arbitrary exercise of power - Transfer order of petitioner quashed : Narendra Vs. State of M.P., I.L.R. (2009) M.P. Note *16
- Transfer - Competence to transfer - Appellant working as compounder in Autonomous Government Ayurved College, Ujjain - He made an application to the Government for being transfered to Autonomous Government Ayurved College, Rewa - Appellant was transferred to Rewa - After joining at Rewa, he was again transferred to Ujjain for the reason that the Government has no power to transfer an employee of autonomous college from one college to another - Held - Government cannot control the service conditions of employees of autonomous college as autonomous colleges are governed by specific rules framed/adopted by such colleges and cannot transfer such employees from one college to another : Pramod Kumar Shukla Vs. State of M.P., I.L.R. (2009) M.P. 1200 (DB)
- Transfer - Malafide - Petitioner General Manager in BSNL - Transfer before completion of 3 years at location - Transferred out of M.P. circle when he was nearing completion of eight years in circle - Alleged that to accommodate private respondents he has been transferred - Held - Clause of transfer policy providing for minimum period of 3 years at location is not applicable as policy provides for tenure of 8 years in a circle - Posting of private respondent after considering his representation to avoid inconvenience to him - Petitioner failed to establish malafide or breach of statutory rule - No interference in transfer order - Petition dismissed : Rajesh Gupta Vs. Bharat Sanchar Nigam Ltd., I.L.R. (2009) M.P. 103
- Transfer - Misconduct - Punitive or Stigmatic - Natural Justice - Petitioner transferred - Allegations of misconduct indicated in the order of transfer - It is stated Service Law 734 that in violation to the principles of Natural Justice, petitioner is punished by the order of transfer - Held - If the order of transfer contains certain facts which amount to allegations or misconduct committed by the employee the same are administrative reasons which compelled the employer to transfer and in doing so the order of transfer cannot be said to be punitive or stigmatic - Respondents have indicated the reasons which compelled them to transfer the petitioner and in doing so they are not required to hear the petitioner - When the same has no adverse effect on the terms and conditions of appointment and when transfer itself is a condition of appointment - No interference is warranted - Petition dismissed : R.B. Dubey Vs. State of M.P., I.L.R. (2009) M.P. 100
- Transfer - Petitioner an employee of Municipal Council - Transferred to District Urban Development Agency (DUDA) - Order of transfer quashed by High Court holding that transfer was not a transfer from one Municipal Council to another - Petitioner was again transferred to DUDA - Writ petition challenging the order was disposed of with direction to Transfer Grievance Cell for reconsideration - Consequently, petitioner was posted in Municipal Council but was again transferred to DUDA - Petition against - Held - In other case Division Bench of High Court held that DUDA is a body fully controlled by State Government and, therefore, the State employee can be transferred to DUDA - Record pertaining to the proceedings leading to the subject transfer also do not reveal any factor having effect of vitiating transfer - Transfer can not be said to be illegal - Petition dismissed : S.B. Singh Vs. State of M.P., I.L.R. (2009) M.P. 1266
- Transfer - Petitioner, a Reserve Inspector (R.I.) of Police Department posted as Inspector (Traffic) - Send back as R.I. on account of administrative exigency - Held - Clause 2 of the circular dated 14.02.2007 providing the minimum period of 2 years at one place in respect of various officers including S.H.O. is not applicable to the Inspector (Traffic) - Clause 3(2) of the circular empower the Board for transfer and posting of D.S.P. and officers subordinate - It further provides that decision of transfer taken by the Board shall be sent to State Government before execution - After taking the decision to transfer the petitioner, a copy of transfer order was sent by the Board to the State Government - Petitioner's transfer order not violative of the any clause of the circular - Order of transfer was passed taking into consideration the vacant post of R.I., past experience of petitioner and forthcoming election - No mala fide in issuance of impugned transfer order - Petition dismissed : Arvind Tiwari Vs. State of M.P., I.L.R. (2009) M.P. 1331
- Transfer - Until and unless the transfer is vitiated by mala fide or is made in violation of any statutory provision, the Court cannot interfere with the order of transfer : Bhagwati Singh Verma Vs. State of M.P., I.L.R. (2010) M.P. 2466 (DB)
- Value of statement recorded during preliminary enquiry - The conclusion of the enquiry officer based upon the statements of the witnesses recorded during the Service Law 735 course of preliminary enquiry - Such statements were recorded behind the back of the employee - Therefore, the conclusion stands vitiated : Rajesh Upadhyay Vs. State of M.P., I.L.R. (2010) M.P. 844
- Veterinary Department Contingency Paid Employees Recruitment and Conditions of Service Rules, M.P. 1979, Rule 7(2-D) - Termination - Natural Justice - Petitioner appointed as Part Time Sweeper without prescribing to the selection procedure - Appointment cancelled without adhering to the principles of Natural Justice - Held - Petitioner has not denied that his appointment was made contrary to the statutory rules, therefore appointment is illegal on the face of it - It would be futile to issue any writ to compel observance of Natural Justice : Munnalal Basore Vs. State of M.P., I.L.R. (2009) M.P. Note *5
- Vishwavidyalaya Adhiniyam, M.P. (22 of 1973), Section 52 - Teacher - Whether a Librarian is a teacher - Held - A Sport Teacher stands on different footing than a Librarian and no status has been conferred on the Librarians treating them as teachers in as much as they belong to a different class altogether and the State Government has conferred them the benefit by a circular which is within its domain but it can be construed that they have been given the benefit because they are equated with teachers : Y.L. Chopra Vs. Rani Durgawati Vishwavidyalaya, I.L.R. (2010) M.P. 1280
- Warehousing Corporation Act (58 of 1962), Section 42, State Warehousing Corporation Employees Pension Scheme, M.P. 1996 - Pension - Liability to pay - A pension scheme was introduced and trust deed was entered into between Warehousing Corporation and LIC India - Under the scheme a corpus was created which was an amount equivalent to 1.8% of the month's salary for each qualifying year of service, subject to a maximum equivalent of 45 months' salary - This corpus could exceed 45 months salary due to excess income that may be generated from the investment of the fund by the Corporation - For the purpose of creation of this fund, the employees and employer's contribution was computed @ 10% of the basic pay with DA and the premium was fixed which contained the relevant details with regard to the corpus fund of an employee, his date of retirement, last pay drawn, pension payable and the amount of commutation - Employees were getting the pension till March 2002 and the same was stopped for the reason that LIC had made excess payment in regard to commutation, it seems that it had made excess payment in regard to commutation of pension and there had been reduction in the annuity rate due to lowering of interest in the financial market - Held - LIC having accepted the annuity and having effected monthly payments can neither reduce the annuity amount nor can refund it to the detriment of the retirees since the annuity has already crystallized and no change can be made in such annuity - LIC has an obligation under law to fulfill the promise given by it to the retirees, who are Shaskiya Sevak (Adhivarshiki-Ayu) Tritiya Sanshodhan Adhyadesh, M.P. 1998 736 assured under the annuity scheme : R.S. Shastri Vs. M.P. State Ware House Corporation, I.L.R. (2010) M.P. 1386
- Whether employees of autonomous college are Government Servants - Held - No, the Government has no role to play at the time of their appointment, the salary/wages are not paid by the Government and it is not the disciplinary authority - Such persons cannot be held to be Government Servant : Pramod Kumar Shukla Vs. State of M.P., I.L.R. (2009) M.P. 1200 (DB)
- Withdrawal of resignation - Petitioner has not submitted any application for withdrawal of his resignation prior to the date reflected in the notice period - The question of accepting the application for withdrawal of his resignation does not arise : Virendra Kumar Mandloi Vs. State of M.P., I.L.R. (2010) M.P. Note *73
- Withholding of Gratuity and GPF - Natural justice - Petitioner Gratuity and GPF withheld without holding an enquiry or issuance of show cause notice - Held - Action cannot be said to be proper : Ramesh Chandra Gupta Vs. State of M.P., I.L.R. (2010) M.P. 2506
- Withholding of retrial dues by decision of High Level Scrutiny Committee on ground that the name of petitioner, who after obtaining caste certificate from Magistrate First Class in 1971 served as an employee of Food Corporation of India for 30 years, was not expressly mentioned in Presidential Order and so he does not belong to Scheduled Tribe (Halba) - Held - Since there is no finding against the petitioner regarding his playing fraud or concealing any fact, it will be wholly unfair and unjust to withhold his pension, gratuity and other retrial benefits : Madhukar Saroj Halba Kosta Vs. State of M.P., I.L.R. (2010) M.P. 1750 Service Regulations, 2001
- Section 2(i) - See - Service Law : Bindaprasad Vs. Narmada Malwa Gramin Bank, I.L.R. (2010) M.P. 833 Shaskiya Sevak (Adhivarshiki-Ayu) Dwitiya Sanshodhan Adhiniyam, M.P. (28 of 1998)
- Section 2 - See - Service Law : Kirti Saxena (Dr.)(Smt.) Vs. State of M.P., I.L.R. (2010) M.P. 368 Shaskiya Sevak (Adhivarshiki-Ayu) Tritiya Sanshodhan Adhyadesh, M.P. 1998,
- Section 3 - See - Service Law : Mathuro (Smt.) Vs. State of M.P., I.L.R. (2009) M.P. 765 Small Scale Exemption 737
Shaskiya Sewak Adhiwarshiki Ayu Adhiniyam, M.P. (29 of 1967)
Shaskiya Sewak Adhiwarshiki Ayu Adhiniyam, M.P. (29 of 1967) - See - Public Works Department Engineer-in-Chief and Chief Engineer Recruitment Rules, M.P. 1983 : Lalan Thakur Vs. State of M.P., I.L.R. (2008) M.P. 3116 Shaskiya Sewak Adhiwarshiki Ayu Sansodhan Adhiniyam, M.P. (3 of 1998)
Shaskiya Sewak Adhiwarshiki Ayu Sansodhan Adhiniyam, M.P. (3 of 1998) - See - Public Works Department Engineer-in-Chief and Chief Engineer Recruitment Rules, M.P. 1983 : Lalan Thakur Vs. State of M.P., I.L.R. (2008) M.P. 3116 Shram Kalyan Nidhi Adhiniyam, M.P. 1982 (36 of 1983)
- Section 9 [Notification dated 04.05.1995] - An institution has employed teaching and non-teaching staff for imparting education to the children - It is charging tuition fees from the children and paying a salary to its staff - Staff members are dependent over the salary for their livelihood - Thus, institution is carrying a business - Hence, as per the notification, institution is governed under the provisions of the Act and liable to pay contribution : Carmel Convent Secondary School, Gwalior Vs. State of M.P., I.L.R. (2010) M.P. 1100 Sick Industrial Companies (Special Provisions) Act, 1985 (1 of 1986)
- Section 20(1) - Winding up of sick companies - Highest bid not accepted - Official Liquidator invited tenders for sale of assets of sick industry - Resp. No.2 quoted highest amount Rs. 8.01 Crores which was approved by SBI and IDBI as well as of Government - After that, appellant prayed for grant of opportunity to participate in the bid and made offer of Rs. 8.05 Crores - Held - No allegation of fraud or collusion against Resps. - Proceedings of sale were going on for a long time but appellant did not participate before Official Liquidator - Final bid of Resp.No.2 cannot be rejected by a mere increase of Rs. 4 Lacs by appellant - Intervention was made to forestall the transaction rather than to become a bona fide tenderer at proper time - Application rightly rejected - Appeal dismissed : Ambo Exports Ltd., Kolkata Vs. Shri Ishar Agro Ltd., I.L.R. (2010) M.P. 820 (DB) Small Scale Exemption
- General Exemption No.1 (Notification No.1/93-C.E., dated 28.02.1993 as amended) Clause 4 - See - Central Excise and Salt Act, 1944, Section 5A(1) : Jepika Paints Vs. Union of India, I.L.R. (2008) M.P. 2625 Specific Relief Act (47 of 1963) 738
Societies Registrikaran Adhiniyam, M.P. (XLIV of 1973)
- Section 3(f) 33 - Govt. aided Society - Question whether State aided Society would mean society which receives or received aid, grant or loan in the current year or would also mean society which has received aid, grant or loan in previous year referred to full bench - Respondent Society not being paid any grant-in-aid since 2001 - Govt. superseded governing body of Society and appointed administrator - Writ Petition allowed holding that the society was not a State aided society - Held - State aided society mean which not only receives aid, grant or loan for the present but also has received aid, grant or loan in past and financial interest of Central Govt., State Govt. or statutory body in society subsists - Would not cover Society which has received aid, grant or loan in past but in which Central Govt. or State Govt. or any Statutory Body which had granted aid, grant or loan does not continue to have any financial interest - Reference answered accordingly : State of Madhya Pradesh Vs. Chandra Shekhar Azad Shiksha Prasad Samiti, Bhind, I.L.R. (2007) M.P. 1545 (FB) Specific Relief Act (47 of 1963)
- Section 6 - After dispossession, defendant constructed two Pucca rooms on the suit property - Suit u/s 6 of the Act - Decree for restoration of possession with the direction to the defendant for removal of construction - Held - Court has no power to direct for removal of construction in a suit u/s 6 of the Act - Such direction set-aside - Decree modified accordingly : Ramniwas Sharma Vs. Smt. Jasoda Bai, I.L.R. (2010) M.P. 691
- Section 6, Civil Procedure Code, 1908, Section 115 - Remedy against a decision u/s 6 of the Act - Unsuccessful party can file a suit based on title - Remedy of filing a revision is available but that is only by way of an exception - Held - In the present case, direction for removal of construction issued which is obviously an exceptional circumstance - Therefore, revision is maintainable : Ramniwas Sharma Vs. Smt. Jasoda Bai, I.L.R. (2010) M.P. 691
- Section 6(3) - See - Civil Procedure Code, 1908, Section 115 : Doma Vs. Saya Bai, I.L.R. (2009) M.P. Note *30 (DB)
- Section 9 - See - Vinirdishta Bhrashta Acharan Nivaran Adhiniyam, M.P. 1982 [Entire chapter VIII from Sections 24 to 32 omitted w.e.f. 31.08.1998], Section 31 : Rameshwarlal Vs. Dattatraya, I.L.R. (2010) M.P. 970
- Sections 10,12, Contract Act, 1872, Section 55 - Agreement to sell - Time when essence of Contract - Vendor accepting part payment of consideration amount after stipulated period - It amounts to extension of fresh limitation to perform contract - Specific Relief Act (47 of 1963) 739
Appellants by receiving such payment waived the right to say that time was essence of contract - Stipulated time was not the essence of contract between parties : Shankar Lal pandey Vs. Tarachand Kulparia, I.L.R. (2008) M.P. 824
- Sections 10, 16(C), 20(2)(b) - Agreement to sell - Specific performance - Readiness and willingness - Suit filed for specific performance of contract on the ground that defendant had agreed to sell suit house for consideration of Rs. 3,70,000/- - Rs. 40,000/- paid at the time of agreement - Owner of suit house refused to execute the sale deed and sold the house to another person during operation of temporary injunction order - Notice of fact of agreement was published in news paper - Another notice was given to seller by plaintiff mentioning therein that she is ready and willing to pay remaining amount and to get sale deed executed - Expenses of registration were to be borne by plaintiff - Plaintiff went to office of Sub-Registrar but defendant did not turn up - Defendant claimed agreement to be a forged document - Defendant pleaded that agreement to sell was entered into with husband of plaintiff and Rs. 40,000 in cash and a cheque of Rs. 70,000 was given by husband of plaintiff - Cheque was dishonoured and Rs. 40,000 were also returned - Subsequent purchaser is a bona fide purchaser - Held - Pleadings made in plaint sufficient as per requirement of Stamp Act, T.P. Act and Section 16(c) of Specific Relief Act - Plaintiff clearly stated in her evidence that she was willing to make payment of balance amount - Arrangement of fund and readiness and willingness proved by plaintiff - Execution of Agreement to sell duly proved by plaintiff - Specific Performance has to be decreed once agreement is proved - Appeal dismissed : Smt. Zubeda Vs.Smt. Najma Afzal, I.L.R. (2007) M.P. 1245 (DB)
- Section 12 - Specific Performance of Contract - Plaintiff/respondent claiming that agreement was executed on 14-6-1991 and amount of Rs. 90,000 out of 1 lacs was paid - Evidence on record proves that there was some other agreement prior to 14-6- 1991 Veriance in evidence on vital issues including the amount paid on the date of agreement - Earlier agreement not produced before Court - Writer of agreement not examined - Plaintiff failed to prove execution of agreement to sell - Appeal allowed : Mohd. Yunus Vs. Ramesh Chouksey, I.L.R. (2007) M.P. 544
- Section 12 - Specific Performance of Contract - Stipulation as to time being the essence of Contract - Intention of parties makes time the essence of contract and not the default clause in agreement - Plaintiff making application to the defendant for extension of time before expiry of period - Oral assurance given by defendant no.2 regarding extension of time by three months - Deposit of remaining amount by plaintiff within extended time which was returned by defendant subsequently - Conduct of the parties show time was extended : Parmanand Soni Vs. Radhakrishna dharmartha pvt. Trust, I.L.R. (2007) M.P. 402 Specific Relief Act (47 of 1963) 740
- Section 15 - Who may obtain Specific Performance - Order of Specific Performance can be passed against any party to agreement : Rajkunwar Bai Vs. Murlidhar, I.L.R. (2008) M.P. 855
- Section 16(c) - Specific performance of contract - Notice - Notice sent by plaintiff for execution of sale deed received back with endorsement "Lene Se Inkar" - Held - Even in absence of statement of postman it may held that notice was produced for service and refused by appellant : Shivcharan Vs. Mohanlal, I.L.R. (2008) M.P. 3183
- Section 16(c) - Readiness & Willingness - Mandates plaintiff to aver in the plaint and establish as the fact by evidence aliunde that he has always been ready & willing to perform his part of contract - One of the terms in the agreement related to payment of interest - Therefore, the conclusion of the High Court that there is no specific plea regarding readiness to pay interest, is contrary to the factual scenario, in view of the categorical averment made in the plaint : Rameshwar Prasad (D) By L.Rs. Vs. Basantilal, I.L.R. (2008) M.P. 1863 (DB)
- Section 16(c) read with Explanation (ii) - Any person seeking benefit of specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief - If pleadings manifest that the conduct of plaintiff entitles him to get the relief on perusal of plaint, he should not be denied the relief : Rameshwar Prasad (D) By L.Rs. Vs. Basantilal, I.L.R. (2008) M.P. 1863 (DB)
- Section 16 (C) - Specific Performance of Contract - Readiness and Willingness - Plaintiff must aver in plaint and thereafter prove those averments - Readiness and willingness must be in accordance with terms of agreement - Plaintiff must prove his readiness and willingness from the institution of suit till it is culminated into decree of Court : Bal Krishna Vs. Bhagwandas, I.L.R. (2008) M.P. 1340 (SC)
- Section 16(c) - Suit for specific performance of contract of sale - Plaintiff - Should plead and prove that he was having sufficient funds to pay balance consideration and also to bear the expenses of registration - In absence of this evidence - Not entitled for decree for specific performance : Bahubal Vs. Shafi Mohammad, I.L.R. (2008) M.P. 2072
- Section 16(c) - Readiness and willingness - Oral evidence led by plaintiff regarding his readiness and willingness reliable - Merely in the lack of any documentary evidence it could not be inferred that plaintiff was not ready and willing to perform his part of contract : Shankar Lal pandey Vs. Tarachand Kulparia, I.L.R. (2008) M.P. 824 Specific Relief Act (47 of 1963) 741
- Section 16(c) - First Appeal - Suit for specific performance of sale - Generally speaking under Section 55 of the Indian Contract Act 1872, time is not the essence of contract in case of immovable properties - Defendants tried to delay execution of sale deed - Specific performance in favour of plaintiff cannot be denied even if price of property might have gone high during this period : Harvansh Singh Vs. Bhagwan Das, I.L.R. (2006) M.P. 54 (DB)
- Section 19 - Burden of proof on bona fide purchaser - Vendor is not in physical possession of agricultural land -Subsequent purchaser is bound to make enquiry from the occupant - He did not made any enquiry about possession - He has not issued any public notice expressing his intention to purchase the land - He did not appear in the witness box to assert that he obtained the possession of land - Subsequent purchaser failed to prove his good faith and bona fide : Parwat (dead) through L.Rs. Smt. Kesar Bai Vs. Pyarelal, I.L.R. (2010) M.P. 1146
- Section 19 - Burden of proving good faith and lack of notice is on subsequent purchaser - It is not obligatory on the plaintiff to prove absence of good faith : Parwat (dead) through L.Rs. Smt. Kesar Bai Vs. Pyarelal, I.L.R. (2010) M.P. 1146
- Section 20, Evidence Act, 1872, Section 91 - Suit for specific performance of agreement to sell agricultural land - Suit resisted on the ground that it was a loan transaction - Held - When execution of agreement to sell is admitted then in view of S. 91 of the Evidence Act, the oral evidence about loan transaction can not be taken into consideration to draw any inference contrary to the terms of agreement : Ammilal Vs. Kamla Bai, I.L.R. (2010) M.P. 243
- Section 20 - Specific performance of contract to sell plots - Equitable relief - Conduct of parties relevant - Defendant had a colonizers licence for developing the colony - After getting permission, he had sold various plots - No evidence that permission is refused to sell plots which were agreed to sell - Conduct of defendant shows that he was not interested in getting the agreements performed and was only interested in getting the agreements cancelled so that he can get enhanced value for the plots - Suit rightly decreed : Rameshwarlal Vs. Dattatraya, I.L.R. (2010) M.P. 970
- Section 20 - Suit for specific performance of agreement to sell agricultural land - Agreement by one co-owner - Held - One co-owner can sell the land till the extent of his undivided share but subject to consent of the other co-sharers of the property - Suit could not be decreed for specific performance contrary to the interest of other co- Bhumiswami - Plaintiffs also failed to prove readiness & willingness to perform their part of contract - Decree of specific performance cannot be granted : Ammilal Vs. Kamla Bai, I.L.R. (2010) M.P. 243 Specific Relief Act (47 of 1963) 742
- Section 20 - Suit for specific performance of agreement to sell - Held - When it is found that plaintiff was not ready and willing to perform his part of contract then the suit could be decreed for refund of the advance money : Ammilal Vs. Kamla Bai, I.L.R. (2010) M.P. 243
- Section 20 - Suit for specific performance of contract for sale of certain plots - Defence plea that agreements are executed as a security for loan - Held - Defendant had not made any effort to repay the loan nor had paid any interest on the loan - Defendant obtained colonizers licence and developed a colony - He has sold some plots also - Plea not acceptable : Rameshwarlal Vs. Dattatraya, I.L.R. (2010) M.P. 970
- Section 20 - Suit for specific performance of contract to sell the land on the basis of an oral agreement and a receipt executed by defendant admitting agreement and receiving Rs. 7 lacs as part of consideration - Trial Court directing the refund of consideration of Rs. 7 lacs along with interest - Appeal filed by defendant - Held - There was no reason due to strained relationship to rely upon the defendant for entering into the oral agreement to sell for the purpose of sale of property for consideration of Rs. 11,50,000 - Material contradiction in the version of plaintiff and his witnesses as to the payment of consideration of Rs. 7 lacs - There was overwriting and manipulations in the receipt - Receipt cannot be said to be reliable at all - Judgment & decree set- aside - Appeal allowed : Shanti Rathore (Smt.) Vs. Radheshyam, I.L.R. (2010) M.P. 932 (DB)
- Section 20 - Suit for specific performance of contract - When plaintiff has to prove that he was bona fide purchaser - Suit resisted by defendants that there was earlier agreement and this fact was in the knowledge of plaintiff - Held - No such agreement was placed on record - On the contrary, defendants have not even appeared in the witness box to establish the existence of earlier agreement - Plaintiff and her husband had nowhere admitted the existence of earlier agreement - In absence of establishment of earlier agreement, plaintiff was not required to prove that she was bona fide purchaser - Decree for specific performance rightly granted by the first appellate Court : Omprakash Vs. Dharma Bai, I.L.R. (2009) M.P. 3177
- Section 20 - Suit for specific performance of contract - Plaintiff pleaded that after receipt of notice he visited the house of vendor with a witness but papers were not handed over - Held - Plaintiff failed to disclose name of witness and also failed to visit the office of Sub-Registrar in terms of notice - Plaintiff took no steps to get the sale deed executed in his favour - Plaintiff was not ready and willing to perform the contract whereas defendant was ready and willing to perform the contract - Trial Court committed no error in dismissing suit - Appeal dismissed : Anokhilal Vs. Seema Chordia (Ku.): I.L.R. (2009) M.P. 1060 Specific Relief Act (47 of 1963) 743
- Section 20 - Relief for specific performance lies in the discretion of court - Court is not bound to grant such relief merely because it is lawful to do so - Discretion to grant specific performance is not exercised if the contract is not equal and fair although the contract is not void : Bal Krishna Vs. Bhagwandas, I.L.R. (2008) M.P. 1340 (SC)
- Section 20 - Rights of purchaser against co-owner who is not a party to agreement and no money paid to such co-owner - Agreement to sell entered into by Bapu Singh, one of co-owners - Another co-owner, Rajkunwarbai not a party to agreement - No money paid to Rajkunwarbai - After death of Bapu Singh, she became owner of share of Bapu Singh along with other L.Rs. - Held - Rajkunwarbai was not a party to agreement - Therefore even if Rajkunwarbai became one of the co-owners of the share of Bapu Singh alongwith other L.Rs. - No decree for Specific Performance of Contract can be passed under facts and circumstances of case : Rajkunwar Bai Vs. Murlidhar, I.L.R. (2008) M.P. 855
- Section 20 - Specific Performance of Contract - Conduct of parties - Agreement to sell entered into in the year 1987 - Substantial Sale Consideration paid in 1987 - Suit for Specific Performance of Contract filed in 1990 - Held - There was no justification for waiting for filing of suit for a period of three years : Rajkunwar Bai Vs. Murlidhar, I.L.R. (2008) M.P. 855
- Section 28 - Rescission of contract for sale - In a case where decree holder is not directed, under decree of specific performance of execution of sale deed, to pay the balance and rather the judgment debter is directed to receive the balance amount and execute the sale deed, within a stipulated time, the non-payment of balance amount by decree holder will not attract S. 28, unless the judgment debtor gives a notice by himself or through the Court requiring decree holder to pay/deposit the balance - Petition dismissed : Khoobiram Vs. Smt. Urmila Chouhan, I.L.R. (2010) M.P. Note *61 (DB)
- Section 28 - See - Civil Procedure Code 1908, Order 22 Rule 10 : Mahfooz Ahmed Vs. Smt. Neelmani, I.L.R. (2010) M.P. 1771
- Section 28 - See - Civil Procedure Code, 1908, Section 115 : Mohanlal Garg Vs. M/s. Chaudhary Builders Pvt. Ltd, I.L.R. (2008) M.P. 2720
- Section 31 and Limitation Act, Indian, 1963, Sections 3, 27, and Article 59 - Suit for Cancellation of Sale deed alleged to be executed during minority - Article 59 or Residuary Article would be attracted - Plaintiff did not sue either within 12 years of the deed or within 3 years of attaining majority - Suit is barred by limitation : Prem Singh Vs. Birbal, I.L.R. (2006) M.P. 1123 (SC) Staff Service Rules 744
- Section 34 - See - Civil Procedure Code, 1908, Order 6 Rule 2 & Section 151 : Kanaklata Vs. Subhadra, I.L.R. (2010) M.P. 433
- Section 38 - Possession - Plaintiff has come forward with a case that he is possessing the agricultural land - Held - Plaintiff failed to prove the factum of possession by filing and proving the necessary revenue record - Plaintiff cannot take any advantage of the weakness of the defendant if defendant has not filed any revenue record : Motilal Pandey Vs. Kailash Pathak, I.L.R. (2009) M.P. 2601
- Section 38 - Suit for injunction - Land recorded in the name of temple and name of Pujari is recorded as 'Ehatmam' - Pujari is having very limited right - He is not having any ownership right in the property of temple - Pujari and his brothers were not entitled to partition the property mutually and their possession cannot be treated as exclusive over the temple land - Temple is also necessary party - Plaintiff was not entitled to file even suit for injunction - Suit rightly dismissed : Sitaram Vs. Radheshyam, I.L.R. (2008) M.P. 2631
- Section 38 - Perpetual Injunction - Plaintiff found in settled possession of Government land - Several times fine was imposed for encroaching Government land - Possession was not peaceful and hostile to the State Government - Plaintiff entitled for decree of perpetual injunction - However, State Government shall be free to take possession back after adopting due procedure of law : Prahlad Vs. State of M.P., I.L.R. (2008) M.P. 2069
- Section 41 (4) - Suit for injunction - Encroachment admitted by plaintiff in revenue court - Unlawful possession cannot be protected by perpetual injunction : State of M.P. Vs. Ismail Khan, I.L.R. (2006) M.P. 1156
- Bonafide purchasers - Subsequent purchasers living adjacent to the house of plaintiff - It cannot be said that they were not aware of sale agreement executed in favour of plaintiff - They are not bonafide purchasers - Decree to execute sale deed granted : Parmanand Soni Vs. Radhakrishna Dharmartha Pvt. Trust, I.L.R. (2007) M.P. 402 Spot Map
- Merely by exhibiting the map by I.O. - Its cotents would not become admissible in evidence unless the witness on whose instance map was prepared has deposed this fact on oath : Narayan Vs. State of M.P., I.L.R. (2008) M.P. 2401 Staff Service Rules
- Rules 61 & 62 - See - Cooperative Societies Act, M.P, 1960, Section 55 & 64 : Sushil Kumar Kanungo Vs. M.P. Rajya Sahkari Bank Maryadit, I.L.R. (2008) M.P. 2238 Stamp Act (2 of 1899) 745
Stamp Act (2 of 1899)
- [As amended by Stamp (M.P. Amendment) Act, (12 of 2002) w.e.f. 13.08.2002], Schedule 1-A, Article 33 - Constitutional validity - Stamp duty on lease - Document in question is not the one which is covered under List I, Entry 91 of 7th Schedule of Constitution - Entry 44 of IIIrd List of 7th Schedule of Constitution provides for stamp duties other than duties or fees collected by means of judicial stamps - State is competent to prescribe the rates as mentioned in Article 33 of Schedule 1-A of Stamp Act, as amended in Madhya Pradesh - Said Article is not repugnant to S. 105 of T.P. Act or S. 2(16) of Stamp Act : R.V. Infrastructure Engineers Pvt. Ltd. Vs. State of M.P., I.L.R. (2010) M.P. 608 (DB)
- [As amended by Stamp (M.P. Amendment) Act, (12 of 2002) w.e.f. 13.08.2002], Schedule 1-A, Article 33(c) - The duty as per rate prevailing on the date of agreement is payable not on the date when Cabinet took the decision and letter of acceptance of offer was issued : R.V. Infrastructure Engineers Pvt. Ltd. Vs. State of M.P., I.L.R. (2010) M.P. 608 (DB)
- Section 2(5) - Bond - Explained - Held - There must be an undertaking to pay - The sum should be a sum of money but not necessarily certain - The payment will be to another person named in the instrument - The maker should sign it - The instrument must be attested by a witness and it must not be payable to order or bearer : Bhismat Pandey Vs. Phoola, I.L.R. (2010) M.P. 95 (DB)
- Section 2(5) - Bond - Peculiar features - Held - Positive - It should be attested by a witness - Negative - It must not be payable to order or bearer : Bhismat Pandey Vs. Phoola, I.L.R. (2010) M.P. 95 (DB)
- Section 2(5) & 2(22) - Bond - Promissory Note - Difference - Held - If money payable under the instrument is not certain, it cannot be promissory note, although it can be a bond - If the instrument is not attested by a witness, it cannot be a bond, although it may be a promissory note - If the instrument is payable to order or bearer, it cannot be a bond, but it can be a promissory note : Bhismat Pandey Vs. Phoola, I.L.R. (2010) M.P. 95 (DB)
- Section 2(5) & 2(22) - Promissory note or bond - An agreement for payment of remaining consideration of sale and also attested by two witnesses - Held - All the essential ingredients of bond are found in the document i.e., (a) an undertaking to pay a definite sum of the amount, (b) the payment was to be made to the plaintiff, (c) the maker had signed it, (d) the instrument has been attested by two witnesses and it is not payable to order or bearer - Document is a bond : Bhismat Pandey Vs. Phoola, I.L.R. (2010) M.P. 95 (DB) Stamp Act (2 of 1899) 746
- Sections 2(5), 2(22) & 4 - Nature of document - A document has all essential ingredients of promissory note and was not attested by attesting witnesses - Though it was attested by Notary - Notary could not be said to be attesting witness - Document is not a bond but a promissory note : Ram Kishan Dwivedi Vs. Rohni Prasad Tiwari, I.L.R. (2010) M.P. 123 (DB)
- Sections 2(9)(10), 3, 27, 47, Schedule 1-A (item 23) - "Conveyance" - Payment of stamp duty - Market value on the date of execution of the document was a decisive factor - Stamp duty was payable on market value of property at the time of registration of sale deed and not as per price fixed under agreement to sell or in decree of Court - Indian Stamp Act is a taxing statute and is to be construed strictly : State of M.P. Vs. Dilip Kumar Sangni, I.L.R. (2008) M.P. 480
- Section 2(10), Schedule 1-A, Item 5 & 22 - Unexecuted & unregistered sale deed - Not signed by all sellers - Document is neither agreement nor conveyance - Item 5 & 22 of Schedule 1-A not applicable : Narbada Prasad Vs. Manik Darbar, I.L.R. (2010) M.P. 595 (DB)
- Sections 2(12), 47-A - Stamp Duty payable - Suit filed by petitioner for specific performance of Contract decreed by Court - Sale Deed presented for registration - Registrar referred the matter to Collector for determination of market value - Petitioner contended that stamp duty is payable as per market value mentioned in agreement and not as payable on the date of presentation for registration - Objection rejected by Collector - Held - Section 47-A clearly provides that stamp duty is payable on the date on which instrument is put to registration : Smt. Harvinder Kaur Vs. The State of Madhya Pradesh, I.L.R. (2007) M.P. 223
- Section 2(14) - See - Coal Bearing Areas (Acquisition and Development) Act, 1957, Sections 10 & 11 : State of M.P. Vs. Western Coalfields Ltd., I.L.R. (2009) M.P. 1887 (DB)
- Section 2(16) - See - Transfer of Property Act, 1882, Section 105 : R.V. Infrastructure Engineers Pvt. Ltd. Vs. State of M.P., I.L.R. (2010) M.P. 608 (DB)
- Section 2(22) - Promissory Note - Explained - Held - An unconditional undertaking to pay - The sum should be a sum of money and should be certain - The payment should be to the order of a person who is certain, or to the bearer of the instrument - The maker should sign it : Bhismat Pandey Vs. Phoola, I.L.R. (2010) M.P. 95 (DB)
- Section 3 - Assuming that the vesting order is to be understood to be an instrument then the proviso to Section 3 of Stamp Act would protect the Central Government so also the State Government - In any case, the vesting would have its own effect and Stamp Act (2 of 1899) 747 cannot be treated to be a lease executed by the Central Government in favour of Government Company : State of M.P. Vs. Western Coalfields Ltd., I.L.R. (2009) M.P. 1887(DB)
- Section 11-B of the Rules 17 of Madhya Pradesh Stamp Rule 1942-Admissibility of promissory note bearing adhesive revenue stamp - Stamps on which word "Revenue" is inscribed as also revenue stamps issued by the Government of India may be used on promissory note as adhesive stamps - Questioned pro note admissible in evidence : Premraj Vs. Sureshchandra, I.L.R. (2006) M.P. 1425
- Sections 33, 35 & 38 - Agreement not properly stamped - Plaintiff was directed to file application to the court below for referring the document to the Stamp Collector for deciding the question relating to duty and penalty : Mansingh (deceased) through L.Rs. Smt. Sumranbai Vs. Rameshwar, I.L.R. (2010) M.P. 1077 (DB)
- Sections 33, 35, 38 & 40, Schedule 1-A, Articles 5 & 23 - Stamp duty payable on an instrument on which a recital of possession is mentioned - Whether an agreement or conveyance - Held - In light of the explanation appended to Article 23 of Act, in the case of an agreement to sell immovable property there is a recital that possession of immovable property is transferred to the purchaser at the time of execution of such agreement or that possession would be delivered in furture without executing a conveyance in respect thereof, then such agreemet to sell shall be deemed to be a conveyance and stamp duty thereon shall be leviable : Umesh Kumar Vs. Rajaram, I.L.R. (2010) M.P. 1290 (DB)
- Sections 33(1) & 38(2) - Impounding a document - Payment of deficit stamp duty and penalty - Procedure laid down by the Apex Court in Peteti Subba Rao's case [(2002) 10 SCC 427] : Rachna Khare (Ku.) Vs. Bachchoo Ram, I.L.R. (2010) M.P. 840 (DB)
- Section 35, Evidence Act, 1872, Section 65, Constitution, Article 14 - Whether S. 35 of Stamp Act nullifies S. 65 of Evidence Act - There is distinction between instrument and document - Ss. 35 & 36 of Stamp Act are not concerned with any copy or document - S. 65 of Evidence Act deals with secondary evidence relating to documents only - Two provisions are not to be compared - When both the statutes operate in different fields, they cannot be given equal platform - The legislature has made a distinction and said distinction is rational & relevant and does not invite frown of Article 14 of Constitution : Vijay Choudhary Vs. Union of India, I.L.R. (2010) M.P. 376 (DB)
- Section 35 - Agreement to sell suit property on a plain paper - Unless a duty is paid on an instrument it shall not be admitted in evidence for any purpose, which will Stamp Act (2 of 1899) 748 include a collateral purpose : Narbada Prasad Agrawal Vs. Tarun Bhawasar, I.L.R. (2009) M.P. 1255
- Article 35(a)(ii) - Petitioner granted right to extract 8400 cubic meter of sand in lieu of payment of fixed amount of Rs.5,04,000 - Lessor is parting right to extract fixed quantity of numeral for a fixed period of time - Amount required to be paid in instalments is not a periodical payment of enjoyment of benefits of lease - Premium though payable in instalments cannot be said to be rent - Petition dismissed : Rakesh Singare Vs. State of M.P., I.L.R. (2009) M.P. 1922
- Sections 35 & 36 - Once the document is exhibited while recording the statements of witnesses and the same is not objected by the other side at that stage, then the other side does not have any right or authority to challenge its admissibility at any subsequent stage on the ground of deficit or non-payment of the stamp duty : R. Hanfi Vs. Yogendra Singh Dashmer, I.L.R. (2010) M.P. 2402
- Sections 35 & 36 - Agreement of sale - Document admitted in evidence without its being questioned on the ground that it is not duly stamped - Held - Admissibility of documents can not be questioned at any subsequent stage of proceeding or before appellate court : Champat Giri Vs. Ramdayal, I.L.R. (2009) M.P. 2630
- Sections 35 & 38(2) - Instrument not duly stamped - Procedure for impounding the instrument - discussed : Bhismat Pandey Vs. Phoola, I.L.R. (2010) M.P. 95 (DB)
- Section 47-A - Registrar making reference to Collector for determination of Market Value mentioning that he has reason to believe that market value shown in instrument is not truly set forth - In absence of such reasons Registrar had no jurisdiction to refer the matter to Collector - Petition allowed : Smt. Harvinder Kaur Vs. The State of Madhya Pradesh, I.L.R. (2007) M.P. 223
- Art. 5(b) of Schedule I - Agreement - To constitute document to be agreement there has to be copulation and conjunction of two or more minds in anything done or to be done and a compact between parties who are thereby subjected to the obligation or to whom the contemplated right is thereby served - Panch Faisla not signed by any of the parties - Cannot treated as agreement : Rajesh Kumar Vs. Rakesh Kumar, I.L.R. (2009) M.P. 402
- Schedule 1-A, Article 5(e)(ii) - Stamp duty payable - Agreement or Memorandum of agreement - Trial Court directed payment of deficit stamp duty on the basis of earnest money paid in the agreement - Held - When possession of property is not given stamp duty shall be @ 1% of total consideration of the property set forth in the agreement - Order not sustainable under law - Order set-aside - Petition allowed : Rachna Khare (Ku.) Vs. Bachchoo Ram, I.L.R. (2010) M.P. 840 (DB) State Administrative Service Rules, M.P. 1975 749
- Schedule 1-A, Article 23 - Stamp duty payable - Agreement to sell immovable property with a recital in the document that possession has been delivered to the purchaser - Seller has raised a plea that possession is not delivered to purchaser - Held - Seller's plea will not affect the character of document - Document would be deemed to be a conveyance and stamp duty thereon shall be leviable accordingly : Mansingh (deceased) through L.Rs. Smt. Sumranbai Vs. Rameshwar, I.L.R. (2010) M.P. 1077 (DB)
- Schedule I-A Article 33, Exemption - An agricultural lease for a period of one year - Such document is exempted from payment of stamp duty - Could not have been impounded in view of exemption under Article 33 of Schedule I-A of Act - Order of trial Court set-aside : Ramlakhan Vs. Rambahadur, I.L.R. (2009) M.P. 2811 (DB)
- Schedule I-A Article 33 - Exemption from payment of stamp duty - Lease for the purpose of cultivation for a period of one year or when the average annual rent reserved does not exceed one hundred rupees - Both the requirement should not be read together - In case lease does not exceed one year, may be that average annual rent reserved exceed one hundred rupees - Such lease would be exempted from payment of stamp duty : Ramlakhan Vs. Rambahadur, I.L.R. (2009) M.P. 2811 (DB) State Administrative Service Rules, M.P. 1975
- Rule 21 - Senior Pay Scale - 'Seniority-cum-merit' - An employee who is senior and otherwise eligible for promotion has to be promoted if there is no adverse material against him - Comparison of inter se merit and rejecting senior employee after evaluating inter se merit - Not permissible : Ashok Kumar Vajpayee Vs. State of M.P., I.L.R. (2008) M.P. 736
- Rule 21 - Senior Pay Scale - 'Seniority-cum-merit' - Normally when proceedings of DPC are held to be improper - Matter is required to be remanded back for fresh consideration - However, petitioner has received Good, Very Good and Outstanding grading - No useful purpose will be served by remanding matter back - Petitioner is entitled to be promoted on basis of principle of 'seniority-cum-merit' - Petitioner granted senior pay scale with all other consequential benefit : Ashok Kumar Vajpayee Vs. State of M.P., I.L.R. (2008) M.P. 736
- Rule 21 - Senior Pay Scale - 'Seniority-cum-merit' - Petitioner not granted senior pay scale on ground that he had not obtained four Very Good and one Good entry in his five preceding Annual Confidential Reports - Held - Admittedly promotion is to be granted on 'Seniority-cum-merit' basis - DPC evaluating case on principle of 'merit- cum-seniority' - Not permissible : Ashok Kumar Vajpayee Vs. State of M.P., I.L.R. (2008) M.P. 736 States Reorganization Act (XXXVII of 1956) 750
State Bank of India Officers Rules
- Rules 40 (3) and 68 (2) - Service law - Transfer and deemed voluntary vacation of office - Show cause notice about deemed vacation of service before decision in L.P.A. - Petitioner subsequently called upon to join - Earlier notice stands superseded - No fresh show cause notice - Order of deemed voluntary vacation of office liable to be quashed : Shiv Sharan Sharma Vs. Chief General Manager, State Bank of India, Bhopal, I.L.R. (2006) M.P. 187(DB) State Bar Council of Madhya Pradesh Rules, 1963
- Rule 143-A - See - Constitution, Article 14 : Shekhar Seth (Dr.) Vs. M.P. State Bar Council, I.L.R. (2008) M.P. 1974 (DB) State Cooperative Tribunal Regulations, 2000
- Regulation 31 - See - Cooperative Societies Act, M.P, 1960, Section 55 & 64 : Sushil Kumar Kanungo Vs. M.P. Rajya Sahkari Bank Maryadit, I.L.R. (2008) M.P. 2238 State Mandi Board Service Regulations, 1998
- Regulation 35 - See - Krishi Upaj Mandi Adhiniyam, M.P. 1972, Section 26 : Badri Prasad Yadav Vs. State of M.P., I.L.R. (2010) M.P. 1581 State Municipal Service (Executive) Rules, M.P. 1973
- State Municipal Service (Executive) Rules, M.P. 1973 - See - Service Law : Mathuro (Smt.) Vs. State of M.P., I.L.R. (2009) M.P. 765 States Reorganization Act (XXXVII of 1956)
- Section 51 - Circuit Bench of High Court - Petitioner filed Public Interest Litigation that there should be a Circuit Court of High Court at Bhopal - Held - Provision under which Circuit Bench of High Court can be created is included in Section 51 of Act - Unless Chief Justice of State is of opinion with prior approval of Governor to have Division Courts of High Court at other places, same cannot be directed - There is no such opinion of Hon'ble Chief Justice to have Circuit Court at Bhopal - Number of Districts have been carved out from original State of Madhya Pradesh to form Chhattisgarh after M.P. Recorganization Act, 2000 came into force - Assertions made in petition wholly unwarranted and have no factual basis - Petition dismissed : Satyapal Anand Vs. High Court of M.P., I.L.R. (2007) M.P. 936 (DB) State Warehousing Corporation Employees Pension Scheme, M.P. 1996 751
- Sections 54 & 68 - See - Constitution, Articles 216, 225, 226 : S.P. Anand Vs. The Registrar General, M.P. High Court, Jabalpur, I.L.R. (2008) M.P. 2172 (FB) State Re-Organization Act, M.P. (XX of 2000)
- Section 68 - Provisions relating to services in M.P. and Chhatisgarh - Allocation - 8 posts of Joint Registrar, 14 posts of Dy. Registrar Co-Operative Department allotted to State of Chhatisgarh - State of Chhatisgarh informed that only 6 posts of Joint Registrar and 18 posts of Dy. Registrar required - Six officers already given their option for State of Chhatisgarh - Allocation of respondent no. 1 quashed by Learned Single Judge - Held - Successor States can agree to number of posts in a cadre to be allotted to a State - If two States have agreed to number of particular posts which will be divided between States, the same cannot be held to be violative of Section 68 : Parasnath Singh Vs. G.C. Kewalremani, I.L.R. (2007) M.P. 1566 (DB) State Road Transport Corporation Employees Deposit Fund Regulation, M.P. 1985
- Clause 10 - Interest - Retired and serving employees of the Corporation are entitled to get interest on amount deposited under the Employees Deposit Fund Scheme as prescribed in clause 10 of Regulations : Anil Jain Vs. Managing Director, M.P.R.T.C., I.L.R. (2008) M.P. 1392
- Clause 10 - Rate of interest - The payment of interest was statutorily governed as per the regulation, and the rate of such interest has been prescribed by the government as per notifications - However the Corporation by issuing circulars can not deviate from discharge of his statutory obligation of payment of interest arbitrarily : Anil Jain Vs. Managing Director, M.P.R.T.C., I.L.R. (2008) M.P. 1392 State Road Transport Employees Conduct, Discipline and Appeal Regulations, M.P. 1975
- Regulations 34 & 36 - See - Service Law : Mohd. Ismail Khan Vs. M.P. Road Transport Corporation, I.L.R. (2009) M.P. 3115 State Warehousing Corporation Employees Pension Scheme, M.P. 1996
- State Warehousing Corporation Employees Pension Scheme, M.P. 1996 - See - Service Law : R.S. Shastri Vs. M.P. State Ware House Corporation, I.L.R. (2010) M.P. 1386 Succession Act (39 of 1925) 752
Succession Act (39 of 1925)
- Order granting Succession Certificate was without due procedure as proceedings were defective in substance - Order granting Succession set aside - Matter remitted back for decision after giving opportunity of hearing to both parties : Shakuntala Mittal (Smt.) Vs. Shyamlal, I.L.R. (2010) M.P. 1826
- Sections 57 & 213 - Probate - Letter of administration - When not necessary - A probate will not be required to be obtained by a Hindu in respect of a Will made outside those territories or covering the immovable properties situated outside those territories : Rupindersingh Anand Vs. Smt. Gajinder Pal Kaur, I.L.R. (2010) M.P. Note *50
- Section 63 - Execution of unprivileged Wills - Proof of Will - It is necessary that witnesses must have seen the testator signing the will in his presence : Shakuntala Devi Singhal Vs. Goverdhan Das, I.L.R. (2008) M.P. 2641 (DB)
- Section 63 - Execution of unprivileged Wills - Attesting witnesses did not state that the testator of Will had put her signature in their presence and they had put their signatures in presence of testator - Witnesses have simply proved their signatures on Will and signature of testator - Held - Statement cannot be stretched up to the extent in order to hold or infer that the attestation has been proved in terms of Section 63 (c) - Execution of Will not proved since attestation is not proved - Appeal dismissed : Deependra Singh @ Deepak Parihar Vs. Shakuntala Pal, I.L.R. (2008) M.P. 803 (DB)
- Section 63 - Execution of unprivileged will - No specific proforma or method of attestation is prescribed - Will should be signed by testator in presence of attesting witnesses - Attesting witnesses should sign subsequent to the signature of testator - If such things are found document could be held to be validly executed : Goverdhandas Agrawal (Deceased) Vs. Smt. Gopibai Agrawal, I.L.R. (2007) M.P. 1644
- Section 63(c) - See - Transfer of Property Act, 1882, Section 3 : Ram Kishan Dwivedi Vs. Rohni Prasad Tiwari, I.L.R. (2010) M.P. 123 (DB)
- Sections 213, 214 - Proof of representative title - Provisions do not bar institution of suit - Decree will be considered provisional and will come into effect on obtaining and producing probate of will or succession certificate - Plaintiffs are claiming as legal representatives of deceased and decree has been passed - It is directed that decree will not be given effect till plaintiffs obtain and produce the succession certificate : Manak Chand Jain Vs. Pukhraj Bai (Smt.), I.L.R. (2008) M.P. 2619 Succession Act (39 of 1925) 753
- Section 276 - Probate or Letter of Administration - Two claimants claiming transfer of plot on the basis of two different wills - Application filed by 1st claimant for grant of letter of administration making 2nd claimant and other heirs as respondents - Another application for letter of administration filed by 2nd claimant without making 1st claimant and other heirs as party - Letter of administration granted on 2nd application and consequently application of 1st claimant rejected as infructuous - Appeal challenging both orders - Subsequently application was filed suppressing facts - Trial Court should not have proceeded with 2nd Application - Trial Court should have issued notices to 1st claimant and other heirs as file of earlier proceedings was before it - Issuance of citation before grant of letter of administration is directory but was of significance to avoid fraud - Orders granting letter of administration to 2nd claimant and dismissing earlier proceedings set aside - Both cases remanded back for decision : Ashutosh Dubey Vs. Kailash Dubey; I.L.R. (2006) M.P. 1522
- Sections 276 & 263 - Ex parte probate of will - Application to set-aside u/O. 9 R. 13 CPC filed - Alleged that deceased testator of will was suffering from blood cancer and admitted in hospital one day before the alleged date of execution and died on the next day - Application for amendment so as to treat it as application for revocation of probate also filed - Rejection holding that no case for setting-aside ex-parte order is made - Appeal - Held - Aspect of admitting deceased testator in hospital and death on the very next day of execution of will was not disclosed by respondent - Non-disclosure of these facts would amount to concealment from Court something material to the case so as to invoke jurisdiction of revocation of grant of probate for just cause - Powers of the court u/s 263 are wide enough to revoke or annual the grant of probate for just cause - Case remanded for fresh decision - Appeal allowed : Leelawati (Smt.) Vs. Emanueal, I.L.R. (2009) M.P. 1394
- Section 295 and Civil Procedure Code 1908, Order 23 - Letters of Administration-Proceedings for - Proceedings before Probate Court - May be akin to a suit of a civil nature, but 'not a suit deciding inter-parties right - Provisions of Order 23 CPC per se inapplicable with full vigour - Objection rightly rejected : June Aldons Vs. Smt. Theresa Brown, I.L.R. (2006) M.P. 1099
- Section 372 - Deceased and applicant lived together as husband and wife for long years proved - Non-disclosure of factum of marriage in service record would not destroy the presumption of marriage - Held - Applicant is person entitled to collect the estate of deceased - Order rejecting application for grant of succession certificate set- aside - Revision allowed : Bhagwandas Yadav Vs. Rohit Tiwari, I.L.R. (2010) M.P. Note *11
- Section 372 - Grant of succession certificate - Ex parte proceedings - When improper - Held - If the date has been fixed by the Board Reader on having Presiding Succession Act (39 of 1925) 754
Officer on leave; such date cannot be treated as a date fixed for hearing - Until and unless the case is fixed for hearing, the Court should not direct to proceed exparte : Shakuntala Mittal (Smt.) Vs. Shyamlal, I.L.R. (2010) M.P. 1826
- Section 372 - See - Civil Procedure Code, 1908, Section 11 : Bhagwandas Yadav Vs. Rohit Tiwari, I.L.R. (2010) M.P. Note *11
- Section 372 - The enquiry for grant of certificate is to be made summarily : Bhagwandas Yadav Vs. Rohit Tiwari, I.L.R. (2010) M.P. Note *11
- Section 372 - Grant of succession certificate to the nominee - Effect - Deceased before marriage nominated his mother for provident fund governed by the Imperial Bank of India Employees Provident Fund Rules - Held - Amount in any head can be received by the nominee, but the amount can be claimed by the heirs of the deceased in accordance with law of succession governing them - Nomination does not confer any beneficial interest in the nominee - Wife of deceased entitled for half of the amount of GPF : Shipra Sengupta Vs. Mridul Sengupta, I.L.R. (2009) M.P. 2735 (SC)
- Section 372 - Succession Certificate - Deceased leaving two wives and four children from second wife - Second wife nominated by deceased in official records to receive claims - Trial Court granted succession certificate to second wife - High Court reversed the order and granted succession certificate in favour of first wife as divorce by custom could not be proved - Held - Second wife in her application had pointed out the names of four children - Second wife cannot claim to be legal heir but she had the status of nominee - She continued to stay with deceased and was person of confidence of deceased and had born four children - She was always preferable even to legally wedded wife who had never stayed with deceased - High Court was not justified in granting claim of first wife to the exclusion of the nominee of deceased and also to his legitimate legal heirs - First wife would be entitled to 1/5th share only - Appeal allowed : Vidyadhari Vs. Sukhrana Bai, I.L.R. (2008) M.P. 1575 (SC)
- Section 372 - Succession certificate - Obtained from the competent authority without impleading the necessary party i.e. nominee of government servant - Cannot be said to be as per law : Girijabai Vs. State of M.P., I.L.R. (2008) M.P. 1167
- Section 372 - Succession Certificate - Court should not ignore banker's lien on the amount in respect of which succession certificate sought - Bank informing the Court that amount of RS.1,23,540.53 plus interest outstanding against deceased towards loan availed by her against fixed deposits - Court granted succession certificate ignoring bank's claim - Bank made the payment of amount after deducting the outstanding amount - Trial Court directed the Bank to make payment of full amount - Bank is not required to initiate recovery proceedings - It was right in appropriating the outstanding amount Sugarcane (Control) Order 1966 755 from the fixed deposits - Order of Trial Court set aside : State Bank of India Vs. Mukesh Rawat, I.L.R. (2007) M.P. 80
- Section 387 - Alternative remedy of filing a civil suit - When warranted - Held - Once the procedure of grant of certificate was found defective in substance, as envisaged u/s 383 of the Act and if the case falls in any of the category as specified therein, the parties cannot be refused to entertain the application for revocation on the pretext of having remedy to file a civil suit : Shakuntala Mittal (Smt.) Vs. Shyamlal, I.L.R. (2010) M.P. 1826 Sugar (Control) Order, 1966
- Clause 4 & 5 - See - Essential Commodities Act, 1955, Section 3(3D) & (3E) : Barwani Sugar Vs. Union of India, I.L.R. (2010) M.P. Note *40 Sugar Dealers Licencing Order, M.P. 1963
- Clause 3(1), Essential Commodities Act, 1955, Section 3/7 - Dealer - 67 bags of sugar found in house of appellant - In absence of evidence, mere recovery not sufficient to raise a presumption that appellant was engaged in business of purchase, sale or storage of sugar in quantity exceeding 50 quintals at one time - Single, casual or solitary transaction of storage of sugar would not make him a dealer - Conviction & sentence u/s 3/7 of the Act set-aside - Appeal allowed : Shivnath Dhobhi Vs. State of M.P., I.L.R. (2009) M.P. 879 Sugarcane (Regulation of Supply and Purchase) Act, M.P., 1958
- Sections 15, 16, 19, 20, 21& 22 Sugarcane (Control) Order 1966, Clause 3 and Krishi Upaj Mandi Adhiniyam, M.P., 1972 - Market fee - Sugarcane Act and Control Order together cover the entire field - (Market Act) is excluded - Market fee cannot be levied on transaction of sale and purchase of sugarcane between factory owners in M.P. and the Sugarcane growers or growers'Co-operative Societies : Gwalior Sugar Co. Ltd. Vs. State of M.P., I.L.R. (2006) M.P. 999 (DB) Sugarcane (Control) Order 1966
- Clause 3 and Krishi Upaj Mandi Adhiniyam, M.P., 1972 - Market fee - Sugarcane Act and Control Order together cover the entire field - (Market Act) is excluded - Market fee cannot be levied on transaction of sale and purchase of sugarcane between factory owners in M.P. and the sugarcane growers or growers' Co-operative Societies : Gwalior Sugar Co. Ltd. Vs. State of M.P, I.L.R. (2006) M.P. 999 (DB) Tender 756
Swatantrata Sangram Sainik Samman Nidhi Niyam, M.P. 1972
- Rule 3(6) [Amended] - Amendment made in Rule 3(6) of Niyam, 1972 is not ultra vires : Sheel Chand Jain Vs. State of M.P., I.L.R. (2010) M.P. 771 (FB)
- Rule 3(6) [Amended] - Benefit of Samman Nidhi from the date of sanction order : Sheel Chand Jain Vs. State of M.P., I.L.R. (2010) M.P. 771 (FB)
- Rule 3(6) [Amended] - Disposal of application - State is bound to decide complete application in future with promptitude, to say, within one year from the date an application is filed : Sheel Chand Jain Vs. State of M.P., I.L.R. (2010) M.P. 771 (FB) Sympathetic consideration
- Respondent wrongly promoted as Sr. Accountant - Holding the post since last 17 years and reaching the age of superannuation by the end of this month i.e. 31- 12-2007 - Therefore it would not be appropriate now to revert the respondent to the post of Accountant for very short period - However he would be deemed to have retired from the post of Accountant and his pensionary and retiral benefits would be fixed by treating him as Accountant althroughout : Union of India Vs. Narendra Singh, I.L.R. (2008) M.P. 621 (SC) Technical Education Polytechnic College (Teaching Cadre) Service (Recruitment) Rules, M.P. 2004
- Rule 8(c) - See - Service Law : Raghavendra Agrawal Vs. State of M.P., I.L.R. (2009) M.P. 1017 Tender
- Non-consideration of terms of tender - Petitioner did not comply with clause 4 of the "Important Instructions to Tenderers" - Commercial bid submitted by the petitioner was rightly found to be unresponsive and was not considered : Kineco Pvt. Ltd. Vs. West Central Railways, I.L.R. (2010) M.P. 2489 (DB)
- Parity - Each tender notice is governed by a particular set of conditions and the criteria or the principle applied for evaluation of a bid in one tender cannot be applied in another - On that ground parity cannot be claimed : Kineco Pvt. Ltd. Vs. West Central Railways, I.L.R. (2010) M.P. 2489 (DB)
- Tender condition - Appellant had not purchased tender form - No tenderer challenged the condition - Held - Condition was not essential and the Board had power The Indian Audit and Accounts Department (Senior Accountant) 757 Recruitment Rules, 1998 to relax - Non-fulfilment of condition while submitting tender would not invalidate tender submitted by respondent company : Safe Guard, GF-3 Vs. M.P. State Agriculture Marketing Board, I.L.R. (2009) M.P. 2769 (DB) Terminal Tax (Assessment and Collection) on the Goods Exported from Madhya Pradesh Municipal Limits Rules, 1996
- Rule 3 - See - Municipal Corporation Act, M.P., 1956, Section 132(6)(n) & (o) : Northern Coal Fields Ltd. Vs. State of M.P., I.L.R. (2010) M.P. 1304 (DB) The Indian Audit and Accounts Department (Senior Accountant) Recruitment Rules, 1998
- Rules are framed by the President of India in consultation with the Comptroller & Auditor General of India in exercise of power under clause 5 of Article 148 of Constitution - Thus rules are statutory in nature : Union of India Vs. Narendra Singh, I.L.R. (2008) M.P. 621 (SC)
- Rules 3 & 12 - Fundamental Rules, 1922, Rule 31-A - If promotion is given wrongly the employee can not be prevented from applying the rules and in correcting the mistake - Mistakes are mistakes and can be corrected by following due process of law - Respondent wrongly promoted though he was not eligible and qualified for the post of Sr. Accountant - After giving show cause notice order of promotion cancelled - Proper : Union of India Vs. Narendra Singh, I.L.R. (2008) M.P. 621 (SC)
- Rule 5 - Exercising the power of relaxation - Court or Tribunal can not exercise the power of relaxation - The question as to relaxation of rules was finally decided by Tribunal - Therefore it can not be said that the Tribunal's direction was limited to the 'consideration' of the case of respondent : Union of India Vs. Narendra Singh, I.L.R. (2008) M.P. 621 (SC)
- Rule 5 - Power of Relaxation - Rule 5 conferred power on the Comptroller & Auditor General of India to relax rules - Such power should be exercised 'with respect to any class or category of persons' - Normally power should be invoked if eligible candidates are not available for promotion or for valid grounds/reasons - The power however should not be exercised to perpetuate a mistake - Respondent wrongly promoted though he was not eligible and qualified - His promotion order cancelled - Deputy Accountant General did not find any valid reason/ground to relax rules - Held - Reasons recorded by Dy. Accountant General were in conformity with the statutory rules : Union of India Vs. Narendra Singh, I.L.R. (2008) M.P. 621 (SC)
- Rule 5-A - Exercising the Power of Relaxation - Such power should be exercised to the extent as may be necessary to ensure satisfactory working or removing hardship Trade Unions Act (16 of 1926) 758 in just and equitable manner but the government can not consciously and deliberately deviate from the rules exercising the power of Relaxation : Union of India Vs. Narendra Singh, I.L.R. (2008) M.P. 621 (SC) The Security Interest (Enforcement) Rules, 2002
- Rules 8 & 9(2) - See - Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, Sections 4, 10, 12, 13 & 38 : Godawari Shridhar (Smt.) Vs. Union Bank of India, I.L.R. (2008) M.P. 2918 Trade Marks Act (47 of 1999)
- Section 134 - See - Civil Procedure Code, 1908, Section 20 : Rasiklal Manikchand Dhariwal and Dhariwal Industries Ltd. Vs. M/s. M.S.S. Food Products, I.L.R. (2008) M.P. 3225 (DB)
- Section 135 - Suit for injunction and damages - Allegation of using phonetically similar mark and passing of product - Trade marks phonetically similar not seriously disputed - Ex parte decree based on large number of witnesses and exhibited documents - Offending label exploited on commercial scale in an area, the evidence with regard to actual sale is unnecessary and redundant - Held - Damages can not be awarded due to delay - Token damages awarded - However, order of injunction affirmed - Decree modified : Rasiklal Manikchand Dhariwal and Dhariwal Industries Ltd Vs. M/s. M.S.S. Food Products, I.L.R. (2008) M.P. 3225 (DB) Trade Unions Act (16 of 1926)
- Section 10 - Derecogition of Trade Union - Show Cause Notice - M.O.U. signed by management and M.P. Bank Officer's Association requires issuance of show cause notice before derecognizing trade union - Held - Petitioner union not signatory to M.O.U. cannot claim previlidges conferred by said M.O.U. - Non-compliance of M.O.U. does not arise : All India State Bank of Indore, Officers Co-ordination Committee Vs. State Bank of Indore, I.L.R. (2010) M.P. Note *74
- Section 23-J - Power of Registrar of Trade Unions - Registrar has no jurisdiction to entertain election dispute : R.K. Kathal Vs. Registrar, Trade Union, I.L.R. (2008) M.P. 656 (DB)
- Section 23-J - Power of Registrar of Trade Unions to stay election - Registrar, Trade Unions does not have powers of Court - In absence of any express provision Election Tribunal does not have any power to grant temporary injunction - Registrar, Trade Unions could not have encroached upon an area and passed an order of stay Transfer of Property Act (4 of 1882) 759 relating to election : R.K. Kathal Vs. Registrar, Trade Union, I.L.R. (2008) M.P. 656 (DB) Transfer of Property Act (4 of 1882)
- Section 3, Succession Act, 1925, Section 63(c) - "attested" - The definition of the word "attested" in S. 63(c) of Succession Act, 1925 and in S. 3 of Transfer of Property Act, 1882 is similar : Ram Kishan Dwivedi Vs. Rohni Prasad Tiwari, I.L.R. (2010) M.P. 123 (DB)
- Sections 3 & 123 - Gift Deed - Attestation by two witnesses - Plaintiff seeking title on the basis of a gift deed which is although registered but not attested by two witnesses - Held - The gift deed is not attested by any of the attesting witnesses, hence, the said deed is not a legal gift deed and does not convey any title to the plaintiff : Ram Babu Vaishya (Since Dead) through L.Rs. Shrimati Nisha Rani Vs. Scindia Kanya Vidyalaya and Registered Society, I.L.R. (2008) M.P. 3259 (DB)
- Section 7 - Persons competent to transfer - Transferor should be competent to transfer the property - If he did not have any right over the property, then he had no authority to transfer the same : Satyanarayan Agrawal Vs. State of M.P., I.L.R. (2008) M.P. 3178
- Sections 10, 111(g) - Right of re-entry - Land was given on lease for construction of cinema hall - Subsequently, cinema licence was cancelled by the Collector - Lease also cancelled on the same ground - Held - Section 10 does not carve out any exception with regard to perpetual or permanent lease - Notice is necessary for termination of lease - No express condition in agreement regarding forfeiture - It would not be open to lessor to invoke the forfeiture clause for determining the perpetual lease - Forfeiture of lease not legal : Cine Exhibitors Pvt. Ltd. Vs. The Gwalior Development Authority, I.L.R. (2008) M.P. 1872 (DB)
- Section 44 - See - Civil Procedure Code, 1908, Order 39 Rules 1 & 2 : Girish Shrivastava Vs. N.K. Pateria, I.L.R. (2010) M.P. 2165
- Section 48 - Priority of rights created by transfer - Purchase made competently vide earlier registered sale deed is to be first protected : Sunil Kumar Vs. Dr. Om Prakash Garg, I.L.R. (2010) M.P. 960
- Section 48 - Priority of Rights created by Transfer - Subsequent purchaser resident of same locality - Having knowledge of earlier agreement - Subsequent sale deed executed during subsistence of agreement - It does not give any right to subsequent purchaser over the plaintiff - Subsequent purchaser bound to perform contract by Transfer of Property Act (4 of 1882) 760 executing sale deed in favour of plaintiff - Appeal dismissed : Shankar Lal Pandey Vs. Tarachand Kulparia, I.L.R. (2008) M.P. 824
- Section 52 - During execution proceeding judgment debtor sold part of suit land - Admittedly, no leave of Court was sought before transfer of land - Alienation would be hit by doctrine of lis pendens - Purchasers can not be considered to be either necessary or proper party to suit : Mahfooz Ahmed Vs. Smt. Neelmani, I.L.R. (2010) M.P. 1771
- Section 52 - Doctrine of lis pendence - Decree for specific performance of contract passed against defendant No.4 in the year 1961 and decree was executed in 1967 - Defendant No.4 took loan in the year 1966 and mortgaged the land - Land auctioned in recovery proceedings and was purchased by defendant No.10 - Held - No right or title is acquired by defendant No.10 - Doctrine of lis pendence would apply - Section 52 places complete embargo on transfer of immovable property, right to which is directly and specifically in question in a pending litigation - Appeal allowed : Shakuntaladevi Vs. Shivpuri Sahkari Bhumi Vikas Bank Maryadit, Shivpuri, I.L.R. (2009) M.P. 1356
- Section 52 - See - Civil Procedure Code, 1908, Order 21 Rule 29 : Dilip Kumar Vs. Vijay Bhadur Singh, I.L.R. (2009) M.P. 1408
- Section 52 - See - Civil Procedure Code, 1908, Order 21 Rules 98, 100, 101 & 102 : Dilip Kumar Vs. Vijay Bhadur Singh, I.L.R. (2009) M.P. 1408
- Section 53-A - Part performance - The doctrine of part performance is a weapon of defence - If the defendants are seeking the protection of this doctrine, they are required to discharge all the statutory obligations as provided u/s 53-A - Defendants never sent any notice to the plaintiff to get the sale deed executed in order to prove their readiness & willingness - Defendants have not discharged the statutory obligations - Although defendants are in possession of the suit property, but they are not entitled for protection u/s 53-A : Anant Singh (Dead) Through L.Rs. Harnam Singh Vs. Haricharan, I.L.R. (2010) M.P. 953
- Section 53-A, Registration Act, 1908, Section 17 - Contract to sell immovable property does not require to be registered - An unregistered document can be treated as evidence of part performance of contract : Champat Giri Vs. Ramdayal, I.L.R. (2009) M.P. 2630
- Section 53-A - Part performance - To attract provisions of Section 53-A, the property must be owned by the plaintiff - There should be a written agreement to sell or transfer by the plaintiff in favour of defendant for consideration - In pursuance of that agreement, the defendant must have done something more in furtherance of the contract Transfer of Property Act (4 of 1882) 761 and he himself should be ready and willing to perform his part of the contract from the date of agreement - Appellant had failed to establish these ingredients, therefore, courts below rightly non-suited him : Amarsingh Vs. Shiv Narayan, I.L.R. (2008) M.P. 3246
- Section 53-A - See - Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, Sections 13 & 14 : Abhay Kumar Vs. Chief Manager, State Bank of Indore, I.L.R. (2008) M.P. 2780 (DB)
- Section 53A - Adverse Possession - Plea of adverse possession cannot be sustained when alternative plea of retention of possession by operation of Section 53A are inconsistence and plea of adverse possession cannot be found : Jaswant Singh Vs. Smt. Dayamani, I.L.R. (2008) M.P. 2080
- Sections 53A & 54 - See - Civil Procedure Code, 1908, Order 1 Rule 10 : Govind Prasad Dubey Vs. Chandra Mohan Agnihotri, I.L.R. (2009) M.P. 2228 (DB)
- Section 54 - Sale - Sale how made - Held - Sale of property less than Rs.100 can be made without there being a registered instrument and the sale can be proved by delivery of possession : Joge Ram Das Kahar Vs. Chhotelal Sharma, I.L.R. (2010) M.P. 639
- Section 54 - Sale or loan transaction - Suit for restraining defendant to take possession of agricultural land on the basis of sale deed executed by defendant in favour of plaintiff's father - Held - Original sale deed produced by defendant from his possession - A note that defendant has repaid the loan amount to plaintiff's father is mentioned in sale deed - It was a loan transaction - Sale deed executed to secure the loan amount - Judgment & decree of two courts below set-aside - Suit dismissed : Motilal Pandey Vs. Kailash Pathak, I.L.R. (2009) M.P. 2601
- Sections 54 - Nominal sale - Sale deed executed only as security for loan - Simultaneous agreement for executing re-conveyance deed admitted - By such sale no right, title or interest pass : Ramlal Vs. Phagua, I.L.R. (2006) M.P. 1 (SC)
- Sections 54,55 - Mere mutation in revenue records does not confer any right, title or interest in absence of real transaction of property : Ramlal Vs. Phagua, I.L.R. (2006) M.P. 1 (SC)
- Sections 54,55 and Civil Procedure Code, 1908, Section 100 - Suit for possession and setting aside sale - Nominal sale - Sale deed executed only as security for loan - Simultaneous agreement for executing re-conveyance deed admitted - By such sale no right, title or interest pass - Mere mutation in revenue records does not Transfer of Property Act (4 of 1882) 762 confer any right, title or interest in absence of real transaction of property - Lower Courts concurrently erred in not appreciating oral & documentary evidence - High Court at liberty to re-appreciate evidence and record its own conclusion : Ramlal Vs. Phagua; I.L.R. (2006) M. P. 1 (SC)
- Section 58(c) - Whether transaction is outright sale or mortgage by conditional sale - Registered sale deed not containing any condition regarding conditional sale - Alleged unregistered agreement of reconveyance executed after five months of sale - Held - Sale deed can not be held to be a mortgage by conditional sale - Suit dismissed - Appeal allowed : Jama Vs. Khalil, I.L.R. (2009) M.P. 1732
- Section 58(c) - Mortgage - Execution of sale deed during minority of plaintiffs - Allegation of fraudulently execution of sale deed under the pretext of mortgage - On objection being raised, defendants executed separate agreement declaring that land has been mortgaged and after payment of consideration they will handover the possession - The two courts below found the sale deed void as it was intended to create security for loan transaction - Second appeal - Held - There is no evidence on record that subsequent agreement was based on fraud - Consideration of both documents together would constitute mortgage - Considering of price of land and minority of plaintiffs the sale deed is a sham transaction created as security of loan transaction : Gendalal (Since Dead) through L.Rs. Sajjan Bai etc. Vs. Pannalal (Since Dead) through L.Rs. Lila Bai etc., I.L.R. (2008) M.P. 3207
- Section 105 - Lease - Change of purpose - Land allotted on lease for establishment of industry - Petitioner applied for change of purpose of lease for installing of Petrol Pump, establishment of restaurant, Aushadhalaya and departmental store - Held - No condition/covenant in lease deed that lessee would be entitled to ask for change of purpose and lessor would be obliged to change the purpose - Permission rightly rejected - Petition dismissed : Himgouri Pulses Industrial Area, Harda (M/s.) Vs. State of M.P., I.L.R. (2010) M.P. 630 (DB)
- Section 105 - Lease - Ingredients - (i) There is a transfer of a right to enjoy property, (ii) it is made for a certain time, express or implied or in perpetuity, and (iii) there has to be consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value : R.V. Infrastructure Engineers Pvt. Ltd. Vs. State of M.P., I.L.R. (2010) M.P. 608 (DB)
- Section 105, Stamp Act, 1899, Section 2(16) - Lease - Right to collect tolls for fifteen years in lieu of the amount spent by the Concessionaire in the construction of roads, bridges etc. under the Build, Operate and Transfer (B.O.T.) scheme - Right to enjoy property clearly makes the transaction that of lease - Mere apprehension that there may not be successful completion will not come in the way of chargeability of the Transfer of Property Act (4 of 1882) 763 document - Since construction of road, handing over of possession, as well as recovery of toll is provided hence the document falls within the definition of lease : R.V. Infrastructure Engineers Pvt. Ltd. Vs. State of M.P., I.L.R. (2010) M.P. 608 (DB)
- Section 106 - Requirement of notice - When the period of lease is fixed by a contract and it comes to an end then the tenant is not entitled to a notice u/s 106 of the Act - After expiry of the period of termination of lease the possession of the lessee was that of a tenant-at-sufferance as being one who came in by right and held over without right - Such a person can be evicted without notice : Balvant Rai Agrawal Vs. Bharat Petroleum Corporation, I.L.R. (2010) M.P. 646
- Section 107, Registration Act, 1908, Section 17 - Lease for 10 years - Lease cannot be renewed automatically - Renewal for a period of 10 years will become admissible only when the renewal is made by a registered lease deed as laid down u/s 17 of the Registration Act r/w S. 107 of T.P. Act : Balvant Rai Agrawal Vs. Bharat Petroleum Corporation, I.L.R. (2010) M.P. 646
- Section 111(a) - Determination of lease - Original period of lease extended for 10 years, thereafter, lease not renewed in terms of agreement - Suit for ejectment - Alternate plea of continuation of lease in plaint by lessor - Held - Contract of lease came to an end and lease was determined by efflux of time limited thereby - An admission made as alternate plea regarding renewal of lease cannot overrule statutory provision and lease period can not be said to be renewed - Lessor has right to eject lessee - Appeal allowed : Balvant Rai Agrawal Vs. Bharat Petroleum Corporation, I.L.R. (2010) M.P. 646
- Section 111(d) - See - Accommodation Control Act, M.P., 1961, Section 12 : Hameeda Begum (Smt.) Vs. Smt. Champa Bai Jain, I.L.R. (2009) M.P. 2328 (DB)
- Sections 122, 123 - Stamps Act, Indian, 1899, Section 2(24) - Civil Procedure Code, 1908. Section 100 - Second Appeal - Questions as to whether the document of Tamliknama is a deed of gift requiring compliance of Sections 122 & 123 of Transfer of Property Act - Tamliknama executed by father to one of his sons settling the land without any consideration in his favour and also giving possession of the property - Tamliknama is not gift deed but is a document by which ownership rights are transferred - Provision of Sections 122 & 123 of Transfer of Property Act do not apply - Appeal answered accordingly : Ramniwas Awasthy Vs. Narayan Prasad, I.L.R. (2007) M.P. 551
- Section 123 - Attestation of gift deed by two witnesses - Mandatory - It is true that no penalty is imposed for non-compliance of the condition of attestation of two witnesses on the gift deed - But in the absence of this condition, the gift deed itself Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, M.P. 2005 (14 of 2006) 764 cannot be said to be legally complete and does not convey any title in favour of the donee - When the law requires that a particular thing is to be done in a particular manner, then the same has to be done in the manner provided by law else the act is illegal - Therefore, consequence of absence of two attesting witnesses cannot be said to be directory but it is mandatory in nature : Ram Babu Vaishya (Since Dead) through L.Rs. Shrimati Nisha Rani Vs. Scindia Kanya Vidyalaya and Registered Society, I.L.R. (2008) M.P. 3259 (DB) Transfer of Property Act Gwalior State Samvat 2001
- Section 119, Qanoon Registry, Riyasat Gwalior Samvat 1971, Section 9 - Suit for restoration of possession on the basis of title alleged to have been acquired by virtue of written permission by Ex-Zamindar - Written permission to make construction coupled with right to sell/mortgage to the grantee and his generation to generation - It should be treated as a gift in absence of consideration - The document was required to be registered - For want of registration plaintiff did not acquire any title - Since suit is based on title alleged to be acquired by the said document - The document can not be looked into for collateral purpose - Suit dismissed - Appeal allowed : Savitribai Vs. Krishna Morari (Dead) Through L.R., I.L.R. (2010) M.P. 956 Transport (Gazetted) Service Recruitment Rules, M.P. 1972
- Rule 7, Column 5 of Schedule II - See - Constitution, Articles 14 & 16 : Subhash Sona Vs. State of M.P., I.L.R. (2010) M.P. 1114 (DB) Transposing of parties
- Suit by Bheroji against his father Dallaji - During pendency Dallaji died and his daughter Devi Bai impleaded - Plaintiff Bheoroji died issueless and Devi Bai transposed as plaintiff - Held - Devi Bai being sister of plaintiff entitled to succeed the property of Bheroji as she was Class-II heir - In absence of partition between Bheroji and Dallaji, Devi Bai was entitled for share in properties of Dallaji - Her transposition as plaintiff was valid : Ramawtar Vs. Mangi Lal (Deceased) Through L.Rs., I.L.R. (2009) M.P. 2360 Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, M.P. 2005 (14 of 2006)
- Objection regarding arbitration clause - Objection regarding arbitration clause not raised before writ court - But raised first time in Writ Appeal - Held - Objection should be taken immediately at the first instance - Not proper to consider such objection at appeal stage : Cine Exhibitors Pvt. Ltd. Vs. The Gwalior Development Authority, I.L.R. (2008) M.P. 1872 (DB) Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, M.P. 2005 (14 of 2006) 765
- Section 2 - WA can be filed against the judgment or order passed by a Single Judge, in exercise of original jurisdiction under Article 226 of the Constitution, but no provision has been made in the Act for filing a WA against the judgment & decree passed by the Single Bench in appellate jurisdiction - Judgment & decree passed by Single Judge in First Appeal - WA can not be entertained - WA dismissed : Laxminarayan Vs. Shiv Lal Gujar, I.L.R. (2009) M.P. 2503 (DB)
- Section 2 - Dealership of petrol - Order of cancellation of dealership on ground that High Tension Electric Line passes over the site - Advertisement does not contain such disqualification - Learned Single Judge, on finding that dealer proposed to shift line and make the site suitable, directed in case the line stands removed, the order of cancellation of dealership shall stand quashed - Pursuant to direction of learned Single Judge line shifted - Appeal against the order - Held - Policy circular No.63 contains condition for such disqualification - Policy circular being strictly confidential, knowledge of it can not be imputed to dealer - There is no suppression of fact by the dealer - The learned Single Judge ought not to have directed grant of dealership merely on account of removal of line - Since present position of policy not placed on record - Appeal partly allowed with the direction that appellant company shall, in changed circumstances, consider the suitability of respondent for allotment of dealership : Indian Oil Corporation Ltd. Vs. Gurmeet Singh, I.L.R. (2008) M.P. 2505 (DB)
- Section 2 - Maintainability of Writ Appeal - Order passed by learned Single Judge in exercise of its contempt jurisdiction - Held - Proviso to Section 2(1) puts bar and ban against filing of appeal against any order except order passed by learned Single Judge in exercise of original jurisdiction under Article 226 of Constitution - Writ Appeal not maintainable : Sulochana Mallaiya (Smt.) Vs. S.N. Shrivastava, I.L.R. (2008) M.P. 2205 (DB)
- Sections 2, 4(2), M.P. Uchcha Nyayalaya (Letters Patent Appeals Samapti) Adhiniyam, 1981, Section 2 - Whether application for restoration/revival of Letters Patent Appeal against Judgment and Decree passed in exercise of appellate jurisdiction under Section 96 of Civil Procedure Code is maintainable - First Appeal filed by appellants dismissed by Learned Single Judge - Letters Patent Appeal dismissed because of Adhiniyam, 1981 - Held - Section 2 of Adhiniyam, 2005 provides for appeal from an order passed in exercise of jurisdiction under Article 226 of Constitution of India - In absence of any express or implied provision in Adhiniyam 2005 Letters Patent Appeals from judgment and decree passed in exercise of jurisdiction under Section 96 of C.P.C. are not revived - Reference answered accordingly : Smt. Shashibai Vs. Smt. Revabai Agrawal, I.L.R. (2007) M.P. 1296 (FB)
- Section 2(1), Industrial Disputes Act, 1947, Section 10 - Incentive Bonus - By scheme dated 01.09.77 not provided to employees working in Dispensary, Hospital, Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, M.P. 2005 (14 of 2006) 766
Estate, Office Staff and Canteen - Subsequently, on 01.07.82 aforesaid workers were granted 25% incentive bonus - Further, by circular dated 01.11.86 Canteen employees were granted 100% incentive bonus - The learned Single Judge found that there is no rationale to give different treatment and different percentage of incentive bonus to employees working in Canteen and Dispensary - Held - No perversity in the order - However, order of learned Single Judge granting interest on incentive bonus from 01.11.86 and not from initial date of scheme modified on ground of financial burden on employer and interest curtailed to 6% p.a. for period of 3 years : General Manager, Bank Note Press, Dewas Vs. Bank Note Press Office Staff Association, Dewas, I.L.R. (2008) M.P. 2218 (DB)
- Section 2(1) Proviso - Maintainability of Writ Appeal - It has to be decided on the basis of pleadings whether impugned order passed by Single Judge is one under Article 226 or 227 of Constitution : Ispat Khadan Janta Mazdoor Union Vs. Steel Authority of India Ltd., I.L.R. (2008) M.P. 2508 (DB)
- Section 2(1) - Maintainability of Writ Appeal - Co-operative Tribunal had taken a view that Registrar cannot authorize Deputy Registrar to decide a dispute - Held - An error of law made by Tribunal can be corrected by High Court under Article 226 - Petition was not only under Article 227 of the Constitution of India but also under Article 226 - Order passed by Single Judge is order under Article 226 of Constitution of India - Writ Petition maintainable : Ramanuj Tiwari Vs. M.P. State Co Operative Tribunal, I.L.R. (2008) M.P. 216 (DB)
- Section 2(1) - Bar of appeal against order passed under Article 227 - Held - Pleadings in writ petition, nature, character and contour of order, directions issued, nomenclature given and jurisdictional prospective are to be perceived - Merely because order under challenge emerges from inferior tribunal or subordinate courts cannot be treated for all purposes to be under Article 227 - Phraseology used in exercise of original jurisdiction under Article 226 cannot be given restricted meaning - Division Bench while entertaining appeal under Section 2 shall satisfy that Single Judge exercised original jurisdiction under Article 226 by looking into pleadings, relief prayed and order or judgment passed by Single Judge - Judgment passed in M/s Ram and Co. doesnot lay correct law and is overruled : Dr. Jaidev Siddha Vs. Jaiprakash Siddha, I.L.R. (2007) M.P. 1030 (FB)
- Section 2(1) - Bar of appeal against order passed under Article 227 - Pleadings in writ petition, nature, character and contour of order, directions issued, nomenclature given and jurisdictional prospective are to be perceived - Merely because order under challenge emerges from inferior tribunal or subordinate courts cannot be treated for all purposes to be under Article 227. (Majority View) : Manoj Kumar Vs. Board of Revenue, I.L.R. (2007) M.P. 1504 (FB) Uchchatar Nyayik Sewa (Bharti Tatha Sewa Sharten) Niyam, 1994 767
- Section 2(1) - Interlocutory Order/Judgment - Question whether Section 2(1) bars an appeal to Division Bench or order can be assailed regard being had to nature, tenor, effect and impact of order referred to larger bench in view of contrary views - Held - Interlocutory orders which decide matter of moment or affect vital and valuable rights of parties and which cause serious injustice to party has character of finality and must be treated as judgment - Section 2(1) of Adhiniyam doesnot create absolute bar to prefer an appeal - Appeal can be preferred against an order regard being had to nature, tenor, effect and impact of order passed by Single Judge - Decisions rendered in Nav Nirman Milan Deria and Tejpal Singh enunciate correct law - Decision rendered in Arvind Kumar Jain overruled - Reference answered accordingly : Arvind Kumar Jain Vs. State of M.P., I.L.R. (2007) M.P. 1017 (FB)
- Section 2(1) - Maintainability of appeal - Temporary Injunction granted by Trial Court - Appeal allowed by Appellate Court - Order of Appellate Court challenged by filing petition under Article 227 of Constitution of India - Writ Petition allowed to Learned Single Judge and order of Trial Court granting temporary injunction restored - Held - Writ Petition was not only filed under Article 227 but was treated to be one under Article 227 of Constitution of India - It cannot be treated as a petition under Article 226/ 227 of Constitution of India - Writ Appeal not maintainable in view of Section 2(1) of Adhiniyam.: Shri Hari Siddhi Construction Company Vs. Raghunandan, I.L.R. (2007) M.P. 1349 (DB)
- Section 2(2) Explanation - Explanation cannot be understood to limit the scope of words 'sufficient cause' as used in proviso to sub-section (2) - But, it provides the additional support to the dominant object of the Act for giving a meaningful purpose and also to avoid the creation of any obstacle to the statutory right of an appellant : Dr. Harisingh Gaur Vishwavidyalaya Sagar (M.P.) Vs. Rajeshwar Yadav, I.L.R. (2008) M.P. 1599 (DB)
- Section 2(2) Explanation - The word 'petitioner' used in the Explanation does not mean that petitioner who files a writ petition, but to understood as a party who files the Writ Appeal : Dr. Harisingh Gaur Vishwavidyalaya Sagar (M.P.) Vs. Rajeshwar Yadav, I.L.R. (2008) M.P. 1599 (DB)
- Section 4 - Reference - Question of revival of third appeal referred by D.B. to F.B. - Third appeal against the judgment and decree passed by the Single Judge is barred under Section 100A of C.P.C. - Does not stand revived under Section 4 of the Adhiniyam : Ratanlal Vs. Purushottam, I.L.R. (2006) M.P. 1374 (FB) Uchchatar Nyayik Sewa (Bharti Tatha Sewa Sharten) Niyam, 1994
- Rule 5(1) Second Proviso, Constitution, Articles 14, 16, 233, 235 - Recruitment to post of District Judge (Entry Level ) - Rule 5(1) Second Proviso provides University Act, M.P. (22 of 1973) 768 that recruitment to posts of District Judges (Entry Level) shall be made on the basis of vacancies available till attainment of required percentage - Held - Proviso prevents High Court and Governor to fill up all vacancies arising from year to year is contrary to provisions of Articles 233 & 235 - Right to equality and equal opportunity in matters of public employment guaranteed under Articles 14 & 16 is affected - Proviso in question is ultra vires Articles 14, 16, 233 and 235 of Constitution : Y.D. Shukla Vs. High Court of Judicature of M.P. at Jabalpur, I.L.R. (2008) M.P. 2577 (DB)
- Candidates belonging to reserved categories - Advertisement provides that if suitable candidates belonging to SC/ST/OBC are not available reserved posts shall be treated as unreserved - Suitable candidate means who qualify in written examination - Petitioner ahs not been called for interview on the basis of valuation of his performance he is not suitable candidate - Petition dismissed : Pankaj Dixit Vs. State of M.P., I.L.R. (2007) M.P. 878 (DB)
- Recruitment to Higher Judicial Service - High Court issued advertisement inviting applications for 20 posts in M.P. Higher Judicial Service to be filled up by direct recruitment - Only 15 candidates called for interview - Petitioners appeared in examination but were not called for interview - Held - Clause 9(iv) of advertisement provides only those candidates will be called for interview as High Court will decide on the basis of valuation of their performance - Clause 9(vi) provides candidates shall be selected on the basis of aggregate marks obtained in both written examination and interview - Harmonious construction of both the provisions mean that only those who obtained qualifying marks shall be called for interview and marks of written examination and interview shall be aggregated to find out their position for selection : Pankaj Dixit Vs. State of M.P., I.L.R. (2007) M.P. 878 (DB) University Act, M.P. (22 of 1973)
- Sections 6(12) & 24 - Power to withdraw degree - Section 6(12) of Act empowers University to withdraw degree of Ph.D. - It is not a legal proposition that if a manner for performing an act is not provided, the same cannot be performed despite empowerment for the same under the substantive provision - Authorities are well within their powers to exercise said powers in a reasonable and rational manner which is not prohibited by law : K.S. Gaharwar Vs. Barkatullah Vishwavidyalaya, I.L.R. (2009) M.P. 1241
- Section 24(xxx) - Natural Justice - Certain portion of thesis found to be copied - Executive Council directed petitioner to resubmit thesis after removal of copied portion - Held - No show cause notice issued to petitioner with regard to allegation about copying - Order quashed - However, University and Executive Council shall have liberty to take up the matter afresh in accordance with law : K.S. Gaharwar Vs. Barkatullah Vishwavidyalaya, I.L.R. (2009) M.P. 1241 Urban Land (Ceiling and Regulation) Act (33 of 1976) 769
- Section 24(xxx) - Powers and Duties of Executive Council - Withdrawal of degree - Power to withdraw degree is exercisable by Executive Council : K.S. Gaharwar Vs. Barkatullah Vishwavidyalaya, I.L.R. (2009) M.P. 1241 Unlawful Activities (Prevention) Act ( of 1967)
- Sections 3(10) & 13 - See - Criminal Procedure Code, 1973, Section 437(6) : Aman Khan Vs. State of M.P., I.L.R. (2009) M.P. 2477 Upkar Adhiniyam, M.P., 1981 (1 of 1982)
- [As amended in 2001], Section 3(1), Vidyut Sudhar Adhiniyam, M.P., 2000, Section 12(3) - Energy Development Cess - Constitutional validity of amendment 2001 challenged on the ground that M.P. Electricity Regulatory Commission not consulted - Held - Consequence of non-consultation in terms of Section 12(3) of Adhiniyam, 2003 would not be an incompetent piece of legislation : M.P. Cement Manufacturers Association Vs. State of M.P., I.L.R. (2008) M.P. 1665 (DB)
- [As amended in 2001], Section 3(1), Vidyut Sudhar Adhiniyam, M.P., 2000, Section 12(3) - Energy Development Cess - Effect of non-consultation with M.P. Electricity Regulatory Commission - Held - Adhiniyam, 1981 and Adhiniyam, 2000 have been enacted to meet different exigencies and are to operate in different fields - Adhiniyam, 2000 is to operate in relation to electrical industry and policies - Adhiniyam, 1981 is general in nature and is to operate in relation to cess/tax on certain items - Provisions of one Act cannot be read into another Act - Act in which action is taken does not ask for consultation - Petitions dismissed : M.P. Cement Manufacturers Association Vs. State of M.P., I.L.R. (2008) M.P. 1665 (DB) Urban Land (Ceiling and Regulation) Act (33 of 1976)
- Sections 2(f), 4(b) & 6 - Filing of return on behalf of family - Land held by plaintiff and her husband as 'joint holder' as per Section 4(b) - Plaintiff's husband filed the return on behalf of 'family' as defined in Section 2(f) - 5.62 acres of land declared surplus by Competent Authority - Plaintiff herself did not file return as an individual holder as per Section 6 - Held - No separate notice by Competent Authority under Act was necessary to the plaintiff - Appeal dismissed : Kamla Bai (Smt.) Vs. State of M.P., I.L.R. (2008) M.P. 2925
- Section 10(3) - See - Land Acquisition Act, 1894, Sections 9 & 11 : Rajjulal (Dead) Through LRs. Ku. Shanti Devi Vs. State of M.P., I.L.R. (2009) M.P. 985
- Section 10(3), Rule 5(2)(c) - Possession - Possession taken from a dead person is no possession in eye of law - Paper possession without notice to holder is also no Value Added Tax Act, M.P. (20 of 2002) 770 possession and cannot be affirmed or maintained : Sohan Singh Vs. State of M.P., I.L.R. (2008) M.P. 2184 (DB)
- Section 10(3), Rule 5(2)(c) - See - Constitution, Article 226 : Sohan Singh Vs. State of M.P., I.L.R. (2008) M.P. 2184 (DB)
- Section 10(5), (6) - Delivery of Possession - Land belonging to appellant declared surplus - Notice u/s 10(5) issued to appellant which was refused - Possession of land taken over by Revenue Officer and name of State recorded in revenue record - Held - Procedure of preparing a Panchnama or memorandum by L.A.O. in presence of witnesses would constitute taking of possession - Revenue records showing party in possession of land coupled with revenue entries is sufficient compliance - Court cannot convert itself into a Revenue Court and hold that inspite of panchnama and revenue record actual physical possession of land not taken - Appeal dismissed : Lalji Choubey Vs. State of M.P., I.L.R. (2008) M.P. 2513 (DB)
- Sections 10(5), (6) & 11 - Possession - After serving notice possession was taken by State from husband of plaintiff - Possession receipt mentioning that possession has been taken from husband of plaintiff - In the revenue papers entry of State of M.P., Nazul Department was made - Notice u/s 11 was also issued to husband of plaintiff to collect compensation - In these circumstances, on the date of suit plaintiff remained in possession cannot be accepted - Appeal dismissed : Kamla Bai (Smt.) Vs. State of M.P., I.L.R. (2008) M.P. 2925 Urban Land (Ceiling and Regulation) Repeal Act (15 of 1999)
- Effect on concluded proceedings - Since possession was already taken by the State - Land has vested in the State - The proceedings have been concluded - Possession had been obtained after issuance of due notification - Proceedings could not be reopened - No benefit of Repeal Act could be obtained by the plaintiff : Kamla Bai (Smt.) Vs. State of M.P., I.L.R. (2008) M.P. 2925 Value Added Tax Act, M.P. (20 of 2002)
- Section 70 - Whether Emulsified Bitumen would not fall under Entry No. 16 of Schedule II Part 2 appended to the Act - Held - Yes - Bitumen and Emulsified Bitumen are two different commodities in the commercial world, though use of the said articles some times may be common, but some times, even the cost of the use as would also require to be considered to vary and use of the new product which is commercially different economically to some extent : Tiki Enterprises (M/s.) Vs. Commissioner of Commercial Tax, M.P., Inodre, I.L.R. (2009) M.P. 3098 (DB) Vanijyak Kar Adhiniyam, M.P. 1994 (5 of 1995) 771
Van Upaj Vyapar (Viniyaman) Adhiniyam, M.P. (9 of 1969)
- Sections 5 & 15 - Confiscation - Trucks were seized for transporting timber - Trees were cut after sanction and timber was loaded in trucks in supervision of officials - Transit passes were also prepared - Held - It can not be said that timber was unauthorizedly carried out as transit passes were not in physical possession - There has to be a knowledge or connivance for holding a person guilty of an offence u/s 5 - Order of confiscation of trucks quashed - Petition allowed : Ravi Dubey Vs. State of M.P., I.L.R. (2009) M.P. 2818
- Sections 5(1) & 15 - Confiscation - Benefit of Section 15(6) - The petitioner's tractor trolley was confiscated for transporting teakwood without permit - The petitioner sought the benefit of Section 15(6) that it was not in her knowledge that teakwood without permit was being transported - Held - To claim the benefit of Section 15(6), the petitioner is not only required to establish that she had no knowledge but she is also required to establish that her servant or agent also did not have any knowledge and they had not connived and she had taken all reasonable and necessary precautions against the use of vehicle against the commission of such offence - Petition dismissed : Rakhiya Bai Vs. Conservator of Forest, I.L.R. (2008) M.P. 3112
- Section 15(6) - Confiscation - Truck transporting sawn wood without transit pass - Vehicle directed to be confiscated - Transportation of sawn wood without transit pass in an offence - Owner and driver not taking reasonable and necessary precautions as required under Section 15(6) - Order of confiscation in consonance with law - Petition dismissed : Dhanaram Golhani Vs. State of Madhya Pradesh, I.L.R. (2007) M.P. 733 Vanijyak Kar Adhiniyam, M.P. 1994 (5 of 1995)
- Section 2(w) - Taxable Turnover - Subsequent cancellation of registration certificate of selling dealer - Transaction made by Petitioner with various selling dealers when their registration certificate were valid - Subsequent cancellation of registration certificate with retrospective effect would not effect the deduction claimed by petitioner : Jai Mahadev Traders, Gwalior Vs. State of M.P., I.L.R. (2008) M.P. 765
- Sections 22,23,27(6) - Willful default on the part of contractor to get himself registered - Penalty can be imposed - Petitioner awarded contract of construction of railway bridges - Petitioner failing to get himself registered under the Adhiniyam - Petitoner had already carried similar kind of work and was having registration which was cancelled on his own request - There was a willful default - Authorities well within their power to impose penalty - Petition dismissed : M/s. Ghai Construction Company Vs. Additional Commissioner, I.L.R. (2007) M.P. 349 Vidhan Sabha (Regulation and Condition of Service) Rules, M.P., 1990 772
- Section 51 - Transfer to defraud revenue void - Provision provides protection to creditors in whose favour the property has been alienated or in whose favour charges over property has been created - Section not ultra vires - Petition dismissed : Kotak Mahindra Bank Ltd. Vs. State of M.P., I.L.R. (2010) M.P. 918 (DB)
- Section 53 - S. 53 creates a statutory first charge which prevails over any charge on the property - Words "subject to provisions of Section 530 of the Companies Act" mean that remainder property shall be distributed in accordance with S. 530 of Companies Act - S. 530 of Companies Act is to be read in addendum of S. 53 of Adhiniyam 1994 - Section 53 of Adhiniyam 1994 not ultra vires - Petition dismissed : Kotak Mahindra Bank Ltd. Vs. State of M.P., I.L.R. (2010) M.P. 918 (DB)
- Entry 22 Part V of Schedule II - Refund of Commercial Tax - Petitioner claimed refund of commercial tax wrongly collected on mill rejected coal from petitioner - Held - Petitioner not entitled to claim refund of wrongly collected tax, unless he proves that he had not passed on the liability to third persons and had consumed the commodity himself - Petition dismissed : S.C. Agrawal & Brothers (M/s.) Vs. M.P. State Electricity Board, I.L.R. (2009) M.P. 2557 (DB) Veterinary Department Contingency Paid Employees Recruitment and Conditions of Service Rules, M.P. 1979
- Rule 7(2-D) - See - Service Law : Munnalal Basore Vs. State of M.P., I.L.R. (2009) M.P. Note *5 Vidhan Sabha (Regulation and Condition of Service) Rules, M.P., 1990
- Rule 7 - Effect of amendment in the rules - If a power is exercised by an authority who at the time of exercising such power had the power to do so and if subsequently the power is retrospectively withdrawn - Held - A person holding lawful office under the colour of lawful authority, even if person is not fully qualified to hold office, order passed by him in his official capacity cannot be challenged on the ground of lack of jurisdictional competence : M.P. Dwivedi Vs. M.P. Vidhan Sabha Secretariate, Bhopal, I.L.R. (2008) M.P. 1622
- Rules 7, 13 & 18 - Absorption and repatriation - Petitioner working as Front Office Assistant in M.P. Tourism Cooperation - He was send on deputation to Vidhan Sabha Secretariat - Petitioner thereafter absorbed on the post of Assistant Protocal Officer which was five grade above his substantive post of Front Office Assistant - Respondents cancelled the order of absorption and repatriated petitioner to his parent department - Held - No scheme for absorption was made in accordance with Rule Vinirdishta Bhrashta Acharan Nivaran Adhiniyam, M.P. 1982 773
18(2) and thus Speaker could not have absorbed the services of petitioner without deliberation, upon the recommendation of Special Committee of the Legislative Assembly - Petition dismissed : M.P. Dwivedi Vs. M.P. Vidhan Sabha Secretariate, Bhopal, I.L.R. (2008) M.P. 1622 Vidyut Sudhar Adhiniyam, M.P., 2000 (4 of 2001)
- Section 9 - Electric connection - Tariff in commercial category is more than the industrial category - Without notice and giving an opportunity of hearing - Respondent, having an electric connection in industrial category cannot be asked to pay hire tariff for last two years treating the connection in commercial category : Executive Engineer (Vigilance), M.P. State Electricity Board, Khargone Vs. Jaswant Singh, I.L.R. (2008) M.P. 1187
- Section 12 (3) - See - Upkar Adhiniyam, M.P., 1981, [as amended in 2001], Section 3 (1) : M.P. Cement Manufacturers Association Vs. State of M.P., I.L.R. (2008) M.P. 1665 (DB) Vinirdishta Bhrashta Acharan Nivaran Adhiniyam, M.P. 1982
- [Entire chapter VIII from Sections 24 to 32 omitted w.e.f. 31.08.1998], Sections 24 to 32 - Effect of omission on pending proceedings - Events and changes in the law occurring during the pendency of an appeal are required to be taken into consideration in order to do complete justice between parties - So that a futile decree may not be passed - It should be so moulded as to accord with the changed statutory situation : Rameshwarlal Vs. Dattatraya, I.L.R. (2010) M.P. 970
- [Entire chapter VIII from Sections 24 to 32 omitted w.e.f. 31.08.1998], Sections 24 to 32 - W.e.f. 31.08.98, the entire chapter VIII, containing Sections 24 to 32 has become redundant - Judgment & decree was passed on 25.02.99, therefore, these provisions of Adhiniyam were not required to be complied with : Rameshwarlal Vs. Dattatraya, I.L.R. (2010) M.P. 970
- [Entire chapter VIII from Sections 24 to 32 omitted w.e.f. 31.08.1998], Section 31, Specific Relief Act, 1963, Section 9, Contract Act, 1872, Section 23 - Defendant entered into an agreement for sale of plots and received earnest money - A suit for specific performance of contract - Defence plea that agreement is void, therefore, cannot be enforced - Held - 'No decree can be granted for enforcement of a void agreement' cannot be accepted as a universal principle - A decree for specific performance can be granted, when illegality or breach of law can be made good or cured by certain subsequent action, like obtaining permission or sanction or approval from the competent authority as envisaged under the statutory provision : Rameshwarlal Vs. Dattatraya, I.L.R. (2010) M.P. 970 Vishwavidyalaya Adhiniyam, M.P. (XXII of 1973) 774
Vishwavidyalaya Adhiniyam, M.P. (XXII of 1973)
- Section 7(1), National Commission for Minority Educational Institution Act, 2004, Section 10-A, National Council for Teacher Education Act, 1993 Section 14 - Territorial Jurisdiction of University - Society situated in Indore recognized as Minority Institution applied for affiliation of its Institution of Barkatullah University, Bhopal - Application rejected by University for want of territorial jurisdiction - Appeal filed by Society under Section 12-A of National Commission for Minority Educational Institution Act, allowed by NCMEI and directed University to grant recognition - Held - Section 10-A of NCMEI Act 2004 provides that educational institution may seek affiliation to any University - Choice is subject to permissibility under the Act - Section 7(1) of M.P. Vishwavidyalaya Adhiniyam provides that powers conferred on University shall not extend beyond limits of territorial jurisdiction mentioned in Second Schedule - Indore beyond territorial jurisdiction of Barkatullah University - Not permissible for University to grant affiliation to Minority Educational Institution situated beyond its jurisdiction : Barkatullah University Through Its Registrar, Hoshangabad Road, Bhopal Vs. Victoria College of Education, Moradh, Indore, I.L.R. (2007) M.P. 769
- Section 10 A - Enquiry against Kulpati - Section 10 is enabling provision under which a reference could have been made - Kuladhipati may take action in accordance with other relevant provisions in addition to power of reference - Powers under Section 10A and 14 work in different spheres - Section 10A does not divest Kuladhipati of his powers under other relevant provisions of Act, Rules or Statutes made thereunder : Prof. A.D.N. Bajpai Vs. State of M.P., I.L.R. (2007) M.P. 1599
- Sections 10, 14(3) - Conditions of Services of Kulpati - Petitioner was appointed as Kulpati of Awadhesh Pratap Singh University - Enquiry was conducted against the petitioner - Certain allegations were found proved - Show cause notice was issued as to why an order for relinquishment from the post of Vice Chancellor may not be passed against Petitioner - Petitioner was ordered to relinquish the post of Vice-Chancellor - Held - Section 10 of Act prescribes a procedure for action against University, College or Institution - Executive Council has no power to take action against Kulpati - Communication under Section 10(3) or (4) is required through Kulpati, who cannot be permitted to be a judge or participant in mater of any complaint against himself - Section 14 is not dependent of Section 10 - Absence of enquiry under Section 10 would not vitiate the impugned order : Prof. A.D.N. Bajpai Vs. State of M.P., I.L.R. (2007) M.P. 1599
- Sections 14(3) & (4) - Non-supply of documents - Show cause notice issued to appellant u/s 14(3) of the Act - Documents forming part of show cause notice not supplied - Appellant demanded the documents but were not supplied - Observation of High Court that appellant never asked for inspection nor applied for copies of documents Waiver 775 amounts to begging the question - Liberty given to appellant that he can seek inspection or obtain copies of the record of University has nothing to do with appellant's grievance that he had not been supplied copies of documents forming part of show cause notice - S. 14(4) casts duty upon Chancellor to give reasonable opportunity - Omission on the part of appellant to seek inspection or apply for copies of documents was inconsequential - Principles of Natural Justice violated - Order removing appellant from the post of Vice-Chancellor bad in law - Order quashed - Appeal allowed : A.D.N. Bajpai (Prof.) Vs. State of M.P., I.L.R. (2010) M.P. 1235 (SC)
- Sections 14(3) & (4) - Reasonable opportunity of hearing - Rules of Natural Justice in context of Ss. 14(3) & (4) mean that Vice-Chancellor is made aware of specific allegations on which inquiry is proposed - He is also informed about material/ evidence sought to be used against him - Vice-Chancellor can also ask for an opportunity to lead evidence - Chancellor is required to evolve an appropriate mechanism by which Vice-Chancellor gets an effective opportunity to challenge the grounds enumerated in show cause notice : A.D.N. Bajpai (Prof.) Vs. State of M.P., I.L.R. (2010) M.P. 1235 (SC)
- Statute 28(1)(d), College Code (Statute 28) - See - Service Law : Kirti Saxena (Dr.)(Smt.) Vs. State of M.P., I.L.R. (2010) M.P. 368
- Section 37, Ordinance 6(26) - Revaluation in two subjects - Constitutional validity of Ordinance 6(26) challenged which prohibits revaluation in two subjects only - Held - Courts cannot examine wisdom, merits or efficacy of policy - Any drawback in the policy incorporated in rule or regulation will not render it ultra-vires unless it can be said to suffer from any legal infirmity - Clause 26 of Ordinance 6 does not suffer from any illegality or arbitrariness - Not violative of Article 14 of Constitution - Petition dismissed : Abhineeta Elizabeth Lall (Ku.) Vs. Barkatullah University, Bhopal, I.L.R. (2008) M.P. 1966 (DB)
- Section 52 - See - Service Law : Y.L. Chopra Vs. Rani Durgawati Vishwavidyalaya, I.L.R. (2010) M.P. 1280 Waiver
- Fundamental right of appellant Sto equality of opportunity in matter relating to public employment has been violated - There could be no waiver of any fundamental right guaranteed by part III of Constitution - Relief cannot be denied to appellant only on the ground that pursuant to advertisement which contains a condition that requisite educational qualification should have been obtained from school situated in M.P., the appellant participated in recruitment process : Saurabh Singh Vs. State of M.P., I.L.R. (2009) M.P. 1893 (DB) Warehousing Corporation Act (58 of 1962) 776
Wakf Act (43 of 1995)
- Sections 6-A (As amended by M.P. Amendment) & 54, Wakf Rules, M.P. 2000, Rule 15, Civil Procedure Code, 1908, Order 14 Rule 1 - Manner of Inquiry to be held by Chief Executive Officer - Non-framing of issues - Summary procedure has been provided before C.E.O. whereas full-fledged enquiry has been provided before Tribunal - Scope of enquiry before C.E.O. is limited one and has to determine only encroachment on Wakf property - No fault can be found if C.E.O. has not framed issues - Petition dismissed : Asif Ansari Vs. Waqf Mahal Umrao Jehan, I.L.R. (2009) M.P. 1319 (DB)
- Section 54(4) - Removal of encroachment from Wakf property - Application u/ s 54 filed before CEO for removal of encroachment raised by resp. No.2 - CEO has given a finding that resp. No.2 had not encroached upon the land belonging to Wakf and resp. No.2 is a tenant - Order challenged in W.P. - Held - Wakf has the remedy of filing the suit u/s 54(4), but in the instant case as the basic procedure for deciding such dispute has not been followed and finding has been recorded by the CEO contrary to the case set up by the resp. No.2 - Order set-aside with direction to decide the case afresh after recording the evidence of the parties - Petition allowed : Wakf Masjid Dhuman Khan, Jabalpur Vs. Chief Executive Officer, I.L.R. (2009) M.P. 3273 (DB)
- Sections 54 & 55 - See - Constitution, Article 226 : Maszid Chandal Bhata Prabandh Committee Vs. Secretary, Local Self Department, I.L.R. (2010) M.P. 1952 (DB)
- Section 85 - Bar of jurisdiction of Civil Courts - Whether the suit filed by Wakf for ejectment of tenant is maintainable before Civil Court - Held - Sec. 85 ousts the jurisdiction of Civil Court to try such cases of ejectment of tenant - Such dispute is to be adjudicated upon by Wakf Tribunal : Wakf Imambara Imlipur, Khandwa Vs. Smt. Khursheeda Bi, I.L.R. (2009) M.P. 2182 (DB) Wakf Rules, M.P. 2000
- Rule 15 - See - Wakf Act, 1995, Sections 6-A (As amended by M.P. Amendment) & 54 : Asif Ansari Vs. Waqf Mahal Umrao Jehan, I.L.R. (2009) M.P. 1319 (DB) Warehousing Corporation Act (58 of 1962)
- Section 42 - See - Service Law : R.S. Shastri Vs. M.P. State Ware House Corporation, I.L.R. (2010) M.P. 1386 Wild Life (Protection) Act (53 of 1972) 777
Water (Prevention and Control of Pollution) Act (6 of 1974)
- Sections 25 & 47, Criminal Procedure Code, 1973, Section 48 - Prosecution of Director - Complaint filed by Pollution Control Board against the Director of a Company that construction is being raised without obtaining permission from Board - Held - Offence was committed by Company - Company not impleaded as accused in complaint - Complaint cannot be filed only against Director - Complaint quashed - However, Board is at liberty to file fresh complaint : Sudhir Garg Vs. M.P. Pollution Control Board, I.L.R. (2009) M.P. Note *37
- Sections 25 & 47 - Prosecution of Director - Necessary allegations in the complaint - In the complaint, it should be stated that at the time of commitment of the alleged offence Director was In-charge and was responsible to the Company for the conduct of the business of the Company - It is the essential ingredient for constituting the offence u/s 25 of the Act - In absence of such allegation, Director cannot be prosecuted : Sudhir Garg Vs. M.P. Pollution Control Board, I.L.R. (2009) M.P. Note *37 Wild Life (Protection) Act (53 of 1972)
- Sections 9 & 49-A - Prohibition of hunting - To prove that accused hunted any wild animal - Merely a person is found in possession of leather of wild animal - It cannot be presumed that he hunted or killed animal especially in absence of evidence that leather was of a recently killed animal : Rekhchand Vs. State of M.P., I.L.R. (2009) M.P. 891
- Section 39 - Possession of any animal article, without licence or making declaration to Chief Wild Life Warden, is punishable u/s 39 of the Act - No charge for that offence was framed by the trial court - It would not be just & proper to remand the case for fresh trial after about 12-13 years of the commission of the offence : Rekhchand Vs. State of M.P., I.L.R. (2009) M.P. 891
- Sections 39, 51 (Proviso) - Sentence - Trophy of leopard which is included in Schedule I seized from possession of applicant - Minimum sentence is provided therefore, applicant cannot be released on the period already undergone - Sentence of 4 years and fine of Rs. 20,000 reduced to 3 years and fine of Rs. 10,000 : Bhimraj Mahar Vs. State of M.P., I.L.R. (2010) M.P. 1677
- (as amended by Act 44 of 1991 w.e.f. Oct. 2, 1991), Sections 50(1)(c) & 39 (1)(d), Criminal Procedure Code, 1973, Section 451 - Provisions of Section 50 of Act and amendments made there under do not in any way affect the Magistrate's power to make an order of interim release of the vehicle U/s 451 of Code - Provision of Section WORDS & PHRASES 778
39(1)(d) would come into play after a court found the accusation and allegations true and recorded the finding that seized article was used in commission of offence - Madhukar Rao's F.B. decision of High Court approved : State of M.P. Vs. Madhukar Rao, I.L.R. (2008) M.P. 640 (SC)
- (as amended by Act 44 of 1991 w.e.f. Oct. 2, 1991), Section 50 (4) - Expression used in sub-section is "according to law" and not "according to provisions of the Act" - According to law undoubtedly widens the scope and plainly indicates the application of the provisions of the Cr.P.C. : State of M.P. Vs. Madhukar Rao, I.L.R. (2008) M.P. 640 (SC) WORDS & PHRASES
- Aadhat - Meaning - A commission received by a dealer or a commission agent in the business of grains - The word 'Aadhat' does not mean anything less than or more than a commission : Sales Tax Commissioner Vs. M/s. Pannalal Narendar Kumar, Jabalpur, I.L.R. (2010) M.P. 725 (DB)
- Aadhatiya - Meaning - A person, who receives goods either on his own behalf or on behalf of the principal, sells the same in the market on basis of certain commission - An Aadhatiya may sell or even purchase the goods under the instructions of the principal : Sales Tax Commissioner Vs. M/s. Pannalal Narendar Kumar, Jabalpur, I.L.R. (2010) M.P. 725 (DB)
- Academic issue - Court should refrain and restrain itself from answering academic issues : State of M.P. Vs. M/s Shekhar Constructions, I.L.R. (2007) M.P. 1495 (FB)
- All consequential benefits - Learned Single Judge has directed to settle all consequential benefits - The term used in this direction are quite different than issuing a mandamus or a command to pay arrears - Order is not curtailment of power of employer : M.P. State Civil Supplies Corporation Ltd. Vs. Vinod Kumar Save, I.L.R. (2008) M.P. 2213 (DB)
- "Any consumer dispute" - Meaning - Looking to the context of S. 21(b) of the Consumer Protection Act, 1986 - The word "any consumer dispute" would mean not only consumer dispute arising out of an original complaint filed before the District Forum, but also a consumer dispute arising out of an appeal from the orders of the District Forum before the State Commission : Rajendra Singh Sisodiya Vs. M.P. Housing Board, Inodre, I.L.R. (2009) M.P. 2552 (DB)
- 'Arbitrator' & 'Conciliator' - Distinguished - The arbitrator acts as an arbitrator and not as a conciliator - Arbitrator cannot ignore the law or misapply it in order to do WORDS & PHRASES 779 what he thinks just and reasonable - The arbitrator acts as a tribunal and decides the matter in accordance with law and according to the 'legal rights' of the parties : Managing Director M.P. State Mining Corporation Ltd. Vs. M/s. Narmada Enterprises, I.L.R. (2008) M.P. 2956 (DB)
- 'Business' - The word 'business' has wide meaning and its perceptions differ from private to public sector - Even non-profitable activities could be included in the word 'business' : Carmel Convent Secondary School, Gwalior Vs. State of M.P., I.L.R. (2010) M.P. 1100
- Commence - Meaning - To begin, institute or start - Word 'commence' harmoniously used in Sections 21 & 43 - Meaning would be "to start" : Prashant Kumar Sahu Vs. M/s. Optel Telecommunications Ltd., I.L.R. (2008) M.P. 1753 (DB)
- Conscious possession - Awareness of particular act - It is a state of mind, which is deliberated or intended : Aasif Malik Vs. State of M.P., I.L.R. (2009) M.P. 3012
- Context - Extension of rule of context permits reference to other statutes in pari material : Devi Prasad Singh Vs. State of M.P., I.L.R. (2008) M.P. 2189 (DB)
- 'Detention' - Means the act of keeping back or withholding either accidentally or by design, a person or thing - Detention is depriving of a person of his personal liberty : Irfan Vs. State of M.P., I.L.R. (2010) M.P. 1170
- Departmental Action - Punishment - Respondent was working Branch Manager of Corporation - Respondent let out some machinery belonging to Corporation to one construction company - Respondent however failed to recover rent/charges under the agreement - Show Cause Notice was issued to respondent as to why the loss caused to Corporation and interest be not recovered from him and a penalty of stoppage of 3 increments with cumulative effect be not imposed - Explanation given by respondent was found unsatisfactory and recovery of Rs. 16,903.41 and stoppage of three increments with cumulative effect was ordered - High Court set aside the penalty of stoppage of there increments as it was a major penalty which cannot be imposed without holding departmental enquiry - Held - As per Regulations of Appellant stoppage of three increments with cumulative effect was a major penalty - High Court rightly held that imposition of impugned penalty without holding enquiry was illegal and without jurisdiction - Appeal dismissed : M.P. State Agro Industries Development Corproration Ltd. Vs. Jahan Khan, I.L.R. (2007) M.P. 1282 (SC)
- Estoppel - University accepted examination forms of students - No condition was stipulated that results will not be declared until a formal order of recognition is WORDS & PHRASES 780 published in official gazette - University is estopped from taking a stand at later stage that it will not declare results of students unless and until formal order of recognition is published in official gazette - University directed to declare results : Vedica College of Education, Bhopal Vs. Barkatullah University, I.L.R. (2007) M.P. 1757 (DB)
- Executive Instructions - Determination of Seniority - Employees whose services have been taken over by Municipal Corporation - Statutory rules silent - On the basis of executive instructions issued by State Government - As per executive instructions - Seniority shall be determined from initial dates of appointment - If post and pay scale are same in both departments - Seniority of appellants and respondent No.3 has to be determined in accordance with executive instructions : Shiv Raj Singh Vs. State of M.P., I.L.R. (2008) M.P. 669 (DB)
- Forthwith - Means within a reasonable time : Nagar Palika Parishad, Balaghat Vs. Rajesh Bhoj, I.L.R. (2010) M.P. 185 (DB)
- Impound - Meaning - Held - A true understanding of the word 'impound' would only mean to authorize the Court to keep document in the custody because the Court is of the opinion that the document is either suspected or is insufficiently stamped : Umesh Kumar Vs. Rajaram, I.L.R. (2010) M.P. 1290 (DB)
- "Includes" - Use of word includes enlarges meaning of expression defined so as to comprehend not only such things as they signify according to their natural import but also those things which the clause declares that they shall include : Jaypee Rewa Cement Vs. State of M.P., I.L.R. (2008) M.P. 681 (DB)
- Interpretation of Statutes - Harmonious Construction - Court should attempt to interpret the provisions of an Act harmoniously and avoid as far as possible conflict between two provisions of same Act : Municipal Corporation, Bhopal Vs. Arvind Jain, I.L.R. (2007) M.P. 1132 (FB)
- Interpretation of Statutes - Meaning - Meaning assigned to a term unless context otherwise requires should be given the same meaning : Chairman, Indore Vikas Pradhikaran Vs. M/s Pure Industrial Cock & Chem. Ltd., I.L.R. (2007) M.P. 976 (SC)
- Kachha Aadhatiya - Meaning - Kachha Aadhatiya is a person who is to abide by all the instructions issued by the principal and he is not entitled to take any decision on his own behalf : Sales Tax Commissioner Vs. M/s. Pannalal Narendar Kumar, Jabalpur, I.L.R. (2010) M.P. 725 (DB)
- Legitimate Expectation and interest - Interim order was passed that institutions may admit students provisionally at their own risk without accepting fess from them and WORDS & PHRASES 781 if they accept fees from students they would be ready to face consequences if petition is decided against them - Held - Grant of recognition is condition precedent before any institution proceeds in any other matter like affiliation etc. - It is inconceivable how an institution without recognition can nurture idea to admit students - Educational institution has to maintain the sacredness of concept behind imparting education - Commercialization of course under 1993 Act is impermissible - Benefit of Legitimate Expectation and their interest cannot be given - Petition dismissed : Amrit Vidya Peeth B.Ed., College Vs. State of M.P., I.L.R. (2008) M.P. 54 (DB)
- Malafides - Change in Government - Effect - Merely because there has been changed in the political scenario in the State, the action cannot be said to be bad in law when the absorption itself was contrary to the rules : M.P. Dwivedi Vs. M.P. Vidhan Sabha Secretariate, Bhopal, I.L.R. (2008) M.P. 1622
- Pakka Aadhatiya - Meaning - A 'Pakka Aadhatiya' is person, who receives the goods, keep with him and under the instructions of the principal is to dispose of the same but he could dispose of the goods on his own terms - Pakka Aadhatiya in fact agrees with the principal that he would pay a particular amount for the consignment : Sales Tax Commissioner Vs. M/s. Pannalal Narendar Kumar, Jabalpur, I.L.R. (2010) M.P. 725 (DB)
- Pension - Ex gratia - Employee resigned from service after rendering more than 26 years of service - Employee had opted for pension while she was in service - Voluntarily tendering resignation is an act by which employee voluntarily gives up his job - Such situation would be covered by expression voluntary retirement - Employee entitled for ex gratia pension - Order of CAT upheld - Petition dismissed : Union of India Vs. Smt. Shashi Bai, I.L.R. (2009) M.P. 2813 (DB)
- Precedent - Judgment is a precedent for what it decides : Smt. Manju Vs. Ghanshyam; I.L.R. (2007) M.P. 1793 (DB)
- Premium and Rent - When interest of lessor in immovable property is parted for the price, the price paid is premium - Where periodical payments are made for continous enjoyment of benefits under the lease are in nature of rent : Rakesh Singare Vs. State of M.P., I.L.R. (2009) M.P. 1922
- Prospective Operation - Pending Proceedings - Order passed by Taxing officer imposing penalty was under challenge before different forums - Relevant provisions of imposing penalty declared unconstitutional by Supreme Court - High Court empowered to examine effect of invalidity and also empowered to waive penalty - Effect of declaration of law as unconstitutional can be considered in pending proceedings - Writ Court rightly quashed the orders and directed for refund of amount of penalty : Appellate WORDS & PHRASES 782
Authority/Transport Commissioner, M.P. Vs. The Divisional Manager M.P. Rajya Parivahan Nigam, I.L.R. (2008) M.P. 199 (DB)
- Ransom - An imperative request preferred by one person to another requiring the latter to do or yield something or to abstain from some act : Irfan Vs. State of M.P., I.L.R. (2010) M.P. 1170
- Remedy - When a statute provides for a particular remedy, then appropriate action should be taken there under and as such prosecution of applicants seems to be patently illegal : Ummed Singh Vs. State of M.P., I.L.R. (2010) M.P. 530
- Reside - Includes not only permanent residence but also temporary residence but does not include flying visit : Manu Bhai Tripathi Vs. Union of India, I.L.R. (2009) M.P. 1225 (DB)
- Stale - Meaning - Held - The word 'stale' means not fresh and, therefore, unpalatable, overused and no longer interesting or original, lacking in energy and out of date etc. : Sheeba Malik (Smt.) Vs. Union of India, I.L.R. (2010) M.P. 1410 (DB)
- Statutory Duties - Performance of Statutory duty within stipulated time is directory however when it involves valuable rights of citizens and provides consequences thereof it would be construed as mandatory : Chairman, Indore Vikas Pradhikaran Vs. M/s Pure Industrial Cock & Chem. Ltd., I.L.R. (2007) M.P. 976 (SC)
- Stipend - Scholarship - Stipend is a compensation paid for services rendered for the benefit of other - Scholarship is paid for the maintenance of a scholar or student - Both have different connotations and can not be used as synonyms : Junior Doctors Association Vs. The Chief Commissioner of Income Tax, I.L.R. (2008) M.P. 1992
- Will - Facts required to be taken into consideration by the Court for the purposes of proof of Will - Law reiterated : Vimal Mishra (Smt.) Vs. Krishna Gopal Sharma, I.L.R. (2009) M.P. 1737
- Will - Propounder of will bound to remove all suspicious circumstances and prove will with all probabilities : Goverdhandas Agrawal (Deceased) Vs. Smt. Gopibai Agrawal, I.L.R. (2007) M.P. 1644
- Word 'may' - Interpreted - Rules 8 & 9 of the Security Interest (Enforcement) Rules, 2002 - The word 'may' cannot be construed as mandatory because the Act has been enacted to facilitate recovery of loan by financial institutions : Godawari Shridhar (Smt.) Vs. Union Bank of India, I.L.R. (2008) M.P. 2918 Workmen's Compensation Act (8 of 1923) 783
- Wrong mentioning of provision - Mere wrong mention of provision when power can be exercised under different provision by itself is not sufficient ground to deny justice : Bablu Mandal Vs. Smt. Vandana Bhowmik, I.L.R. (2008) M.P. 180 Workmen's Compensation Act (8 of 1923)
- Death by a dog bite - Could it be termed as during the course and arisen out of employment - Held - Deceased was required to remain present in the office and while performing the work, suddenly a mad dog entered in the office and bit the deceased which means that the incident occurred during the course and arisen out of employment - The employer can be forced to pay compensation : Executive Engineer Vs. Smt. Kalawati, I.L.R. (2010) M.P. 1967
- Sections 2(1)(l), 4 - Total disablement - Mental disablement - Claimant was driving jeep which turned turtle as steering had become free and brakes had failed - Claimant sustained injuries and became permanently mentally disabled - Application for compensation dismissed by Commissioner as not covered u/s 4(1)(c)(ii) r/w Schedule I - Held - Explanation II of Section 4(1)(c) makes it clear that in case of injury which is not specified in Schedule I, still compensation can be claimed in case of permanent total disablement - Claim petition was wrongly dismissed by Commissioner - Appeal allowed : Rajneesh Kumar Dwivedi Vs. M/s. K.P. Enterprises, I.L.R. (2008) M.P. 2061 (DB)
- Section 2(1)(n), Schedule II, Clause (viii) - Workman - Eligibility - Section 2(1)(n)(ii) of Act stipulate that workman would be a person employed in any such capacity as is specified in Schedule II - Sub-clause (a) of Clause (viii) of Schedule II furhter stipulates that building in which a person is employed for the purpose of construction, maintenance, repair or demolition must be designed to be or is or has been more than one story in height above the ground or twelve feet or more from the ground level to the apex of the roof : Rajshree Minerals Vs. Karamvir Singh, I.L.R. (2010) M.P. 1441
- Section 3 - Employer's liability to pay compensation - Deceased working as driver - He had taken the vehicle to Amarkantak and Chitrakoot at the direction of the owner - Dead body of deceased was found near river at Satna and vehicle was seized from Rewa - Held - Owner in written statement and deposition has not denied the fact that deceased was in his employment - Jeep was found at a different place and dead body was found at a different place - Murder of deceased was committed in the course of employment - Order passed by Commissioner for Workmen's Compensation dismissing claim petition set aside : Dulari Singh (Smt.) Vs. Tribhuvan Murari Dubey, I.L.R. (2008) M.P. 1759 (DB) Workmen's Compensation Act (8 of 1923) 784
- Section 3 - Employer's liability for compensation - Deceased working as cleaner/ helper on tractor/trolley of Respondent No.1 - Deceased going to field of employer on tractor/trolley - Unknown miscreants attacked deceased by sticks - Looted money from deceased and put tractor/trolley on fire - Deceased succumbed to injuries later on - Held - Accident which resulted in death of deceased occurred during course of and arising out of his employment with the use of vehicle - Act of felony was robbery by miscreants - Beating was caused in the process of robbery - Cause of death was incidental to act of Robbery - As act of felony was to commit robbery therefore, death of deceased was caused accidentally - Insurer and Insured liable to suffer liability arising out of accident - Appeal dismissed : United India Insurance Co. Ltd. Vs. Umed Kunwarbai, I.L.R. (2008) M.P. 251 (DB)
- Section 4 - Onus - Deceased was employed as driver of tractor owned by father - Commissioner on the basis of positive evidence led on behalf of the claimant regarding the deceased being in the employment of father awarded compensation - Held - The onus was thus on the insurance company to have proved the fact that deceased was not in the employment of father - No evidence brought on record to that effect - A presumption can not be drawn that the son could not have been in the employment of his father - Appeal dismissed : Oriental Insurance Co. Ltd. Vs. Krishna Devi, I.L.R. (2010) M.P. 992
- Section 4 - Amount of Compensation - Claimant suffering 100% disability - Claimant was earning Rs.2,450 per month inclusive of allowance - 60% of monthly wages multiplied by relevant factor i.e., 207.98 - Claimant entitled to get Rs. 3,05,730.60 with interest @ 12% per annum : Rajneesh Kumar Dwivedi Vs. M/s. K.P. Enterprises, I.L.R. (2008) M.P. 2061 (DB)
- Section 4 - Compensation - Monthly income of deceased assessed at Rs.3,000/ - - Relevant factor is 213.57 - Compensation comes to Rs.3,20,355/- - Compensation shall carry interest at the rate of 12% p.a. - Appeal allowed : Dulari Singh (Smt.) Vs. Tribhuvan Murari Dubey, I.L.R. (2008) M.P. 1759 (DB)
- Section 4A - Workman suffered grievous injuries by an accident which arises out of act in the course of employment - Commissioner awarded compensation and directed that in case employer failed to deposit compensation within 30 days, workman shall be entitled for interest @ 12% p.a. - Held - Under the provisions of Act, compensation shall be paid as soon as it falls due - Amount of compensation fell due on the date of accident itself - Employer failed to deposit compensation after the accident - Workman entitled for interest @ 12% p.a. from the date of accident till payment - Appeal allowed : Suraj Prasad Vs. Executive Engineer (Supply/Maintenance) M.P. State Electricity Board, Shajapur, I.L.R. (2009) M.P. 1385 Workmen's Compensation Act (8 of 1923) 785
- Section 4A(3) - Interest - Commissioner allowed the interest @ 6% p.a. - Challenged in appeal and prayer made for enhancement - Held - The penalty which is prescribed by virtue of Sub-clause (a) of Sub-section (3) of Section 4A is 12% - Accordingly, the claimants are entitled to get the rate of interest @ 12% p.a. - Appeal of claimants partly allowed : Baijnath Choudhary Vs. Secretary, M.G.M. Higher Secondary School, I.L.R. (2010) M.P. 2339
- Section 4A(3) - No prayer for penalty made in the claim - In appeal, prayer made for award of penalty - Held - In the absence of any prayer of penalty, there was no reasonable opportunity to the employer to offer any explanation for non-payment of amount of compensation within the stipulated period - Penalty rightly not awarded : Baijnath Choudhary Vs. Secretary, M.G.M. Higher Secondary School, I.L.R. (2010) M.P. 2339
- Section 4A(3) - Penalty - Power of the Commissioner - The manner in which it is to be exercised - Held - The Commissioner of Workmen Compensation Act before imposing the penalty has to record some findings for imposition of either the maximum penalty or some penalty whatever the facts and circumstances permit to impose the percentage of penalty : Executive Engineer Vs. Smt. Kalawati, I.L.R. (2010) M.P. 1967
- Section 4-A(3)(a) - Payment of interest and penalty - It commences from the date of accident : United India Insurance Co. Ltd. Vs. Lavkush Prasad, I.L.R. (2009) M.P. 2607
- Section 4-A(3)(a) - Power of Commissioner to award interest on compensation - Where there is no exclusion clause in policy, Insurance Company is liable to pay interest : United India Insurance Co. Ltd. Vs. Lavkush Prasad, I.L.R. (2009) M.P. 2607
- Section 4-A(3)(b) - Power of Commissioner to impose penalty in default of payment of compensation - Commissioner has no power or jurisdiction to direct payment of penalty in absence of any clause in insurance policy about acceptability of such liability : United India Insurance Co. Ltd. Vs. Lavkush Prasad, I.L.R. (2009) M.P. 2607
- Section 10 (Proviso) - Notice to claim - Proviso provides that Commissioner may entertain and decide any claim to compensation in any case notwithstanding that notice has not been given - If he is satisfied that the failure so to do give the notice or prefer the claim, was due to sufficient cause - Even in absence of an application by claimant for invoking such discretion it is provided under proviso of Section 10 of the Act - Commissioner ought to have entertain claim by invoking such discretion in favour Workmen's Compensation Act (8 of 1923) 786 of claimant to do real justice : S.N. Bihari Vs. Western Coal Field, I.L.R. (2008) M.P. 836
- Section 10 (1) - Limitation - Claimant sustained occupational disease while he was in service of respondents - Claimant in service even on the date of filing of claim - Claimant had recurring and continuous cause of action - Claim cannot be dismissed as barred by time : S.N. Bihari Vs. Western Coal Field, I.L.R. (2008) M.P. 836
- Section 12 - Principal employer denying to pay compensation on the ground that deceased workman was employed by a contractor and not by him - Held - S. 12 of the Act is specific which primarily fix the responsibility of the Principal employer to pay the amount of compensation - The Principal employer cannot be absolved from its liability to pay the amount of compensation : Baijnath Choudhary Vs. Secretary, M.G.M. Higher Secondary School, I.L.R. (2010) M.P. 2339
- Section 12(1) - Principal Employer - Deceased employed by Contractor died while maintaining transformer - Maintenance work was given to contractor by NCL - Commissioner granted compensation but absolved NCL from liability - Held, work of maintenance of transformer is part of the trade or business of NCL - Being Principal employer can not escape the liability to pay compensation - Appeal allowed : Harihar Singh Vs. Mst. Dilau, I.L.R. (2008) M.P. 268
- Sections 19, 30 - Appeal against award - Substantial questions of law - Questions of age, employment, wages, nature of injuries and factum of accident are findings of fact - Not liable to be interfered with in appeal - Question as to liability of any person to pay compensation, question as to whether a person injured is or is not a workman or as to the amount or duration of compensation and question as to nature & extent of disablement are the substantial questions of law : New India Assurance Co. Ltd. Indore Vs. Shanti Bai, I.L.R. (2006) M.P. 1164
- Section 23, Motor Vehicles Act, 1988 - Section 167 - Appellants receiving injuries suffered in accident while they were traveling in truck - Claim petition filed by appellants dismissed by Commissioner holding that they have failed to prove relationship of employer and employee - Dismissal of claim petition under workmen's compensation Act on technical ground would not bar remedy of approaching Tribunal under Motor Vehicles Act - Appellants can approach Tribunal under Motor Vehicles Act : Raja S/o Girdharilal Solanki Vs. Ajay S/o Bharat Rajput, I.L.R. (2007) M.P. 228 (DB)
- Section 30 - Appeal against dismissal of claim - Appellant while working as laborer on Thresher machine sustained grievous injuries - Claim petition - Respondents pleaded that appellant was employed as Chowkidar and was performing the work of others at the time of accident - Respondents further pleaded that laborers were engaged Workmen's Compensation Act (8 of 1923) 787 by his relative - Held - Respondents failed to examine either his relative or any independent witness in support of defense - Version of appellant that he was engaged as laborer and not Chowkidar deserves to be accepted - Injuries sustained by appellant were caused to him by an accident arising out of and in the course of employment - Order of Labour Court set-aside - Appeal allowed : Baje @ Bajesingh Vs. Ayub Karim, I.L.R. (2009) M.P. 1073
- Section 30, Motor Vehicles Act, 1988, Sections 140, 143 & 167 - Question whether the claim petition is maintainable under the Workmen's Compensation Act after the dismissal of claim petition in miscellaneous appeal - Held - Section 143 of the Motor Vehicle Act itself provides that provision of this Act shall also apply in relation to any claim for compensation in respect of death or permanant disablement of any person under Workmen's Compensation Act resulting from an accident of the nature referred to in sub-section (1) of Section 140 - Appeal Allowed : Rajani Agrawal (Smt.) Vs. Ramswaroop, I.L.R. (2008) M.P. 2384 (DB)
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PERSONAL NOTES